Court File and Parties

COURT FILE NO.: 08-11565 DATE: 2017-01-12

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN James Cavanagh and Jason Neubauer for the Crown/Applicant Applicant

- and -

NAWAF AL-ENZI Alan D. Gold and Etai Hilzenrat, for the Respondent Respondent

HEARD: October 6 and 14, 2016, at Ottawa, Ontario

MADAM JUSTICE B. R. WARKENTIN

REASONS ON APPLICATION TO ADDUCE EVIDENCE OF OMAR AHMED VIA VIDEO LINK PURSUANT TO S. 714.2 OF THE CRIMINAL CODE

[1] On August 30, 2016 I ruled in written reasons that the Crown could not admit the hearsay statements of Mr. Omar Ahmed in the trial; that his presence at trial was required to permit the defence an opportunity to cross examine this witness.

[2] The Crown had sought to introduce both the hearsay statements made by Mr. Zalal (the victim of the homicide) to Mr. Ahmed, and Mr. Ahmed’s testimony from the first trial regarding Mr. Ahmed’s involvement in the events leading up to and on the day of Mr. Zalal’s death.

[3] Shortly after the trial began, Crown counsel informed the Court that Mr. Ahmed had been located and that the Crown would be seeking to have his evidence adduced via video link pursuant to s. 714.2 of the Criminal Code. I heard that application on October 6 and 14, 2016 after which I ruled that Mr. Ahmed’s evidence could be adduced via video link provided certain prerequisites were met and that I would provide these written reasons in due course.

Evidence of Omar Ahmed via Video Link

[4] Mr. Ahmed was deported to Somalia shortly after giving evidence in the first trial in 2010. His location was unknown until early in the trial at which time it was disclosed that Mr. Ahmed was in a location outside of Canada. For security reasons, his exact location was not disclosed; however, there was no dispute that he was not residing in Canada.

[5] The Crown relied upon s. 714.2 of the Criminal Code to obtain a ruling permitting Mr. Ahmed to testify via video link. Section 714.2 states as follows:

714.2(1) Video links, etc. - witness outside Canada - A court shall receive evidence given by a witness outside Canada by means of technology that permits the witness to testify in the virtual presence of the parties and the court unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice.

(2) Notice- A party who wishes to call a witness to give evidence under subsection (1) shall give notice to the court before which the evidence is to be given and the other parties of their intention to do so not less than ten days before the witness is scheduled to testify.

[6] The Defence opposed this application on the basis that if the witness was prepared to come to Canada to testify, then the principles of fundamental justice warranted that every effort should be made to have the witness testify in person. The Defence argued that their ability to cross-examine a witness whose credibility was in issue would be hampered by having to do so via video link.

[7] While there was evidence that Mr. Ahmed was prepared to testify in the trial, the Crown, through the investigating officer, Sergeant Hudson, had not enquired as to his willingness to travel to Canada nor had he made serious inquiries of the Department of Citizenship and Immigration as to the feasibility of having Mr. Ahmed brought to Canada for the purpose of testifying in this trial.

[8] Section 714.2 is clear and is written in mandatory language. The section does not require that all efforts must first be made to have the witness testify in person, but rather requires that the court shall receive the evidence by “… means of technology that permits the witness to testify in the virtual presence of the parties and the court...”

[9] The Defence had the onus of satisfying the court that the use of this procedure would be contrary to the principles of fundamental justice. The Defence position that they would not be in a position to effectively cross-examine this witness via video link was not persuasive.

[10] Video technology is used regularly in our courts to facilitate testimony of a witness for many different reasons. Its use does not deprive an accused of a right to a fair trial. Equally, the Defence is not deprived of an opportunity to confront the witness in cross examination when the witness testifies via video link. Any concerns regarding the means by which the evidence is to be presented including the conditions from which the witness testifies can be managed by way of ensuring the process for receiving that evidence is determined in advance.

[11] In making my ruling permitting Mr. Ahmed to testify by video link, I required that the video link had to be of sufficient quality and made it clear that if there were any concerns with the technology or with the process by which Mr. Ahmed was providing his evidence that the Defence objection could be renewed.

[12] Once my ruling was made, the Crown and Defence reached an agreement regarding the process that would be utilized for the presenting of Mr. Ahmed’s evidence, including the transcript and other exhibit material that would be available to Mr. Ahmed during his testimony as well as restrictions on who would be present with Mr. Ahmed during his evidence.

[13] The Crown’s application under s. 714.2 was therefore granted.

Madam Justice B. R. Warkentin

Released: January 12, 2017