About Those ‘Two Fine Fellows’

A hazard of spending a lot of time watching lawyers in action is that you can become lawyerly in your own thinking: You understand the sometimes arcane points they argue in the name of the greater good.

Thus it is that over the years I have become a staunch believer in the often controversial “not criminally responsible” verdict, accept that the accused is deserving of every break because he or she is after all presumed to be innocent, and have defended decisions that may appear on first blush to be “technical” in nature.

But I’m damned if I can figure out what on earth the Ontario Court of Appeal was thinking when late last month it released a decision in the so-called Via Rail trial.

You’ll remember the case: Two fine fellows, Chiheb Esseghaier and Raed Jaser, were charged and convicted of terrorism offences in connection with a plan to derail a Via passenger train.

I covered much of the trial in early 2015.

It was complicated and agonizingly slow, because Esseghaier refused any legal assistance or to even participate in his own trial because it wasn’t being conducted under the Holy Qur’an as he wished, and because that decision in turn meant that the judge, Ontario Superior Court Judge Michael Code, had the extraordinary burden of protecting Esseghaier from himself.

That’s the practical effect of a self-represented and delusional accused — it’s the judge who must then take great care to protect the rights of someone who doesn’t even recognize that he has rights and who refuses to lift a finger to help himself.

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