



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jaser, 2020 ONCA 606

DATE: 20200924

DOCKET: M51647

Doherty J.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raed Jaser

Applicant (Appellant)

Megan Savard and Riaz Sayani, for the applicant

Lisa Mathews and Xenia Proestos and
    James Clark, for the respondent

Heard: August 20, 2020

An application under s. 680 of the
Criminal
    Code
for an order directing a review of the detention order made by
    Justice A.J. OMarra of the Superior Court of Justice, dated February 13, 2020,
    reported at 2020 ONSC 1001; and for an order vacating the detention order and
    admitting the applicant to bail.

Doherty J.A.:



I



overview

[1]

This is an application under s. 680 of the
Criminal
    Code
for an order directing a review of the order of OMarra J. (the bail
    judge) made pursuant to s. 522 of the
Criminal Code
, dismissing the
    applicants (Jaser) application for bail pending his retrial and, if a review
    is directed, for an order releasing Jaser on bail pending his retrial. The
    Chief Justice designated me to hear the application to direct a review. Pursuant
    to s. 680(2), the parties have agreed I can exercise the review powers assigned
    to the court, should I direct a review. The application proceeded by way of a
    single hearing before me in which the motion to direct a review and the actual
    review were argued together.

[2]

The bail judge found Jaser had failed to show
    his detention was not necessary for the protection or safety of the public, or
    to maintain the public confidence in the administration of justice. On this application,
    Jaser alleges material, factual and legal errors by the bail judge. Jaser also
    offers evidence on the application that was not before the bail judge. He
    submits this court should receive that evidence as it will materially affect
    the bail calculus. Jaser submits a proper application of the applicable bail
    principles to the entirety of the record compels the conclusion Jaser is
    entitled to be released pending his retrial, albeit on strict terms amounting
    to house arrest.

[3]

The Crown resists Jasers application. Although
    the Crown accepts some of the new evidence should be received on review, the
    Crown argues the evidence does not materially impact on Jasers entitlement to
    bail. The Crown further contends the bail judge made no legal or factual errors.
    The Crown submits, stripped to its essentials, Jasers application comes down
    to an attempt to secure a
de novo
bail hearing under the guise of a s.
    680 review. The Crown argues a review should not be directed and, in any event,
    the detention order should stand.

[4]

For the reasons that follow, I direct a review
    of the detention order and will make an order releasing Jaser pending his
    retrial, assuming adequate terms can be fashioned after further submissions
    from counsel. As I will explain, the bail judge made material errors warranting
    intervention. Having regard to the record on the bail hearing, and the new
    evidence I would receive, Jaser has satisfied me his release on very strict
    terms will adequately address the legitimate public safety and public confidence
    concerns associated with his release on bail pending his retrial. I will hear
    further submissions with a view to fixing suitable terms.


II



history of the proceedings

[5]

This prosecution has a lengthy history. The applicant
    (Jaser) and the co-accused (Esseghaier) were charged with terrorist-related
    offences in April 2013. The events giving rise to the charges occurred in August
    and September of 2012. The Crown preferred an indictment in the Superior Court
    in September 2013.

[6]

In November 2013, Jaser unsuccessfully applied in
    the Superior Court, pursuant to s. 522 of the
Criminal Code
,
for bail pending his trial:
R. v.
    Jaser
, 2014 ONSC 1058.

[7]

The trial commenced in January 2015. Jaser and
Esseghaier
faced four charges:

·

conspiracy to damage transportation
    infrastructure with an intent to endanger safety (derailing a VIA passenger
    train) for the benefit of a terrorist group (count 1);

·

conspiracy to commit murder for the benefit of a
    terrorist group (count 2); and

·

participating in, or contributing to, the
    activity of a terrorist group (counts 3 and 4).

[8]

Esseghaier faced an additional charge of
    participating in or contributing to the activity of a terrorist group (count
    5).

[9]

In March 2015, the jury convicted Esseghaier on
    all five counts. The jury convicted Jaser on counts 2, 3 and 4, but could not
    agree upon a verdict on count 1. On September 23, 2015, the trial judge sentenced
    Jaser to life imprisonment on count 2 (conspiracy to commit murder for the
    benefit of a terrorist group). He imposed sentences of five and eight years on
    counts 3 and 4. Those sentences were made consecutive to each other, as
    required by statute, and concurrent to the life sentence imposed on count 2.
    Esseghaier received concurrent life sentences on counts 1 and 2:
R. v.
    Esseghaier
, 2015 ONSC 5855.

[10]

Jaser and Esseghaier appealed. They raised
    several grounds, including an argument the jury selection process contravened
    the mandatory provisions of the
Criminal Code
. Jaser and Esseghaier,
    relying on authorities from this court post-dating their trial, argued the
    challenge for cause process at trial failed to comply with the provisions of
    the
Criminal Code
. They further argued this non-compliance meant the
    court was improperly constituted and the verdicts must be set aside, without
    regard to the conduct of the rest of the trial, or the weight of the evidence. Watt
    J.A. directed the appeal bifurcated and the jury selection issue addressed
    first in a separate hearing. In August 2019, the court allowed the appeal,
    holding that the jury selection process did contravene the requirements of the
Criminal
    Code
. The court ordered a new trial and did not address the other ground
    of appeal:
R. v. Esseghaier
, 2019 ONCA 672.

[11]

The Supreme Court of Canada granted leave to
    appeal in February 2020. The hearing of the appeal is tentatively scheduled for
    October 7, 2020. If the Crown appeal succeeds in the Supreme Court of Canada,
    the appeal will have to be remitted to this court for consideration of the
    other grounds of appeal. There is also the likelihood of collateral litigation
    in the Federal Court arising out of national security privilege claims advanced
    by the Crown in respect of certain information relied on to obtain
    authorizations to intercept private communications.

[12]

After this court ordered a new trial, Jaser
    brought a second s. 522 bail application seeking his release pending retrial.
    The application failed and Jaser remains in custody:
R. v. Jaser
, 2020
    ONSC 1001. That decision is the subject of this application.
[1]


[13]

The retrial is tentatively scheduled for April
    2021. Jaser and Esseghaier have re-elected trial by judge alone. If the trial
    proceeds as scheduled, Jaser will have spent eight years in custody when his
    retrial begins. If Jaser is convicted on the retrial and sentenced once again to
    life imprisonment, he will have been eligible for day parole as of April 2020,
    at least a year before the retrial. He will be eligible for full parole in
    October 2022.


III



the allegations

[14]

The Crown alleged Jaser and Esseghaier, both
    committed Islamic zealots, conspired to commit mass murder in furtherance of
    their jihadist cause. To that end, they considered various plots, including derailing
    a VIA passenger train (the train plot) and systematically assassinating
    prominent members of the community, with a particular emphasis on murdering
    prominent Jews (the sniper plot).

[15]

The Crown alleged Jaser and Esseghaier discussed
    the plots in August and September of 2012. They made visits to various
    locations under consideration as sites for the derailment of the VIA train.

[16]

Esseghaier was under investigation by American
    authorities in June 2012. As part of their investigation, the American
    authorities arranged for Esseghaier to meet an undercover agent, referred to as
    Tamer at trial. Tamer posed as a rich real estate developer, anxious to fund
    and otherwise support jihadi terrorist activity.

[17]

Esseghaier introduced Jaser to Tamer early in
    September and the three men met several times. They spoke of the train plot and
    visited potential sights where a VIA train might be derailed. They discussed
    Tamers role in bringing about the derailment and publicizing the purpose of
    the derailment after it had occurred. In some of these discussions, Jaser also
    spoke of the sniper plot, which he saw as a more effective way to terrorize the
    community.

[18]

On September 24, 2012, Jaser, Esseghaier and
    Tamer visited a bridge on the VIA rail line and discussed, in some detail, how
    the bridge could be blown up to derail a VIA passenger train. The three men
    were sitting in their vehicle in a parking lot when two police officers
    approached the car. Someone had reported seeing the three men walking along the
    tracks. The officers requested identification. Jaser, Esseghaier and Tamer produced
    their identification and told the police they had been looking at the scenery when
    they became lost. The officers left.

[19]

Jaser became convinced the plot to blow up the
    bridge and derail the VIA train was fatally compromised once the police were
    aware Jaser and Esseghaier had been on the bridge. In discussions with Esseghaier
    and Tamer, Jaser spoke of finding a new location for the derailment plot. He
    also repeatedly, and in strong terms, reiterated his belief the random murder
    of prominent members of the community, especially Jewish persons, would more
    effectively terrorize the community by striking at high value targets.

[20]

Jaser had stopped speaking with Esseghaier about
    any of the plots by the end of September. Jaser was not arrested until April
    2013, however, there was no evidence of any discussions about the plots or any
    other terrorist activity between Jaser and Esseghaier after the end of
    September. Jaser remained under police surveillance until he was arrested.

[21]

The Crowns case rests primarily on
    interceptions of private communications among Jaser, Esseghaier and Tamer,
    physical surveillance placing them at certain sights, and the testimony of
    Tamer, the undercover agent. On their face, the communications provide powerful
    evidence supporting the Crowns case. Jaser spoke like a committed terrorist
    determined to kill as many people as he could in a way that would maximize the
    harm caused to the peace, security and safety of the Canadian community. According
    to these conversations, Jaser detested Canadian society and the Canadian way of
    life. He cared nothing for the lives of others or his own life. Jaser embraced the
    glory of martyrdom.

[22]

The Crown did not allege any connection between
    Jaser and any other terrorist supporter other than Esseghaier. Nor did the
    Crown point to any activity by Jaser allegedly connected to any radical group
    or terrorist plot outside of the activities with Esseghaier and Tamer in August
    and September 2012. Apart from the conversations among the three men, and their
    visits to various locations along the railway line, the Crown adduced no
    evidence of any overt act by Jaser in furtherance of the conspiracy. The Crown offered
    no evidence of Jasers actual ability to initiate and implement any of the
    plots discussed with Esseghaier.

[23]

Jaser did not testify at trial. Through counsel,
    he argued he was only pretending to engage in a conspiracy to commit mass murder
    in support of a terrorist agenda. According to the defence, Jasers real goal
    was to defraud Tamer, who he believed to be a rich real estate developer ready
    to fund terrorist- related activity. As counsel succinctly put it at trial, Jaser
    was a fraudster, not a terrorist. In support of that claim, the defence
    pointed to conversations between Jaser and Tamer in which Jaser spoke of
    potential business opportunities to be funded by Tamer. According to the
    defence, Jaser was trying to get his hands on Tamers money.


IV



jasers background

[24]

Jaser was born in 1977 in the United Arab
    Emirates. His family came to Canada as refugee claimants in 1993. Jaser is
    presently a permanent resident of Canada, but after he was convicted of the terrorist-related
    offences, the authorities commenced proceedings to remove that status.

[25]

Jaser was convicted of failing to comply with a
    recognizance in 1997. Later in 1997, he was convicted of several counts of
    fraud, attempted fraud, conspiracy to commit fraud, and an additional count of
    breach of recognizance. In 2001, he was convicted of uttering threats.
[2]
By his own admission, before
    his arrest in 2013, Jaser regularly engaged in fraudulent activity, and when
    under court orders disobeyed those orders. He even cheated members of his own
    family. Jaser had little, if any, gainful employment. As matters stood when
    Jaser was arrested in 2013, his personal history and character made him a bad bail
    candidate.

[26]

Prior to 2009, Jaser showed no interest in Islam.
    His lifestyle, which included excessive use of drugs and alcohol, was hardly
    consistent with that of an observant Muslim. In 2009, Jaser appeared to develop
    an interest in Islam. He adopted Islamic religious practices and took on the
    appearances of an observant Muslim. His parents did not think these changes
    reflected any actual change in their sons belief system. The Crown maintained
    Jasers interest in religion had, by the summer of 2012, mutated into a
    commitment to jihadist terrorism.

[27]

On the s. 522 bail hearing, Jaser put a great
    deal of information before the bail judge in an effort to show he was a
    fundamentally different person in 2020 than he was in 2013. The evidence in
    support of this claim came from Jaser, his family members, and the records from
    various correctional institutions where Jaser had lived in the seven years
    since his arrest. The corrections records described Jaser as cooperative, amenable
    to therapy and counselling, including anger management, and motivated to make
    positive changes in his life. Jaser appeared to be strongly invested in various
    counselling and rehabilitative programs offered in the penitentiary system. According
    to the reports, he remains anxious to continue down the road of
    self-improvement. Jaser has also upgraded his education and technical skills.
    The correctional authorities had no evidence of any attempt by Jaser to involve
    himself in the radicalization of other inmates while he was in custody.

[28]

The corrections reports were not, however, entirely
    positive. In the March 2018 report recommending Jasers transfer to a medium
    security penitentiary, the reports described him as highly egocentric with a proclivity
    to manipulate others for personal gain, a pervasive lack of empathy, and a
    grossly inflated sense of self-worth. The report did acknowledge some positive
    strides in addressing these significant character and behavioural deficiencies.

[29]

Jaser did not initially participate in any
    religious programming or counselling while in custody. However, as time went
    by, he began to attend some sessions. His interest and participation in those
    sessions grew. According to those who conducted the sessions, Jaser appeared very
    remorseful, although it is not entirely clear what he was remorseful about. Jasers
    religious counsellors also indicated Jaser used his faith to gain insights into
    his behaviour and improve himself as a person. He became a regular attendant at
    religious functions and is highly thought of by the imams who presided over his
    religious sessions.

[30]

Jaser was not close to his family prior to his
    arrest in 2013. Indeed, they were among the victims of his frauds. He routinely
    lied to his parents. There was no evidence Jasers parents or brother, the
    proposed sureties, had any ability to control or even influence Jasers
    behaviour as of his arrest in 2013.

[31]

Since his arrest, Jaser has forged much closer
    connections with his family. They have maintained regular contact with him,
    despite significant limitations on their abilities to do so while Jaser is in
    custody.

[32]

Jaser has never testified, either at his trial,
    or by way of any affidavit, he did not hold jihadist terrorist beliefs in 2012.
    Nor has he offered any testimony about his present beliefs. His religious
    instructors have offered no evidence of any conversations in which Jaser
    disavowed any jihadist beliefs, either in 2012 or at any subsequent time. There
    is no direct evidence post-dating Jasers arrest of any changes in Jasers
    belief system.

[33]

When I asked counsel to point to any disavowal by
    Jaser of current jihadist beliefs, counsel referred to a single answer given by
    Jaser at the bail hearing. Jaser was asked by his counsel about his reaction when
    he listened to his diatribes promoting mass murder in the intercepted
    communications. In a response I can only describe as ambivalent, given his
    pretending to agree defence at trial, Jaser replied:

I felt like a rollercoaster really. Theres
    fear, I feel regret, I felt kind of afraid of who I used to be and how, what I
    sounded like. It almost sounded like a madman really.
[3]


V



the bail decision: 2020 ONSC 1001

[34]

Because of the charges brought against him, Jaser
    had the onus to show cause why he should be released pending his trial:
Criminal
    Code
, s. 515(6). To meet that onus, Jaser was required to show his detention
    was not necessary:

·

to ensure his attendance at trial (s.
    515(10)(a)) [the primary ground];

·

for the protection or safety of the public (s.
    515(10)(b)) [the secondary ground]; or

·

to maintain confidence in the administration of
    justice (s. 515(10)(c)) [the tertiary ground].

[35]

The extensive record before the bail judge included
    extracts from Jasers trial, police investigative reports, records from various
    correctional institutions, affidavits from Jaser and his proposed sureties, and
    an affidavit detailing the electronic monitoring available. The proposed sureties
    and Jaser testified before the bail judge. The record also contained a detailed
    release plan, including proposals for electronic monitoring of Jaser while he
    was on bail.

[36]

The bail judge found Jaser had shown his
    detention was not necessary to ensure his appearance at trial. After referring
    to the proposed release plan, which included house arrest and electronic
    monitoring, and the absence of a real connection to any country other than
    Canada, the bail judge said, at para. 40:

I am satisfied there is little likelihood that
    Mr. Jaser would seek to flee if released and that he has met his onus on the
    primary ground.

[37]

The bail judge was not, however, satisfied Jaser
    had shown his detention was not necessary for the protection or safety of the
    public as required in s. 515(10)(b). In coming to that conclusion, the bail
    judge described Jaser as a long-time manipulator and liar, prepared to assume
    whatever role he deemed to be to his advantage. The bail judge referred to correctional
    records, which he read as indicating that Jaser had significant psychological
    and behavioural deficiencies and presented a risk to the public. Finally, the
    bail judge expressed concern about the ability of Jasers parents to
    effectively control and supervise his conduct were he released on bail. The
    bail judge was not satisfied the proposed electronic monitoring could overcome
    those concerns.

[38]

The bail judge also found Jaser had failed to
    show his detention was not necessary to maintain public confidence in the
    administration of justice, as required under s. 515(10)(c). After setting out
    the statutory provisions and referring to the controlling case law, the bail
    judge examined the specific factors identified in s. 515(10)(c). He concluded,
    at paras. 76-77:

In my view, all factors noted in s.
    515(10)(c), the strength of the Crowns case, the gravity of the offences, the
    circumstances and potential for a lengthy term of imprisonment if convicted are
    engaged in this case with maximum force.

In the face of the enumerated factors at
    maximum force, the release of the applicant on bail, no matter how stringent
    the conditions for an offender at the centre of a terrorist conspiracy where everyone
    is a target, would cause reasonable well-informed members of the public to
    lose confidence in the administration of justice.


VI



the operation of section 680

[39]

The relevant language in s. 680 reads:

680(1) A decision made by a judge under s. 522
     may, on the direction of the Chief Justice or acting Chief Justice of the
    Court of Appeal, be reviewed by that court and that court may, if it does not
    confirm the decision

(a)
vary the decision; or

(b)
substitute such other decision as in its opinion should have been
    made.

[40]

Section 680 sets out a two-stage process. At the
    first stage, the Chief Justice or his designate decides whether to direct a
    review of the order made by the bail judge. If a review is directed, a panel
    (or if the parties agree a single judge) reviews the order made by the bail
    judge. On that review, the court has broad powers to confirm or vary the order
    made by the bail judge or substitute a different order.

[41]

The first stage is akin to a motion for leave to
    appeal and is intended to weed out cases with no realistic possibility of
    success. The Chief Justice will order a review if he concludes the applicant
    has an arguable case, in the sense there is a reasonable chance of success if a
    review is ordered:
R. v. Oland
, [2017] 1 S.C.R. 250 at paras. 63-64;
R.
    v. Gale
, 2011 ONCA 144 at paras. 22-23. The Chief Justice must make some
    assessment of the potential merits of the application, bearing in mind the
    scope and nature of the review contemplated by s. 680 if a review is directed.
[4]


[42]

Section 680 applies to orders made by a Superior
    Court judge on applications for bail pending trial under s. 522, and orders
    made by a Court of Appeal judge under s. 679. As noted by G. Trotter,
The
    Law of Bail in Canada
,
3ed
, Thomson Reuters 2017 (loose-leaf
    updated 2020, release 1), at pp. 8-25 to 8-30, the different orders subject to
    review under s. 680 has led to some confusion and inconsistency as to the scope
    of the review contemplated by s. 680.

[43]

I think some of the uncertainty and
    inconsistency identified by Mr. Justice Trotter also flows from the failure to
    distinguish between arguments on a s. 680 review alleging errors in the bail proceedings,
    and arguments on the s. 680 review predicated on new evidence admitted on the
    review application. To the extent the s. 680 review alleges errors by the bail
    judge, the review is, in effect, an appeal of the bail judges order. In
R.
    v. Oland
, a case involving a s. 680 review of a bail pending appeal
    decision, Moldaver J., at para. 61, described the scope of the review in this
    way:

Ultimately, in my view, a panel reviewing a
    decision of a single judge under s. 680(1) should be guided by the following
    three principles. First, absent palpable and overriding error, the review panel
    must show deference to the judges findings of fact. Second, the review panel
    may intervene and substitute its decision for that of the judge where it is
    satisfied the judge erred in law or in principle and the error was material to
    the outcome. Third, in the absence of legal error, the review panel may
    intervene and substitute its decision for that of the judge where it concludes
    that the decision was clearly unwarranted.

[44]

The review principles outlined in
Oland
mimic those applicable on conviction appeals. That approach provides for a
    review of an order for material error in law or principle and for palpable and
    overriding factual error. The review also contemplates an overriding review of
    the reasonableness of the decision rendered.
Oland
uses the phrase
    clearly unwarranted. I see no distinction between a reasonableness inquiry
    and a review to determine whether a decision was clearly unwarranted: see
R.
    v. K.M.
, 2017 ONCA 805 at para. 33.

[45]

It is true
Oland
is distinguishable
    from the present case in that
Oland
involved a review of an order in
    respect of bail pending appeal and not a s. 522 order. However, when the review
    is premised on alleged errors by the bail judge, I see no principled reason for
    distinguishing, for the purposes of the scope of the review contemplated,
    between an order of a Superior Court judge under s. 522 and an order of a Court
    of Appeal judge under s. 679. There is nothing in the nature of the hearings contemplated
    by the two sections, the factors to be considered in making orders under the
    two provisions, or the relative expertise of the judges in bail matters, warranting
    different levels of scrutiny.

[46]

The applicant points to
R. v. St. Cloud
, 2015 SCC 27 as
suggesting a different
    standard of review than the standard outlined in
Oland
.
St. Cloud
was not a s. 680 review. That case addressed the scope of the review
    contemplated under s. 520 or s. 521. Those sections apply to bail reviews by
    Superior Court judges of initial bail orders made by a justice.

[47]

In any event, to the extent
St. Cloud
speaks to the standard of review when the bail review is premised on alleged
    errors in the bail hearing, there is no material difference between the
    standard described in
St. Cloud
and the standard set down in
Oland
.
    The court in
St. Cloud
said, at para. 121:

It will be appropriate to intervene if the
    justice has erred in law. It will also be appropriate for the reviewing judge
    to exercise this power if the impugned decision was clearly inappropriate, that
    is if the justice who rendered it gave excessive weight to one relevant factor
    or insufficient weight to another. The reviewing judge therefore does not have
    the power to interfere with the initial decision simply because he or she would
    have weighed the relevant factors differently.

[48]

The standard of review discussion in
St.
    Cloud
occurred in the context of a bail decision turning on the
    application of s. 515(10)(c), the public confidence criterion. That section
    requires a balancing of competing factors.
St. Cloud
envisions review
    of that balancing process for legal error, and for a clearly inappropriate
    weighing of the competing factors. If the reviewing court is satisfied the bail
    judges weighing of those factors was sufficiently skewed to produce a clearly
    inappropriate order, the court will intervene on the bail review. In my view, a
    finding a bail decision is clearly inappropriate amounts to a finding the
    bail decision is unreasonable. As I read
St. Cloud
, if the review
    under s. 520 or s. 521 rests on an alleged error at the initial bail hearing,
St.
    Cloud
contemplates review for legal error and unreasonableness.

[49]

To the extent Jaser alleges errors by the bail
    judge, I would apply the standard of review set down in
Oland
, at para. 61. That is not, however, the whole
    picture. Jaser also relies on new evidence introduced in the s. 680 proceeding.
Oland
does not speak to the impact of fresh evidence on a
    s. 680 review.

[50]

Neither party has a right to produce new
    evidence on a s. 680 review, but the reviewing court has the discretion to
    receive that evidence: see
R. v. Gale
, at para. 23;
R. v. D.(R.)
,
    2010 ONCA 899 at para. 23; G. Trotter,
The Law of Bail in Canada
, at
    pp. 8-32.  Fresh evidence is routinely received on s. 680 reviews if the
    evidence is relevant and relates to matters post-dating the bail decision under
    review. For example, in this case, both parties have offered fresh evidence in
    respect to the impact of COVID-19. The pandemic arrived after the bail judges
    order in February 2020.

[51]

While
Oland
does not address fresh
    evidence on s. 680 applications,
St. Cloud
considered the topic at
    length, as it applies to fresh evidence in bail reviews conducted under s. 520
    and s. 521:
St. Cloud
, at paras. 129-38.
St. Cloud
recognizes
    there is no right to adduce new evidence on a bail review. If new evidence is
    offered, the reviewing court, in considering whether to receive the evidence,
    will have regard to the well known principles controlling the admission of
    fresh evidence on appeals from conviction.

[52]

St. Cloud
emphasizes those principles must be tailored to the bail process. Circumstances
    relevant to bail are dynamic and can change significantly as a case progresses
    and time passes: see
R. v. Zora
, 2020 SCC 14 at para. 92. Bail orders
    are inherently more interim in nature than final. The integrity of the criminal
    justice process would suffer if the finality principle was afforded the same
    weight in bail reviews as it is given on appeals from convictions.

[53]


St. Cloud
adopts a flexible, more
    receptive approach to fresh evidence on bail reviews under s. 520 and s. 521.
    That approach reflects the inherently interim nature of bail decisions and
    accommodates
Charter
principles underlying the presumption of
    innocence and access to reasonable bail. On s. 520 and s. 521 reviews, the
    court may receive new evidence not available at the bail hearing if the
    evidence is relevant and potentially material to the question of bail. The reviewing
    court may also receive new evidence available at the initial hearing, if the
    applicant provides a legitimate and reasonable explanation for the failure to
    present the evidence at the initial hearing:
R. v. St. Cloud
, at para.
    132.

[54]

I would apply the approach to fresh evidence
    outlined in
St. Cloud
to fresh evidence offered on a s. 680 review. In
    this case, the applicant alleges material errors by the bail judge. The
    applicant also relies on fresh evidence, contending that evidence materially
    alters the evidentiary landscape, as it relates to both the public safety criterion
    (s. 515(10)(b)), and the public confidence criterion (s. 515(10)(c)). I will
    review the alleged errors in the s. 522 proceeding on the standard set down in
Oland
.
    I will consider the fresh evidence using the flexible approach described in
St.
    Cloud
and will, to the extent I receive fresh evidence, determine the
    impact of that evidence on any findings or assessments made by the bail judge. If
    the new evidence does not impact on a particular finding made by the bail
    judge, I will defer to that finding, absent a finding of a material, legal or
    factual error, or a determination the bail judges finding or assessment was
    unreasonable.

[55]

I do not propose to address the question whether
    I should direct a review separately from the ultimate merits. The parties have
    thoroughly argued the ultimate merits of the review, both in writing and orally.
    It will be apparent from my reasons addressing those merits, I am satisfied the
    applicant clears the arguable case standard, both in respect to some of the
    errors alleged to have been made by the bail judge, and by virtue of the new
    evidence offered on the review.


VII



the alleged errors

A.

Did the bail judge err in holding Jaser failed
    to show his detention was not necessary on the secondary ground?

[56]

Section 515(10)(b), often referred to as the
    secondary ground, provides pretrial detention is justified:

Where the detention is necessary for the
    protection or safety of the public,  having regard to all the circumstances
    including any substantial likelihood that the accused will, if released from
    custody, commit a criminal offence or interfere with the administration of
    justice.

[57]

In
R. v. Morales
, [1992] 3 S.C.R. 711, 77
    C.C.C. (3d) 91 at p. 107, the court upheld the constitutionality of the public protection/safety
    criterion in the predecessor section to s. 515(10)(b). In doing so, the court
    stressed the strict qualifications imposed by the relevant statutory language:

I am satisfied that the scope of the public
    safety component of s. 515(10)(b) is sufficiently narrow to satisfy the first
    requirement under s. 11(e). Bail is not denied for all individuals who pose a
    risk of committing an offence or interfering with the administration of justice
    while on bail.
Bail is denied only for those who pose a
    substantial likelihood of committing an offence or interfering with the
    administration of justice and only where this substantial likelihood
    endangers the protection or safety of the public. Moreover, detention is
    justified only when it is necessary for the public safety
. It is not
    justified where detention would merely be convenient or advantageous. 
    [Emphasis added.]

[58]

The bail judge made three errors in his
    assessment of the secondary ground. First, he misapprehended the relevance of a
    portion of the risk assessment performed by the correctional authorities in March
    2018. Second, he failed to consider whether, as of 2020, Jaser held terrorist beliefs.
    Third, he considered irrelevant factors when assessing the ability of Jasers
    parents to properly serve as sureties for Jaser.

(i)

The misapprehension of the risk assessment

[59]

In early 2018, Jaser successfully applied for a
    transfer from a maximum to a medium security penitentiary. The correctional
    authorities prepared a detailed risk assessment. In addressing the safety risk
    posed by Jaser, the authorities proceeded on the basis Jaser had committed the
    terrorist offences for which he stood convicted.  That assumption does not
    apply in this proceeding.

[60]

In considering the risk assessment done by the correctional
    authorities in the context of the secondary ground, the bail judge focused on
    the part of the report referencing Jasers risk to the public should he escape
    from custody. The bail judge quoted the relevant passage from the report, at para.
    45 of his reasons:

He claims he is no longer a risk to the public
    and points to the correctional classification report that his risk level was
    downgraded from maximum security to minimum security while incarcerated.
    However, based on the internal factors considered in the March 9, 2018 report 
    institutional adjustment escape risk and public safety concerns  the
    assessment was that he presented a moderate probability of escape
and a high risk to the public in the event of escape
.
    It was within the institution that he required a lower degree of supervision
    and control. [Emphasis added.]

[61]

The risk Jaser posed to the public if he escaped
    and was unlawfully at large provides no insight into the risk he might pose if
    released on bail on strict conditions. It is self-evident a person who has been
    convicted of a very serious offence, and escapes while serving his sentence,
    poses a significant risk to the public. It is not self-evident a person charged
    with a serious offence and released on bail poses the same risk.

[62]

In the same assessment quoted by the bail judge,
    the correctional authorities describe Jaser as posing no escape related
    concerns. To assess Jasers risk to the safety of the community by assuming he
    was an escapee unlawfully at large, is to make a risk assessment premised on a
    hypothetical the correctional authorities were not concerned about. The risk
    assessment actually classified Jasers risk of reoffending after release as
    low. This assessment was much more germane to the secondary ground than an
    assessment based on a presumed escape.

(ii)

The failure to address Jasers present ideology

[63]

Counsel for the applicant submits the bail judge
    could only have concluded Jaser had not shown his detention was not necessary
    for the protection and safety of the public if he concluded Jaser continued to
    hold terrorist beliefs. Counsel acknowledges the bail judge did not expressly
    make that finding, but argues the bail judge must have inferred, or simply
    assumed, as of the bail hearing, Jaser held beliefs consistent with those expressed
    in his intercepted communications in 2012.

[64]

Counsel further contends a finding Jaser held
    terrorist beliefs in 2020 ignores all of the evidence about his maturation and
    development in the over seven years he has been in custody. Counsel submits the
    detailed evidence from many sources relating to Jasers behaviour over the last
    seven years compels the conclusion he is a very different person and poses no
    risk of engaging in any terrorist-related activity. Counsel characterizes the
    error as a failure to take into account all of the evidence relevant to a
    proper determination of the secondary ground.

[65]

I do not agree with counsels reading of the
    bail judges reasons. As I understand them, the bail judge made no finding with
    respect to Jasers present ideology. Instead, he concluded Jaser, who was a long-time
    fraudster with an established propensity to disobey court orders and a proven
    ability to manipulate others, including his family members, could not be relied
    on to comply with the terms of any release order, or submit to the supervision
    of his parents and brother. The bail judge determined the likelihood of Jasers
    reoffending in some way was enough to justify the finding Jaser had not met his
    onus on the secondary ground. The bail judge did not turn his mind to the
    nature of the potential reoffending beyond concluding it would reflect Jasers
    dishonesty and disregard for court orders. In short, the bail judge read the
    secondary ground as prohibiting release if there was a substantial likelihood
    Jaser would commit a criminal offence:
R. v. Jaser
, at para. 41.

[66]

It was open to the bail judge to conclude there
    was a likelihood Jaser would commit offences involving dishonesty, and/or
    disobey the terms of his bail order. Crown counsel submits this finding
    necessarily means Jasers detention was necessary for the protection or safety
    of the public.

[67]

I do not agree with this interpretation of the
    secondary ground. It runs directly against the analysis found in the
    above-quoted passage from
Morales
(see para.57). Not only must there
    be a substantial likelihood of committing an offence, that substantial
    likelihood must endanger the protection or safety of the public. It is one
    thing to conclude there is a significant risk Jaser would deceive his parents
    and breach curfew terms of a bail order, and a another to conclude Jaser, motivated
    by a terrorist-ideology, would seek out and participate in terrorist-related
    activity. The former may or may not compromise public safety. The latter
    clearly does.

[68]

A proper analysis of the risk Jasers release
    would pose to the protection and safety of the public required an assessment of
    his present belief system. If, as of 2020, Jaser adhered to the terrorist worldview
    expressed in his 2012 conversations, or if there was a significant risk he held
    those beliefs, public safety concerns were clearly very real. The same
    conclusion would not follow if the bail judge was satisfied Jaser did not hold
    a terrorist ideology, but was a manipulative liar who could well breach the
    terms of his bail or become involved in the kind of fraudulent activity he had
    engaged in prior to his arrest.

[69]

On this record, the bail judge could have found
    Jaser held jihadist beliefs as of February 2020 and, as a master manipulator,
    had concealed those beliefs from his family and others while in custody. Had
    the bail judge made that finding, his conclusion Jaser had not satisfied the
    onus on the secondary ground would have been justified. The problem is the bail
    judge left unanswered the crucial question in the assessment of the risk posed
    by Jasers release on bail  did  Jaser continue to hold terrorist beliefs?

(iii)

The bail judge considered irrelevant factors
    when assessing the suitability of Jasers parents to act as sureties

[70]

In the course of examining the secondary ground,
    the bail judge, at para. 52, expressed concerns about the ability of Jasers
    parents, two of the proposed sureties, to control and supervise Jaser. The
    bail judge did so primarily because of Jasers proclivity in the past to
    manipulate and deceive others, including his parents, for his own personal gain
    and advantage. This was the same consideration that led him to conclude there
    was a substantial likelihood Jaser would commit an offence if released.

[71]

I see no error in the trial judges concern that
    Jasers family could be manipulated and deceived by him. The concern was
    supported by the evidence, albeit evidence from many years earlier, and was
    relevant to the suitability of Jasers parents as sureties. I note, however,
    the bail judge did not consider the extent to which his concerns could be
    mitigated by specific stringent bail terms allowing for significant ongoing
    police oversight of Jasers compliance with his bail terms. Nor did the bail
    judge consider whether Jasers parents susceptibility to his deceit and
    manipulation would continue in the very different circumstances presented in
    February 2020. Jaser faced serious allegations. His parents were very familiar
    with those allegations. They had to know Jaser, if released, would be under
    ongoing police scrutiny. They also knew they faced serious financial
    consequences if Jaser breached his bail.

[72]

The bail judge, however, identified two
    additional concerns with Jasers parents acting as sureties. Neither, in my
    view, were relevant. First, the bail judge referred to Mr. Jaser Sr.s evidence
    that, even after listening to the interceptions in which Jaser advocated mass
    murder, he still knew his son could not kill an insect on the ground (para.
    48). I take the trial judge to be saying Mr. Jaser Sr.s belief in his sons
    innocence must negatively impact on his ability to fulfil his duties as a
    surety.

[73]

I see no connection between Mr. Jaser Sr.s
    belief in his sons innocence and his ability to properly fulfil his
    obligations as a surety. Many individuals, prepared to assume the significant obligations
    of a surety, do so because they firmly believe the accused person is innocent.
    Jaser is presumed innocent at this point.

[74]

It is clear from their affidavits and evidence
    the parents understood their obligations as sureties. The Crown does not
    suggest they are not responsible law abiding citizens. It cannot reasonably be
    inferred from Mr. Jaser Sr.s belief in his sons innocence he would not diligently
    perform his obligations as a surety.

[75]

The bail judge also had concerns about the
    suitability of Jasers parents as sureties because neither seemed to appreciate
    the significance of Jasers new found interest in Islam in around 2009-2010
    (paras. 49-51). It is unclear to me what the bail judge means by this
    observation. Certainly, it cannot be assumed a newfound religious fervour
    signals a dissent into terrorism. There is no evidence Jaser manifested any
    terrorist beliefs to anyone in his family. With the benefit of hindsight, it
    may be Jasers interest in Islam in 2009-2010 was a twisted precursor to the
    development of a terrorist ideology. His parents cannot be faulted for missing
    that connection.

[76]

Even if one were to assume Jasers parents should
    have appreciated the significance of his apparent newfound interest in
    religion, the failure to do so says nothing about their ability to act as
    sureties. The situation is crystal clear to everyone now. Jasers parents
    appreciate the nature of the allegations and they clearly understand their
    responsibilities as sureties if Jaser is released.

[77]

It is impossible to say how much weight the
    bail judge gave the two irrelevant factors described above when assessing the
    parents suitability as sureties. Clearly, he weighed both against the parents
    to some degree. Neither, in my view, could carry any weight in the assessment.

B.

did the bail judge err in holding jaser failed
    to show his detention was not necessary on the tertiary ground?

[78]

Section 515(10)(c), the tertiary ground,
    provides pretrial detention is justified:

If the detention is necessary to maintain
    confidence in the administration of justice, having regard to all the
    circumstances, including

(i)
the apparent
    strength of the prosecutions  case,

(ii)
the gravity of
    the offence,

(iii)
the
    circumstances surrounding the commission of the offence, including whether a
    firearm was used, and

(iv)
the fact that
    the accused is liable, on conviction, for a potentially lengthy term of
    imprisonment

[79]

Section 515(10)(c) was considered at length in
St.
    Cloud
. The bail judge, at para. 54, accurately summarized the principles
    found in
St. Cloud
. I do not understand the applicant to argue the
    bail judge misstated the law.

[80]

The applicant does, however, argue the bail
    judge misapplied those principles to the evidence, especially as it relates to
    the strength of the Crowns case. The applicant further contends the bail judge
    limited his consideration to the four specific factors identified in s. 515(10)(c)
    and failed to have regard to all the circumstances, especially Jasers rehabilitation
    during his more than seven years in jail after his arrest.

[81]

I do not agree the bail judge erred in his
    consideration of the factors specifically enumerated in s. 515(10)(c). I
    accept, however, counsels submission the bail judge failed to consider Jasers
    personal circumstances as of February 2020.

(i)

The strength of the Crowns case

[82]

The bail judge described the case against Jaser
    as a strong one. The Crowns case came primarily out of Jasers own mouth.
    Jaser, through counsel, acknowledged he said what he is alleged to have said.
    Those words are powerful evidence of his enthusiastic support for mass murder
    in the name of religion. Taking those conversations at face value, Jaser was a
    committed terrorist, whose main concern was selecting the best plan to maximize
    the havoc and harm caused to Canadian society by his mass murders.

[83]

Jasers claim he only pretended to agree to defraud
    Tamer raises a valid defence. There are elements of the evidence capable of supporting
    Jasers position. Some of Jasers conversations with Tamer could reasonably be
    interpreted as a fraudsman making his pitch. Jasers decision to walk away from
    any discussions in late September, and the absence of any further connection
    with Esseghaier after late September, also lends some credence to Jasers
    defence.

[84]

However, as Code J. cogently explained in his
    reasons for sentence, Jasers defence is inconsistent with a significant part of
    the evidence. Jasers many discussions with Esseghaier about plots to commit
    mass murder began well before Jaser knew of Tamers existence. Esseghaier had
    no money and hardly presented as a plausible fraud target:
R. v. Esseghaier
,
    2015 ONSC 5855 at paras. 28-36. In describing the case as a strong one, the
    bail judge joined company with the judge who heard the first bail application
    and the trial judge.

[85]

The applicant also submits the bail judge
    wrongly treated Jasers convictions as proof of the strength of the Crowns
    case. The verdicts have been set aside and are obviously not determinative of
    the weight of the Crowns case. Nor, however, was the bail judge required to ignore
    those verdicts. The jury heard a great deal of evidence. Jaser was fully and
    vigorously defended. There is nothing in the ground of appeal on which the
    appeal was allowed that would justify ignoring the verdicts of the jury for the
    purposes of assessing the strength of the Crowns case:
R. v. Esseghaier
,
    2019 ONCA 672 at para. 95. The bail judge was entitled to take the verdicts into
    account when assessing the apparent strength of the Crowns case against Jaser.

[86]

I also do not agree the jurys failure to return
    a verdict against Jaser on count one reflects negatively on the strength of the
    fundamental allegation made by the Crown. The Crown alleged Jaser conspired to
    commit mass murder. The jury convicted him on count two, the count making that allegation
    in general terms. Unlike jury verdicts, findings of fact cannot be inferred
    from a jurys failure to reach a verdict. Code J., in his reasons for sentence,
    offers a viable explanation for the jurys conviction of Esseghaier on count
    one, and its failure to reach a verdict in respect to Jaser on that count. On
    his explanation, the failure to reach a verdict on count one does not suggest
    the jury gave any credence to Jasers I was only pretending defence. The
    verdict on count two is a flat out rejection of that defence: see
R. v.
    Esseghaier
, 2015 ONSC 5855 at para. 21.

[87]

Finally, the applicant suggests, even if the
    Crowns case was strong at the first trial, it will be much weaker on the
    retrial, as many of the intercepted communications may be ruled inadmissible. I
    cannot make an informed assessment about the admissibility of wiretaps that may
    be challenged on the retrial. The challenge was unsuccessfully advanced at the
    first trial:
R. v. Jaser
, 2014 ONSC 6052, although the applicant apparently
    has new arguments to make on the retrial. I proceed on the basis the evidence
    adduced at the first trial will be available at the second trial.

(ii)

The potential sentence

[88]

The applicant contends the bail judge erred when
    considering the potential length of the sentence Jaser might face if convicted.
    This consideration is made relevant to the tertiary ground by s.
    515(10)(c)(iv). The bail judge identified the controlling cases from this court:
    e.g.
R. v. Khalid
, 2010 ONCA 861 at para. 34;
R. v. Hersi
,
    2019 ONCA 94 at para. 54. Those cases hold convictions for terrorist activities
    aimed at the indiscriminate murder of innocent people will often warrant a life
    sentence, and failing a life sentence, sentences of 20 years or more. The bail
    judge accurately identified the appropriate range of sentence should Jaser be
    convicted at the retrial on count one, count two, or both.

[89]

For the reasons set out above, I am satisfied
    the bail judge did not err in his consideration of the four factors specifically
    identified in s. 515(10)(c). Those are the main factors to be balanced in
    considering the tertiary ground:
R. v. St. Cloud
, at para. 69. In most
    cases, if all four factors clearly favour detention, bail will be refused on
    the tertiary ground, especially if the accused has the onus to show cause why
    he should be released: see
R. v. Jaser
, 2014 ONSC 1058 at para. 74;
R.
    v. Mordue
(2006), 223 C.C.C. (3d) 407 at 415-16 (Ont. C.A.).

(iii)

The other relevant circumstances

[90]

Despite the importance of the four identified
    factors in the tertiary ground assessment, the language of s. 515(10)(c) and
St.
    Cloud
make it clear the bail judge must take into account, not just the
    four enumerated factors, but all relevant circumstances:
R. v. St. Cloud
,
    at paras. 66-71. Those factors include the personal circumstances of the
    accused, and any significant pretrial custody flowing from delay in the
    accuseds trial:
R. v. St. Cloud
, at para. 71.

[91]

Not only is it clear the relevant factors extend
    beyond those enumerated in s. 515(10)(c), the balancing of the relevant
    circumstances envisioned by the provision is not value neutral. Instead, that
    balancing must reflect the laws commitment to the fundamental principles of
    the presumption of innocence and the entitlement to reasonable bail:
R. v.
    St. Cloud
, at paras. 56, 70.

[92]

In summarizing the principles from
St. Cloud
,
    the bail judge acknowledged the four factors enumerated in s. 515(10)(c) were
    not the only factors to be considered when engaging in the balancing required
    by the tertiary ground. The bail judge did not, however, make any  reference in
    his tertiary ground analysis to any other factors. He did not address the substantial
    body of evidence said to demonstrate that Jaser had become a very different
    person in the seven years since his arrest. Those changes reflected a prosocial
    attitude, a willingness to take responsibility for his own actions, and a
    determination to improve himself. Those changes, if real, were relevant to the
    balancing required under the tertiary ground.

[93]

The bail judge did not consider whether Jasers
    asserted rehabilitation was genuine. Instead, his tertiary ground analysis does
    not differ materially from the analysis at the first bail hearing in 2013.

[94]

Just as the bail judge had to make findings
    about Jasers belief system as of 2020 to properly address the secondary
    ground, he had to make findings about Jasers purported rehabilitation to
    properly address the tertiary ground. Those two findings, that is whether Jaser
    continued to hold terrorist beliefs, and the genuineness of his apparent
    rehabilitation, are obviously closely related and turn largely on an assessment
    of the evidence relating to Jasers conduct while in custody for the last seven
    years. Without making any finding as to the genuineness of the apparent changes
    in Jaser, the bail judge could not properly decide whether public confidence in
    the administration of justice could be maintained if Jaser were released on
    strict bail terms.


VIII



what order should be made?

A: the fresh evidence

[95]

Having found the bail judge made errors in his
    analysis of both the secondary and tertiary grounds, I must determine the
    appropriate order under s. 680(1). In doing so, I will first consider whether
    any of the fresh evidence should be received.

(i)

The delay in the retrial

[96]

The parties agree the retrial is now scheduled for
    April 2021 and not September 2020, as anticipated by the bail judge. The added
    delay is attributable to the ongoing appeal process. If the trial proceeds in
    April, one could reasonably expect a decision by the trial judge in the summer
    of 2021. The applicant also points to the real possibility of additional delay.
    The applicant submits this evidence should be received, as delay in the retrial
    is relevant to the balancing under the tertiary ground.

[97]

The Crown agrees the evidence the retrial will
    occur at least several months after the anticipated trial date is properly
    considered on this review. The Crown argues, however, the delay has no impact
    on the secondary ground and, having regard to the strong case for detention on
    the tertiary ground, does not tip the ultimate balancing under that provision
    in the applicants favour.

[98]

The evidence of the added delay in the retrial
    is relevant to the tertiary ground and properly received on this application:
    see
R. v. Hope
, 2016 ONCA 648 at paras. 28-29;
R. v. Myers
,
    2019 SCC 18 at paras. 50-54. Public confidence in the administration of justice
    must suffer when trials are delayed beyond their anticipated completion date,
    and accused who have been denied bail, but are nonetheless presumed innocent,
    must languish in custody. Here, the added delay of at least eight months must
    be placed in the context of the over seven years Jaser has been in custody as
    his case has worked its way through the system.

(ii)

The COVID-19 evidence

[99]

The applicant also offers evidence of the impact
    of COVID-19 on persons held in custody in Ontario. He submits the pandemic,
    which arrived after the s. 522 bail hearing, puts prisoners health at risk, and
    makes the conditions of their detention significantly more onerous. The
    applicant submits, that while the pandemic is upon us, detention on the
    tertiary ground should be rare: see
R. v. J.R.
, [2020] O.J. No. 1670
    at para. 47.

[100]

The Crown accepts the court should receive the COVID-19-related
    evidence, including the Crowns evidence. The Crown submits, however, the impact
    of the pandemic must be assessed by reference to the specific circumstances of
    the accused and the institution in which he is being held.

[101]

Dr. Orkins affidavit, filed on behalf of the applicant, was prepared
    in May 2020. The affidavit is thorough, impressive and thought-provoking. Dr.
    Orkin specifically addresses the possibility of a second wave in the fall of
    2020.

[102]

The material filed by the Crown is also helpful. It speaks directly
    to circumstances in Ontario correctional institutions as of late August. The
    material describes the measures taken in the institutions in the face of the
    pandemic and the effects of those measures. Prison population has been
    substantially reduced and correctional authorities have acted aggressively in
    instituting other measures known to provide some protection against the
    pandemic. To date, there has not been a single case of COVID-19 in the institution
    in which Jaser is being held. While we have all come to know how little we know
    about this virus, the measures taken by the correctional authorities have
    clearly been effective in limiting the spread of COVID-19, particularly within
    the institution in which Jaser is being held.

[103]

The presence of COVID-19 is a factor to be balanced in the tertiary
    ground analysis, especially where there is a viable alternative to actual incarceration,
    which can go a long way to achieving
de facto
incarceration outside of
    the correctional institution. I must, however, reject the contention that
    post-COVID-19 detention on the tertiary ground will rarely be justified. Like
    all other factors in the tertiary ground balancing, the significance of the
    pandemic depends on the individual case and the evidence provided to the court.
    On the evidence I have, COVID-19 concerns are relevant in the tertiary ground
    assessment. They are far from determinative.

(iii)

The spiritual counselling/psychological testing
    evidence

[104]

The applicant offers fresh evidence in the form of letters from two
    Imams who provided spiritual counselling to Jaser while he was in the
    penitentiary. In addition, the applicant offers a psychological report prepared
    after Jaser had been returned to the provincial system in 2019, when his new
    trial was ordered. The psychological report post-dates the bail judges
    decision and was obviously not available to him.

[105]

The Crown correctly observes the evidence provided by the Imams is
    general and, to some extent, not different from the evidence before the bail
    judge. It does, however, add to the overall picture of Jaser in his post-arrest
    life. Both Imams had significant interaction with Jaser, particularly in the
    last few years of his incarceration in the penitentiary. In their letters, both
    report significant positive changes in Jasers attitude, self-awareness and
    behaviour, although neither purports to engage in any kind of risk assessment.

[106]

The information provided by the Imams was available to the applicant
    at the time of his bail hearing. The applicant has provided evidence in this
    proceeding offering a reasonable explanation for the failure to put the
    information from the Imams before the bail judge. I accept that explanation. Bearing
    in mind the flexible approach to the reception of new evidence on bail reviews,
    I will receive the evidence provided in the correspondence from the Imams. That
    evidence is relevant to both the secondary and tertiary grounds.

[107]

The psychological report is based on 16 sessions with Jaser between
    October 2019 and May 2020. The psychologist reports significant progress and
    describes Jaser as motivated to obtain further assistance in his rehabilitation.
    The report also suggests Jaser is a good candidate for community-based
    counselling. The psychological report is relevant to both the secondary and
    tertiary grounds and was not available at the bail hearing. I will admit the
    report.

B: the appropriate order

[108]

I start with the crucial question  does Jaser presently hold
    terrorist views, which would justify random murder in the name of religion? The
    trial judge faced this same question on sentencing. He said, at para. 61:

In these circumstances, the defence has failed
    to prove certain mitigating factors such as a remorse and renunciation on a
    balance of probabilities. However, the Crown has also failed to prove the
    aggravating factors of an ongoing present commitment to violent jihadist
    ideology on a standard of proof beyond a reasonable doubt.
I am left in the position  of not knowing where the truth lies
    in relation to Jasers present beliefs and present rehabilitative prospects
.
    [Emphasis added.]

[109]

After reviewing the bail record and the new evidence, I find myself
    in somewhat the same position as the trial judge. I cannot answer the question with
    a definitive yes or no. There is a real possibility Jaser presently holds
    terrorist views. There is equally a real possibility he does not. I reach this
    conclusion for several reasons.

[110]

The interceptions provide powerful evidence through Jasers own words
    of a strong commitment to terrorist ideology in August and September of 2012.
    His words are terrifying. Nor can his words be entirely discounted because they
    were uttered many years ago.

[111]

Jaser has never said under oath, or otherwise as far as I can tell,
    he does not presently hold any terrorist beliefs. Nor has he directly offered
    any explanation for the statements he made in the interceptions. I accept
    concerns about self-incrimination would limit what he could be expected to say,
    especially before his trial. However, given the defence Jaser advanced, I have difficulty
    understanding why, if Jaser does not hold terrorist beliefs, he has not repeatedly,
    expressly and loudly said so in these bail proceedings. Instead, Jaser says
    nothing about his beliefs, and certainly says nothing in a forum in which he
    could be cross-examined on his statements. I am left to discern his present
    beliefs by reference to his conduct in custody, while the very explicit
    language of his conversations in 2012 rings loud and clear.

[112]

Jaser has apparently never said anything to his religious
    counsellors about his attitudes with respect to terrorist activity. I
    understand that the practice of confessions is not part of the Muslim faith.
    Nonetheless it is strange the topic of whether Jaser holds terrorist beliefs
    has apparently never been raised by Jaser or the Imams in the course of their
    many discussions about religion and Jasers attitudes.

[113]

Placed against Jasers words in 2012, and his silence on the topic
    since, is his conduct while in custody, especially after his sentencing in
    2015. That conduct has been largely positive throughout and has become more
    positive as time has gone on. Many sources, some independent of Jaser and
    experienced in dealing with persons in Jasers situation, are satisfied Jaser
    has gained real insight into his behavioural issues, developed a determination
    to improve himself and to become involved in prosocial activities. Much of
    Jasers conduct in the last five years is inconsistent with any adherence to a
    terrorist ideology.

[114]

I recognize Jasers history dictates caution in accepting the
    genuineness of Jasers apparent behavioural changes. His history as a liar and
    manipulator goes well beyond his arrest in 2013. The trial judge found Jaser
    lied to the psychologist retained by the defence for the purposes of sentencing
    in 2015. The federal correctional authorities in 2018 also described Jaser as a
    manipulator. If Jaser maintained a terrorist ideology, he would no doubt see
    the value of falsely presenting himself to the correctional authorities, his
    counsellors, and even his own family, as a changed person. Indeed, Jaser
    described this kind of manipulation in one of the intercepted communications.

[115]

My doubts about the genuineness of Jasers purported rehabilitation and
    changed worldview do not, however, cause me to reject the evidence entirely and
    conclude Jaser has not changed. I do not discount his apparent rehabilitation
    as simply part of a long con game. Given the source of the reports, the time
    period covered by the reports, and their almost uniformly favourable
    description of Jaser, there is a real possibility Jaser has indeed changed and
    will, if released on bail, continue down that course and abide by his bail
    terms. Jasers apparent rehabilitation while in custody may well be real.

[116]

It may be suggested my inability to positively conclude Jaser does
    not harbour terrorist beliefs and is a changed person is enough to require his
    detention in light of the onus placed on Jaser by s. 515(6) to show cause why
    he should be released. Section 515 must be read as a whole. Section 515(6)
    requires Jaser to show cause why his detention is not necessary on any of the
    three grounds identified in s. 515(10). This inquiry requires a consideration
    of the alternatives to detention available on the evidence. Detention may be
    necessary if release without any significant terms is the only realistic alternative.
    Detention may not be necessary if concerns arising out of release can be
    adequately addressed by terms. Put differently, if I were able to positively
    conclude Jaser did not harbour terrorist beliefs and was rehabilitated, I would
    release him on minimal terms. Because I harbour concerns about his belief
    system and the genuineness of his rehabilitation, I must consider whether
    adequate terms can be imposed to render detention unnecessary.

[117]

The adequacy of any release plan depends, in part, on the availability
    of suitable sureties who are prepared, not only to supervise Jaser, but also to
    cooperate with the authorities in their attempts to monitor compliance with the
    bail order. The sureties are not, however, the only thing standing between
    compliance and non-compliance with a bail order. If the terms of the release
    give the police significant supervisory powers to be exercised at the
    discretion of the police, the court, in deciding whether terms adequately
    address bail-related concerns, is entitled to assume the police will diligently
    exercise supervisory powers given to them under the bail order.

[118]

Based on my findings, Jaser poses a risk to public safety, and there
    is a genuine concern public confidence in the administration of justice would
    be undermined by his release. The question becomes  can release terms be
    fashioned which sufficiently address those risks so as to render the detention
    unnecessary? In answering that question, one must bear in mind Jaser is
    presumed innocent and Jaser will have spent over eight years in custody before
    his retrial is completed.

[119]

I believe the appropriate terms can be fashioned. The terms must minimize
    Jasers movements outside of his mothers home, limit his contacts with
    non-family members, and give the police the ability to oversee Jasers
    movements and monitor his compliance with the bail terms. On the terms I
    envision, Jasers liberty will be substantially circumscribed and the police
    will have broad authority to monitor and verify Jasers compliance with his
    bail terms on a daily, if not an hourly, basis.

[120]

Many of the terms I impose are contained in the draft order provided
    by counsel for the applicant after oral argument. While I propose a somewhat
    less strict house arrest provision, I propose other terms restricting Jasers
    movements and civil liberties going well beyond those suggested by counsel.
    Some of the terms I envision will also impose significant limits on the civil
    liberties of the sureties. It will, of course, be for them to decide whether
    they are content to accept those limits and act as sureties. The details of
    some of the terms I propose have not been discussed with counsel. Nor have
    counsel been offered the opportunity to address further terms in light of those
    I propose. A further hearing is necessary to permit counsel to make submissions
    concerning the workability, appropriateness, and sufficiency of the proposed
    terms.

[121]

Jaser should be released with four sureties, the persons named in
    the draft order provided to me.
[5]
The sureties shall be in the total amount of $310,000.

[122]

Jaser will reside at his mothers home at [redacted address]. One or
    more of the sureties must be present in his home at all times when Jaser is in
    the home. No person other than a surety can be alone with Jaser in the home.
    Jaser must be in the home at all times between 7:00 p.m. and 9:00 a.m., subject
    only to personal, medical emergencies. If such emergency arises, the surety
    shall advise the designated authority within one hour of leaving the home, of
    both the nature of the emergency and Jasers location. Whenever Jaser leaves
    the home, he shall be accompanied by one or more of his sureties at all times.

[123]

By 8:00 p.m. of each day, Jaser, and at least one of his sureties,
    shall provide, in the designated form, to the named authority Jasers full
    itinerary for the next day. That itinerary will set out, on an hourly basis,
    where Jaser will be, who he will be with and, if he proposes to leave his
    mothers home, the purpose of that trip and the identity of any persons who
    will accompany him. If Jaser proposes to change that itinerary, he shall
    provide at least one hours notice to the appropriate authority before departing
    from the itinerary. Except as indicated in his itinerary, Jaser must remain in
    his mothers home. If he is unable to provide the requisite notice of any
    proposed change in his itinerary, he must remain in his mothers home.

[124]

When Jaser is out of his mothers home, he shall carry photo
    identification and a copy of his daily itinerary. Jaser will, when outside of
    his home, if requested by the police, produce his identification and itinerary.
    He must also, if requested, submit to a search of his person for the purpose of
    determining whether he is in compliance with the terms of his bail order.

[125]

By 8:00 p.m. of each day, Jaser and a surety shall also provide to
    the same named authority a summary, on an hourly basis, of Jasers activities
    on that day. The summary shall indicate where Jaser went, who he was with, and
    the purposes for any trip or visit outside of the home.

[126]

The police may attend at [redacted address] at any time at which
    Jaser is, under the terms of this release, obligated to be in the home. Jaser, with
    at least one of his sureties, will immediately personally respond to the police
    attendance and, upon request, present photo identification to the attending
    police officers. If requested by the police, Jaser and his surety will allow
    the police to enter the home and search the home, but only for the purpose of determining
    whether Jaser is in compliance with the terms of his bail.

[127]

The electronic monitoring terms contained in the draft order
    provided to me after argument (paras. 4-7) should be included in the order.

[128]

Paragraphs 8, 10, 11, 12, 13, 14, 15 and 16 from the draft order
    should also be included.
[6]

[129]

Term 11 of the draft order provides:

The accused shall not access or use any
    mobile, landline, telecommunication device or any device capable of connecting
    to the internet by any means.

[130]

Given the risks outlined above, I see this as a significant, but
    nonetheless necessary restriction on Jasers liberty. I would be interested in
    hearing any submissions the Crown might have as to terms which could be imposed
    to allow the police to effectively monitor compliance with this term. It may be
    adequate monitoring would require the sureties to consent to police activity limiting
    their own privacy rights. It will be for the sureties to decide if they are
    prepared to agree to those concessions. I regard the ability of the police to
    monitor compliance with the term prohibiting Jasers use of the internet to be a
    significant consideration in determining whether release on specified terms can
    adequately address the secondary and tertiary grounds in s. 515(10).

[131]

In the draft order, counsel suggests Jaser should be allowed to
    attend educational courses, counselling sessions, and employment venues. While
    I see the value in all three, I would not include that term in my order. Instead,
    I propose a term prohibiting Jaser from leaving his home to attend any educational
    courses, counselling sessions, or employment.

[132]

If at some stage Jaser presents a detailed plan with respect to
    counselling, education or employment, making it clear exactly what he proposes
    and exactly what he would be doing, I would be prepared to consider amending
    the order. Any proposed plan of counselling, education or employment must also demonstrate
    those who would be engaged in providing counselling, education or employment have
    been made fully aware of Jasers legal situation, and are prepared to cooperate
    with the authorities in the enforcement of any bail terms applicable to those
    activities. I will remain seized of this matter for the purpose of considering any
    application to vary the terms of the order.

[133]

In attempting to formulate appropriate terms, I have borne in mind
    the strong admonition in
R. v. Zora
, at paras. 83-89, cautioning against
    unclear, unnecessary, punitive bail terms, and terms which seem calculated to
    produce a breach of the bail order. I am satisfied the conditions I propose are
    directly related to the risks associated with Jasers release. The terms are needed
    to ameliorate those risks to the extent detention will not be necessary on
    either the secondary or tertiary ground.

[134]

Counsel should arrange a further videoconference to hopefully
    finalize the exact terms of Mr. Jasers release. It would be helpful if counsel
    could each provide me with draft orders containing their understanding of the
    terms I have outlined and any additional terms counsel propose.

C.

The non-publication order

[135]

Counsel for Jaser submitted the non-publication order applicable to
    these bail proceedings can be lifted. Counsel for Esseghaier agrees.
[7]
I will address the
    non-publication order after the further hearing to address the specific terms
    of the order. In the meantime, the non-publication order remains in effect.

Released:
DD SEPT.
    24, 2020

Doherty
    J.A.





[1]

The applicant chose to bring his application for bail
    pending his retrial in the Superior Court pursuant to s. 522. He could have
    brought the application before a judge of this court:
Criminal
    Code
, s. 679(7.1). Given the nature of the evidence produced on the
    application, the Superior Court was the preferable forum: see
R. v. Ranger
(2003), 180 O.A.C. 138;
R. v. Manaseri
, 2017 ONCA 226.



[2]

Jaser received a pardon in 2009. That pardon was revoked in
    2013 after these charges were laid.



[3]

Jaser is also reported by his father, in his fathers
    affidavit, to have made an equally ambivalent comment. He apparently told his
    father no good came from his actions in 2012. Certainly from the perspective
    of a committed jihadist, the 2012 events came to no good.



[4]

In addition to declining to order a review if the applicant
    does not demonstrate an arguable case, I think the Chief Justice could also
    refuse to order a review if the applicant relied primarily on material changes
    in circumstances as a basis for the review. The Chief Justice could conclude a
    second s. 522 application was the more appropriate forum in which to deal with
    the new evidence: see
R. v. Whyte
, ONCA 268,
    at para. 21.



[5]

Jasers father was out of the country and unable to return
    because of the COVID-19 travel restrictions at the time of the application
    before me. He has since returned and will soon complete the necessary
    self-isolation. Jasers father must be one of the named sureties.



[6]

Paragraph 8 relates to the non-use of non-medically
    prescribed drugs or alcohol; paragraph 10 refers to waivers to the sureties, if
    necessary; paragraphs 12 and 13 are non-communication clauses with Esseghaier
    and certain other named persons; paragraph 14 prohibits possession of travel
    documents; and paragraph 15 prohibits possession of firearms and related paraphernalia.



[7]

At my request, counsel for the applicant spoke with counsel
    for Esseghaier and confirmed he was agreeable to the lifting of the
    non-publication order.


