The Supreme Court of Canada is set to decide Thursday whether to hear the appeal of Raed Jaser, who was convicted of planning to commit murder for the benefit of a terrorist group.
It’s the latest chapter in a long-running legal saga that began 12 years ago with charges against Jaser and Chiheb Esseghaier for plotting attacks, including the planned sabotage of a Via Rail passenger train.
The Crown alleged that Jaser and Esseghaier had agreed to kill Canadian citizens to force Canada to remove its military troops from Afghanistan.
The Crown’s evidence consisted mainly of intercepted communications and the testimony of an undercover U.S. Federal Bureau of Investigation agent assigned to befriend Esseghaier.
A jury could not reach a verdict for Jaser on the rail plot charge but found him guilty of three other terrorism-related offences: one count of conspiring to commit murder for the benefit of a terrorist group and two counts of participating in the activities of a terrorist group. Esseghaier was found guilty on all counts.
The two men appealed their convictions. Counsel for Jaser and a court-appointed lawyer for Esseghaier argued the jury at the trial was improperly constituted.
In August 2019, the Ontario Court of Appeal ordered a fresh trial for the men on the grounds that the jury was chosen incorrectly.
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The Crown successfully argued in a subsequent Supreme Court hearing that the convictions should not be overturned on the basis of an error in the jury-selection process that did not deny the men fair trial rights.
With the jury issue settled, the top court remitted the case to the Ontario Court of Appeal to deal with the men’s outstanding challenges of their convictions.
While Esseghaier abandoned his appeal, Jaser persisted.
Last year, the Court of Appeal dismissed Jaser’s challenge of his conviction and life sentence, prompting him to seek a fresh hearing at the Supreme Court.
In a written submission to the top court to request a hearing, Jaser’s lawyers say there is disagreement across Canada about how to instruct juries in conspiracy cases — a problem they say the court should address.
“Jury instructions on the law of conspiracy are too complex,” the brief says. “The facts of the proposed appeal present this Court with an ideal opportunity to guide trial judges on simplifying and distilling their instructions.”
Jaser’s lawyers also raise questions about the application of the Canada Evidence Act concerning sensitive information and whether “entrapment-like conduct” should be taken into account upon sentencing.
In a response to the Supreme Court, the Crown says Jaser’s application should be dismissed.
“These issues are not novel and were properly rejected by the Court of Appeal,” the Crown’s submission says. “Although the facts giving rise to them are unique, they are specific to the circumstances of the applicant and do not raise any issue of public importance.”
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