Court Information and Parties

Ontario Court of Justice

Date: 2019-04-24

Between: Her Majesty the Queen

— And —

Sarkis Mirzoyan

Application to Contest Venue

Evidence heard and Ruling: April 4, 23, 2019

Reasons Released: April 24, 2019

Counsel:

• Mr. David Moull, counsel for the Crown
• Mr. David Landesman, counsel for the defendant

Decision

KENKEL J.:

Introduction

[1] Steeles Avenue is the roadway that marks the boundary between the City of Metropolitan Toronto (Toronto Region) and the Regional Municipality of York (York Region). In this case York Regional Police officers were driving south of that border when they happened to see a hand-to-hand drug transaction between two persons parked close together. The officers stopped to investigate and spoke to the drivers. Further observations led to the arrest of both parties. A loaded handgun was seized from Mr. Mirzoyan's car along with pills, cash and a weigh scale.

[2] The issue in this application is whether this matter should continue in Newmarket or be transferred to Toronto. In making that determination the court must consider the following issues:

• Does a provincial court have jurisdiction to hear an application regarding venue when the accused has not elected trial in this court?
• Should a case management judge hear an application regarding venue?
• Is a "change of venue" application the only means to challenge venue and if not, who bears the burden on an application brought before trial?
• Where venue is contested prior to trial what test applies? What is the result of the application of that test in this case?

Challenges to Jurisdiction and Venue

[3] We're fortunate to have two recent decisions in this region that consider issues of jurisdiction and venue. In R v Lawson 2018 ONSC 4251 the defence applied for a declaration that Toronto was the proper venue for trial regarding an incident that took place on the north side of Steeles, but where the gas station that was robbed was considered as a Toronto address for municipal purposes. The court held at paras 25-26 that the offence took place in York Region and was properly before the court here, but Justice Healey went on to say that even if the location of the offence had been within the Toronto Region it would have been open to the Crown to file an indictment in York Region subject to an application by the defendant under s.599 for a change of venue.

[4] In R v Davis 2018 ONSC 4630, affirmed 2018 ONCA 946, Justice Di Luca considered an application for prohibition arising out of a ruling of this court that a trial could proceed in Newmarket even though the alleged offences occurred in Mississauga. His Honour explained at paras 16-20 that the issue is one of venue, not jurisdiction. The jurisdiction of this court is province wide. A dispute about the proper location for a case to be heard within the province is one of venue. Despite changes to the Criminal Code including s.470, the general rule remains that the Crown should prosecute a case in the judicial region of the alleged offence – Davis at para 26.

[5] Justice Di Luca provides a very helpful summary of the key principles arising from the cases on this issue. At paragraph 31(a)-(k) of Davis he sets out 11 points regarding the "locality rule", exceptions to that rule including administrative transfers within and beyond judicial regions pursuant to the Courts of Justice Act RSO 1990, c C 43, and changes of venue under s.599. I rely upon those principles as explained in that case.

Jurisdiction to Hear the Application

[6] There is authority to support the defence submission that this court has jurisdiction to hear a challenge to venue at the preliminary hearing stage without resort to an application to the Superior Court – R v Simons, [1976] OJ No 152, R v Robson 2004 ONCJ 137. It makes sense that a challenge to venue could be brought in an expeditious way as part of the ability of this court to control its own process where one party asserts that the proceedings were initiated in the wrong forum. The Crown did not contest this court's jurisdiction to hear the matter and the application was considered on that basis.

[7] The defence questioned whether the application should be heard by the case management judge or heard by another judge not familiar with those proceedings. The application was brought on short notice and on the return date the case management judge happened to be the only judge available to hear the matter. This application is similar to the duties assigned to a case management judge acting under s.551.3. While a judge of this court is not part of the trial court as required by that section unless the accused so elects, the management function is similar with regard to a preliminary hearing. In my view a judge assisting with case management towards a preliminary hearing is well placed to hear an application on a discrete procedural issue such as venue.

Contested Venue Application

[8] A change of venue application is brought before the trial court pursuant to s.599 of the Criminal Code. Typically the application relates to trial fairness in jury cases but the section also applies to trials heard by judge alone – Tremblay c R 2014 QCCA 690 at para 155, R v Davis 2018 ONSC 4630 at para 31 (h). The burden is upon the applicant to show cause why "it appears expedient to the ends of justice" to move the trial to a different venue – s.599(1)(a).

[9] In a case such as this where the Information is laid in a region other than where the offence occurred and the alleged offence is a discrete event, not part of a larger cross-border investigation or otherwise connected to another region, I agree with the defence that it is unfair to put the burden on the defendant to bring a change of venue application pursuant to s.599 where they must show why the case should be moved. Justice Di Luca makes the same point regarding the burden in such cases at para 31(i) of Davis. In this application which is prior to trial I adopt the test set out in s.599 as explained below, but I find not just the evidential burden but the legal burden should be on the Crown on the balance of probabilities to show why the presumptive rule was not complied with.

[10] There have been various descriptions of the test to be applied in this context. In R v Lane 2014 ONSC 4553 the court considered an application for an "administrative transfer" pursuant to the Courts of Justice Act RSO 1990, c C 43 in a first-degree murder case. The court held that an administrative transfer for that charge would only apply in "exceptional circumstances involving extraordinary cases". However, in most cases where venue is contested s.599 applies. That test requires the court to determine what is expedient to the ends of justice. The expediency test was also applied in R v Robson 2004 ONCJ 137 at para 36 where Justice Zuraw considered a challenge to venue at a preliminary hearing.

Expedient to the Ends of Justice

[11] There's no evidence of any oblique or improper motive on the part of the Crown or police in selecting Newmarket as the venue for trial. Courts do not countenance "venue shopping" or "judge shopping" – R v Davies at para 29. The choice of forum in this case involves two very busy courts with numerous judges in each. The Crown gains no advantage by choosing one location over the other. There is no opportunity for the prosecution to aim towards a particular judicial officer in either court.

[12] The assessment of expediency starts with the presumption of locality – that a trial should be held within the judicial region where the alleged offence occurred. As Justice Durno explained in relation to a contested administrative transfer, "Reasons of convenience, court efficiency, and the need for members of the community in which the crime is alleged to have occurred to see justice done" all typically support holding the trial where the offence is alleged to have occurred – R v Singh 2018 ONSC 3055 at para 150.

[13] The accused may have an interest in being tried in the place where the allegations arose. That community may also have an interest in having the trial heard there – R v Robson at para 42. The fact of this application indicates that the accused would prefer to have his trial heard in Toronto, but he does not reside there. His home is in Brampton so at least in terms of convenience, a trial in Toronto and Newmarket would both require travel.

[14] The office of the Crown Attorney at 1000 Finch has told their counterparts in Newmarket that they do not wish to have this case transferred to Toronto. To the extent that the Crown's office represents the public interest, the local community is not requesting that this matter be transferred.

[15] All of the police officers involved in this case were members of the York Regional Police. The only civilian witness happens also to reside in York Region. Justice Di Luca observed in R v Davies at para 30 that mere convenience to the police may not be a sufficient basis to make a decision about venue. In cases like Davies and this one though where all of the potential police witnesses are members of the York Regional Police and the charge is filed in York Region, that link may go beyond the convenience of a closer courthouse. The York Regional Police have an office at the Newmarket court and they share procedures and systems working with the local Crown's office. Case management issues such as disclosure and police witness availability are more efficiently dealt with locally than working across jurisdictions. That circumstance is not necessarily conclusive but in my view it's an important factor in this case.

[16] This matter has progressed to the point where dates can now be set for a preliminary hearing or trial in this court. Transfer to Toronto would inevitably result in some delay. Time to trial and delay can be relevant factors when considering venue. Delay was one of the reasons for transfer cited by the Quebec Court of Appeal in Tremblay c R 2014 QCCA 690 at para 160. I have no evidence that the resulting delay would be significant in this case so I don't place much weight on that circumstance.

[17] Another reason for transfer considered in Tremblay was the convenience of counsel. The prosecutors and several defence counsel were from Québec City and they were required to travel 400km to Baie Comeau for trial. That travel with some danger in winter conditions along with the other factors listed at para 150 of that case led the court to transfer some of the accuseds to Québec City for trial. While Mr. Landesman has not referred to his own convenience in his submissions, I note that his office is in downtown Toronto and while both the Finch courthouse and Newmarket would involve travel, Newmarket is further. I consider the convenience of both counsel as relevant.

[18] Other than the location of the arrest, this case has no link to Toronto. Neither party involved in the alleged drug transaction resides there. No Toronto police officer was involved in the investigation. Even the firearms examination was done locally by an officer with the York Regional Police. The only potential Crown civilian witness happens also to reside in this region. The Crown's office in Toronto has no interest in prosecuting this case. There's no evidence of any prejudice to the accused if the matter were to remain in Newmarket. This case has been case-managed here and is otherwise ready to proceed to trial or preliminary hearing. Considering all of the circumstances I find the Crown has proved that it's expedient and necessary in the ends of justice that the case remain here.

Conclusion

[19] The application is dismissed. The Information will remain in this court for the preliminary hearing or trial depending upon the accused's election.

Reasons Released: April 24, 2019.

Justice Joseph F. Kenkel