VIA Rail terror plotters could get a new trial after key witness says judge called him a ‘hero’ during trial

Esseghaier and Jaser were arrested in 2013 in a high-profile terrorism investigation that was praised for averting mass casualties. The legal case against the pair has not been a smooth one

Article content

Two men who plotted a terror attack to derail a VIA Rail passenger train travelling between Toronto and New York could get a new trial because the judge hearing their case allegedly called the FBI’s undercover agent, who was the key witness against them, “a hero,” during the trial.

Chiheb Esseghaier and Raed Jaser are using the comment, purportedly made in private to the FBI agent’s handler, to challenge their convictions and sentences to life in prison for an al-Qaida-inspired plot.

The conversation with the judge is recounted in a published memoir by the undercover agent.

Esseghaier and Jaser were arrested in 2013 in a high-profile terrorism investigation that was praised for averting mass casualties. The legal case against the pair has not been a smooth one.

The trial ended in convictions for both after nearly nine months of pre-trial motions and a three-month jury trial, during which Esseghaier refused to engage with the legal system, representing himself and offering little defence. He savagely objected to concerns he was mentally ill by shouting, spitting and ranting.

Advertisement

This advertisement has not loaded yet, but your article continues below.

Article content

Justice Michael Code sentenced them to life in prison in 2015.

Crown attorney Croft Michaelson speaks to members of the media about the guilty verdicts of Raed Jasser and Chiheb Esseghaier who attempted the Via Rail terror trial at Toronto’s 361 University Court House, Friday March 20, 2015.
Crown attorney Croft Michaelson speaks to members of the media about the guilty verdicts of Raed Jasser and Chiheb Esseghaier who attempted the Via Rail terror trial at Toronto’s 361 University Court House, Friday March 20, 2015. Photo by Peter J. Thompson/National Post

Esseghaier and Jaser appealed the outcome on a number of grounds and the Ontario Court of Appeal overturned the convictions and ordered a new trial on one technical matter — the jury was found to have been improperly constituted — without dealing with other issues.

That appeal was, in turn, appealed by the Crown, and earlier this month the Supreme Court of Canada restored the convictions, accepting the jury selection error exists but ruling it can be fixed without starting over, partly because the court found no prejudice against the accused because of the mistake.

“Our law does not demand perfect justice, but fundamentally fair justice. This is what they received,” the Supreme Court said in its decision released March 5.

The Supreme Court ruling pushed the remaining issues under appeal back to the Ontario Court of Appeal.

Among them is the unexpected reference to a mid-trial conversation the FBI agent recounts in his memoir, co-written with Kevin Maurer and published in 2017.

A Muslim undercover agent with the FBI’s covert counter-terrorism unit was loaned to the RCMP to get close to Esseghaier and Jaser. The agent was the key witness at trial.

For security reasons, he testified under the pseudonym Tamer El Noury in a closed courtroom, with the public observing only through closed-circuit television. He and his FBI handler, who was referred to only as Nelly, accessed the courtroom through the special hallway from the judges’ chambers to avoid him being seen.

Advertisement

This advertisement has not loaded yet, but your article continues below.

Article content

That security arrangement apparently led to a private conversation between the judge and Nelly, according to a book published after the trial on El Noury’s account of his undercover career.

Chiheb Esseghaier rants as Justice Michael Code listens during sentencing in court in Toronto on Wednesday Sept. 23, 2015.
Chiheb Esseghaier rants as Justice Michael Code listens during sentencing in court in Toronto on Wednesday Sept. 23, 2015. Photo by Pam Davies/Toronto Sun/Postmedia Network

El Noury was waiting in the court’s break room for Nelly, his handler, to join him so that they could leave the courthouse together, the book says.

When Nelly arrived, the book says, he told the agent the 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 you’re 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.’”

A ‘Note to the Reader’ in El Noury’s book says the manuscript was “reviewed and approved by the FBI.”

Lawyers for Esseghaier and Jaser claim that expression of support to the key witness before the end of the trial shows a reasonable apprehension of bias and grounds for appeal.

Their lawyers asked the Crown to obtain and disclose any information on out-of-court communications involving the agent and his handler and the judge. Letters to the FBI through the RCMP revealed a nuanced response. Nelly, for instance, said he “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.”

On Friday, the court of appeal rejected the government’s motion to dismiss Esseghaier’s and Jaser’s motion for disclosure on the matter without a hearing on it. The Crown argued that even if the conversation is true, it would not be grounds for appeal because it was the jury that convicted the pair, not the judge.

Advertisement

This advertisement has not loaded yet, but your article continues below.

Article content

“It is premature to advance that argument at this stage,” the court of appeal said in a ruling.

“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.”

The court ordered the Crown to make proper inquiries on the matter, including asking if the conversation between Nelly and Code took place as recounted by El Noury.

Until then, the court’s decision on the matter remains pending.

The book is expected to be made into a movie, reportedly starring Rami Malek, who won an Academy Award in 2019 for his portrayal of singer Freddie Mercury in the Queen biopic, Bohemian Rhapsody.

Given the bumpy road of this case, the movie might be out before the case has reached its conclusion.

• Email: [email protected] | Twitter: AD_Humphreys

Advertisement

This advertisement has not loaded yet, but your article continues below.

Comments

Postmedia is committed to maintaining a lively but civil forum for discussion and encourage all readers to share their views on our articles. Comments may take up to an hour for moderation before appearing on the site. We ask you to keep your comments relevant and respectful. We have enabled email notifications—you will now receive an email if you receive a reply to your comment, there is an update to a comment thread you follow or if a user you follow comments. Visit our Community Guidelines for more information and details on how to adjust your email settings.


VIA Rail terror plotters could get a new trial after key witness says judge called him a 'hero' during trial