The information that police presented to a judge in order to get search warrants for Chiheb Esseghaier and Raed Jaser are under a sealing order, but media lawyers fought Tuesday for access to them.
Esseghaier said he was all right with any of the material being published except for evidence about "the private life inside the home."
"You can publish the materials," he said. "I don't have a problem."
Esseghaier represented himself on the motion, as he maintained that he wants a lawyer who will use the Qur'an rather than the Criminal Code for his judgment. He has not been successful in finding one, though he has qualified for legal aid.
He refused to even read relevant case law or the materials filed by Jaser's lawyer because they are based on "laws made by humans."
"The counsel of Mr. Jaser, they are working under the Criminal Code of Canada," Esseghaier said, standing in the prisoner's box and wearing an orange jumpsuit.
"Me, I want to work under the holy Qur'an."
Esseghaier angrily pointed to a document — though it's not clear which one — at the end of the day and took great exception to a passage apparently quoting him using the phrase "in which."
"It said, 'The court in which God made the rules and not humans,'" Esseghaier said. "So the one who write this want to say that God himself is in the court, which is big insult to God because no space can contain God himself...He is the one who creates space and time."
Jaser, a 35-year-old Palestinian resident of Toronto, is represented by John Norris, who has denied the allegations against his client. Norris asked for a publication ban to be put on Tuesday's hearing after Esseghaier made his "private life" comment and Superior Court Judge Bruce Durno said, "You mean the videotape?"
Norris said that if the information that is in the sealing order was discussed in open court, a hearing about whether to lift the sealing order would be a "wasted effort."
Reporters and a few members of the public, including Jaser's family members, had to leave the courtroom while a brief in-camera hearing was held so Durno could ensure Esseghaier wouldn't refer to any of the sealed information.
Instead of ordering a publication ban on the hearing, Durno asked the lawyers and Esseghaier to refer obliquely to the contentious materials. But the lawyers' submissions did indicate that some of the information the Crown wants to keep secret are identities of witnesses and wiretap information.
Media lawyer Peter Jacobsen argued that the public should know what evidence police had to arrest Jaser and Esseghaier.
"Without access to this material...we're under a cloud of secrecy," he said. "We err on the side of maximum accountability."
Norris argued that the media can try to access the information later, but right now it adds very little "to the search for the truth," as the warrant evidence is only one side of the story.
"At this very early stage of these criminal proceedings and in the absence of a compelling public interest to the contrary, caution is in order and the best course of action is to maintain the status quo," he said.
The hearing is set to wrap up Friday, with a decision expected at a later date.
Jaser and Esseghaier were arrested in April and face several terrorism-related charges in what police allege was a plot guided by al-Qaida in Iran to attack a Via train that runs between Toronto and New York City.
Police stressed at the time of the arrests that there was no imminent threat to the public.
Esseghaier, a PhD student doing doctoral research in Quebec on nanosensors, is facing five charges, including instructing someone to carry out an activity for the benefit of a terrorist group.
Both he and Jaser are charged with conspiracy to murder for the benefit of a terrorist group, participating in a terrorist group and conspiring to interfere with transportation facilities for the benefit of a terrorist group. Esseghaier, a 30-year-old Tunisian national, faces an additional count of participating in a terrorist group.
If convicted, they could be sentenced to life in prison.
A third man, Ahmed Abassi, is facing terrorism charges in the U.S. and prosecutors allege he "radicalized" Esseghaier. American authorities also said Abassi did not support the alleged Via Rail plot and was pushing for a different plan that would contaminate the air or water with bacteria and kill up to 100,000 people.