ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1525/10
DATE: 2012/01/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – C.E. Applicant
DIANE FOSTER, for the Crown
DAVID STOEESER and JOHN NORRIS, for the Applicant, C.E.
HEARD: December 5, 2011
DESOTTI, J.
[ 1 ] Counsel for the applicant, the accused, C.E., brings an application pursuant to s. 638 (1) (b) of the Criminal Code to be allowed to challenge prospective jurors for cause and more specifically to be permitted to ask the following questions:
Have you seen, heard or read anything about this case, on the television or radio or in the newspaper?
Have you seen, heard or read anything on the internet about this case?
Have you talked about this case with anyone?
Have you heard anyone talk about this case?
(If applicable) Would you describe your memory of what you have seen, heard or read as strong, fair or poor?
(If applicable) As a result of anything you have seen, heard or read, have you formed an opinion about the guilt or innocence of the accused?
(If applicable) Would you describe the opinion you have formed as strong?
Despite any opinion that you may have formed, would you be able to set that opinion aside and decide the case only on the evidence at trial and according to the instructions of the trial judge?
[ 2 ] The grounds advanced by counsel are under trial fairness the challenges should be permitted because the publicity of his arrest and the circumstances of the death of the victim, Velma Thompson, might impact negatively on the ability of the jurors to approach their task of determining the guilt or innocence of the accused without bias or prejudice.
[ 3 ] I indicated to the parties after their submissions that I would reserve on my determination of the application upon the return date of the matter on January 9 th , 2012. I also indicated to counsel for the accused that should he be successful in his application that I would hear further submissions on the questions that would be permitted to be presented to the jury panel.
A. The Facts in Support of the Application
[ 4 ] The affidavit of Kathy Hayward sets forth five separate publicity items referring to the arrest of the accused and that the murder had been “solved”.
[ 5 ] The first publication is an O.P.P. release dated June 27 th , 2008, which indicated that the murder had been solved; that the murder victim, Velma Thompson had been stabbed to death and sexually assaulted back in 1983 in the town of Petrolia in the County of Lambton; that a 40 year old man had been arrested (the math would indicate that some 25 years had elapsed); and that DNA evidence collected together with other evidence led the O.P.P. to the person responsible.
[ 6 ] The second publication is in the Sarnia Observer on June 27 th , 2008, and this publication reiterates the same evidence as was found in the O.P.P. release including the use of the expression “solved”.
[ 7 ] The third publication is found in the London Free Press on June 28 th , 2008, and as well as confirming that which was contained in the O.P.P. release, adds some more information. The publication confirms the obvious that the accused is a youthful offender and cannot be named; that a niece was thankful that there had been closure; that a cold case group of detectives were working on these files; that advancement in forensic DNA profiling led the O.P.P. to re-examine evidence obtained at the crime scene; that the accused lived near the victim in Petrolia; a description of the accused with a goatee and grey hair; that the Crown Attorney, Diane Foster would be seeking an adult first degree penalty; that other individuals of a similar age likely went to high school with the accused; that certain neighbours were glad to “put the matter to rest”; and that the victim had been a hairdresser.
[ 8 ] The fourth publication is dated July 2 nd , 2008 from the Beacon Herald, a Stratford publication, and in addition to reiterating the other information found in the other publications, adds that the accused resided in Owen Sound at the time of his arrest; and that his family no longer lived in Petrolia.
[ 9 ] The final publication is found on the internet as part of the CTV globemedia Publishing Inc. On June 27 th , 2008, and contains virtually the same information as the O.P.P. release but also has a phone number to call if individuals have any information that might assist the police in any of their investigations.
B. Analysis
[ 10 ] All parties agree that the seminal case is that of R. v. Sherratt of the Supreme Court of Canada, which followed the earlier decision of the Supreme Court of Canada in R. v. Williams . The court stated at page 536 the rule as follows:
The threshold question is not whether the ground of alleged partiality will create such partiality in a juror, but rather whether it could create that partiality which would prevent a juror from being indifferent as to the result. In the end, there must exist a realistic potential for the existence of the partiality, on a ground sufficiently articulated in the application, before the challenger should be allowed to proceed.
[ 11 ] In a later decision of the Supreme Court of Canada in R. v. Find , the court stated at paragraph 47 as follows:
The first branch of the inquiry --- establishing relevant widespread bias --- requires evidence, judicial notice or trial events demonstrating a pervasive bias in the community. The second stage of the inquiry --- establishing a behaviour link between widespread attitudes and juror conduct --- may be a matter of proof, judicial notice or simply reasonable inference as to how bias might influence the decision-making process.
[ 12 ] In addition, the Supreme Court of Canada indicated in R. v. Spence at paragraph 21 that “people called for jury duty benefit from a presumption that they will do their duty without bias or partiality”. Moreover, in a series of decisions from Williams , Sherratt , Corbett , and the Ontario Court of Appeal decision in R. v. Wilson , the trial judge is given a great deal of latitude in supervising the challenge process and in determining whether a challenge for cause should proceed at all.
[ 13 ] In reviewing the many decisions on this issue, a number of factors are significant in assessing whether there is any objective evidence that might indicate a “realistic potential” of bias in the community at large. In the case of R. v. Merz , the Ontario Court of Appeal, in reference to Justice L’Heureux-Dube’s decision in Sherratt , considered the following factors:
The number of articles that covered the events of the murder;
Any evidence of the circulation of the accounts of the murder;
The timeliness of the circulation of account of the murder as it relates to the date of the trial;
The actual contents of the article and any prejudicial remarks contained within.
[ 14 ] In Merz , the Appellate Court held at paragraph 36, that the long passage of time (almost two years) was “an adequate antidote against any realistic possibility of prejudice flowing from the publication of the article”. Counsel for the accused raised some concern that the article indicated that the accused was charged with murdering his wife and thus this highlighted the domestic nature of the homicide and that this would create some bias in potential jurors. The court rejected that this article created potential bias because the trial itself would involve evidence of a domestic custody dispute and at paragraph 37, “it is unrealistic to suggest that a juror hearing the evidence to be adduced in this case would harken back to those reports and be prejudiced by them in determining his or her verdict”.
[ 15 ] This result should be contrasted with the decision of Justice Donnelly in R. v. K.T.D . In that case the pre-trial publicity was not extensive and there was a twelve month hiatus between the publicity about the murder and the trial. However, during the course of the application for the challenge for cause, a memorial/obituary was published in the Windsor Star that clearly was potentially prejudicial to any prospective juror who may have read the memorial. The Memorial stated as follows:
“No one deserves to die that way. You were brutally beaten, taped, stripped, thrown in a trunk, driven to a deserted bush to die. And deep down in my heart, I know that you knew, that this was to be your final day. And it tears my heart apart just to know the pain and suffering you went through. A year later I still see the pain in your face. The pictures of your children that flashed through your mind. The love of a family you would no longer see. You were a beautiful person with a heart of gold who loved his children and family too. I miss all those special calls, birthdays, Christmas, etc. or just to say hi. I miss your presence by my side, but I will fight until I die to make sure that those who were responsible for your murder are brought to justice because not only did they kill my brother, they also took the life of my best friend.”
[ 16 ] This contrast between the actual timing and content of the publication in the Merz and in K.T.D. case is a significant difference. What is also obvious is that the lapse of time is an antidote even when there may be some prejudicial commentary within the publication.
[ 17 ] In this case, counsel for the accused emphasizes that the most egregious phrase that was used in the five publication was that the “murder had been solved ”. In short, counsel for the accused submits that the use of the word “solved” would or could create the real potentiality of partiality that could not be ameliorated by the passage of time.
[ 18 ] I disagree for many reasons. Firstly, the publication in the Beacon Herald, which is circulated out of Stratford, cannot be assumed to be a publication that perspective jurors from Sarnia would be exposed to on any objective basis. This assertion is not based on any empirical evidence.
[ 19 ] Secondly, the fact that this trial will take place on February 6 th , 2012 means that any of the other four publications would have been over three years and 7 months from the date of their publication. The antidote of the passage of time would be so significant that no realistic possibility of prejudice could exist. I note that the antidote reflected in the cases that counsel provided me have a time frame decidedly less than what I have before me in this case.
[ 20 ] Moreover, at best, there were only four County cited publication references with one of these four on a CTV internet site. This reference on the internet may still exist or may have been expunged by the news network as a result of the passage of time. There is no indication or affidavit evidence that this item is still present only that it was present on June 27 th , 2008.
[ 21 ] Furthermore, while the use of the phrase “the murder had been solved” in the police release implies that the individual so charged is in fact guilty. There are many other phrases such as “we got the murderer”; “we got our man”; the suspect was apprehended at the scene”; “the accused was found with blood on his person”; and undoubtedly many more descriptions found in different police releases and in different publications that would imply guilt.
[ 22 ] To counter the possibility that there may exist some partiality in a jury panel because an individual is charged with a criminal offence is the opening address of the court that absolutely and unequivocally affirms the presumption of innocence of the accused. Furthermore, the passage of time does ameliorate any directed target of guilt by any publication police or otherwise. Certainly, to sanitize every publication or police release to avoid the use of words or phrases that might point the finger of guilt at any individual is not what is meant in reference to the Sherratt threshold.
[ 23 ] Again, I can envision certain timely publications that are meant to target and create a bias against certain individuals that have been charged with criminal offences. Justice Donnelly experienced precisely that type of publication in the Windsor Star in the K.T.D . case and made the appropriate order allowing for a challenge for cause.
[ 24 ] I see nothing from my analysis of these publications that would create a realistic potential for the existence of partiality. Nevertheless, out of an abundance of caution, I will, as Justice Rady did in R. v. Kimpe , indicate to the entire panel at the commencement of jury selection the following:
It is essential that you have not formed any opinion whatsoever about this case through coverage in media reports – including, but not limited to, the newspaper, the radio, television or the internet respecting either this case or other recent proceedings in this court. If you have a problem in this regard, please let me know when your number is called.
[ 25 ] The application for a challenge for cause is thus dismissed.
“Justice John A. Desotti”
The Honourable Mr. Justice John A. Desotti
Released: January 9, 2012
CASES CONSIDERED :
R. v. Find, 2001 SCC 32 , [2001] S.C.J. No. 34 ; R. v. Sherratt , [1991] 1 S.C.R. 509 ; R. v. Williams , [1998] S.C.J. No. 49 ; R. v. Parks , [1993] O.J. No. 2157 (C.A.) ; R. v. Sinclair , [2009] O.J. No. 2439 (S.C.J.) ; R. v. Hubbert , 29 C.C.C. (2d) 279 (Ont. C.A.) ; R. v. Douse , [2009] O.J. No. 2874 (S.C.J.) ; R. v. Cameron , [1995] O.J. 223 (Ont. C.A.) ; r. v. Court , [1995] O.J. No. 1368 (Ont. C.A.) ; R. v. Ho [1996] O.J. No. 5344 (O.C.J. – Gen. Div.); R. v. Joudrie [1997] O.J. No. 1619 (Ont. C.A.) ; R. v. A.K. , [1999] O.J. No. 3280 (Ont. C.A.) ; R. v. A.K. [2000] S.C.C.A. No. 16 (S.C.C.); R. v. Merz , [1999] O.J. No. 4309 (Ont. C.A.) ; R. v. Merz [2000] S.C.C.A. No. 240 (S.C.C.); R. v. Klymchuk [2000] O.J. No. 5494 (S.C.J.) ; R. v. K.T.D. [2001] O.J. No. 2894 (S.C.J.) ; R. v. Spence 2005 SCC 71 , [2005] 3 S.C.R. 458 (S.C.C.) ; R. v. Kimpe [2007] O.J. No. 4500 (S.C.J.) ; R. v. Ahmad et al., 2010 ONSC 256 ;
COURT FILE NO.: 1525/10
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – C.E.
REASONS
DESOTTI, J.
Released: January 9, 2012