COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Karimi, 2014 ONCA 133

DATE: 20140219

DOCKET: M43100 (C54078)

Doherty, Goudge and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ali Karimi

Applicant (Appellant)

Alan D. Gold and Joel N. Myskiw, for the applicant (appellant)

Tracy Kozlowski, for the respondent

Heard and released orally: February 14, 2014

ENDORSEMENT

[1] The applicant seeks an order compelling a witness who testified at the trial to attend at the specified place and “provide a sample of his voice in accordance with the conditions herein”.

[2] The applicant seeks the voice sample to assist an expert retained by the defence in formulating an opinion as to whether the voice on a certain taped conversation introduced at trial is in fact the voice of the witness. The defence anticipates a fresh evidence application in reference to that issue.

[3] The applicant relies on s. 683 in support of the motion. He submits that this court has the power to make the order sought assuming it is in the interests of justice under either s. 683(1)(a) or s. 683(1)(b).

[4] We are satisfied there is no power to make the order under s. 683(1)(a). That section permits an order with respect to “the production of any writing, exhibit or other thing connected with the proceedings”.

[5] The provision refers to the production of existing material and not to the creation of material that may assist an expert in formulating his or her opinion on an issue that may ultimately be germane to the appeal proceedings. In other words, we think s. 683(1)(a) is limited to the production of an existing writing, exhibit or “other thing” connected to the proceeding.

[6] Section 683(1)(b) provides that the court can order that any person who is a compellable witness “attend and be examined”. That section refers to an order that compels a person to attend qua witness for the purpose of answering questions or producing other kinds of evidence relevant to the proceeding. The section does not contemplate compelling a person to attend not as a witness, but for the purposes of assisting in the creation of material that may be used by an expert in the formulation of his or her opinion.

[7] We are satisfied that we have no power to make the order sought under s. 683(1). The motion is dismissed and we need not address the question of whether the making of the order would be in the interests of justice if we had the power.

[8] The appeal is set for late March and it is important that the appeal be ready for hearing at that time. The defence should provide whatever material it is going to provide in reference to his fresh evidence application to the Crown as soon as possible so that the Crown has an opportunity to deal with that material and the scheduled date for the hearing of the appeal is not compromised.

“Doherty J.A.”

“S.T. Goudge J.A.”

“C.W. Hourigan J.A.”