Court File and Parties

COURT FILE NO.: CR-22-8690 DATE: 2023/06/07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING, Respondent – and – RANDALL HILLIER, Applicant

Counsel: Dallas Mack, for the Respondent David Anber, for the Applicant

Endorsement

PHILLIPS J.

[1] On April 26, 2023, I summarily dismissed Mr. Hillier's application for a change of venue. In doing so, I considered that he, in filing a comprehensive application record with copious materials underlying a lengthy and forcefully written factum, had put his best foot forward. I decided that an oral hearing would be unnecessary as it would be incapable of altering what I saw as a foregone conclusion. I came to this decision in light of the fact that Mr. Hillier's application is essentially the same as what was considered and dismissed by Hackland J. in R. v. Bauder, 2023 ONSC 996. Because Hackland J. had grappled with the key issues and adjudicated them fully, I concluded that in accordance with the principle of horizontal stare decisis, Mr. Hillier's application had no reasonable prospect of success and I dismissed it consistent with the reasons I gave for doing the same thing in another essentially similar application in R. v. King, 2023 ONSC 2553.

[2] On April 28, 2023, the Supreme Court of Canada released a decision in R. v. Haevischer, 2023 SCC 11, establishing that a criminal application may only be summarily dismissed if it is "manifestly frivolous”. This displaces the longstanding Criminal Proceedings Rules for the Ontario Superior Court Justice, elevating the threshold for the summary dismissal of criminal applications.

[3] Accordingly, on April 28, 2023, I released an addendum to my April 26, 2023 ruling, inviting submissions about whether the Haevischer decision ought to result in my summary dismissal decision being set aside with the result that Mr. Hillier be granted the opportunity to pursue his application afresh before another justice. On May 15, 2023, the parties appeared before me and the Crown made oral submissions to supplement written ones it had filed on May 9, 2023. Defence counsel was granted time to respond in writing. The court received defence submissions on June 6, 2023.

[4] Having now considered all submissions I conclude that the law has changed in such a way as to make my April 26, 2023 decision no longer appropriate. It cannot be said that Mr. Hillier's application is manifestly frivolous as that term has been defined by the Supreme Court of Canada.

[5] My April 26, 2023, decision was based in large part on the view that Hackland J. had decided the core issue here in a manner that is entitled to deference, consistent with the principle of judicial comity as explained in R. v. Sullivan, 2022 SCC 19. As I touched upon in R. v. King, Hackland J. addressed basically three things: (1) the extensive national and even international media coverage of the Freedom Convoy and the fact that it periodically focussed on certain now charged individuals; (2) the fact that some residents of Ottawa are the alleged victims such that their ability to be impartial jurors is now said to be compromised; and (3) that it is entirely likely that some in the Ottawa community do not share the same political views as those who have been charged out of the events of February 2022. In the result, Hackland J. determined that the procedural safeguards in our law meant to ensure juror impartiality would be sufficient to filter out any potential bias.

[6] As I think I have made clear by now, especially after addressing the matter in Mr. Hillier's presence on April 27, 2023, I agree with Hackland J.'s treatment of these issues.

[7] Additionally, I note that Ottawa is a city of over a million people, dispersed throughout various communities across roughly 2,500 square kilometers. While of course some residents live in the high-density housing proximate to where all the now impugned action was downtown, many more live in social contexts that were only indirectly affected by the Freedom Convoy events, if much at all. Ottawa is massive and varied. It seems self-evident to me that not all of the potential jury pool was affected by the Freedom Convoy to the acute degree allegedly experienced by those living near what we have all started calling the "Parliamentary Precinct".

[8] I furthermore do not accept that any particular politician or other public figure, on Twitter or otherwise, speaks for the public at large in a way that would actually represent the potential jury pool in Ottawa. While of course an elected representative does and must "speak for" all of their constituents in some senses and contexts, it remains the case that, generally speaking, politicians are elected by some percentage less than 100% of the community and are not the embodiment of every perspective on every issue. I remain confident that notwithstanding the evidence that certain public officials and other arguably prominent figures made some opinionated pronouncements about Mr. Hillier, there is enough variety of viewpoints and opinions in this large and diverse community to make that fact of no real consequence to the prospect of empanelling an impartial jury.

[9] The problem with the above, however, is it is exactly what the Supreme Court of Canada tells us application judges are no longer allowed to do. Haevischer directs that the summary dismissal process shall not involve assessment of the merits. Whereas on April 26, 2023, it was open to an application judge to conduct a preliminary assessment of the merits of an application on the basis of materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, dismiss the application without further inquiry, that is no longer the law.

[10] The Crown argues that the new standard still allows for my April 26, 2023 ruling to stand. Pointing out that Haevischer specifies that an application will be manifestly frivolous when its "legal pathway" is flawed, the Crown submits that Mr. Hillier's application is what the Supreme Court was referring to at paragraph 85 in referencing an application that "put[s] forward a legal argument that has already been rejected”. I disagree with the Crown. This application is not a legal argument. Put another way, Mr. Hillier is not raising a question of law. His proposal is that a particular set of facts meets a legal threshold and warrants a case-specific remedy. The application asserts that Mr. Hillier, because of his higher than average profile as an elected representative, along with the exceptional details of his alleged misbehaviour, intertwined with the involvement of some community leaders who publicly commented on his behaviour, all combine to uniquely situate him.

[11] A full hearing will be required to calibrate the particular facts of the application to the relevant law. If I guard against engaging in even the “limited weighing” disallowed by Haevischer, and instead assume all of Mr. Hillier’s factual assertions to be true, and prefer the inferences he proposes, and take all of his arguments at their highest, I cannot say that a negative outcome for him is so obvious as to make the matter manifestly frivolous.

[12] My April 26, 2023 decision summarily dismissing this application is set aside due to the change in the law brought about by Haevischer. Mr. Hillier may renew his application and have it heard anew before another justice.

[13] Unfortunately, as a result of all of this, the matter has now been spinning its wheels with over a month of no forward progress. This result is especially regrettable since my intention was to try to speed things up so Mr. Hillier and the public could get to trial sooner rather than later. The matter is set to next appear on June 9, 2023, before me. I order that it be traversed from my court into the assignment court that is sitting that day so that a new change of venue application date be set forthwith. In the interim, the parties are directed to liaise with trial coordination in order to attend assignment court in a position to set that new date.

Justice Kevin B. Phillips Released: June 7, 2023