Magnotta: judge says yes to European witnessesFriday, February 07, 2014 by: SooToday.com Staff
MONTREAL - A Quebec judge presiding over the case of alleged dismemberment killer Luka Rocco Magnotta has granted an order to allow testimony from witnesses to be gathered in France and Germany.
While the intricate details of how this will be done remains to be ironed out, Superior Court Justice Guy Cournoyer started the complicated process with his favourable decision on Friday.
Magnotta's trial in the May 2012 slaying of Jun Lin, a 33-year-old Chinese-born Concordia University engineering student, is scheduled to start Sept. 8.
Before then, both the Crown and defence will head to the two European countries to question witnesses in an effort to gather evidence.
The witnesses are a mix of civilians and law-enforcement personnel.
Magnotta, 31, left Canada after the alleged murder and is believed to have travelled to France and then Germany. The case, which generated headlines around the world, triggered an international manhunt that culminated with Magnotta's June 2012 arrest in Berlin.
In addition to the first-degree murder charge against him, Magnotta is also accused of committing an indignity to a body; publishing obscene material; criminally harassing Prime Minister Stephen Harper and other members of Parliament; and mailing obscene and indecent material.
Magnotta has pleaded not guilty to all charges.
Permission to interview more than 30 people in Paris and Berlin was originally sought by the Crown. Prosecutor Louis Bouthillier had argued it would "require a miracle" to bring that many witnesses to Montreal for a trial expected to last between six and eight weeks.
Cournoyer acknowledged the differences in the Canadian legal system and the two European countries when he made his ruling Friday.
He said a decision will be taken after the interview process is completed on whether the evidence heard meets Canadian standards and can be accepted at the trial. That decision will also likely be made before the trial starts.
"Whether the process used to take evidence in this case is contrary to fundamental justice, that will be decided by this court at a later date," Cournoyer said.
The court has heard this week that setting up the process and gathering testimony abroad could take four to six months.
Cournoyer indicated he wanted it done quickly but a number of legal and logistical wrinkles remain to be ironed out.
For example, it's not clear how many Canadian judicial officials and court staff would be required to participate in such an extraordinary process.
There are also technological challenges in both those countries and audio and video recording equipment may have to be transported there.
It's also not clear for the time being who will pay the way of Magnotta's lawyer, Luc Leclair. The judge indicated it will be most likely the state in some capacity.
"You can be sure that no one is going to go first-class," Cournoyer said.
It's also unclear who would oversee the process in those countries — a judge, a lawyer, a clerk or someone else.
How much of Canada's legal system would be permitted is equally unclear. One of the issues is that cross-examination of witnesses doesn't exist under French and German law while it is a fundamental part of the Canadian system.
Magnotta's lawyer had argued the witnesses should be brought to Canada to testify at his client's jury trial.
But a Crown witness has testified there is no way to compel foreign citizens to testify in Canada and no recourse should they agree to testify and simply not show up.
However, with the process abroad, witnesses would be required to testify in their own countries.
Magnotta will not be permitted to travel to Europe. A lawyer for the Quebec government, Sebastien Bergeron-Guyard, has said it would be too complicated and the Crown has said it would be unfair to burden German and French officials with Magnotta's presence in their countries, given the severity of the charges against him.
A spokesman for the Crown says its intention is to use the evidence gathered at the trial, although the question of admissibility will be decided at a later date.
"We'll see, it's a hypothetical question, but we'll do everything we can to respect Canadian law and the sovereignty of countries like France and Germany," said Crown spokesman Jean-Pascal Boucher.
The parties will return to court on April 25 in Montreal to discuss several other trial-related issues further.