COURT FILE NO.: CR-13-10000655-0000
DATE: 20140411
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RAED JASER and
CHIHEB ESSEGHAIER
Croft Michaelson, Sarah Shaikh and Marcy Henschel, for the Applicant Crown
John Norris, for the Respondent, Raed Jaser
Chiheb Esseghaier, representing himself
HEARD: March 14, 2014
REASONS FOR JUDGMENT
M.A. Code J.
A. OVERVIEW
[1] The accused Raed Jaser and Chiheb Esseghaier [hereinafter, Jaser and Esseghaier] are charged with various terrorism-related offences set out in an Indictment filed with this Court. They were arrested on April 22, 2013. After a number of remand appearances in the Ontario Court of Justice, the Director of Public Prosecutions consented to a direct Indictment, pursuant to s. 577 of the Criminal Code. That direct Indictment was filed in this Court on September 19, 2013.
[2] There have been a number of further remand appearances in this Court, since the Indictment was filed, including an in-court judicial pre-trial. Jaser has retained counsel but Esseghaier has remained self-represented throughout the almost twelve month period that the present charges have been before the courts.
[3] On February 17, 2014, I was appointed the “case management judge” for this matter, pursuant to the relatively new provisions of s. 551.1 of the Criminal Code. The accused and counsel appeared before me on February 21, 2014 and various case management issues were discussed. In particular, a target date for the trial and a schedule for the hearing of pre-trial Motions was set.
[4] The first pre-trial Motion came before me on March 14, 2014. It is a Motion brought by the Crown seeking the appointment of amicus curiae, in light of the anticipated issues in the case and Esseghaier’s self-represented status. At the conclusion of oral argument, I made an order appointing amicus, with reasons to follow. These are my reasons.
B. FACTS
[5] There are five counts in the Indictment and they provide some insight into the kind of issues that are likely to arise in this case. Count One charges both accused jointly with a conspiracy for the benefit of, at the direction of, or in association with a terrorist group, contrary to s. 83.2. The object of the conspiracy alleged in this count is the offence found in s. 248, namely, doing anything (causing damage in this case) to property used in connection with transportation (a train and/or railway bridge in this case) that is likely to cause death or bodily harm to persons, and with intent to endanger the safety of persons. This offence carries a maximum sentence of life imprisonment.
[6] Count Two charges both accused jointly with conspiracy to commit murder for the benefit of, at the direction of, or in association with a terrorist group, contrary to s. 83.2. This offence also carries a maximum sentence of life imprisonment. Given that conspiracy to commit murder simpliciter is a lesser included offence in Count Two, it is the Crown’s position that s. 469(e) and s. 471 require that the trial must be by jury, absent consent pursuant to s. 473.
[7] Counts Three and Four charge Jaser and Esseghaier jointly with knowingly participating in or contributing to the activity of a terrorist group, for the purpose of enhancing the ability of the terrorist group to facilitate or carry out terrorist activity, contrary to s. 83.18(1). Count Five charges Esseghaier alone with this same offence. It carries a maximum sentence of ten years imprisonment. These three counts in the Indictment charge the same substantive offence but they allege that the offences took place on different dates. I will explain the relevance of the dates below.
[8] The factual allegations, in brief summary, are that Jaser and Esseghaier are members of a terrorist group who were planning to de-rail a passenger train in a manner that would cause death to a large number of persons. It is alleged that they reached an agreement to carry out this purpose between August 25 and September 25, 2012, principally in Toronto and Montreal. These are the dates and places particularized in Counts One and Two. The dates and places particularized in Counts Three and Four are similar, although these counts specify somewhat narrower time frames, namely between September 7 and 10, 2012 in Count Three and between September 13 and 24, 2012 in Count Four. It can be seen that September 25, 2012 is the last date on which both accused are charged jointly.
[9] As noted above, Esseghaier is charged alone in Count Five. This count is alleged to have been committed between September 25, 2012 and February 14, 2013. As I understand the factual allegations, the Crown will take the position that Jaser withdrew from the alleged plot on or about September 25, 2012 and that Esseghaier then attempted to recruit a new member during the ongoing time period.
[10] The Crown’s evidence at trial will consist mainly of Criminal Code wiretaps and testimony from a police agent, who interacted directly with both Jaser and Esseghaier during the relevant time periods. In addition, there is surveillance evidence and there is evidence from a civilian witness who Esseghaier allegedly attempted to recruit. It is not alleged that the conspiracy was ever carried out, that is, it is a so-called “dry conspiracy”.
[11] The facts relating to Esseghaier’s present self-represented status are relevant to the Motion seeking the appointment of amicus. At the time of his early remand appearances in the Ontario Court of Justice, and on his remand appearances in this Court, Esseghaier has consistently taken the position that he would agree to be represented by counsel but only on certain terms. He has never been able to find counsel who would agree to his terms and it is highly unlikely that he will find such counsel. As a result, he has remained self-represented throughout and has never retained counsel.
[12] The terms that Esseghaier has set as the basis for retaining counsel were explained by him on a May 23, 2013 remand appearance in the Ontario Court of Justice, as follows:
I am agreeing to have a lawyer. I have no problem, but I wish that this lawyer he collaborate with me regarding religion. Because I need a Holy Book as a reference for my defence.
[13] On the next remand appearance in the Ontario Court of Justice, on June 3, 2013, Esseghaier explained that he had met with a lawyer but that the lawyer would not agree to the proposed terms. Esseghaier stated:
My request regarding the lawyer is, I want that the lawyer, he has mean to change the reference of my judgment, for [from?] all the laws made by humans to the laws of the Holy Book. That’s my needs. So I cannot take a lawyer that he will not [be] able to fulfill my need … I refuse the last lawyer. The last lawyer, he write, he had a piece of paper, he write and he sign that he is not able to convince the Court to change the reference of my case from the Criminal Code to the Holy Qur’an. The lawyer, he said to me, “I am not able to fulfil your needs”. So what I can do? I cannot accept him. [Emphasis added.]
[14] I am advised that the judges of this Court, on subsequent remand appearances, repeatedly urged Esseghaier to retain counsel but he consistently maintained the same position. On the two appearances before me he explained at length that the Criminal Code, and Canadian law generally, are laws “made by man” and that “man is imperfect”. On the other hand, the Holy Qur’an is “the law of God” and “God is perfect”. He illustrated the imperfection of Canadian law by pointing to the fact that it permits adultery and the charging of interest whereas God made adultery and the charging of interest unlawful. Given the above premises, Esseghaier insists on being tried pursuant to God’s law and not pursuant to Canadian law. He has advised me that he will bring a Motion, seeking to achieve this “change in reference” for his trial, from the Criminal Code to the Holy Qur’an. He has further advised me that he “refuses counsel” who follow the Criminal Code instead of following the Holy Qur’an.
[15] I should add that Esseghaier is an educated, intelligent, articulate man. He has a number of university degrees and speaks a number of languages. He has used his court appearances before me as an opportunity to make impassioned speeches about religion and foreign affairs.
[16] One final factual matter that should be mentioned is that Mr. Michaelson and Mr. Norris drew up a list of anticipated pre-trial Motions. I have reviewed the list with them in open court. The Crown anticipates bringing Motions related to: the admissibility of statements made by the two accused to the police; the admissibility of the wiretaps, including any editing of the wiretaps to remove utterances that are more prejudicial than probative; and measures to protect the identity of the police agent. Mr. Norris anticipates bringing Motions related to: production and/or disclosure of CSIS records, including Federal Court wiretap affidavits, that helped form the basis for the RCMP investigation in this case; a s. 8 Charter Motion relating to the admissibility of the Criminal Code wiretaps; particulars; severance of accused; a Corbett Motion; and a Motion to sit at counsel table.
[17] As noted above, Esseghaier wishes to bring a Motion related to the applicable law governing the case. He has also made it clear that he does not wish the benefit of any success that Mr. Norris might achieve, on behalf of Jaser, on any of the pre-trial Motions. Esseghaier submits that Mr. Norris is working under the Criminal Code, and not under the Holy Qur’an, and so Esseghaier does not want this work to have any impact on his own case. Given that all the pre-trial Motions and trial issues in this case will be determined under governing Canadian law, it can be anticipated that Esseghaier will either not participate or will not have any useful submissions.
B. ANALYSIS
(i) Introduction
[18] The Crown submits that there are exceptional circumstances in this case, justifying the appointment of amicus, but that amicus should have a narrowly circumscribed role that is consistent with the Supreme Court of Canada’s recent decision in Ontario v. C.L.A. of Ontario et al (2013), 2013 SCC 43, 300 C.C.C. (3d) 137 (S.C.C.).
[19] Mr. Norris, on behalf of Jaser, takes no position on the Motion to appoint amicus. Esseghaier takes the position that appointing amicus is “part of Canada’s law” and that he is opposed to appointing amicus if this lawyer “follows the law of Canada and not the law of God”. He will agree to the appointment of amicus but only if this lawyer takes his/her reference from the Holy Qu’ran as the governing law for the trial.
[20] As a starting point, the Crown’s Motion requires an assessment of the impact of the Supreme Court of Canada’s decision in Ontario v. C.L.A., supra. In my view, that judgment has effected a significant change or evolution in the law relating to the appointment of amicus.
... (continues exactly as in the source)
M.A. Code J.
Released: April 11, 2014
COURT FILE NO.: CR-13-10000655-0000
DATE: 20140411
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RAED JASER and
CHIHEB ESSEGHAIER
REASONS FOR JUDGMENT
M.A. Code J.
Released: April 11, 2014