PCJ QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 224 Date: 2007 06 26 Docket: Q.B.J. No. 14/2006 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN, and BAILEY BRADLEY LONECHILD, Counsel: Paul Goldstein for the Crown William H. Roe, Q.C. for the accused FIAT GABRIELSON J. June 26, 2007 Introduction [1] The applicant, Bailey Bradley Lonechild (the accused), brought an application for a change in venue in this matter pursuant to s. 599(1) of the Criminal Code of Canada. The accused seeks an order granting trial in the City of Prince Albert or such other judicial centre as the Court deems appropriate. He also sought an order pursuant to s. 119(1)(q) of the Youth Criminal Justice Act, S.C. 2002, c. 1, directing the Crown to disclose the names of any witnesses with criminal convictions registered under provisions of the Youth Criminal Justice Act, and particulars of the convictions. Crown counsel did not oppose the application for an order under s. 119(1)(q) of the Youth Criminal Justice Act, and such an order was accordingly made. Crown counsel, however, opposed the application for change of venue. [2] In the indictment filed in this matter, the accused is charged that on or about the 6th day of August, 2005, at or near Saskatoon, Saskatchewan, he did: ... unlawfully cause the death of Justice Dean Sproat and did thereby commit second degree murder, contrary to Section 235 of the Criminal Code. [3] Counsel for the accused states the application for change of venue is brought because it is expedient to the ends of justice as result of the following matters: 1. Pre‑trial publicity regarding the offence; 2. Pre‑trial publicity regarding knives and related acts of violence in Saskatoon; 3. An organization calling itself “Justice for Justin” has been established, which organization has been printing bumper stickers which use that phrase; and 4. There are several memorials to the victim which could arouse sympathy for the victim and prejudice the accused. [4] Crown counsel’s position was that there is an age‑old tenet that the trial should take place in the location where the offence occurred. Crown counsel also states and that there is very high onus upon the accused to establish that fair and impartial trial cannot take place in that location before an order for change of venue can be made. Crown counsel further pointed out that there are safeguards in the system to “cleanse the jurors’ eyes” and that, in the circumstances of this case, change of venue is not warranted. [5] Section 599(1) of the Criminal Code allows an application for change of venue in certain circumstances: 599. (1) court before which an accused is or may be indicted, at any term or sittings thereof, or judge who may hold or sit in that court, may at any time before or after an indictment is found, on the application of the prosecutor or the accused, order the trial to be held in territorial division in the same province other than that in which the offence would otherwise be tried if (a) it appears expedient to the ends of justice; or (b) competent authority has directed that jury is not to be summoned at the time appointed in territorial division where the trial would otherwise by law be held. [6] Clearly, s. 599(1)(b) is not applicable in the circumstances of this application. Section 599(1)(a), however, must be considered. This section has been interpreted in numerous cases to give the trial judge broad discretion to order change in venue if the evidence before the trial judge establishes that the accused could not get fair trial in the judicial district in which the trial had been scheduled. [7] Counsel for the accused, while citing several cases, relies mainly on two cases, R. v. Charest (1990), 1990 CanLII 3425 (QC CA), 57 C.C.C. (3d) 312, decision of the Quebec Court of Appeal, and R. v. Martin, 1963 CanLII 732 (SK QB), [1964] C.C.C. 391 (Sask. Q.B.), decision of the Saskatchewan Court of Queen’s Bench. In the Charest case, the Quebec Court of Appeal held that the trial judge ought to have allowed change of venue and stated at page 349: ... In my view, fair trial can be conducted only in reasonably serene environment. Extensive prejudicial publicity shortly before the trial, pronounced hostility toward the accused, widespread sympathy for the victim, and frightened or enraged community, surely create especially in small judicial district the kind of emotionally charged atmosphere in which the ends of justice may be best served by removal of the trial to another venue. [8] Similarly, in the Martin case, the trial judge, in allowing the application for change of venue, stated at page 393: It is my view that the existence of the fund [a trust fund for the family of the victim] and the fact that no doubt number of persons in the Wynyard district have contributed to it is the principal ground for the application. The strong language of the editorial probably would assist in arousing sympathy for the object of such fund. [9] Crown counsel suggests that the case of R. v. Munson, (2001), 2001 SKQB 287 (CanLII), 212 Sask R. 29 (Q.B.), aff’d 2003 SKCA 28 (CanLII), 172 C.C.C. (3d) 515, is the leading authority in Saskatchewan on the issue of change of venue. Other Saskatchewan cases dealing with this issue are R. v. Trotchie (1984), 1984 CanLII 2298 (SK QB), 31 Sask. R. 250 (Q.B.); R. v. Fischer (1994), 1994 CanLII 5042 (SK QB), 119 Sask. R. 307 (Q.B.); R. v. Baker (1997), 1997 CanLII 11282 (SK QB), 153 Sask. R. 192 (Q.B.); R. v. Thatcher, 1999 SKQB 231 (CanLII), 141 C.C.C. (3d) 33; R. v. Horse, 2000 SKQB 548 (CanLII), 201 Sask R. 309; R. v. Leibel, 2000 SKQB 594 (CanLII), 210 Sask. R. 131; R. v. Musqua, 2003 SKQB 207 (CanLII), 234 Sask. R. 111; and Thatcher v. Saskatchewan (Attorney General), 2003 SKQB 218 (CanLII), 235 Sask. R. 78. [10] It appears to be well settled that absent exceptional circumstances, trial will be held in the judicial centre closest to where the alleged crime was committed. In the Munson case, Scheibel J. stated at paragraphs and 8: [7] The common law rule that an accused should be tried in the locale where the crime was alleged to have been committed dates back several centuries. [8] As early as the year 1762 the court in R. v. Harris, 97 E.R. 858 at 860 (K.B.) said: There was no rule better established, he said, than, "that all causes shall be tried in the country, and by the neighbourhood of the place, where the fact is committed." And therefore that rule ought never to be infringed, unless it plainly appears that fair and impartial trial can not be had in that county. [11] It is also well settled that the onus is upon an applicant to establish by evidence that fair and impartial trial cannot be held in the closest judicial district. The nature of this onus as required by s. 599 of the Criminal Code was outlined by Smith J. in R. v. Leibel, supra as follows: [12] Many cases, particularly older ones, emphasize the exceptional nature of this remedy, conflicting with the established practice and public policy that criminal cases should as rule be tried in the territorial division in which the offence is committed. These cases comment that courts are generally reluctant to grant an order for change of venue and place an onus on the applicant to “make out probable cause that jury sworn and properly instructed would not render true verdict according to the evidence, free of any bias or partiality” .... [12] My analysis of the evidence submitted by the applicant, and each of the grounds raised for requiring change of venue is as follows. 1. Pre‑trial publicity regarding the offence [13] In the case of R. v. Munson, Scheibel J., of the Court of Queen’s Bench, stated at paragraph 20: [20] The onus is on the accused to establish that there is fair and reasonable probability of partiality or prejudice in the community to the extent that full, fair and impartial trial cannot be held in the venue where it is alleged the offence occurred. [14] In an attempt to meet this onus, counsel for the accused filed four affidavits with the application. The first affidavit, that of Lisa Watson, law student working in the office of the accused’s counsel, outlined the results of media search which had been undertaken. Attached to the affidavit were articles found on the internet, 47 articles taken from the Saskatoon StarPhoenix, transcripts of radio reports, document setting out various newscasts that were made about the death of the victim and reference to website which contains the victim’s obituary and messages from persons who visited that website. Finally, the affidavit makes reference to two sporting events that are memorial tournaments for the victim and to series of news releases and emails concerning memorial fountain for the victim to be placed at site in Saskatoon. supplementary affidavit from Ms. Watson listed further media reports regarding knives and the use of knives to commit crimes in the City of Saskatoon. An affidavit from the accused indicated that the combination of the media coverage of the case, the media coverage of offences involving the use of knives, the memorial tournaments and the memorial fountain would affect his ability to have full, fair and impartial trial in the City of Saskatoon. final affidavit signed by Gwen Charman, the director of operations of the Meewasin Valley Authority, which controls the land on which the memorial drinking fountain is to be placed, indicated that to date, the sum of $8,098 has been raised from approximately 133 donors. [15] There is no question that the affidavits establish that the case has generated significant pre‑trial publicity. However, previous cases have held that publicity alone will not result in change of venue. In the case of R. v. Leibel, supra, Smith J. stated at paragraph 17: [17] My conclusion, based [sic] review of all of the case law cited to me by counsel, is that pre‑trial publicity alone, even when it appears to implicate the accused, is not sufficient for change of venue. It is assumed that properly instructed jury selected in accordance with the safeguards provided in the Criminal Code is capable of disregarding such publicity and rendering verdict based solely on the evidence presented in court. Accordingly, change of venue should be ordered only when there is an added element, or elements, that risk undermining the jury’s ability to set aside any preconceptions it may have. This, think, is why the Court in Charest emphasized the necessity for “reasonably serene environment”. Such an environment is threatened when the offence charged has inflamed public fear or passion, sympathy for victim or antipathy toward an accused. It is threatened when the community in question is very small, and jurors may have to face persons directly interested in the outcome after the trial. These factors place an added and potentially insurmountable difficulty in the way of calm and dispassionate deliberation. [16] In the circumstances of this case, despite the examples of media coverage referred to in the affidavits, am satisfied that reasonably serene environment for trial is still possible in Saskatoon. The majority of the exhibited media reports are over year old. There is no evidence that the media reports have created frightened or enraged community such as was the case in the Charest case, supra. The more recent reports are generally factual references to the progress of the case, including the results of various hearings. It is my opinion that the pre‑trial publicity found in this case is not alone sufficient to suggest that full, fair and impartial trial cannot be held. 2. Pre‑trial publicity regarding knives and related acts of violence [17] Ms. Watson’s affidavit refers to some 14 media reports regarding the criminal use of knives in Saskatoon, some of which reports also referenced the victim and/or the incident giving rise to this trial. Some of the articles confirmed that the criminal use of knives has become political issue at all levels of government. However, while the media reports regarding the use of knives which were released close to the time of the incident may have referenced the incident as part of their overall presentation, the later reports rarely do, although some may reference the victim’s name. am satisfied that simply because the offence in question involved knife would not lead jury to be prejudiced against an accused in this particular case, especially with the procedural safeguards that are in place, which will be hereinafter referenced. 3. The “Justice for Justin” organization [18] While counsel for the accused referred to an organization called “Justice for Justin” and in the accused’s affidavit there was suggestion that the accused had been advised that the organization had issued bumper stickers that were displayed on vehicles around the city, no further evidence about the organization, or the size of its membership, was placed before me in evidence. Accordingly, it is my opinion that the accused has not met the onus of establishing prejudice in this regard. 4. Memorial sporting tournaments and memorial fountain [19] The affidavit material confirms that two annual sporting tournaments, Dale Sproat Justin Sproat Memorial Charity Golf Tournament Dinner and memorial lacrosse tournament, are held in the Saskatoon area. In addition, the affidavit material confirms that the family and friends of the victim are raising money to build drinking fountain in the victim’s memory at the Riverfront Park, which is part of the River Landing development in Saskatoon. The affidavit of Gwen Charman, the executive officer of the Meewasin Valley Authority, confirmed that the sum of $8,098 had been raised from 133 donors. Counsel for the accused confirmed that the accused does not object to the memorial sporting tournaments or the memorial fountain, but stated that the accused was concerned that such activities will engender sympathy for the victim and thereby prejudice the accused from receiving fair trial. In the Charest case and in the Martin case, the existence of some memorial fundraising and memorials in the victims’ names led the courts in those instances to grant changes of venue. However, in allowing the application, both judgments referenced the relatively small size of the judicial centres in which the trials were to be held, thereby making it more likely that an impartial jury pool could not be found. [20] Saskatoon is not small judicial centre. In the case of R. v. Munson, supra, Scheibel J. stated at paragraph 25: [25] am advised by counsel that the Saskatoon area from which jury array might be sought consists of population of approximately 250,000 while the population of the area around each of Estevan and Swift Current consists of about 25,000 people. Therefore am convinced there is greater likelihood of obtaining fair and impartial jury in Saskatoon than in Estevan or Swift Current given the small populations in those areas and the province‑wide publicity of the issues relating to the charges faced by the accused. am not convinced that jury, properly selected from the Saskatoon area, would be unable to set aside any preconceptions it might have. [21] While was not presented with direct evidence on this issue, am satisfied that can take judicial notice that the population of the Saskatoon judicial area has not decreased since Justice Scheibel’s decision in 2001 and, in fact, has increased significantly and is now more than 250,000 people. Saskatoon is more populated than the Prince Albert judicial district to where the accused requests the case be transferred and is much larger than the judicial district of Humboldt, which might also be considered. Crown counsel indicated in his submissions that the family of the victim was prepared to share with counsel for the accused the names of those who donated to the memorial fund so that counsel for the accused would be aware if any of the donors were on the jury panel and could therefore challenge their participation if they, in fact, were selected. While not specifically referred to in argument, this cooperation of the victim’s family could perhaps also be expanded to disclose to Crown counsel and, in turn, counsel for the accused the names on the petition referred to in Exhibit “52” of the affidavit of Lisa Watson and also the names of the “Justice for Justin” organization (if known) so as to further ensure fair trial. 5. The combined effect of the four factors [22] Having considered each of the individual concerns of the accused, must also consider their combined effect. In the case of R. v. Munson, supra, the Saskatchewan Court of Appeal pointed out the safeguards that exist in our judicial system to prevent public bias from prejudicing an accused’s right to fair trial. The Court quoted from the Supreme Court of Canada decision of R. v. Find, [2001] S.C.R. 863, 2001 SCC 32 (CanLII), where Chief Justice McLachlin stated: 40 .. The law accepts that jurors may enter the trial with biases. But the law presumes that jurors’ views and biases will be cleansed by the trial process. It therefore does not permit party to challenge their right to sit on the jury because of the existence of widespread bias alone. 41 Trial procedure has evolved over the centuries to counter biases. The jurors swear to discharge their functions impartially. The opening addresses of the judge and the lawyers impress upon jurors the gravity of their task, and enjoin them to be objective. The rules of process and evidence underline the fact that the verdict depends not on this or that person’s views, but on the evidence and the law. At the end of the day, the jurors are objectively instructed on the facts and the law by the judge, and sent out to deliberate in accordance with those instructions. They are asked not to decide on the basis of their personal, individual views of the evidence and law, but to listen to each other’s views and evaluate their own inclinations in light of those views and the trial judge’s instructions. Finally, they are told that they must not convict unless they are satisfied of the accused’s guilt beyond reasonable doubt and that they must be unanimous. 42 It is difficult to conceive stronger antidotes than these to emotion, preconception and prejudice. It is against the backdrop of these safeguards that the law presumes that the trial process will cleanse the biases jurors may bring with them, and allows challenges for cause only where realistic potential exists that some jurors may not be able to function impartially, despite the rigours of the trial process. [23] In addition, court can permit challenges for cause, such as those referred to in paragraph 23 of the Court of Appeal decision. [24] Having reviewed the affidavit material filed in support of this application and having considered the four grounds for the application, as outlined by counsel for the applicant, I am satisfied that there is no evidence of a general prejudicial attitude in Saskatoon as a whole that would justify a change in venue. While I recognize that there has been significant pre‑trial publicity in this case from media reports of the case and other similar cases involving knives, as well as the ongoing memorial reports, for the reasons I have set forth, I find that the accused has not met the onus of proof necessary to succeed on this application. [25] In conclusion, am satisfied that properly instructed jury will be able to deal with the issues in the trial impartially and in accordance with the evidence presented, such that the accused will receive fair trial. I therefore exercise my discretion and deny the application for a change of venue for the trial. J. N.G. Gabrielson
FIAT: The accused applicant brings an application for a change in venue in this matter pursuant to s. 599(1) of the Criminal Code. HELD: 1). The application for a change of venue is denied. 2) There is no evidence of a general prejudicial attitude in Saskatoon as a whole that would justify a change in venue. There has been significant pre-trial publicity in this case from media reports of the case and other similar cases involving knives, as well as ongoing memorial reports. However, the accused has not met the onus necessary to succeed on its application. In other cases the existence of some memorial fundraising and memorials in the victim's names led the courts in those instances to grant a change in venue. However, in allowing the application, the courts in those cases both referenced the relatively small size of the judicial centers in which the trials were to be held, thereby making it more than likely an impartial jury pool could not be found. Saskatoon is not a small judicial centre. It is more populated than the Prince Albert judicial district to where the accused requests the case be transferred and is much larger than the judicial district of Humboldt, which might also be considered.