



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Esseghaier, 2021 ONCA 162

DATE: 20210312

DOCKET: M51969 (C61095 & C61185)

Fairburn A.C.J.O., Doherty and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent
/Moving Party

and

Chiheb Esseghaier

Appellant
/Responding Party

AND BETWEEN

Her Majesty the Queen

Respondent
/Moving Party

and

Raed Jaser

Appellant/Responding Party

Lisa Mathews, Sarah Shaikh and Ian Bell, for the moving
    party

Erin Dann and Sarah Weinberger, for the responding party
    Chiheb Esseghaier (C61095)

Megan Savard and Riaz Sayani, for the responding party
    Raed Jaser (C61185)

Heard: in writing

REASONS FOR DECISION

Overview

[1]

On March 20, 2015, Chiheb Esseghaier and Raed Jaser (the responding
    parties) were convicted of terrorism offences by a court composed of a judge
    and jury. They were later sentenced to life imprisonment on September 23, 2015:
    see
R. v. Esseghaier
, 2015 ONSC 5855 (
Esseghaier (ONSC)
).

[2]

Their appeals to this court were bifurcated so that an issue involving
    the proper process for the selection of the jury at trial could be decided
    first. The appeals were granted on that basis, the convictions were set aside, and
    a new trial was ordered: see
R. v. Esseghaier
, 2019 ONCA 672, 57 C.R.
    (7th) 388. The Crown then sought and was granted leave to appeal to the Supreme
    Court of Canada:
R. v. Esseghaier
, [2019] S.C.C.A. No. 350. The appeals
    were allowed by the Supreme Court, the convictions were restored, and the
    remaining grounds of appeal were remitted to this court for determination: see
R.
    v. Esseghaier
, 2021 SCC 9 (
Esseghaier (SCC)
).

[3]

On November 23, 2020, the responding parties filed a notice of
    application pursuant to s. 683(1)(a) of the
Criminal Code
, R.S.C.
    1985, c. C-46, requesting an order directing the Crown to obtain and disclose
    certain information from the Federal Bureau of Investigation (FBI). The Crown
    has now brought a motion for directions to address preliminary issues
    pertaining to the application, requesting that this court make an order
    summarily dismissing the responding parties s. 683(1)(a) application for
    disclosure. Through case management discussions, it was determined that a panel
    of this court would first decide the Crowns motion for directions and request for
    summary dismissal. On the consent of the parties, we have done that on the
    basis of a written record.

[4]

In these reasons, we explain why we do not accept the Crowns argument
    that the application for disclosure should be summarily dismissed and why the
    Crown is ordered to take further steps to obtain disclosure.

Factual Context

[5]

The terrorism offences for which the responding parties were found
    guilty arose primarily from a plot to derail a VIA Rail passenger train
    travelling between Toronto and New York, with the goal of killing the
    passengers:
Esseghaier (SCC)
, at para. 12. Much of the trial evidence
    came from an FBI agent, operating and testifying under the pseudonym Tamer El
    Noury. There were numerous conversations between the responding parties and Agent
    El Noury, many of which were intercepted under judicial authorization. There is
    no dispute that Agent El Noury was a key Crown witness, testifying over the
    course of about two weeks.

[6]

A number of orders were made to protect Agent El Nourys identity at
    trial, including that he testify under his pseudonym in a closed courtroom,
    with the public only able to see the proceedings by way of closed-circuit
    television from another location. To further protect Agent El Nourys identity,
    he and his handlers accessed the courtroom using the hallway of the judges
    chambers.

[7]

About two years after the responding parties were sentenced, Agent El Noury
    published a book under his pseudonym, which he co-wrote with journalist Kevin
    Maurer:
American Radical: Inside the World of an Undercover Muslim FBI
    Agent
(New York: Dutton, 2017)
.
    While the views in the book are purported to be Agent El Nourys alone, the
    book also suggests, in its Note to the Reader, that it was reviewed and
    approved by the FBI.

[8]

The book makes specific reference to the responding parties trial. The
    book suggests that, following the completion of his evidence, Agent El Noury waited
    in the break room for his handler to arrive so that they could leave the
    courthouse together. His handlers pseudonym was Nelly.

[9]

When Nelly arrived, he is purported to have said the following to Agent El
    Noury, as described near the end of chapter 28 of the book:

[The trial judge] stopped me in the hall and asked if I was
    going to see you, Nelly said. He wanted me to relay a message. He said to
    tell you that youre not only a hero in your country, but in his. Your service
    and commitment will forever be appreciated. He told me to take care of you.

[10]

On
    the basis of this purported communication between the trial judge and Nelly,
    the responding parties wish to now advance on appeal a reasonable apprehension
    of bias claim. To this end, the responding parties sent a disclosure request to
    the Crown on November 13, 2020, asking for the following:

all out-of-court communications between the  trial judge  and
    the FBI agents known publicly as Tamer El Noury and Nelly. I am content for
    this disclosure to take the form of affidavits or willsays from the two agents.
    If the agents created contemporaneous notes or memory aids relating to any such
    communications, please disclose those as well.

[11]

The Crown
    initially took the position that neither agent had relevant evidence to
    provide. In correspondence from the Crown to the responding parties, it was
    suggested that Agent El Noury did not have relevant evidence because he was not
    present during the alleged conversation with the trial judge. As for Nelly, the
    Crown took the position that he did not have relevant information because the
    purported conversation, even if true, could not give rise to the level of a
    reasonable apprehension of bias and, therefore, the alleged conversation was
    not relevant to the outcome of the appeal.

[12]

Shortly
    after the Crowns response, the responding parties filed a notice of
    application for disclosure in this court. That application seeks to have this
    court invoke its purported powers under s. 683(1)(a) of the
Criminal Code
to order the Crown to obtain and disclose:

(a)     all out-of-court communications between the  trial
    judge and the FBI agents known publicly as Tamer El Noury and Nelly, in the
    form of affidavits or willsays; and

(b)     any contemporaneous notes or memory aids prepared by
    the agents in relation to any such communications.

[13]

The
    Crown took steps to have the Royal Canadian Mounted Police (RCMP) follow-up
    on the disclosure request. In letters dated December 1, 2020, the RCMP requested
    the Office of the Legal Attaché, Embassy of the United States of America, to
    inquire as to whether either Agent El Noury or Nelly are:

in possession of any
contemporaneous notes of
[
sic
]
memory aids
prepared by [them] in relation to any
    out-of-court communications that may have taken place between [them] and the
    trial judge[.] [Emphasis in original.]

[14]

The
    RCMP letters did not make any reference to Agent El Nourys book or the content
    of the alleged communication between the trial judge and Nelly.

[15]

Responses
    were returned to the RCMP. Agent El Nourys response, dated December 18, 2020,
    is as follows:

[H]e did not have any out of court communications with the
    trial judge  and does not have
in his possession
any contemporaneous notes of [
sic
]
    memory aids.

[16]

Nellys
    response, dated January 25, 2021, is a little more nuanced:

[H]e
did not have any substantive or
    relevant out of court communications
with the trial judge  and does not
    have
in his possession
any contemporaneous notes of [
sic
] memory aids. [Emphasis added.]

The Crowns Motion for Directions and Request to Summarily
    Dismiss the Disclosure Application

[17]

The Crown
    requests that the responding parties s. 683(1)(a) disclosure application be
    dismissed before it is argued because it cannot succeed. The Crown advances two
    arguments in support of this position. We do not accede to either argument.

[18]

The
    Crowns first position is that even if the comment was made, taken at its
    highest, it is not capable of raising a reasonable apprehension of bias
    because: (a) the trial judge was not the trier of fact; (b) the alleged comment
    was not made in the presence of the jury, as it was made after Agent El Nourys
    evidence was complete; (c) the alleged comment appears to have been an isolated
    and casual remark; and (d) there is nothing in the record to support the claim
    that the trial judge pre-judged the responding parties guilt or closed his
    mind to different points of view.

[19]

There
    is much to be said for the Crowns position. Judges are presumed to be
    impartial, so much so that a heavy burden is placed on anyone attempting to
    dislodge that presumption:
R. v. Dowholis
, 2016 ONCA 801, 341 C.C.C.
    (3d) 443, at para. 18;
R. v. Ibrahim
, 2019 ONCA 631, 379 C.C.C. (3d)
    414, at para. 84. To rebut the presumption of impartiality, a strict test is
    applied, one that asks what an informed person, viewing the matter
    realistically and practically  and having thought the matter through  [would]
    conclude:
Committee for Justice and Liberty et al. v. National Energy
    Board et al.
,

[1978] 1 S.C.R. 369, at p. 394,
per de
Grandpré J. (dissenting).

[20]

While
    the Crowns position is certainly an arguable one, that even if true the
    alleged communication would not give rise to a reasonable apprehension of bias,
    it is premature to advance that argument at this stage. We are not here to
    determine whether, even if the alleged communication took place, a reasonable
    apprehension of bias claim is unlikely to succeed. Nor are we here to determine
    the likelihood of success of such an argument. The question is whether there is
    no basis upon which to conclude that a reasonable apprehension of bias claim
    could be made out in the face of the alleged comment. As the record currently
    stands, we are not in a position to reach that conclusion.

[21]

Although
    the Crown properly points to the fact that this was a jury trial and the
    alleged comment was made outside of the jurys presence, the fact remains that
    the trial judge was responsible for other important aspects of the trial. For
    instance, the trial judge alone was responsible for the sentencing proceeding,
    where he rejected the claim that Mr. Jasers sentence should be mitigated on
    the basis that he had been entrapped by Agent El Noury:
Esseghaier (ONSC)
,
    at paras. 28-37. The trial judge also imposed life sentences:
Esseghaier
    (ONSC)
, at paras. 125-27.

[22]

We
    should not be taken as suggesting that there is anything wrong with those determinations
    or that they are at all suggestive of a bias claim. We advert to the sentencing
    proceeding only as an example of one of the factors an informed person,
    viewing the matter realistically and practically would take into account when
    considering the potential impact of the alleged comment to Nelly on an
    allegation of bias:
Committee for Justice and Liberty
, at p. 394,
per
de Grandpré J. (dissenting).

[23]

In
    conclusion, we do not agree that at this stage it can be said that the alleged
    comment, even if true, is not capable of raising a reasonable apprehension of
    bias. Assuming the responding parties are able to obtain admissible evidence to
    show that the statement was made by the trial judge, it will be for a panel of
    this court to decide whether, when considered against the backdrop of the whole
    case, the reasonable apprehension of bias claim is made out. It is simply premature
    at this stage to bring an end to the responding parties attempts to gather
    admissible evidence to support the claim that the comment, as recounted in
    Agent El Nourys book, was made.

[24]

The Crowns
    second position is that this court cannot compel the Crown to have a willsay or
    affidavit created. The Crown relies upon
R. v. Karimi
, 2014 ONCA 133,
    in support of this position.
Karimi

involved an application to
    this court under ss. 683(1)(a) or 683(1)(b) of the
Criminal Code

to
    compel a witness who testified at trial to attend at a specified place and provide
    a sample of his voice to be used by a retained expert in a comparison exercise:
Karimi
, at paras. 1-3. This court concluded that there was no power to
    make that order under these sections of the
Criminal Code
, as s.
    683(1)(a) refers to the production of existing material, while s. 683(1)(b)
    relates to compelling witnesses to attend and be examined:
Karimi
, at
    paras. 4-7. Therefore, the Crown indicates that s. 683(1)(a) of the
Criminal
    Code
cannot be used to compel the creation of a willsay or affidavit.

[25]

We
    need not resolve now whether
Karimi

applies to the
    circumstances of this case. The fact is that the responding parties filed a
    supplementary factum, in which they appear to have modified their original
    request for willsays and affidavits. In light of Nellys information, received
    after the responding parties application was filed, that he did not have any
substantive or relevant out of court communications with the
    trial judge
 (emphasis added), the responding parties now argue that
    there is one central question left to be answered: Did Nelly and the trial
    judge have the conversation described in [Agent] El Nourys memoir? It appears
    that the responding parties are content, at least for now, to obtain an answer
    to that question.

[26]

The
    need to obtain the answer to that question is a matter involving Crown
    disclosure. The Crown is not an ordinary litigant in the criminal courtroom or
    on appeal, its undivided loyalty being to the proper administration of justice:
R. v. McNeil
,

2009 SCC 3, [2009] 1 S.C.R. 66, at paras. 17, 49.
    When Crown counsel is notified of the existence of relevant information, unless
    the notice appears baseless, the Crown is duty-bound as an officer of the court
    to make inquiries of the police to obtain that information where it is
    reasonably feasible to do so:
McNeil
,

at para. 49;
R. v.
    Ahluwalia
(2000),

138 O.A.C. 154 (C.A.), at paras. 71-72.

[27]

The
    Crowns obligation is to make proper inquiries. While the Crown properly asked
    the RCMP to inquire as to whether Agent El Noury or Nelly had contemporaneous
    notes or memory aids in respect of the communications, the Crown did not ask
    for information about the obvious question: did the alleged communication
    occur? From the outset, the responding parties have been asking for an answer
    to that question in the form of a willsay or affidavit. While we would not at
    this stage order that the information be provided in either of those formats, leaving
    the argument of that matter to another day should the need arise, it is time for
    the Crown to meet its disclosure obligations and ask the RCMP to make inquiries
    about:

(a) whether the alleged communication between Nelly and the trial judge,
    as recounted in Agent El Nourys book, or some similar type of communication,
    took place and, if so, whether there are any notes, electronic or otherwise,
    making reference to that communication?

(b) whether the alleged communication between Nelly and Agent El Noury,
    as recounted in Agent El Nourys book, or some similar type of communication,
    took place and, if so, whether there are any notes, electronic or otherwise,
    making reference to that communication?

Disposition

[28]

We
    order the Crown to take further steps to obtain the requested disclosure. We will
    remain seized of this matter.

Fairburn A.C.J.O.

Doherty J.A.

G.T. Trotter J.A.


