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38861

Her Majesty the Queen in Right of Canada v. Chiheb Esseghaier, et al.

(Ontario) (Criminal) (By Leave)

Docket

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

List of proceedings
Date Proceeding Filed By
(if applicable)
2021-03-05 Written reasons rendered after oral judgment, CJ Abe Mo Ka Côt Br Row Mar Kas
2021-03-05 Appeal closed
2020-10-30 Transcript received, Joint with 39062-246 pages
2020-10-08 Formal judgment sent to the registrar of the court of appeal and all parties
2020-10-08 Judgment on appeal and notice of deposit of judgment sent to all parties
2020-10-07 Judgment reserved OR rendered with reasons to follow
2020-10-07 Judgment on the appeal rendered, CJ Abe Mo Ka Côt Br Row Mar Kas, The appeal from the judgment of the Court of Appeal for Ontario, Numbers C61095 and C61185, 2019 ONCA 672, dated August 27, 2019, was heard on October 7, 2020, and the Court on that day delivered the following judgment orally:


THE CHIEF JUSTICE — The Court is of the view that the curative proviso at s. 686(1)(b)(iv) of the Criminal Code, R.S.C. 1985, c. C-46, applies. The appeal is allowed and the convictions are restored. The matter is remitted to the Court of Appeal to address the remaining grounds of appeal. Reasons to follow.
Allowed
2020-10-07 Hearing of the appeal, 2020-10-07, CJ Abe Mo Ka Côt Br Row Mar Kas
Judgment rendered
2020-10-05 Respondent's condensed book, (Book Form), Condensed book filed jointly by Respondents, Chiheb Esseghaier and Raed Jaser Chiheb Esseghaier
2020-10-05 Appellant's condensed book, (Book Form) Her Majesty the Queen in Right of Canada
2020-10-01 Intervener's condensed book, (Book Form) Attorney General of Ontario
2020-09-30 Notice of appearance, (Letter Form), Andrew Barg will appear before the Court on behalf of the intervener (AGA). Attorney General of Alberta
2020-09-23 Notice of appearance, (Letter Form), Nathan Gorham will appear before the Court on behalf of the intervener (CLA). Nathan Gorham will present oral argument at the hearing. Criminal Lawyers' Association (Ontario)
2020-09-23 Notice of appearance, (Letter Form), Megan Savard and Riaz Sayani will appear before the Court on behalf of the respondent (RJ). Megan Savard will present oral argument at the hearing.

rec'd: amended notice of appearance 2020/09/30
Raed Jaser
2020-09-22 Notice of appearance, (Letter Form), Erin Dann and Sarah Weinberger will appear before the Court on behalf of the respondent (CE). Erin Dann will present oral argument at the hearing.

rec'd: amended notice of appearance 2020/09/30
Chiheb Esseghaier
2020-09-22 Notice of appearance, (Letter Form), Kevin Wilson and Amber Pashuk will appear before the Court on behalf of the Appellant (HMTQ). Kevin Wilson and Amber Pashuk will present oral argument at the hearing. Her Majesty the Queen in Right of Canada
2020-09-14 Intervener's book of authorities, (Book Form), Completed on: 2020-09-14 Attorney General of Alberta
2020-09-14 Intervener's factum, (Book Form), Completed on: 2020-09-14 Attorney General of Alberta
2020-09-14 Intervener's factum, (Book Form), Completed on: 2020-09-14, (Printed version filed on 2020-09-15) Criminal Lawyers' Association (Ontario)
2020-09-10 Intervener's factum, (Book Form), Completed on: 2020-09-10, (Printed version filed on 2020-09-11) Attorney General of Ontario
2020-09-10 Notice of appearance, (Letter Form), 'Michael Perlin will appear before the Court on behalf of the intervener (DB). Michael Perlin will present oral argument at the hearing.

rec'd: amended notice of appearance 2020/09/29
Attorney General of Ontario
2020-09-02 Notice of hearing sent to parties
2020-09-01 Respondent's record, (Book Form), (2 volumes), Respondents' Joint Record: filed by Chiheb Esseghaier and Raed Jaser, Completed on: 2020-09-01 Chiheb Esseghaier
2020-09-01 Certificate of counsel (attesting to record), (Letter Form), 24B Raed Jaser
2020-09-01 Certificate (on limitations to public access), (Letter Form), 23B-Factum & Record Raed Jaser
2020-09-01 Respondent's factum, (Book Form), Completed on: 2020-09-01, (Printed version filed on 2020-09-02) Raed Jaser
2020-09-01 Certificate of counsel (attesting to record), (Letter Form), 24B Chiheb Esseghaier
2020-09-01 Certificate (on limitations to public access), (Letter Form), 23B-Factum & Record Chiheb Esseghaier
2020-09-01 Respondent's factum, (Book Form), Completed on: 2020-09-01, (Printed version filed on 2020-09-02) Chiheb Esseghaier
2020-08-25 Appeal hearing scheduled, 2020-10-07, In order for the appeal to proceed on October 7, 2020, the filing schedule will be as follows:

a) The respondent’s record, factum and book of authorities, if any, shall be served and filed on or before August 12, 2020.

b) Any person wishing to intervene in this appeal under Rule 55 of the Rules of the Supreme Court of Canada shall serve and file a motion for leave to intervene on or before August 4, 2020.

c) The appellants and respondent shall serve and file their response(s), if any, to the motions for leave to intervene on or before August 11, 2020.

d) Replies to any responses to the motions for leave to intervene shall be served and filed on or before August 13, 2020.

e) Any attorney general intervening in the appeal under Rule 33(4) of the Rules of the Supreme Court of Canada shall serve and file their factum and book of authorities, if any, on or before September 14, 2020.

Judgment rendered
2020-08-12 Order on motion for leave to intervene, by MARTIN J.
2020-08-12 Decision on the motion for leave to intervene, Mar,
UPON APPLICATIONS by the Attorney General of Ontario, the Attorney General of Alberta and the Criminal Lawyers’ Association (Ontario) for leave to intervene in the above appeal;

AND THE MATERIAL FILED having been read;

IT IS HEREBY ORDERED THAT:

The motions for leave to intervene are granted. The said three (3) interveners shall be entitled to each serve and file a single factum not to exceed ten (10) pages in length, and book of authorities, if any, on or before September 14, 2020.

The said three (3) interveners are each granted permission to present oral argument not exceeding five (5) minutes at the hearing of the appeal.

The interveners are not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties.

Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the interveners shall pay to the appellant and the respondents any additional disbursements resulting from their interventions.

Granted
2020-08-12 Submission of motion for leave to intervene, Mar
2020-08-10 Response to the motion for leave to intervene, (Letter Form), Completed on: 2020-08-10, (Printed version due on 2020-08-17) Chiheb Esseghaier
2020-08-07 Response to the motion for leave to intervene, (Letter Form), Completed on: 2020-08-07, (Printed version due on 2020-08-14) Her Majesty the Queen in Right of Canada
2020-08-04 Motion for leave to intervene, (Book Form),
MISSING: filing fee, Incomplete, (Printed version due on 2020-08-11)
Criminal Lawyers' Association (Ontario)
2020-07-16 Correspondence received from, (Letter Form), Moira S. Dillon
The respondents will not be filing a response to the motions for leave to intervene filed by the Attorney General of Ontario and Attorney General of Alberta., (Printed version due on 2020-07-23)
Chiheb Esseghaier
2020-07-15 Motion for leave to intervene, (Book Form),
MSSING: filing fee, Incomplete, (Printed version due on 2020-07-22)
Attorney General of Alberta
2020-07-14 Letter advising the parties of tentative hearing date and filing deadlines (Leave granted), (sent by email to all parties on July 15, 2020)
2020-07-13 Motion for leave to intervene, (Book Form),
MISSING: filing fee, Incomplete, (Printed version due on 2020-07-20)
Attorney General of Ontario
2020-06-17 Certificate of counsel (attesting to record), (Letter Form), 24A Her Majesty the Queen in Right of Canada
2020-06-17 Certificate (on limitations to public access), (Letter Form), 23B Her Majesty the Queen in Right of Canada
2020-06-17 Appellant's record, (Book Form), (5 volumes), Completed on: 2020-06-17, (Printed version filed on 2020-09-03) Her Majesty the Queen in Right of Canada
2020-06-17 Appellant's factum, (Book Form), Completed on: 2020-06-17, (Printed version filed on 2020-09-03) Her Majesty the Queen in Right of Canada
2020-05-04 Notice of change of counsel, (Letter Form), change of co-counsel for the applicant Her Majesty the Queen in Right of Canada
2020-04-08 Order on miscellaneous motion, by Justice Brown (sent to paries by email)
2020-04-08 Decision on miscellaneous motion, Br, UPON APPLICATION by the respondents, Chiheb Esseghaier and Raed Jaser, for an order pursuant to s. 43(1.1) or s. 46(1) of the Supreme Court Act to remand this appeal to the Court of Appeal for Ontario;

AND THE MATERIAL FILED having been read;

IT IS HEREBY ORDERED THAT:

The motion is dismissed.

Dismissed
2020-04-08 Submission of miscellaneous motion, Br
2020-03-13 Response to miscellaneous motion, (Letter Form), Completed on: 2020-03-13 Her Majesty the Queen in Right of Canada
2020-03-06 Notice of appeal, (Letter Form), Completed on: 2020-03-06 Her Majesty the Queen in Right of Canada
2020-03-05 Certificate (on limitations to public access), (Letter Form), 23B Chiheb Esseghaier
2020-03-05 Notice of miscellaneous motion, (Book Form), to remand this appeal to the Court of Appeal for Ontario, Completed on: 2020-03-05, (Electronic version filed on 2020-03-05) Chiheb Esseghaier
2020-02-27 Correspondence (sent by the Court) to, the parties. Letter from Registrar.
2020-02-26 Correspondence received from, (Letter Form), counsel for the respondents. RE: Request to adjourn the hearing of the appeal. Chiheb Esseghaier
2020-02-25 Correspondence received from, (Letter Form), agent for the appellant. RE: request to adjourn hearing of the appeal. Her Majesty the Queen in Right of Canada
2020-02-25 Correspondence received from, (Letter Form), counsel for both respondents. Request to adjourn the hearing of the appeal. Chiheb Esseghaier
2020-02-21 Copy of formal judgment sent to Registrar of the Court of Appeal and all parties
2020-02-21 Judgment on leave sent to the parties
2020-02-20 Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Numbers C61095 and C61185, 2019 ONCA 672, dated August 27, 2019, is granted.
Granted
2020-01-13 All materials on application for leave submitted to the Judges, for consideration by the Court
2019-11-29 Certificate (on limitations to public access), (Letter Form), 23B Raed Jaser
2019-11-29 Certificate (on limitations to public access), (Letter Form), 23A Raed Jaser
2019-11-29 Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2019-11-29 Raed Jaser
2019-11-29 Certificate (on limitations to public access), (Letter Form), 23B Chiheb Esseghaier
2019-11-29 Certificate (on limitations to public access), (Letter Form), 23A Chiheb Esseghaier
2019-11-29 Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2019-11-29 Chiheb Esseghaier
2019-10-31 Correspondence received from, (Letter Form), Change of contact information of counsels. Her Majesty the Queen in Right of Canada
2019-10-30 Letter acknowledging receipt of an incomplete application for leave to appeal and without formal Court of Appeal order, FILE OPENED 2019-10-30
2019-10-24 Correspondence received from, (Letter Form), Orders (X5) Her Majesty the Queen in Right of Canada
2019-10-11 Certificate (on limitations to public access), (Letter Form), 23B Her Majesty the Queen in Right of Canada
2019-10-11 Certificate (on limitations to public access), (Letter Form), 23A Her Majesty the Queen in Right of Canada
2019-10-11 Application for leave to appeal, (Book Form), MISSING: CA Orders (rec'd 2019-10-24) , Completed on: 2019-11-04 Her Majesty the Queen in Right of Canada

Parties

Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.

Main parties

Main parties - Appellants
Name Role Status
Her Majesty the Queen in Right of Canada Appellant Active

v.

Main parties - Respondents
Name Role Status
Esseghaier, Chiheb Respondent Active
Jaser, Raed Respondent Active

Other parties

Other parties
Name Role Status
Attorney General of Ontario Intervener Active
Attorney General of Alberta Intervener Active
Criminal Lawyers' Association (Ontario) Intervener Active

Counsel

Party: Her Majesty the Queen in Right of Canada

Counsel
Kevin R. Wilson
Amber Pashuk
Public Prosecution Service of Canada
130 King Street West, Suite 2400, Box 340
Toronto, Ontario
M5X 1K6
Telephone: (416) 973-0026
FAX: (416) 973-8253
Email: kevin.wilson@ppsc-sppc.gc.ca
Agent
François Lacasse
Director of Public Prosecutions of Canada
160 Elgin Street
12th Floor
Ottawa, Ontario
K1A 0H8
Telephone: (613) 957-4770
FAX: (613) 941-7865
Email: francois.lacasse@ppsc-sppc.gc.ca

Party: Esseghaier, Chiheb

Counsel
Erin Dann
Sarah Weinberger
Embry Dann LLP
116 Simcoe Street
Suite 100
Toronto, Ontario
M5H 4E2
Telephone: (416) 868-1203
FAX: (416) 868-0269
Email: edann@edlaw.ca
Agent
Moira Dillon
Supreme Law Group
900 - 275 Slater Street
Ottawa, Ontario
K1P 5H9
Telephone: (613) 691-1224
FAX: (613) 691-1338
Email: mdillon@supremelawgroup.ca

Party: Jaser, Raed

Counsel
Megan Savard
Riaz Sayani
Addario Law Group LLP
171 John Street
Suite 101
Toronto, Ontario
M5T 1X3
Telephone: (416) 979-6446
FAX: (866) 714-1196
Email: msavard@addario.ca
Agent
Moira Dillon
Supreme Law Group
900 - 275 Slater Street
Ottawa, Ontario
K1P 5H9
Telephone: (613) 691-1224
FAX: (613) 691-1338
Email: mdillon@supremelawgroup.ca

Party: Attorney General of Ontario

Counsel
Michael Perlin
Attorney General of Ontario
720 Bay Street
10th Floor
Toronto, Ontario
M7A 2S9
Telephone: (416) 326-4500
FAX: (416) 326-4656
Email: michael.perlin@ontario.ca
Agent
Nadia Effendi
Borden Ladner Gervais LLP
World Exchange Plaza
100 Queen Street, suite 1300
Ottawa, Ontario
K1P 1J9
Telephone: (613) 787-3562
FAX: (613) 230-8842
Email: neffendi@blg.com

Party: Attorney General of Alberta

Counsel
Andrew Barg
Justice and Solicitor General
Appeals & Prosecution Policy Branch
300 Centrium Place, 332-6 Avenue SW
Calgary, Alberta
T2P 0B2
Telephone: (403) 297-6005
FAX: (403) 297-3453
Email: andrew.barg@gov.ab.ca
Agent
D. Lynne Watt
Gowling WLG (Canada) LLP
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com

Party: Criminal Lawyers' Association (Ontario)

Counsel
Nathan Gorham
Gorham Vandebeek LLP
36 Lombard Street
Toronto, Ontario
M5C 2X3
Telephone: (416) 410-4814
FAX: (416) 598-3384
Email: gorham@gvlaw.ca
Agent
Matthew Estabrooks
Gowling WLG (Canada) LLP
2600 - 160 Elgin Street
P.O. Box 466, Stn. A
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0211
FAX: (613) 788-3573
Email: matthew.estabrooks@gowlingwlg.com

Summary

Keywords

Criminal law - Jurors - Challenges for cause - Appeals - Curative proviso - Defence counsel applying to challenge potential jurors for cause and requesting rotating triers with unsworn jurors excluded - Trial judge ordering static triers with unsworn and sworn jurors excluded - Whether Court of Appeal erred in law in finding jury improperly constituted - Whether curative proviso in s. 686(1)(b)(iv) of the Criminal Code is applicable to cure error in jury selection process?

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Chiheb Esseghaier and Raed Jaser were charged with terrorism-related offences. They elected trial before a jury. A pre-trial motion brought jointly by Crown counsel and counsel for Mr. Jaser sought directions regarding jury selection. Mr. Jaser’s counsel requested a process known as a challenge for cause to determine whether each prospective juror’s ability to decide the case would be affected by pre-trial publicity and the fact that each accused was a member of a visible minority and a Muslim. At the time, the Criminal Code contemplated using members of the jury pool, referred to as rotating triers or static triers, to decide challenges for cause of prospective jurors. Rotating triers are two persons who will serve on the jury who change by rotation as each additional jury member is sworn. Static triers are two persons who hear and determine all challenges until the entire jury has been selected but who do not themselves become members of the jury. At the time, there was uncertainty in the case law regarding whether counsel could ask for rotating triers and to have unsworn prospective jurors excluded from the courtroom during the hearing of each challenge. Mr. Jaser’s counsel sought rotating triers with unsworn prospective jurors excluded from the courtroom. The trial judge ordered static triers with all sworn and unsworn jurors excluded. A jury was selected. Mr. Jaser and Mr. Esseghaier were tried. The jury convicted Mr. Esseghaier and Mr. Jaser of terrorism offences. The Court of Appeal held that the request to use using rotating triers with unsworn jurors excluded should have been granted and the jury was not properly constituted. It held that the error could not be cured by the curative proviso in s. 686(1)(b)(iv) of the Criminal Code. It ordered a new trial.

Lower court rulings

December 15, 2014
Ontario Superior Court of Justice

2014 ONSC 7528

Application granted to challenge jurors for cause

September 23, 2015
Ontario Superior Court of Justice

2015 ONSC 5855, CR-13-10000655-0000

Convictions by jury of terrorism offences

August 27, 2019
Court of Appeal for Ontario

2019 ONCA 672, C61095, C61185

Appeal allowed, new trial ordered

Memorandums of argument on application for leave to appeal

The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filing out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.

If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.

Downloadable PDFs

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Factums on appeal

The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.

If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.

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Date modified: 2025-02-27