Obstruction of Justice

Sectors

• Public officials

In Order To

• Induce false testimony

Other Crimes

Other Crimes

R. v. Schertzer, 2010 ONSC 6686

UNODC No.:
CANx038

Fact Summary

Five police officers, JOHN SCHERTZER, STEVEN CORREIA, JOSEPH MICHED, NEBOJSA MAODUS and RAYMOND POLLARD, have been charged with conspiracy to obstruct justice and other substantive offences including obstruct justice, perjury and assault. In 1997, they coerced the drug dealer ANDREAS IOAKIM into contacting AIDA FAGUNDO to deliver 5 kilos of cocaine. After the delivery, the police officers attacked her and took her money and belongings. Ms Fagundo pled guilty to possession of cocaine and was sentenced in 1999 to 30 months in jail.

The accuseds are suspected of obstructing justice by various means, including falsification of their memo books, preparing of police records that contain misleading or false information, preparation of false affidavits, perjury and failing to account for evidence seized. They also concealed the complaint for misconduct filed by Fagundo.

The investigation of the offences began in 2001.The testimony of Fagundo was sought against the accused. 

For nine years, Fagundo traveled widely, to Cuba, the Dominican Republic and Spain, where she was residing when the pursuant order for her hearing by means of technology was issued. She refused to testify several times, fearing for her life (possible retaliation from Haitians or street gangs, or money still owing for the drugs she had delivered in 1997). On behalf of Canadian authorities, the cuban authorities interviewed her to see if she was willing to testify in Canada. She declined this offer, scared for her security, among other reasons.

In 2008, pursuant to the Mutual Legal Assistance in Criminal Matters Treaty binding Spain and Canada, Canadian Prosecutors asked to conduct the interview of Fagundo in Spain. She refused on the ground that such a request would interfere with her application for a Spanish residency permit. The MLA request was then withdrawn by Canada.

After several attempts to interview FAGUNDO, she finally agreed to testify under certain conditions, one of them being that she would not go to Canada to testify. As such, she accepted to be interviewed via video conferencing. The interview took place in May 2009 and was recorded.

In granting the Prosecution their motion for video conferencing, the judge notes in this decision that a fair trial does not always require that an accused physically confront a witness in person. For the evidence to be admissible in court, the court, jury, counsel and accused must be able to see the witness on a screen and hear and see the witness testify in real time, and the witness has to be able to hear and see counsel questioning her, the registrar who administers the oath, and the court, in the event that the presiding judge must speak to her.

Commentary and Significant Features

This case highlights some of the concerns counsel may have over video conferencing. However, as noted by the judge in this decision, depending on the national provisions at play and the facts specific to a particular case, video conferencing does not necessarily interfere with the principles of fundamental justice and is therefore applicable under certain conditions.

Cross Cutting

Liability

... for

• completed offence
• attempt

... based on

• criminal intention

... as involves

• principal offender(s)

Investigation

Involved Agencies

• Special Task Force (Toronto police and RCMP officers)

International Cooperation

Involved Countries

Spain

Measures

• Mutual legal assistance

Procedural Information

Legal System:
Common Law
Latest Court Ruling:
High Court
Type of Proceeding:
Criminal
 

This is an application made by the Crown Prosecuting Services in Canada, pursuant to s. 714.2 of the Criminal Code to allow AIDA FAGUNDO to testify in Spain via video conferencing, in relation to the prosecution of 5 police officers charged with obstruction of justice.

 
 

Defendants / Respondents in the first instance

Respondent:
John Schertzer
Gender:
Male
Nationality:
Canadian

The respondents were police officers charged with conspiracy to obstruct justice, the obstruction of justice, perjury and assault.

Respondent:
Steven Correia
Gender:
Male
Nationality:
Canadian
Respondent:
Joseph Miched
Gender:
Male
Nationality:
Canadian
Respondent:
Nebojsa Maodus
Gender:
Male
Nationality:
Canadian
Respondent:
Raymond Pollard
Gender:
Male
Nationality:
Canadian

Charges / Claims / Decisions

Respondent:
John Schertzer
Respondent:
Steven Correia
Respondent:
Joseph Miched
Respondent:
Nebojsa Maodus
Respondent:
Raymond Pollard

Court

Superior Court of Justice

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