Accused terrorist can use co-defendant's psych reports in fair trial argument after OCA decision

In a retrial of his terrorism convictions, an accused will use his former co-defendant's unfitness to stand trial to argue that his own initial trial was unfair, after the Ontario Court of Appeal recently ruled his former co-defendant's psychiatric reports should be produced.

Raed Jaser and Chiheb Esseghaier were convicted in 2015 and sentenced to life in prison for terrorism-related offences stemming from a plot to derail a VIA Rail train. Their appeals were bifurcated and reached the Supreme Court of Canada. On the issue of the applicability of amendments to the jury selection process, the SCC remitted the case back to the Court of Appeal.

After receiving psychiatric treatment, Esseghaier sought an appeal on the basis that he had been mentally ill and unfit to stand trial, but he later abandoned it.

With Esseghaier ditching his appeal, Jaser had to determine whether these fitness-related grounds of appeal affected his own case, and if so, how to advance them without Esseghaier’s participation, said a statement sent to Law Times by Jaser’s lawyers, Megan Savard and Riaz Sayani. “This decision is the first in a series of applications that will enable us to do so.”

“This is in some ways a unique decision: it is rare for just one defendant in a joint trial pursue an appeal. That is our situation here, and it is that situation which made this application necessary.”

“We are glad the Court accepted, as a general rule, that a co-defendant’s unfitness can infect the other defendants’ trial,” said the statement. “This case is a reminder to appellate counsel that an error which, at first blush, seems to infect only a co-defendant might still be relevant to your client. Ask yourself: if the error about which my co-accused complains hadn’t happened, how would my client’s trial have been different?”

The psychiatric assessment Jaser sought was prepared post-sentence at the request of Esseghaier’s lawyer. Jaser told the Court of Appeal that there was a “reasonable possibility, if not a likelihood” that the report will illuminate Esseghaier’s unfitness to stand trial, and “compel the conclusion” that Jaser’s trial was unfair, and his convictions a “miscarriage of justice.”

Jaser had raised the issue of Esseghaier’s fitness at their trial, claiming he was prejudiced by the association with someone “unable to make rational, informed decisions or to behave in a manner at trial that was in his own best interests,” said the ruling. Jaser had argued that his co-accused’s “erratic behaviour” would colour the jury’s perspective of him. The prejudice was particularly severe given the pair were on trial for a “religiously inspired terrorist plot,” and the jury could see Esseghaier’s behaviour as a confirmation of the Crown’s allegations, he said.

But the trial judge saw Esseghaier’s conduct as motivated by his religiosity and not mental illness. The two psychiatric reports prepared at sentencing agreed that Esseghaier had a “major psychiatric disorder, probably schizophrenia.” The experts who prepared the reports, however, disagreed on whether this fact made him unfit to participate in his sentencing. The Court of Appeal noted that their divergence stemmed from their differing views on the legal test determining fitness to stand trial.

The Crown resisted production of the psychiatric assessment, noting that Esseghaier’s mental state was assessed in two other “detailed reports,” and it was unlikely that a third would uncover anything new. The Crown also argued that the trial record should determine whether Esseghaier’s fitness, or lack of fitness, hurt Jaser’s fair trial rights.

The Court of Appeal assessed Jaser’s request according to the approach for “an application for production of a document in aid of a fresh evidence application” set down in R. v. Trotta, 23 C.R. (6th) 261. Jaser had to demonstrate two things. First, that there was a “reasonable possibility” that producing the psychiatric assessment would help the motion to adduce fresh evidence, which Jaser accomplished because the assessment was the fresh evidence he sought to adduce. The second requirement was that there be a “reasonable possibility” that the assessment would ultimately be received as fresh evidence in the appeal.

The second Trotta factor required consideration of R. v. Palmer, [1980] 1 S.C.R. 759, which set out the standards for receiving new evidence on appeal. The evidence’s admissibility turned on the two Palmer factors of relevance and potential probative value. If the psychiatric assessment only provided a “medical explanation” for Esseghaier’s behaviour, it would probably not be admissible, said the court. But Jaser argued that if the assessment included the opinion that Esseghaier was unfit to stand trial, the court could find that Jaser’s conviction was a miscarriage of justice as a result. The court found Jaser’s argument “viable,” and that he “made out a case for production of the assessment based on the Trotta factors.”

While Jaser was entitled to the psychiatric assessment, the court also found Esseghaier had a privacy interest in the assessment’s contents. Following the procedure in R. v. McNeil, 2009 SCC 3, the panel will inspect the assessment, decide whether it should be produced, and what steps are necessary to mitigate the privacy implications.