Qur'an-based defence too challenging even for Muslim lawyers

Chiheb Esseghaier shuffled to the prisoner's dock on Monday, his ankles bound in shackles, for what would be another lesson in his crash course in Canadian law.

Esseghaier is one of two men charged with terror-related offences in relation to a plot to derail a Via Rail passenger train somewhere between Toronto and New York City.

But his demand for a defence based on the Qur'an rather than the Criminal Code has thrown a wrench into even some of the routine proceedings in this case, and is proving difficult to accommodate.

Criminal defence lawyer Nader Hasan, a member of Canadian Muslim Lawyers Association, says he does not believe Esseghaier can get the lawyer he wants.

"You cannot answer those charges without resorting to law based on man-made Canadian Criminal code and Canadian constitutional principles," Hassan said.

Not only does he think Esseghaier will not find the lawyer he wants, Hassan says the accused is potentially ignoring Islamic law.

"As a Muslim I know enough to know that Muslims, whether they live in a Muslim majority country or a majority non-Muslim county they have an obligation to follow the law of the state," he said.

By any measure, this is a complex case that may take months to be heard.

It may take even longer if the 30-year-old Esseghaier, a metal sciences student in Montreal, winds up representing himself.

From his first appearances, via video link, Esseghaier has been demanding what most legal analysts say is an impossibility under Canadian law: a lawyer who will defend him based on the Qur'an.

According to Esseghaier, the Criminal Code is "man-made" law and not a "holy book."

One lawyer, reportedly arranged through Legal Aid, did see Esseghaier in jail recently, but Esseghair said the man would not be able to take on the case because of the unusual requirements.

For now, at least, Esseghaier is without a lawyer, leading to some unusual scenes in court, such as the one that took place in Brampton on Monday.

After he was seated, shackles still in place, the lawyer for the second accused in this case rose, unexpectedly stepping in to help out Esseghaier.

Brydie Bethell, who represents 35-year-old Raed Jaser of Toronto, suggested to the judge that Esseghaier should not be shackled inside the courtroom.

The judge agreed, asking the guards to unlock the cuffs around his ankles.

It was not the only example of the court taking special steps to ensure that Esseghaier is treated properly and instructed on the law where necessary, even if it slows the proceedings.

Few options

One legal historian, Jim Phillips of the University of Toronto, says Canadian criminal courts have always barred requests to import other legal systems — a practice that goes back to pre-Confederation days, when First Nations asked to be tried based on aboriginal laws.

"I don't know of any instance where someone can bring in from outside their kind of personal law and have it apply to them," Phillips said.

It is the second time in two months that courts in Toronto have struggled with demands to accommodate religious beliefs within the confines of the criminal law.

In April, a judge ordered a woman to remove her niqab, or face veil, in order to testify against two men she alleges sexually assaulted her. That decision is now under appeal, for a second time.

In Esseghaier's case, the court has few options. A judge could appoint a lawyer as an amicus curiae or friend of the court, to informally assist Esseghaier. The other option is to continue to have him represent himself.

Already, that is proving to be a challenge. A lawyer representing media organizations, which have applied to have confidential documents related to the case released publicly, said he had difficulty delivering legal papers to the unrepresented Esseghaier in prison.

Peter Jacobsen said guards were uncertain about what to do, though eventually the papers were served.

Jacobsen, though, said there are other problems, including simple matters such as scheduling court appearances, which are usually arranged between lawyers over the telephone, something they cannot do directly with an accused who is in jail.

In court on Monday, the judge was careful to explain the proceedings to Esseghaier, who took notes with a pen and paper supplied by the court. He made it clear to the judge that he does not want any documents released to the public, suggesting it was an invasion of his privacy.

He is scheduled to be back in court on June 25 in Toronto and Legal Aid officials say they are still searching for a solution.