ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 23/11

DATE: 2014/03/25

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

MARIEANNE MINOR
Applicant

Paul D. Larsh and Marney Mazurski, for the Crown, respondent

Trevor Brown, for the Applicant

HEARD: March 25, 2014

The publication, broadcast, or any other transmission of any information disclosing the applicant’s application for a change of venue, any evidence or material submitted or filed in support of or opposing the application, the submissions of counsel, ans the court’s decision on the application is banned until such time as the applicant’s trial has ended.

Endorsement

Valin J.:

[1] On May 25, 2012, following a four week trial, a court composed of a judge and jury sitting in North Bay convicted the applicant of second degree murder.

[2] On September 13, 2013, the Ontario Court of Appeal overturned the conviction and ordered a new trial.

[3] The applicant’s trial and resulting conviction were highly publicized in print, radio, television, and online media. She has brought a motion for a change of venue.

[4] In the circumstances of this case, both the applicant and the Crown are agreed that it is expedient to the ends of justice that a change of venue be granted.[^1]

[5] The sole issue on this motion is the appropriate venue for the new trial.

[6] It is a long established principle that a criminal case should be tried in the county or district where the offence was committed. That principle exists for the benefit of both the public and the accused. The reasons supporting that principle relate in part to convenience and cost factors regarding the presentation of evidence. They also relate to the importance of demonstrating to citizens of the region where the alleged crime occurred that justice will be fully and impartially administered in their community.[^2]

[7] The decision whether to grant a change of venue and, if so, where the trial should take place lies within the discretion of the judge hearing the motion. The discretion must be exercised judicially. The primary consideration is to ensure that an accused person will have a fair trial with an impartial jury.[^3]

[8] The applicant requests a change of venue either to Pembroke, where she now resides, or to Ottawa. Her counsel argued that her financial and personal circumstances require that the trial be held in one of those judicial centres. The applicant resides in Pembroke. She has family in Renfrew with whom she could reside in the event Ottawa is selected as the place of trial. In her affidavit in support of this application, she states that she does not have the financial resources to enable her to stay in Sudbury for a trial that counsel expect could last four to five weeks.

[9] The Crown argued that, having regard to the factors of size of the community, jury impartiality, convenience to witnesses, and the fact of the original conviction, the fairness of the accused’s trial could be adequately safeguarded by changing the trial venue to Sudbury.

[10] At least five and possibly six Crown witnesses will travel to the place of trial by air. Pembroke does not have an airport that welcomes regular commercial flights. For that reason, Pembroke does not appear to offer a solution to this motion. Counsel agree. The choice of the venue of the trial is therefore between Sudbury and Ottawa.

[11] For the witnesses who will travel by air, the travel time from Toronto and Sarnia to Ottawa or Sudbury is essentially the same. For the witnesses who reside and/or work in the Mattawa area, the travel time by car to Sudbury is perhaps one hour less than the travel time to Ottawa. There are two witnesses from the Orillia area. Travel time for them to attend trial in Sudbury would be significantly less than travel time to Ottawa. There is one other Crown witness who resides in Sudbury. The factor of witness convenience therefore weighs in favour of Sudbury.

[12] The eastern boundary of the Judicial District of Sudbury and the western boundary of the Judicial District of Nipissing are contiguous. There is a significant amount of commonality in the broadcast and print media in Sudbury and North Bay. A trial in Ottawa would eliminate any possibility of partiality among potential jurors whose residences, family, friends, business, and community interests transcend neighbouring jurisdictions.[^4] That factor weighs slightly in favour of Ottawa.

[13] The accused is not in custody. Cost is a significant factor to her. She has limited means, and I accept the legitimacy of her concern about the affordability of accommodation in Sudbury for the duration of the trial. Cost to the applicant weighs in favour of Ottawa.

[14] The crime alleged in this case occurred in Mattawa in January 2002. The applicant was arrested eight years later in January 2010. She was released on bail on February 4, 2010. She was convicted and sentenced on May 25, 2012. She was released from custody in September 2013 after the Court of Appeal ordered a new trial. She remains innocent until proven guilty beyond a reasonable doubt by a jury of her peers. Her first trial was held in North Bay, the judicial centre responsible for the administration of criminal offences committed in Mattawa. The fact there will be a second trial is no fault of the applicant or her counsel. After one trial and an appeal, the applicant is no further ahead in these proceedings than the day she was charged in 2010. There is an element of hardship in those circumstances that weighs in her favour. She would have family and emotional support available to her in Ottawa. It is less likely she would have that support on a regular basis in Sudbury. Hardship to the applicant weighs in favour of Ottawa.

[15] There is a practice direction in the North East Region which provides that a judge who grants a change of venue will also take the trial. Since I am the judge hearing the motion for a change of venue, it is therefore safe to assume I will be the trial judge. That fact must take into consideration my availability from a scheduling perspective.

[16] From the perspective of obtaining the best possible evidence, it is in the interests of justice that the trial be held at the earliest possible time. The earliest I am available to undertake a trial of the length anticipated in this case is June 2, 2014. I am also available for the trial during the month of October 2014. Crown and defence counsel confirmed they are available to undertake and complete the trial commencing the week of June 2nd. I also understand that witnesses have confirmed their availability in June.

[17] Court room space is available in Sudbury only for the first week of June. The next available court room space in Sudbury for the anticipated length of the trial in this case is in October 2014. There is court room space available in Ottawa for the trial in this case commencing June 2, 2014 and continuing until its conclusion. Trial expediency weighs in favour of Ottawa.

[18] Where a change of venue is contemplated from one judicial region to another, there is a protocol of this Court which requires that the Regional Senior Justice of the receiving region consent to the order for change of venue. I am informed by the Regional Senior Justice of the North East Region that the Regional Senior Justice of the East Region consents to an order changing the venue from North Bay to Ottawa on condition that a judge from the North East Region will preside at the trial in Ottawa.

[19] On an application for change of venue, the court’s primary concern is that the accused receives, and is seen to receive, a fair and impartial trial. On balance, the factors of cost and hardship to the applicant, and trial expediency, outweigh the factor of witness convenience in favour of changing the place of trial from North Bay to Ottawa. The trial will commence on June 2, 2014. An order will issue to that effect.

The Honourable G. Valin

Released: March 26, 2014

[^1]: Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 599.

[^2]: R. v. Muise (1992), 1992 4046 (NS SC), 118 N.S.R. (2d) 363 at 365 (N.S.S.C.); R. v. Genereux, [2001] O.J. No. 2391 at paras. 13-14 (S.C.J.).

[^3]: R. v. Collins (1989), 1989 264 (ON CA), 48 C.C.C. (3d) 343 at 350-51 (Ont. C.A.); R. v. Genereux, supra, at paras. 20 and 32.

[^4]: R. v. Genereux, supra, at para. 39.