A man accused of conspiring to commit an act of terror may be found unfit to stand trial after being found guilty, calling into question whether he was capable of committing the offense in the first place.
A forensic psychiatrist’s testimony last week has thrown a high-profile terror case into uncharted legal waters by asserting one of two defendants is so unwell he’s unable to participate in his own sentencing. It’s left a judge with a tough decision to announce on Wednesday.
Lisa Ramshaw told court her assessment found Chiheb Esseghaier “actively psychotic” and potentially schizophrenic, suffering from a mental illness so severe he can’t participate meaningfully in his sentencing.
“As a consequence of [Esseghaier’s] psychosis — that is, his loss of touch with reality and his delusional beliefs — it is my opinion that he is not able to communicate and participate in the court proceedings,” Ramshaw said.
But Esseghaier has already been found guilty of conspiring to blow up a train in a cross-border terror investigation that culminated with his arrest along with his alleged co-conspirator Raed Jaser two years ago.
A jury found both men guilty of multiple terror-related charges months ago. The prosecution’s case rested in large part on more than 20 hours of recorded conversations the co-conspirators had with an undercover FBI agent posing as a monied Egyptian-American eager to fund jihadist attacks.
The agent befriended Esseghaier and, on a flight from Houston to San Jose and a drive from Montreal to Toronto, the two talked at length about killing civilians, puns, love and marital advice — “jihad and love and dinner,” the agent joked during the drive.
But Ramshaw’s finding raises a series of increasingly uncomfortable questions: Should a lawyer be appointed to represent Esseghaier, who has insisted he doesn’t want one? If Esseghaier is unfit now, was he unfit to stand trial during his months-long trial and conviction of crimes that carry a potential life sentence?
And if, as Ramshaw testified, Esseghaier’s paranoid and delusional mental state is the nadir of a years-long decline, was he capable of the conspiracy he’s accused of committing? Can he be held criminally responsible? And if not, what happens to the jury’s verdict and his conviction?
Is it too late for any of this to make a difference, given that issues of fitness are usually dealt with much earlier in a case?
“As far as we can tell, it is utterly unprecedented,” Jaser’s lawyer John Norris said in an interview this week.
“Part of me was not surprised” by Ramshaw’s testimony, Norris said.
“She picked up on a lot of things that we all saw. She was able to put things into a psychiatric context that none of us could.”
Esseghaier’s behaviour since his arrest — and during the investigation, as evidenced in wiretaps and testimony — has been erratic, to say the least. He refused counsel, insisting on representing himself and demanding (unsuccessfully) that he be judged by Koranic, not secular, law.
According to the undercover FBI agent he mused about the possibility of causing a volcano in Yellowstone National Park to explode.
“The end of the world comes very near,” he told court in May, advocating for the conversion of those present to Islam.
Before his arrest the former biotechnology student’s peers said he became increasingly socially isolated and dogmatic, on one occasion pulling down posters of naked people. He was effectively homeless when arrested.
Active psychosis is often preceded by a less obviously pathological “prodrome” period,” Ramshaw said in an interview.
“It’s a period of change, not necessarily evidence of psychosis, but often evidence of mood change, behaviour change, change in social interactions and connectedness with others,” she said.
“It’s not rare for people to gravitate toward religion to feel better.”
And while it’s rare that a person’s unfitness to stand trial is caught so late in a case, Ramshaw said, “in certain situations it could be missed and it may not be seen until later. …
“It’s a complicated legal issue.”
Justice Michael Code will determine Wednesday whether to request another psychiatric assessment.
If Esseghaier is found unfit, he could be sent to a forensic psychiatric facility for court-ordered treatment. Defense counsel or the amicus advising the court on Esseghaier’s behalf could push for a mistrial or even a stay of proceedings.
Or Crown lawyer Croft Michaelson could argue it’s too late — that, now that both men are convicted, Code has no jurisdiction to find Esseghaier unfit or seek to remedy the situation.
Patrick Baillie, a lawyer and psychologist with Alberta Health Services, says it’s rare for a judge to disregard a fitness assessment, and almost as rare (after consulting his colleagues, Baillie came up with a single case) where someone is found unfit post-verdict but pre-sentence, is remanded to hospital, treated, then sentenced.
“The threshold for fitness is so low that when a psychiatrist says, ‘I don’t believe this person understands the charges, understands the process and the personal import or is able to communicate effectively with counsel,’ nobody’s really going to dispute that,” he said.
“If the hospital says, ‘Yes, we believe he’s not fit,’ well, certainly you don’t go any further. And the judge would also say, ‘Do you believe he was fit when he was doing his trial?’
“And if the hospital says, ‘Based on our assessment or our review of his medical records he hasn’t been fit for a long time,’ then the judge would declare a mistrial.”
Whatever happens, concerns are being raised about this case and another terror trial under way in B.C., in which defence lawyers argued undercover agents exploited developmentally delayed drug addicts to pursue a criminal case.
Both the Via and B.C. cases involve undercover agents investigating alleged terror plots involving people possibly in compromised mental states.
A Human Rights Watch report last year highlighted what it termed a disturbing pattern of targeting vulnerable people in FBI terror investigations.
The report accused the FBI of conducting “discriminatory investigations, often targeting particularly vulnerable individuals (including people with intellectual and mental disabilities and the indigent), in which the government—often acting through informants— is actively involved in developing the plot, persuading and sometimes pressuring the target to participate, and providing the resources to carry it out.”
Among these was Rezwan Ferdaus.
“Although an FBI agent even told Ferdaus’ father his son ‘obviously’ had mental health problems, the FBI targeted him for a sting operation. … Yet Ferdaus was mentally and physically deteriorating as the fake plot unfolded.”
Ferdaus was convicted on explosives charges and providing material support for terrorism.
“We’ve documented cases of the FBI knowing someone suffered from a mental illness and continuing to pursue them anyway. … The same sorts of allegations are popping up in the Canadian cases,” said Human Rights Watch deputy Washington director Andrea Prasow.
“Particularly when you’re looking at people who are vulnerable because of a mental or intellectual disability … I think there needs to be greater scrutiny.”
Prasow worries investigators under pressure — no one wants to be soft on terror, or miss a potential threat — may pursue cases and invent plots where there were none before.
“Would this person really plan to commit this act if it weren’t for the intervention of law enforcement?”
Canada’s entrapment law is tricky: You can only really argue it post-conviction, either in a bid for a stay of proceedings or as a mitigating factor in sentencing.
When and if Toronto’s Via terror trial sentencing proceeds, Jaser’s lawyer Norris may well argue his client’s offence was created or exacerbated by investigators.
Esseghaier’s mental state doesn’t affect his co-accused directly. But it could change Jaser’s case.
“Jaser may have had a joint trial with someone who was unfit,” Norris said.
“The existence of a mental disorder … could be relevant to whether there was ever a conspiracy.”
Meanwhile, Norris said, “there absolutely is a possibility” a jury just convicted a sick man of a crime he was unable to commit.