ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-0983
DATE: 2012-05-30
BETWEEN:
HER MAJESTY THE QUEEN – and – CHRISTOPHER CHAULK Defendant
Jason Nicol, for the Crown
Lorne J. Goldstein, for the Defendant
HEARD: May 29, 2012
REASONS CHANGE OF VENUE APPLICATION
T.D. RAY, J
[ 1 ] The defendant moves for an order changing the venue of the trial from Pembroke to Ottawa on the ground that the change of venue is necessary to ensure that the accused has a fair trial with an impartial jury.
[ 2 ] The charges include eight counts regarding two separate and unrelated complainants. Both alleged incidents, of a sexual assaultive nature, occurred on the grounds of CFB Petawawa approximately two days apart in May 2009. The trial is scheduled for four weeks at Pembroke before a jury commencing October 9, 2012.
[ 3 ] Specifically the defendant contends that because of publicity in the Pembroke/Petawawa area an impartial jury cannot be assured. In addition, the defendant is in custody. There are no detention facilities in Pembroke. He contends that trial fairness will be affected because the defendant will be unduly fatigued as a result of having to be transported daily to and from the Ottawa-Carleton Detention Centre to Pembroke – a 2 hour one way trip- during the trial. The defendant also says that the travel schedule will prevent him from having meaningful consultations with his counsel during the trial. To quote his expression, the defendant contends that “serenity is impossible where exhaustion prevails”.
[ 4 ] The onus is on the defendant to establish that such an order “ appears expedient to the ends of justice ” [1] . Such orders are not commonplace, and are not made without very good reason. [2]
[ 5 ] The Crown opposes a change of venue order and says that the defendant’s evidence of local media coverage falls far short of demonstrating that a potential juror may have been tainted such that the protections in the jury selection process would not assure the selection of an impartial jury. He contends that the transportation issue is a novel one, but not meritorious as it addresses a systemic issue concerning all trials in Renfrew County, or indeed elsewhere in Ontario when an accused is in custody but detained elsewhere from the place of trial.
[ 6 ] The defendant’s evidence concerning publicity consists of “googled” online news reports of the defendant. There are a number that are more than two years old, and the defendant does not argue that they are relevant. However the ones he contends are relevant in reverse chronological order are as follows:
a. Daily Observer (Upper Ottawa Valley), approximately one month ago, with posted comments between two individuals. One is negative towards the defendant and the other is supportive of an objective criminal process.
b. Pembroke Today, (Pembroke), some time in 2012.
c. Daily Observer, (Upper Ottawa Valley), January 2012.
d. CHIP FM Posting, August 19, 2011.
e. Kingston Whig Standard, April, 2011.
f. Daily Observer, (Pembroke), April, 2011.
g. Daily Observer, (Pembroke), April, 2011.
h. Daily Observer, (Pembroke), April, 2011.
i. Kingston Whig Standard, April, 2011.
j. Daily Observer, (Pembroke), April 2011.
k. QMI Agency Posting, March 25, 2011
l. CTV News Post, August 24, 2010.
m. Ottawa Sun, August 23, 2010.
n. CBC News post, May 10, 2010
[ 7 ] The defendant gave evidence concerning his daily schedule when he attends court here in Pembroke. He is housed at the Ottawa-Carleton Detention Centre on Innes Rd, Ottawa. On court days, he is awakened at 5 a.m. and his cell door is opened at 5:30 a.m. He is taken to A&D (arrivals and departures) where he changes into civilian clothes and is held there until the bus arrives. He is held with all other prisoners who are intended for Cornwall, L’Orignal, Pembroke and Renfrew. No breakfast and no exercise. He leaves by bus at 6:55 a.m. and is transported to Pembroke. The bus is a van equipped with holding cells of different sizes, and a steel bench. He had leg shackles and was handcuffed to adjoining prisoners. On this occasion he was in the larger cell with five other prisoners. There was sufficient room to sit up, but it is not comfortable because it is a steel box. Sometimes the bus stops in Renfrew for prisoner delivery. He arrives in Pembroke at 8:55 a.m., is unshackled and moved into a holding cell in the courthouse where he is given breakfast consisting of 2 hard boiled eggs, milk and a muffin. Had he remained at the OCDC, he would have received a full breakfast. He remains in the holding cell, no shower, and no yard time. At lunch he is provided a cheeseburger, fries and a coke. At the end of the court day, the process is reversed. The holding cell in Pembroke does not permit documents to be passed to him by his lawyer, as is the case at the OCDC. By the time of his return to the OCDC, he is exhausted, and has no time to deal with personal matters or matters involving his case. He said he believed that a month of the schedule he described would be unbearable, he would not be able to have proper communications with his lawyer, and it would affect his ability to conduct his case, including getting ready to give evidence. The defendant described his health as good, and said that the travel schedule would be the same for all other prisoners depending on their destination.
Analysis
[ 8 ] There are two bases for the defendant’s change of venue application.
a. Publicity: in the form of online and hard copy newspaper accounts including inaccurate reporting, references to him being in custody, and references to the Williams case makes it unlikely that an unbiased jury can be selected; and
b. Hardship: because of the Ottawa-Pembroke-Ottawa daily travel, long days, and the restrictive conditions the defendant will be exhausted and unable to meet easily with his counsel to plan the case in preparation for the defendant giving evidence.
Publicity
[ 9 ] The defendant relies on online news sources e.g. The Pembroke Observer accounts from time to time, but I have heard no evidence of circulation numbers or the geographical area for circulation. The online accounts raise a number of questions because of the need to go online and the questionable access to broadband in the rural areas of the Upper Ottawa valley. My guess is that the vast majority of residents depend on TV and radio for their news. I heard no evidence concerning that.
[ 10 ] The online newspaper accounts essentially reported from time to time at the various stages of the case. There were inaccuracies in the sense that more than two complainants were reported and on differing dates. However that was factually correct at the time. For the most part, the accounts were benign and with nothing to draw particular attention to the reports. The exception was a report from the Kingston Whig Standard which took the opportunity to reference the “Williams case”, since the defendant is also in the military. There is no suggestion that the Kingston paper is available in the Ottawa Valley except online. I don’t consider references to the defendant being in custody as prejudicial. The public expect that defendants may be in custody pending trial, defendants customarily sit in the prisoner’s box in court, and instructions regarding the presumption of innocence are customarily given to jurors concerning defendants in custody and sitting in the prisoner’s box.
[ 11 ] I conclude that the newspaper accounts relied upon by the defendant in support of this application, are nothing more than what one would expect in a community. Certainly none of the accounts reach the level described in R v Suzack and Pennett , [3] where the publicity was not found to be of undue concern. Quite frankly, it is comforting to know that a community is publishing accounts such as these. It speaks to the interest of the residents in the criminal and legal proceedings in the community. Such reporting should not only not be discouraged, it should be encouraged as part of a dialogue that should take place amongst citizens who are concerned about their community, policing, and the administration of justice. While an order might be made to move a trial from a rural community to an urban setting, such sanitizing does nothing to encourage Canadians to be informed and to participate in these issues. These offences occurred at CFB Petawawa, outside the City of Pembroke, but within the County of Renfrew. Public awareness and uninhibited public discourse concerning events of concern such as those alleged here are hallmarks of our democracy. The community has a stake in this case, its journey through the courts and its outcome. That right should not be lightly interfered with.
[ 12 ] On the other side of the ledger is the need to prevent unfairness to a defendant because of undue publicity which would make unlikely the selection of an impartial jury. The usual jury selection process and instructions to a jury minimize the opportunity for an impartial jury. In this case, the defendant has elected to proceed with ‘challenge for cause’ for selection of the jury if his application is denied. That procedure is designed to strengthen the likelihood of selection of an impartial jury.
[ 13 ] The burden is on the defendant to demonstrate on a balance of probabilities that an impartial jury cannot be selected in this case because of pre-trial publicity. It is a high burden. I am not satisfied that the news accounts are anything more than one would expect. I am not satisfied that he has met the burden.
Hardship
[ 14 ] There is no doubt that the schedule described by the defendant in his evidence will work a hardship. However, to accede to the defendant’s motion would essentially eliminate the possibility of long trials in the County of Renfrew. There is nothing unique about the defendant in this case. The hardship is because of the systemic procedures made necessary after the Pembroke jail was closed. While long trials in Pembroke under these circumstances may require a change of venue, I am not satisfied that sufficient efforts have been made to reduce the hardship. A trial judge has a broad jurisdiction to order amelioration of prisoner conditions where those conditions may affect the fairness of the trial process. For example, proper meals might be ordered, occasional overnight housing during a long Pembroke trial for in custody defendants might be explored and ordered, or even a change in the method of transport might be considered. I note Hill, J’s instructive comments [4] that the court must intervene to ensure that a detained accused’s treatment does not impair his or her ability to “ alertly follow the evidence and argument, and to presentably appear before jurors all without mistreatment or oppressive conduct by the government .”
[ 15 ] I am not satisfied that sufficient efforts have been made to rectify whatever concerns the defendant might anticipate for his month long trial in October.
Conclusion
[ 16 ] I am not satisfied that the defendant has me the burden of demonstrating a need to order a change of venue to Ottawa. The motion is dismissed.
Honourable Justice Timothy Ray
Released: May 30, 2012
COURT FILE NO.: 10-0983
DATE: 2012-05-30
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – CHRISTOPHER CHAULK Defendant REASONS FOR JUDGeMENT Honourable Justice Timothy Ray
Released: May 30, 2012
[1] S. 599(1)(a) C.C.C.
[2] R v. Conroy, [1995] O.J. No. 1667 @para 9 (Ont. Gen. Div.)
[3] (2000), 2000 5630 (ON CA) , 141 C.C.C. (3d) 449 (ONCA)
[4] R v Savane Jones, 2006 32995 (SCJ) para 17 .