Jaser and Esseghaier were found guilty in 2015 on a total of eight terror-related charges between them

Chiheb Esseghaier is led off a plane by an RCMP officer at Buttonville Airport just north of Toronto on April 23, 2013. A man found guilty of plotting to derail a passenger train between Canada and the U.S. plans to appeal his conviction at Ontario’s highest court. Esseghaier, a deeply religious Muslim, argues he ought to have been judged by the rules of the Qur’an.THE CANADIAN PRESS/Chris Young

Ontario’s highest court has ordered a new trial for two men found guilty of terrorism charges in connection with a plot to derail a passenger train.

The Court of Appeal for Ontario says the jury that convicted Raed Jaser and Chiheb Esseghaier was improperly selected, which means its verdict cannot stand.

Jaser and Esseghaier were found guilty in 2015 on a total of eight terror-related charges between them. They were sentenced to life in prison with no chance of parole until 2023.

Lawyers for Jaser argued the trial judge mistakenly rejected their client’s request regarding the method of jury selection.

The lawyer appointed to assist Esseghaier — who continues to be self-represented — agreed in written arguments that a new trial must be ordered on that ground.

The law regarding jury selection was in flux during the trial but the appeal court says the approach used by the judge has since been deemed wrong. Several other cases have been overturned due to similar errors in recent years.

Jaser had also raised other grounds for appeal but the jury issue was heard first.

Both men also previously indicated they wished to challenge their sentences, but the call for a new trial makes that unnecessary.

Like us on Facebook and follow us on Twitter. </s> TORONTO — Ontario’s highest court has ordered a new trial for two men found guilty of terrorism charges in connection with a plot to derail a passenger train.

The Court of Appeal for Ontario says the jury that convicted Raed Jaser and Chiheb Esseghaier was improperly selected, which means its verdict cannot stand.

Jaser and Esseghaier were found guilty in 2015 on a total of eight terror-related charges between them. They were sentenced to life in prison with no chance of parole until 2023.

Lawyers for Jaser argued the trial judge mistakenly rejected their client’s request regarding the method of jury selection.

The lawyer appointed to assist Esseghaier — who continues to be self-represented — agreed in written arguments that a new trial must be ordered on that ground.

The law regarding jury selection was in flux during the trial but the appeal court says the approach used by the judge has since been deemed wrong.

Several other cases have been overturned due to similar errors in recent years.

Jaser had also raised other grounds for appeal but the jury issue was heard first.

Both men also previously indicated they wished to challenge their sentences, but the call for a new trial makes that unnecessary.
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• ‘Delusional’ Via Rail plotter now on anti-psychotics, plans appeal </s> A Canadian appeals court on Tuesday ordered a new trial for two men accused of plotting to derail a passenger train travelling between Toronto and New York, citing errors in the jury selection.

Tunisian national Chiheb Esseghaier and Raed Jaser, a Canadian resident of Palestinian descent, were convicted in 2015 of an Al-Qaeda-backed conspiracy to commit murders and sentenced to life in prison.

But the Ontario Court of Appeal ruled that the trial judge mishandled the jury selection process, resulting in an "improperly constituted jury," which means their verdict cannot stand.

The trial heard that the pair were "motivated by Islamic extremism and had planned terrorist attacks on non-Muslim targets or victims."

The attack allegedly would have marked the start of a campaign of terror to try to convince Canada and its allies to leave Muslim lands.

Prosecutors said the pair had planned to cut a large hole in a railway bridge to derail a Via Rail train, with the aim of killing and injuring passengers and crew.

Esseghaier, who was doing doctoral research in Canada, acted on instructions from overseas extremists, they alleged.

Key evidence came in the form of recordings by an undercover FBI agent who befriended the pair. </s> TORONTO -- Two men found guilty of terrorism charges in connection with a plot to derail a passenger train between Canada and the U.S. were granted a new trial Tuesday after Ontario's highest court found the jury that convicted them was improperly selected.

Raed Jaser and Chiheb Esseghaier were found guilty in 2015 on a total of eight terror-related charges between them. They were sentenced to life in prison with no chance of parole until 2023.

The two challenged their convictions, and lawyers for Jaser argued the trial judge mistakenly rejected their client's request regarding the method of jury selection.

The lawyer appointed to assist Esseghaier -- who continues to be self-represented -- agreed in written arguments that a new trial had to be ordered on that ground.

The law regarding jury selection was in flux during the trial but the appeal court said in its ruling that the approach used by the judge has since been deemed wrong. Several other cases have been overturned due to similar errors in recent years.

Though Esseghaier, who largely chose not to participate in the trial proceedings, had not expressed a preference as to jury selection, he should receive a new trial, the appeal court said Tuesday.

"Here, one jury was selected for both appellants. In the circumstances of this case, as the jury was not properly constituted for Jaser, it cannot be considered to have been properly constituted for Esseghaier," the court said in a unanimous decision.

Jaser had also raised other grounds for appeal but the jury issue was heard first. Both men also previously indicated they wished to challenge their sentences, but the call for a new trial makes that unnecessary.

The pair was arrested in April 2013 after a months-long investigation that involved an undercover FBI agent who gained their trust and secretly recorded hours of their conversations.

The two were recorded speaking about terror plots they would conduct in retaliation for Canada's military actions in Muslim countries, including the derailment of a Via Rail train travelling between New York and Toronto.

Those recordings made up the bulk of the evidence in the case. </s> New trial ordered in alleged plot to derail Canada-US train

A Canadian appeals court on Tuesday ordered a new trial for two men accused of plotting to derail a passenger train travelling between Toronto and New York, citing errors in the jury selection.



Tunisian national Chiheb Esseghaier and Raed Jaser, a Canadian resident of Palestinian descent, were convicted in 2015 of a conspiracy to commit murders and sentenced to life in prison.

But the Ontario Court of Appeal ruled that the trial judge mishandled the jury selection process, resulting in an "improperly constituted jury," which means their verdict cannot stand.

Prosecutors said the pair had planned to cut a large hole in a railway bridge to derail a Via Rail train, with the aim of killing and injuring passengers and crew.

Esseghaier, who was doing doctoral research in Canada, acted on instructions from extremists, they alleged.

Key evidence came in the form of recordings by an undercover FBI agent who befriended the pair. </s> The Ontario appeals court has thrown out the convictions of two men sentenced to life over an alleged al-Qaida-linked plot to attack a Toronto-bound passenger train.

In a decision released Tuesday, the court ordered a new trial for Raed Jaser and Chiheb Esseghaier, who were arrested by the RCMP in 2013 and found guilty of terrorism in 2015.

The appeals court set aside their convictions in a unanimous ruling that said “a legal error by the trial judge” had deprived Jaser of his preferred method for selecting jurors.

WATCH: Via Rail terror plotter to appeal life sentence after undergoing mental health treatment

The pair were arrested following Project Smooth, an RCMP national security investigation that began in 2012 and involved an undercover FBI informant who infiltrated the alleged plot.

Esseghaier is a Tunisian who came to Canada in 2008 and was a doctoral student in Quebec. He had allegedly travelled to Iran and received “direction and guidance” from al-Qaida “elements,” police alleged.

Jaser is a former Markham, Ont., school van driver and mover from Abu Dhabi. A Toronto Muslim leader said Jaser’s father had approached him about his son’s religious views.

The appeal centred on the difference between static and rotating “triers” — those who decide whether to accept a challenge by either the Crown or defence to a potential juror.

Rotating triers are two people who will serve on the jury, and they change (rotate) as each additional jury member is sworn in, according to Canada’s Criminal Code.

Meanwhile, static triers are two people, usually appointed by a judge, who hear and determine all challenges until the entire jury has been selected, but who do not themselves become members of the jury.

READ MORE: 2 men found guilty in Via Rail terror plot asking for new trial, argue jury improperly selected

Leah West, a national security law expert at the Norman Paterson School of International Affairs, said rotating triers are now the standard because there is a greater risk of bias with static triers.

“Two people have a huge impact on how the jury gets made up,” she said.

Following the appeal decision in their favor, Jaser and Esseghaier can apply to be released on bail, she said.

As recently as December, the case was cited by the government as a successful disruption of a terrorist attack, as well as an example of the ongoing interest in targeting trains and rail infrastructure.

“The trial judge’s error here took one of the three options, the exclusion of unsworn jurors while using rotating triers, away from Jaser,” the three justices wrote in their decision.

Other high-profile cases have been overturned due to similar errors, including that of a man convicted of 2nd-degree murder in a 2012 shooting at Toronto’s Eaton Centre.

READ MORE: Jihadi Jack hopes Canada will take him as Trudeau says laws will be enforced

“Fair jury selection is especially important in cases like this with saturation level publicity,” said Megan Savard, an appeal lawyer for Jaser.

Savard said the fundamental difference between rotating triers and static triers was that a jury selected by rotating triers is chosen by a larger group of people, resulting in a more impartial jury.

Jaser had wanted rotating triers during jury selection but did not get them, she said. “Mr. Jaser has been in jail since his arrest in 2013 waiting for a fair trial in front of jury chosen legally.” </s> TORONTO — Two men found guilty of terrorism charges in connection with a plot to derail a passenger train between Canada and the U.S. were granted a new trial Tuesday after Ontario’s highest court found the jury that convicted them was improperly selected.

Raed Jaser and Chiheb Esseghaier were found guilty in 2015 on a total of eight terror-related charges between them. They were sentenced to life in prison with no chance of parole until 2023.

The two challenged their convictions, and lawyers for Jaser argued the trial judge mistakenly rejected their client’s request regarding the method of jury selection. The lawyer appointed to assist Esseghaier — who continues to be self-represented — agreed in written arguments that a new trial had to be ordered on that ground.

Ontario’s Court of Appeal said the trial judge had made an error in denying Jaser his preferred method of jury selection.

“The question here is not actual prejudice, which in these kinds of circumstances is impossible to gauge, but prejudice to the due administration of justice flowing from the denial of a jury selection method which was in law properly invoked,” it wrote.

As part of the jury selection process, prospective jurors may face questions regarding their ability to remain impartial.

Given the nature of the accusations against Jaser and Esseghaier, and the significant media attention leading up to the trial, this questioning was deemed necessary in this case, the appeal court said.

Prospective jurors were to be asked whether their ability to weigh the case based on the evidence would be affected by the fact that both accused are members of a visible minority and Muslim.

During this questioning, two people from the jury pool are given the role of “triers,” which means they consider the answer and determine whether there is sign of bias. Lawyers for both the Crown and the defence then decide whether to allow the person on the jury.

In a process called “rotating triers” — which is the default method — each newly appointed juror replaces one of the two triers so that the responsibility is shared.

While not laid out in the Criminal Code, common law granted the court the discretion to exclude from the room all other prospective jurors during this process or both prospective jurors and those already selected who were not currently acting as triers.

An alternative process known as “static triers” was created in the Criminal Code in 2008, allowing the accused to ask the court to exclude prospective and selected jurors during the questioning, as long as they could show it was necessary to ensure the jury remained impartial. If the court agreed, it would then choose two people — the static triers — to assess all the prospective jurors. Static triers do not get to serve on the jury.

Jaser had requested to have the jury chosen by rotating triers with any prospective jurors excluded from the room, but the trial judge said he no longer had the discretion to make that order, according to court documents.

What’s more, the judge said he would not have granted Jaser’s request even if he could, since the issue could be remedied by using static triers, which he then imposed even though Jaser had not formally applied to use them, the documents said.

There was debate at the time of the trial over whether judges retained the discretion to exclude prospective and some selected jurors when using rotating triers, but it has since been determined that they do, the appeal court said.

“It was an error of law for the trial judge to refuse to exercise a discretion based on a view that a remedy not sought by Jaser would have better achieved his ends,” the appeal court said.

Though Esseghaier, who largely chose not to participate in the trial proceedings, did not weigh in on the issue of jury selection at the time, he should also receive a new trial, the appeal court said Tuesday.

“Here, one jury was selected for both appellants. In the circumstances of this case, as the jury was not properly constituted for Jaser, it cannot be considered to have been properly constituted for Esseghaier,” the court said in a unanimous decision.

Several other verdicts have been overturned due to similar errors in recent years, including a conviction on two counts of second-degree murder for Christopher Husbands, the man who opened fire at Toronto’s Eaton Centre in 2012. Husbands also underwent a new trial and was found guilty of manslaughter earlier this year.

Jaser had also raised other grounds for appeal but the jury issue was heard first. Both men also previously indicated they wished to challenge their sentences, but the call for a new trial makes that unnecessary.

The Public Prosecution Service of Canada said in a statement it will proceed with a new trial, and noted it has 60 days to decide whether to seek leave to appeal the ruling to the Supreme Court of Canada.

Jaser and Esseghaier were arrested in April 2013 after a months-long investigation that involved an undercover FBI agent who gained their trust and secretly recorded hours of their conversations.

The two were recorded speaking about terror plots they would carry out in retaliation for Canada’s military actions in Muslim countries, including the planned derailment of a Via Rail train travelling between New York and Toronto. </s> Image copyright Getty Images Image caption A VIA Rail passenger train leaves Toronto's Union Station.

A Canadian court has ordered a new trial for two men convicted of terror charges over a plot to attack a train from New York to Toronto.

Raed Jaser and Chiheb Esseghaier were arrested by Canadian authorities in April 2013.

They were found guilty in 2015 on charges including conspiracy to commit murder for the benefit of a terrorist group.

Those convictions have now been aside due to an "error" by the trial judge.

On Tuesday, an Ontario appellate court judge issued a ruling directing a fresh trial for the pair, arguing that the jury in the trial had been improperly selected.

Jaser, 41, a Palestinian from Toronto, and Esseghaier, 36, a Tunisian from Montreal, appealed against their conviction and sentencing in February.

They cited a number of errors including the rejection of a request they had made regarding jury selection.

The two were arrested following a joint surveillance operation by the Royal Canadian Mounted Police and FBI agents from the US.

They were alleged to have spent months plotting to kill as many people as possible on the VIA rail passenger train route.

US officials said at the time that the attack would have targeted a rail line between New York and Toronto, a route that travels along the Hudson Valley and enters Canada near Niagara Falls.

VIA Rail operates passenger rail services across Canada and carries nearly four million passengers annually.

During the original trial the prosecution alleged that Jaser and Esseghaier had been motivated by Islamist extremism and they were both sentenced to life in prison without chance of parole until 2023. </s> The province’s top court has ordered a new trial for two men sentenced to life in prison for plotting terrorist acts including, for one, planning to derail a Via Rail train, because of the way the jury that heard their trial was picked.

The case is one of several, including that of Eaton Centre shooter Christopher Husbands, that have been appealed due to a judge’s decision to order a specific method of jury selection against the explicit wishes of the defendant.

After a six-week jury trial in 2015, and ten days of deliberations by the jury, both Raed Jaser and Chiheb Esseghaier were convicted of conspiracy to commit murder for the benefit of a terrorist group and of two counts of participating in terrorist activity. Esseghaier was also convicted of conspiracy to derail a Via Rail train, Jaser was not.

Both men appealed on additional grounds beyond jury selection, including whether Esseghaier’s deteriorating mental health impacted the trial. Esseghaier refused to participate in the trial and did not have his own lawyer.

Having now been treated for schizophrenia, Esseghaier argues he was unfit during the trial and sentencing.

Those arguments will no longer be heard as a result of the Ontario Court of Appeal’s decision to order a new trial.

On Tuesday afternoon the Public Prosecution Service of Canada said in a statement it would be proceeding with the prosecution, noting it has 60 days to decide whether to seek leave to appeal the decision to the Supreme Court of Canada.

The problem with the way the jury was selected stems from a part of the process known as the “challenge for cause” where lawyers are permitted to ask potential jurors about whether their decisions might be biased by pre-trial publicity or by the defendants being visible minorities and Muslim.

The potential juror’s answers are assessed by two people from the jury pool known as “triers.” They decide if the potential juror should be on the jury or not. The triers can either be “static” —the same two people assess each potential juror and don’t sit on the final jury — or “rotating” where the triers are two people on the jury and they rotate as triers each time a new jury member is selected.

Jaser requested rotating triers be used and that the jury pool be excluded from the courtroom while each potential juror was questioned to “protect jury impartiality by avoiding exposing unsworn jurors to other jurors’ answers,” according to the Court of Appeal decision.

Superior Court Justice Michael Code ruled that the jury pool could only be excluded if static triers were used. He ordered that static triers be used and that all potential and selected jurors be excluded from the courtroom.

The Court of Appeal has since found this to be incorrect, ordering retrials in some cases and upholding convictions in others. In this case, the Court of Appeal found that Jaser was denied the jury selection option he was entitled to by law. This resulted in “prejudice to the due administration of justice flowing from the denial of a jury selection method which was in law properly invoked,” according to the decision.

The court also found that since the jury was not properly constituted for Jaser, it cannot be considered to have been properly constituted for Esseghaier, and therefore both men are entitled to a new trial.
An appeals court in Ontario, Canada overturns the terror convictions of Raed Jaser and Chiheb Esseghaier, citing an error by the trial judge regarding jury selection. A new trial is expected to take place.