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Two men convicted of plotting to kill Via Rail passengers will receive a new trial, after Ontario’s top court ruled that the jury-selection process was flawed.

The case of Raed Jaser and Chiheb Esseghaier is the third since 2015 in which a terrorism or murder conviction has been thrown out by the Ontario Court of Appeal, over the misapplication of rules meant to ensure an unbiased jury.

The federal Public Prosecution Service, which deals with terrorism charges, declined to say whether it would ask the Supreme Court of Canada to hear an appeal of the decision; it has 60 days to decide. Both men remain in custody. They have been detained since 2013.

“Mr. Jaser is obviously grateful to the Court of Appeal for a chance at a trial with a legally selected jury,” Megan Savard, one of the lawyers who represented him at his appeal, said in an interview. “It’s the right result. Fair jury selection process is a hallmark of Canadian justice. It’s especially important in cases with saturation-level publicity like this one.”

Mr. Esseghaier has been representing himself, after saying he did not want a lawyer who followed the Criminal Code, rather than the Koran. The court appointed two lawyers on his behalf, giving them a limited role in his defence. Attempts to contact them were unsuccessful.

Evidence at their 2015 trial showed that the two men had conducted four reconnaissance missions as part of a plan to blow up a Southern Ontario bridge, intending to derail a commuter train travelling between New York and Toronto and killing its passengers. They were convicted of conspiracy to commit murder for the benefit of a terrorist group, among other counts, and sentenced to life in prison. Mr. Esseghaier was sentenced to a second count of life in prison, for conspiring to interfere with transportation facilities for the benefit of a terrorist group.

But Superior Court Justice Michael Code misapplied 2008 Criminal Code changes aimed at creating unbiased juries, the appeal court ruled 3-0 on Tuesday.

In the face of widespread pretrial publicity, the prosecution and defence had agreed that questioning of prospective jurors (known as “challenges for cause”) was necessary. That is, each would be asked whether they could put aside anything they had heard or read about the case, and could judge the evidence fairly, without being affected by the fact that the men are Muslims charged with plotting to kill non-Muslims.

Deciding whether prospective jurors are unbiased is done by two members of the public who will serve on the jury. There are two ways of doing it: “rotating triers,” who change as each new juror is sworn in; and “static triers,” who are the same two people deciding for the entire jury. (These rules are changing next month after the federal government removed the triers and let judges decide if a juror is unbiased.)

In this case, the two trial lawyers for Mr. Jaser − Breese Davies and John Norris, both since appointed judges − asked for rotating triers. But they also asked that potential jurors who had not been sworn in yet be kept out of the courtroom during the questioning, to preserve their impartiality. Justice Code ruled that he did not have the authority to exclude unsworn jurors, and said that even if he had, he would not have used it. Instead, he ordered “static triers” to assess the jurors, and excluded all other jurors from the courtroom, which he described as a more effective way of ensuring impartiality.

The appeal court said that was wrong because Parliament has given the accused the right to choose rotating triers, and superior court judges have the inherent jurisdiction to exclude unsworn jurors. “Jaser sought that option. He made a case for it and was entitled to it,” Appeal Court Justice Benjamin Zarnett wrote, supported by Justice William Hourigan and Justice Paul Rouleau.

Although Mr. Esseghaier had not asked for rotating triers, the court said that the jury was improperly constituted for both individuals, as the rotating triers is the default because it is seen as beneficial for the accused.

The prosecution service had argued that the judge’s error did not tilt the case against the accused men, but the appeal court said that is impossible to gauge; the real question, it said, is “prejudice to the due administration of justice flowing from the denial of a jury selection method which was in law properly invoked.”

Ms. Savard said that the pool of jury selectors is larger when rotating triers are used, and therefore “the odds of the jury being tainted by a rogue trier go far down. The benefit of rotating triers can best be compared to having a jury of 12 people instead of four. The more people you have making a decision, up to a point, the more likely it is that that decision is going to be sound.”

In 2015, the Ontario Court of Appeal overturned second-degree murder convictions for Richard Sheridan and Chad Noureddine in the 2008 beating death of André Pelliccione, a drifter, after Justice Eugene Ewaschuk rejected a defence request for rotating triers. They were ultimately convicted of second-degree murder. More recently, Christopher Husbands was convicted of second-degree murder in the 2012 shootings deaths of Ahmed Hassan and Nixon Nirmalendran at Toronto’s Eaton Centre mall. The appeal court threw out the conviction in 2017; he was ultimately found guilty of counts of manslaughter.

Editor’s note: Due to a technical error, an earlier version of this article incorrectly spelled Justice C. William Hourigan’s name. This version has been corrected.

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