Two men sentenced to life in prison for plotting various violent terrorist acts, including the derailment of a Via Rail train, will seek new trials in February arguing their six-week trial in 2015 was flawed from the start because they were denied a fair jury selection.

Their appeals are the latest of several to stem from confusion about a key part of the jury selection process that has resulted in retrials in at least two high-profile murder cases.

If this appeal is unsuccessful, both Raed Jaser and Chiheb Esseghaier will make further arguments at a later hearing, according to documents filed with the Court of Appeal laying out their submissions.

Having now been treated for schizophrenia, Esseghaier says he was unfit during the trial and sentencing — both of which he refused to participate in.

Jaser — who was ultimately not convicted on the charge involving the Via Rail train conspiracy — intends to argue several issues, including that his fair trial rights were impinged by Esseghaier’s mental fitness to stand trial and that there should be mitigating effects from entrapment, due to the involvement of an undercover FBI officer in the investigation.

February’s appeal hearing will centre on the jury selection process. Jaser’s trial lawyers, John Norris and Breese Davies, argued that since potential jurors must be screened for racial and religious bias as well as prior knowledge of the case, the pool of potential jurors should be excluded from the courtroom during the selection process.

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They also wanted the jurors to be selected by a process known as “rotating triers” rather than “static triers.” Instead of having the same two people determine whether each juror is suitable by assessing their responses to questions about bias, the “triers” in a rotating process change each time a juror is picked.

Rotating triers help avoid the risk a single trier can skew the jury selection process.

However, at the time Jaser and Esseghaier’s jury was being picked, there were varying interpretations on whether amendments to the Criminal Code in 2008 permitted the use of both rotating triers and the exclusion of the jury pool. Superior Justice Michael Code ruled that the jury pool would be excluded, but that static triers had to be used.

This illegally deprived Jaser of his right to ensure an impartial jury and as a result, the jury that was chosen was “improperly constituted,” Jaser’s appeal lawyers argue. During the trial, his lawyers only proceeded with static triers as a “reluctant compromise,” which is similar to the defence position in successful appeals in similar cases, they argued.

“Choosing the procedure by which a jury is selected is a fundamental right of an accused person,” says defence lawyer Daniel Brown, who was not involved in this case.

The Court of Appeal has found that when a jury is selected by a process over the objections of the defendant, the trial is unfair and a new trial must be ordered, he said.

The importance of finding impartial jurors was highlighted by an incident from the first day of jury selection, when Esseghaier “disrupted the court with an apparent act of prayer,” according to Jaser’s appeal factum filed with the Court of Appeal.

A prospective juror confronted Esseghaier as the jury pool was ordered to leave the courtroom and said: “We are in Canada, would you please sit down?”

As a result of this, Jaser applied for a mistrial and requested to have his trial severed from Esseghaier’s. Code, the trial judge, rejected both applications and instead added another question to be asked of prospective jurors.

Jaser’s appeal lawyers, Frank Addario, Megan Savard and Myles Avenich, also argue that Esseghaier was displaying psychotic symptoms at the start of the trial and his lack of meaningful participation in the trial process “contributed to the appearance of unfairness caused by the trial judge’s jurisdictional errors.”

Esseghaier is not represented by a lawyer for his appeal, but arguments were filed on his behalf by lawyers appointed as “friends of the court.”

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Lawyers Erin Dann and Janani Shanmuganathan argue Esseghaier did not make an application to use static triers and the trial judge did not explain the process to Esseghaier, who, on the day the motion was heard, refused to leave his jail cell to come to court. In Justice Code’s ruling on why he ordered the use of static triers he did not mention Esseghaier’s statutory rights with respect to triers.

The Crown has not yet filed their arguments with the court.

A hearing is scheduled for February 19.