CITATION: R. v. Ader, 2017 ONSC 6263
COURT FILE NO.: 16-30357
DATE: 2017/10/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ALI OMAR ADER
Applicant
Croft Michaelson, Timothy Radcliffe, Xenia Proestos, for the Crown
Trevor Brown, Samir Adam, Tyler Botten for the Applicant
HEARD: In Ottawa October 2, 2017
Decision on motion to adjourn trial until the appeal to the federal court of appeal is completed
R. Smith J.
[1] The Defence seeks an adjournment of this trial until the completion of the appeal of the Federal Court Judge’s decision refusing further disclosure on national security grounds under S. 38 of the Evidence Act. The Defence submits that the adjournment is required to allow him to complete the appeal and possibly obtain disclosure of additional information which will allow him to make full answer and defence and to receive a fair trial. At this time the criminal proceeding against the Accused has been ongoing for 27 months and granting an adjournment will cause a lengthy delay of this trial.
[2] The Crown opposes granting an adjournment to complete the appeal to the Federal Court of Appeal but consents to a short adjournment to Thursday of this week.
[3] The Crown submits that Justice Gleeson was informed of the Defence’s theory of the case, heard submissions from the appointed amicus and the Attorney General and carefully weighed whether the public interest in disclosure was outweighed by the public interest in non-disclosure under S. 38 of the Evidence Act.
Issue
2b Should this trial be adjourned until the completion of an appeal of a Federal Court Judge’s decision refusing to order further disclosure based on national security concerns, where the adjournment will extend the trial beyond the 30 month presumptive time limit established in Jordan.
Analysis
[4] The Crown submits that Justice Gleeson J. applied the correct three step legal analysis as set out by the Federal Court of Appeal in the R. v. Ribic, 2003 FCA 246, 61 W.C.B. (2d) 483 decision. He held that the contested information met the low Stinchecombe relevancy test requiring disclosure, which was conceded by the Attorney General.
[5] Gleeson J. also held that that disclosure of the contested information would cause harm to Canada’s national security, national defence or international relations. He concluded that the Attorney General had demonstrated a significant public interest in not disclosing the information which if disclosed would be injurious to Canada’s national security interests.
[6] Gleeson J. balanced the competing interests at stake and held that the factors favouring disclosure were outweighed by the public interest in protecting the information. He provided a short summary of the information where he could not conclude with a high degree of certainty that the information was not unique, or where it might be of particular value to the defence in this trial. He was able to conclude with a high degree of certainty that the balance of the contested information was not unique or of particular value to the accused in conducting his defence. Justice Gleeson also stated that he did not identify any potentially significant information, unlike in the R v. Al Telbani case, 2012 FC 474, 222 A.C.W.S. (3d) 559. He went on to state he was unable to conclude that the non-disclosure of the redacted information that remained in dispute, could materially affect the outcome of the criminal trial.
[7] Gleeson J. also stated that the submission that there might be additional information to support a third party disclosure application if further disclosure was ordered, was somewhat speculative.
[8] The accused must receive a fair trial and be able to make full answer and defence to the charge that he was a party to the hostage taking of Amanda Lindhout, by acting as the negotiator for the payment of a ransom. Identity is not an issue in this trial.
[9] There is an important public interest in having the criminal charge heard on its merits and for the accused to have his trial within a reasonable time as guaranteed by the Charter of Rights. The criminal proceeding has been ongoing for 27 months at this point in time. An adjournment to allow the appeal process to be completed before the Federal Court of Appeal will exceed time the time limit of 30 months set by the Supreme Court of Canada in the Jordan decision.
[10] If the trial proceeds and the accused is acquitted there will not be any possible prejudice to the accused or to the public interest. If the trial proceeds and the accused is convicted then there will also not be any prejudice to the accused, unless he is successful in his appeal of Gleeson J.’s decision. If the accused’s appeal is successful and further information is ordered disclosed that could have had a significant impact on trial fairness, then an appeal will likely be allowed and a new trial ordered or a mistrial declared if sentencing has not been completed.
[11] Gleeson J. has reviewed all of the documents that have been disclosed by the Attorney General under S. 38 of the Evidence Act and concluded with a high degree of certainty that the information not being disclosed was not unique and would not be of particular value to the accused in his defence at this trial.
[12] At this point in the process Gleeson J. has concluded that non-disclosure of the contested information will not materially affect this trial and as a result the accused will receive a fair trial and will be able to make a full answer and defence to the charge. There is no evidence before me, that the accused cannot receive a fair trial, other than speculation about the possibility that Gleeson J. has erred in making his findings and in weighing the interests favouring non-disclosure of the contested information.
[13] If the Federal Court of Appeal overturns Gleeson J’s decision, then the effect of any non-disclosure on trial fairness may be considered at that time. The accused has a right to appeal the decision of Gleeson J., however I must also consider the interest of the public and the accused to complete the trial within the presumptive time limit of 30 months. At this time Gleeson J.’s decision is valid. He has reviewed all of the contested information and found that the accused would be able to make full answer and defence and thereby receive a fair trial without any additional disclosure. A typical Stinchcombe application for further disclosure would be made to the trial judge. If the trial judge decided not to order further disclosure, the trial would proceed. In this case where Canada’s national security interests are involved, the review of the contested information was conducted by a judge of the Federal Court, namely Gleeson J. One of the purposes of the review of the contested information and weighing of the competing interests is to ensure that the accused will receive a fair trial. At this point in time there is no reason to doubt Gleeson J.’s finding that the contested information that was not disclosed would have minimal impact on the accused’s defence.
Decision
[14] I find that speculation that Gleeson J.’s decision is incorrect and will be overturned on appeal is outweighed by the negative effect of a lengthy delay if this trial is adjourned, the public interest in having the trial proceed on the merits, the seriousness of the charge, and the fact that Gleeson J. has already conducted a careful review of the contested information, and found that any material not disclosed will have no material effect on the accused’s defence. There is no reason to doubt the correctness of Gleason J.’s decision that the accused will receive a fair trial without any further disclosure. In addition the accused still has remedies available to him if Gleeson J.’s decision is ultimately overturned on appeal.
[15] The request for an adjournment to allow the completion of the appeal of Gleeson J.’s decision to the Federal Court of Appeal is denied. An adjournment is granted until this Thursday at 10:00 a.m. at which the trial will proceed.
Justice Robert Smith
Released: October 20, 2017
CITATION: R. v. Ader, 2017 ONSC 6263
COURT FILE NO.: 16-30357
DATE: 2017/10/20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ALI OMAR ADER
Applicant
decision on motion to adjourn trial until the appeal to the federal court of appeal is completed
R. Smith J.
Released: October 20, 2017