The province’s top court has ordered a new trial for two men sentenced to life in prison for plotting terrorist acts including, for one, planning to derail a Via Rail train, because of the way the jury that heard their trial was picked.

The case is one of several, including that of Eaton Centre shooter Christopher Husbands, that have been appealed due to a judge’s decision to order a specific method of jury selection against the explicit wishes of the defendant.

After a six-week trial in 2015 and 10 days of deliberations by the jury, both Raed Jaser and Chiheb Esseghaier were convicted of conspiracy to commit murder for the benefit of a terrorist group and of two counts of participating in terrorist activity. Esseghaier was also convicted of conspiracy to derail a Via train; Jaser was not.

Both men appealed on other grounds besides jury selection, including whether Esseghaier’s deteriorating mental health impacted the trial. Esseghaier refused to participate in the trial and did not have his own lawyer.

Having now been treated for schizophrenia, Esseghaier argues he was unfit during the trial and sentencing.

Those arguments were postponed until the jury selection issue was decided and will no longer be heard as a result of the Ontario Court of Appeal’s decision to order a new trial, said Esseghaier’s lawyer Erin Dann, adding that she is pleased with the result of the appeal.

On Tuesday, the Public Prosecution Service of Canada said in a statement it would be proceeding with the prosecution, noting it has 60 days to decide whether to seek leave to appeal the decision to the Supreme Court of Canada.

The Supreme Court declined to hear a Crown appeal after a new trial was ordered in the case of Husbands, the Eaton Centre shooter.

The problem with the way the jury was selected stems from a part of the process known as the “challenge for cause,” in which lawyers were permitted to ask potential jurors about whether their decisions might be biased by pretrial publicity or by the defendants being visible minorities and Muslim.

The potential juror’s answers are assessed by two people from the jury pool, known as “triers.” The triers can either be “static” — the same two people assess every potential juror but don’t sit on the final jury — or “rotating,” in which case the triers change each time a new member is selected.

Jaser requested rotating triers be used and asked that the jury pool be excluded from the courtroom while each potential juror was questioned to avoid “exposing unsworn jurors to other jurors’ answers,” according to the Court of Appeal decision.

Superior Court Justice Michael Code ruled that the jury pool could only be excluded if static triers were used. He then ordered that static triers be used and that all potential and selected jurors be excluded from the courtroom.

The Court of Appeal has since found this to be incorrect, ordering retrials in some cases and upholding convictions in others. In this case, the Court of Appeal found that Jaser was denied the jury selection option he was entitled to by law. And because the jury selection was unfair, everything that came after, including the trial and the sentencing, is affected.

“The question here is not actual prejudice, which in these kinds of circumstances is impossible to gauge, but prejudice to the due administration of justice flowing from the denial of a jury selection method which was in law properly invoked,” the decision stated.

The court also found that since the jury was not properly constituted for Jaser, it cannot be considered to have been properly constituted for Esseghaier, and therefore both men are entitled to a new trial.

The Ontario Court of Appeal has ordered at least two new trials as a result of the jury selection issue, but has declined to order a new trial in others. At least one appeal on the same grounds has yet to be heard.

“Fair jury selection is especially important in cases with saturation-level publicity and it can be hard to find impartial jurors in a highly publicized case like this one. So it is important to use the jury selection procedure created by Parliament,” said Jaser’s lawyer Frank Addario. “Jury selection is one of the few things that a defendant gets to choose around mode of trial and the courts are always protective of it.”

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The current set of appeals over jury selection stem from a 2008 amendment to the Criminal Code to allow for the use of static triers at the request of the defence.

Addario says that new changes to the jury selection process by the Liberal government that come into effect in September — which he has previously criticized — will likely result in another set of appeals. The changes remove the use of triers entirely; instead the judge will decide if a potential juror should be eliminated based on their answer. Addario says there remain questions about this new process, including whether judges will need to give reasons for their decision.