Tunisian terrorist wins reprieve due to mental health concerns

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A Tunisian man serving a life sentence in Canada for plotting to kill passengers by derailing a VIA Rail train has convinced a Federal Court judge to delay immigration authorities from deciding if he’s allowed to stay here because it could harm his mental health.

The proceeding at issue was an admissibility hearing for Chiheb Esseghaier before the Immigration and Refugee Board. Because of his 2015 convictions, the likely result would have been an automatic deportation order.

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“I find a real risk of serious mental harm on the basis of evidence from Mr. Esseghaier’s treating psychiatrist,” Justice Christine Pallotta wrote in a recent decision out of Toronto.

The court heard from Dr. Robert Lacroix, Esseghaier’s psychiatrist at Regional Treatment Centre-Pacific, part of the Correctional Service of Canada’s Pacific Institution in Abbotsford, B.C.

He explained Esseghaier’s “prognosis and medical fragility” in a May 2024 letter, said the judge’s decision, dated Feb. 7.

Pallotta noted the Immigration Division of the Immigration and Refugee Board concluded, based on the psychiatrist’s opinion, that “there is a strong probability that Mr. Esseghaier’s mental health would be adversely, permanently, and irretrievably impacted in some way and in some degree due to the conduct of the admissibility hearing and in anticipation of the potential consequences that may result.”

The judge also pointed to “a December 2024 letter from Dr. Lacroix discussing concerns with stress relating to the immigration proceedings, stating that psychotic symptoms become more entrenched and treatment-resistant with successive exacerbations of illness, and that treatment options would be more limited if Mr. Esseghaier were to significantly deteriorate.”

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The judge recognized that “Esseghaier’s evidence of mental harm pre-dates the (Immigration Division’s) admissibility hearing.”

But Pallotta didn’t agree with lawyers for Immigration Minister Marc Miller “that this warrants an adverse inference, nor do I agree that the evidence about the effect of the (Immigration Division’s) decision or a removal order is speculative. In my view, Mr. Esseghaier has provided clear and convincing evidence to establish a real probability that irreparable harm will result unless a stay is granted.”

Esseghaier’s admissibility hearing has already gone ahead. No decision has been issued yet.

His lawyer filed a motion to stay the proceedings “until his mental health could be stabilized, his sentence was near completion, or release from prison was likely,” said the judge’s decision.

That was dismissed, so his lawyer appealed the decision to the Federal Court, and brought a motion asking the court to stay the decision on Esseghaier’s admissibility until the appeal challenging the decision to go ahead with the admissibility hearing in the first place has been concluded.

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“While there is undoubtedly a public interest in carrying out the provisions of (the Immigration and Refugee Protection Act), there is also a public interest in ensuring that remedies are effective, and that the integrity of the court’s process and human rights are protected,” Pallotta said.

“Mr. Esseghaier states he is not a danger to the public as he is institutionalized and receiving treatment with no prospect of release, and the only harm the (immigration minister) will face from granting a stay is a delay in determining his immigration status until the underlying (application for leave and judicial review) is decided.”

The judge was “satisfied that the evidence on this motion demonstrates that Mr. Esseghaier would suffer irreparable harm between now and the time the underlying (application for leave and judicial review) is decided, if a stay is not granted.”

Esseghaier was transferred to Abbotsford in 2016 for treatment of psychosis and schizophrenia, said the decision.

“In September 2019 he was transferred back to Toronto, where the appeal of his conviction and sentence was being heard. The Ontario Court of Appeal overturned the conviction and sentence for reasons related to jury composition. When he returned to RTC-Pacific in December 2020, Mr. Esseghaier’s mental state had deteriorated significantly.”

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But the Supreme Court of Canada restored Esseghaier’s conviction and sent “the matter back to the Ontario Court of Appeal to decide the remaining grounds of appeal,” said Pallotta’s decision. “However, Mr. Esseghaier abandoned the appeal. He states this decision was driven by concerns that he would again be transferred from RTC-Pacific, and he needs to stay at RTC-Pacific because he is receiving necessary psychiatric care.”

Lawyers representing the immigration minister argued unsuccessfully that Esseghaier’s motion for a stay be dismissed.

“The applicant sought to kill multiple Canadians in a terrorist attack. His hands are unclean,” said their submissions to the court.

That alone should should result in a dismissal, they argued.

Equity does not dictate that a foreign terrorist be allowed to escape the application of Canada’s immigration laws

“Equity does not dictate that a foreign terrorist be allowed to escape the application of Canada’s immigration laws on the basis of the terrorist’s mental health concerns. All of the evidence and arguments have been presented at the applicant’s admissibility hearing, and all that is left to be done is for the (Immigration Division) to render its decision. The (Immigration Division) should be permitted to do so without premature judicial intervention.”

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But the judge wasn’t buying it.

She noted Esseghaier is not eligible for parole until 2028.

“Mr. Esseghaier is not seeking, nor is he receiving, an indefinite stay,” Pallotta said. “I find Mr. Esseghaier has established that the harm to him outweighs the harm to the (immigration minister). The balance of convenience lies in his favour.”

Esseghaier is a citizen of Tunisia and a permanent resident of Canada, said her decision. “He arrived in Canada in 2008 to pursue a PhD, which he abandoned when he began experiencing worsening delusions.”

In March of 2015, a Toronto jury convicted Esseghaier and Raed Jaser, a Canadian citizen of Palestinian descent, of conspiring to commit murder in association with a terrorist group.

The court heard the pair planned to attack a passenger train travelling from New York to Toronto. Prosecutors argued they were motivated by Islamic extremism. Both men were sentenced to life in prison.

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