



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)      any of the following offences;

(i)       an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)      two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)      In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)      at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)      on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)      In proceedings in respect of an offence
    under section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)      An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abedi, 2017 ONCA 724

DATE: 20170919

DOCKET: C60423

Laskin, Trotter and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shabir Abedi

Appellant

Joshua Frost and Eric Neubauer, for the appellant

Andrew Cappell, for the respondent

Heard and released orally: September 14, 2017

On appeal from the conviction entered on May 27, 2014 by
    Justice Alan Cooper of the Ontario Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

We did not call on the Crown on the trial judges finding of no unacceptable
    negligence. In our view that finding was reasonable and we defer to it. The central
    issue then is whether the loss of the video recording of the complainants
    statement was so prejudicial to the defence that it impaired Mr. Abedis fair
    trial rights.

[2]

Mr. Abedi submits that he was prejudiced in three ways: because of the
    loss of the recorded statement itself; because of the nature of the case; and
    because of the specific contents of the statement.

[3]

We do not agree with Mr. Abedis submissions. In our view the defence
    was not prejudiced by the lost recording.

[4]

On the first branch of the alleged prejudice, Mr. Abedi would have to
    show actual prejudice and not simply that the loss of the evidence would have
    made putting his defence position forward more difficult.

[5]

To determine whether actual prejudice has occurred, we must consider
    whether other evidence containing essentially the same information existed. See
R. v. Bradford
, (2001), 151 CCC (3d) 363 at paras. 7 and 8.

[6]

We agree with the Crown that the officers notes were a sufficient
    substitute for the lost recording. The notes were contemporaneous, they were
    detailed about the circumstances of the sexual assault, and the defence did not
    suggest that the notes were inaccurate or were missing any important details.

[7]

On the second branch of the alleged prejudice, the nature of the case, the
    trial judge made findings of fact supported by the evidence. In particular, his
    finding that the complainant was intoxicated was supported, even by the
    evidence of Mr. Abedi.

[8]

On the third branch of the alleged prejudice, the contents of the
    statement, Mr. Abedi points to the portion of the notes where the complainant said
    she was tipsy. That very reference in the notes shows that the notes were a sufficient
    substitute for the recording. And, Mr. Abedi fairly acknowledges that defence counsel
    at trial (not Mr. Frost) did not even put that portion of the notes to the complainant
    in cross-examination.

[9]

In summary, the loss of the recorded statement did not prejudice Mr.
    Abedis defence. The appeal is therefore dismissed.

John
    Laskin J.A.

G.T.
    Trotter J.A.

Fairburn
    J.A.


