Kidnapping trial gets new setback
Defence wants appeal process to run its course
• The trial of the alleged negotiator in the ki dnapping of Amanda Lindhout is delayed, either indefinitely or until Thursday.
The Canadian freelance j ournalist, t hen j ust 27, was abducted by a group of armed men near Mogadishu, Somalia, with Nigel Brennan, a photographer colleague from Australia, on Aug. 23, 2008.
The two were finally released, after 460 days in captivity, in November of 2009.
Ali Omar Ader, a Somalian citizen who was lured to Canada by an RCMP officer posing as a book agent, was arrested in Ottawa in June of 2015 and charged with hostage- taking, an offence punishable by a life sentence. He is pleading not guilty. Ader, who is now 40, is alleged to have been the negotiator for the kidnappers and the man who had multiple phone conversations with Lindhout’s mother.
That would make him a “party” to the hostagetaking itself, a party being someone who either committed the offence or aided or abetted those who did commit it.
The trial was slated to start before Ontario Superior Court Judge Robert Smith in an Ottawa courtroom on Monday, but is on hold at least temporarily.
Lawyers for Ader have asked for the delay pending the results of their appeal to the Federal Court of Appeal in a separate but related proceeding.
Last week, Federal Court of Canada Judge Patrick Gleeson i ssued an order upholding t he statutory prohibition on disclosure of sensitive material deemed dangerous to Canada’s national security interests to Ader’s criminal lawyers.
As lead defence lawyer Trevor Brown told Judge Smith, not having those documents amounts to “an impairment of Mr. Ader’s right to a fair trial.”
Brown wants the trial put on hold until the Federal Court of Appeal process is complete, an unknown period that could span months or years. To do anything less, Brown said, would be “trying to fix things that are broken at the back end.”
In other words, if the appeal is successful and as a result new information is disclosed, it could render any conviction of Ader unfair, Brown said.
To this, federal prosecutor Croft Michaelson effectively said nonsense.
He reminded Smith that t he Federal Court j udge had heard from Brown, in a secret closed hearing this summer, in order to properly understand the “defence theory” of the criminal case and how, if at all, the disputed documents might be useful in Ader’s defence.
After all, Michaelson said, it was with that very question in mind that the Federal Court judge reviewed the documents, yet he concluded that the information in them would be of “minimal value” in the criminal proceeding.
“This trial should not be delayed so the accused can pursue an appeal with faint hope of success,” Michaelson said.
Besides, he noted, the trial is already “on month 27” of the 30- month ceiling the Supreme Court of Canada decision in R v Jordan has imposed upon courts for how long it should take a case to move from the date of charge to trial.
Since the Jordan decision set out its strict time limits, all prosecutors and courts are acutely aware of the ticking clock. But for cases where there are “exceptional circumstances” that explain a lengthy delay, charges that take longer than 30 months to go through the process may be tossed.
Brown dismissed t he Jordan concern, saying it would be “an ironic state of affairs” if in its fear of Jordan repercussions, the court is prepared to “stampede” to trial and “trample over the rights” of Ader.
It’s not good enough for a court to say that if he were to succeed in getting new information at the Federal Court of Appeal, Ader could win a new trial or a mistrial, Brown told the judge.
“The best chance to get it right is the first time,” he said.
To this, the judge mildly noted that it’s a question of weighing the risks — taking a chance on the Jordan time limits versus “your chance on an appeal.”
But Michaelson said this trial hinges on Ader’s “own words” on the recordings of his phone calls and his later “confessions” to the RCMP agent. “Mr. Ader has to answer for what he said and did between 2008 and 2009,” Michaelson said.
He did agree, however, to a two- day delay, meaning the earliest the trial could begin is Thursday.
Judge Smith will announce his decision Tuesday.