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Introduction
In August 2025, the Supreme Court of Canada (the “Court” or the “Supreme Court”) declined to hear Raed Jaser’s latest appeal in the high-profile terrorism prosecution arising from the 2013 VIA Rail plot. As is customary in leave to appeal decisions, no reasons were provided. The denial ends a decade of litigation for Jaser, who, along with co-accused Chiheb Esseghaier, was convicted in 2015 of conspiring to commit murder for the benefit of a terrorist group and participating in a terrorist organization.
While refusals of leave are routine, in national security prosecutions, the silence that accompanies them can be consequential. Terrorism cases often raise very challenging evidentiary and procedural questions—how to protect fair trial rights amid inflammatory allegations, how to guide juries through conspiracy charges, and when police conduct crosses into entrapment. Declining to engage at the apex court leaves provincial appellate rulings in place, signalling they are “good enough” to guide the law in future cases.
Case Background
The VIA Rail prosecution began in April 2013, when RCMP officers arrested Raed Jaser and Chiheb Esseghaier on terrorism charges under Part II.1 of the Criminal Code, RSC 1985, c C-46 [Code]. The Crown alleged they conspired to carry out mass-casualty attacks in Canada and the United States, including derailing a passenger train between Toronto and New York and assassinating prominent individuals. Both were also charged with participating in a terrorist group.
From the outset, the case posed very unusual trial-management challenges. Esseghaier, a Tunisian national and doctoral student, refused to recognize Canadian law, insisting he be judged only under the Qur’an. His repeated outbursts complicated the proceedings. Jaser, by contrast, engaged with the process but twice sought severance to avoid being linked to Esseghaier’s conduct; both motions failed (R v Jaser, 2024 ONCA 448, para 118).
One of the major pre-trial disputes was over jury selection. Because of the case’s high profile, both sides sought challenges for cause to screen jurors for potential bias. At the time, there were two methods. Under the “rotating triers” system, prospective jurors were assessed for impartiality by other jurors-in-waiting, with the triers themselves replaced once selected to sit. Under the “static triers” system, two individuals ruled on all the challenges but did not serve on the jury. Jaser asked for rotating triers with prospective jurors excluded from the courtroom during the challenges, preferring static triers only if both safeguards were denied. The trial judge found no discretion to order exclusion and imposed static triers.
After a two-month joint trial, Esseghaier was convicted on all counts and Jaser on all but one, each receiving life sentences with ten years’ parole ineligibility. In 2019, the Court of Appeal for Ontario (the “Court of Appeal”) ruled that imposing static triers against Jaser’s wishes improperly constituted the jury and could not be saved by the curative provision in s. 686(1)(b)(iv) of the Code, ordering a new trial (R v Esseghaier, 2019 ONCA 672, paras 94–96). The Crown obtained leave to appeal, and in 2021 the Supreme Court reversed, holding that the curative provision could apply to jury-selection errors absent prejudice, restoring the initial convictions and remitting the case to the Court of Appeal on Jaser’s remaining grounds (R v Esseghaier, 2021 SCC 9, paras 49, 66).
On remand, the Court of Appeal dismissed those grounds, rejecting arguments on severance, trial fairness, and the role of undercover agents (R v Jaser,2024 ONCA 448). It found the joint trial fair, the trial judge’s management of disruptions appropriate, and the evidence, independent of police conduct, sufficient. Jaser sought leave to appeal again, but in August 2025 the Supreme Court refused (Jaser v R, 41747 [Jaser]), leaving the Court of Appeal’s rulings as the final word.
The Significance of the Court's Refusal
What makes the refusal in Jaser significant is not simply that the Court declined leave—something it does hundreds of times a year—but that it passed on a chance to address unresolved questions at the heart of Canadian criminal procedure. From conspiracy instructions to the handling of intelligence in open court, the appeal raised issues that recur in national security trials and shape the balance between state power and individual rights.
In Jaser, defence counsel argued that jury instructions in conspiracy trials vary significantly between provinces and that this case offered a rare opportunity for national guidance. The appeal also raised unresolved issues about handling sensitive information under the Canada Evidence Act, RSC 1985, c C-5 and whether conduct falling short of entrapment should factor into sentencing. These are not technical footnotes; they go to the core of trial management in politically charged prosecutions. Refusing leave meant passing on the chance to clarify standards in cases that can set enduring norms for secrecy, trial procedure, and the scope of procedural safeguards.
There is also a symbolic dimension. In a climate where terrorism prosecutions are often framed as matters of national survival, the Court’s willingness to engage—or not—signals its commitment to ensuring that constitutional protections apply equally, even in the most sensitive and high-stakes cases.
Patterns in the Court’s Approach to Terrorism Appeals
The Court’s selective engagement in terrorism appeals shapes Canadian national security law as much through silence as through its written judgments. Scholars such as Michael Nesbitt have noted that the post-9/11 framework—particularly the motive requirement in section 83.01 of the Code—disproportionately targeted Muslim communities, while threats from far-right extremism have only recently been prosecuted. Yet the Court has passed on opportunities to revisit this provision and related elements of the anti-terrorism regime, allowing them to calcify.
When it does intervene—such as in R v Khawaja, 2012 SCC 69, upholding the motive requirement, or R v Ahmad, 2020 SCC 11, refining entrapment—it often gravitates toward clean doctrinal questions. What it tends to leave untouched are the messy, fact-heavy realities where rights are most vulnerable: proving motive without turning the trial into a test of belief, handling intelligence in a way that protects both secrecy and fairness, and putting real limits on aggressive undercover tactics. As Kent Roach has warned, without clear guardrails, terrorism trials can drift away from judging conduct and into judging ideology.
The result is a patchwork of appellate rulings, with protections varying by province. Avoiding complex national security cases like Jaser leaves core procedural issues—secrecy, trial management, limits on state conduct—unsettled at the national level and vulnerable to uneven application.
The Road Ahead
The Supreme Court’s refusal of leave in Jaser foreclosed further judicial engagement with the issues raised on appeal, leaving intact the Court of Appeal’s rejection of entrapment arguments and its affirmation of the terrorism convictions. While leave denials carry no precedential value, the effect here is nonetheless significant. In contrast to R v Nuttall, 2016 BCSC 1404, para 769, where the trial court recognized the RCMP’s role in manufacturing the crime, Jaser reflects the judiciary’s more dominant posture, which is to avoid scrutiny of how motive and inducement interact in terrorism prosecutions. By declining to engage, the Court allowed lower-court rulings to remain the last word on questions that strike at the fairness of counterterrorism stings.
Seen this way, the refusal in Jaser was not just about the particulars of one defendant’s claim. It was about whether the Supreme Court would provide national guidance on recurring problems at the heart of terrorism law: how motive can be proved without sliding into trials of belief, how far police can go in coaxing an accused toward an offence, and how courts should assess fairness when intelligence practices migrate into the criminal process. Jaser may not have been a “clean” entrapment case, but that is precisely what made it valuable—it reflected the complexity of real-world terrorism prosecutions, where fairness is tested by overlapping pressures rather than single neat questions. By refusing leave, the Court reinforced a patchwork approach that leaves these systemic concerns unsettled, and in doing so shaped the terrain on which Charter rights and public confidence in the justice system now rest.