Via Rail terror plot suspect’s demand for defence based on Qur’an complicating court case

Alleged Via Rail terror plotter Chiheb Esseghaier's demands that his legal defence be based on the Qur'an could wind up being more than simply an annoying distraction.

CBC News reports that Esseghaier's insistence the Muslim holy book should supplant the Criminal Code of Canada has already side-tracked routine pre-trial proceedings.

Esseghaier served notice at his first court appearance shortly after his arrest in April that that the Criminal Code should not apply to him because it's "not a holy book," and that the Qur'an be used instead.

In a court appearance earlier this month, he said he was having trouble finding a lawyer willing to do that, CBC News reported.

The Tunisian-born Esseghaier, a doctoral student studying in Montreal, and Raed Jaser of Toronto, a Palestinian born in the United Arab Emirates, are charged with conspiring to attack a Via Rail passenger train running between Toronto and New York. A third man was arrested by the FBI and is in custody in the United States.

The RCMP claim the plotters received support from al-Qaeda representatives based in Iran.

[ Related: RCMP claim arrests thwarted al-Qaeda-linked attack on Canadian passenger train ]

Criminal defence lawyer Nader Hasan, told CBC News he doubts Esseghaier can find a lawyer to fight the case his way.

"You cannot answer those charges without resorting to law based on man-made Canadian Criminal code and Canadian constitutional principles," said Hasan, a member of the Canadian Muslim Lawyers Association.

And, the lawyer added, Esseghaier is potentially violating 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," Hasan said.

Legal historian Jim Phillips of the University of Toronto told CBC News that Canadian criminal courts historically have ruled out the use of other legal systems going back to before Confederation when judges rejected the use of aboriginal laws to try First Nations accused.

"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.

But Esseghaier has insisted he's not subject to "man-made" law embodied by the Criminal Code. At least one lawyer was rejected for being unable to meet that requirement, CBC News said.

“I cannot take a lawyer who is not able to fulfil my need,” Esseghaier told a judge during a court appearance last week, according to the Toronto Star.

For now, Esseghaier is representing himself, but he's had some help. For instance, at a Monday court appearance, Jaser's lawyer intervened to asked the judge that Esseghaier be unshackled inside the courtroom. The request was granted, CBC News said.

As the case proceeds to trial, though, the judge will have to decide how to help Esseghaier mount a proper defence. He could appoint a lawyer as an "amicus curiae," or friend of the court to provide advice and assistance, CBC News noted.

[ Related: Via Rail terror plot accused unable to find lawyer ]

Otherwise, Esseghaier is on his own, which will complicate proceedings. For instance, a lawyer for media organizations applying to have confidential documents in the case made public had trouble serving legal papers related to the application on Esseghaier in jail, CBC News said. Normally, they would be delivered to his lawyer.

Other routine matters, such as scheduling court appearances, normally are are handled by an accused's lawyer.

Legal experts told the Star that the court system can make accommodation for religious beliefs, such as the decision last year by the Supreme Court of Canada to allow Muslim women to wear a niqab face covering when testifying in some instances.

But instances of accused people claiming that their religion puts them beyond secular law are not accepted.

“One can’t accommodate something that basically says Canadian law is simply not applicable,” Richard Moon, a University of Windsor professor who studies law and freedom of religion, told the Star.

Lawyer David Butt, who represented the Muslim woman in the landmark Niqab case, said Canadian laws are founded on the Constitution, legislation and the common law that has built up over time. Ignoring that in favour of a religion-based code would be undemocratic.

“If a judge making a law were to reach out to a particular religious document … and say: ‘I’m pronouncing this to be the governing legal principle,’ that would be perceived as a radical departure from this tradition of judges only making little incremental changes,” Butt told the Star.

Court cases often incorporate concepts and ideas from other realms — philosophy or religion, for example.

“It’s bringing an idea to the court’s attention to stimulate thought,” said Butt. “But that is very different from saying that that particular judgment should be the law that you apply.”

Esseghaier is due back in court June 25 and meanwhile Legal Aid officials are trying to find a solution to the problem of his representation, CBC News said.