CITATION: R. v. MacGregor, 2015 ONSC 2596
COURT FILE NO.: 1749-14 (Sarnia)
DATE: 20150420
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MICHAEL RYAN MACGREGOR and TANYA BOGDANOVICH
Applicants
Michael Carnegie and Renee Puskas, for the Respondent Crown
Brian Grys and M. Mark Fahmy, for the Applicant Michael MacGregor
Natasha Calvinho, for the Applicant Tanya Bogdanovich
HEARD: April 7 and 8, 2015
RULING – APPLICATION FOR CHANGE OF VENUE
THOMAS J.
[1] The applicants have each brought a change of venue application pursuant to s. 599 of the Criminal Code, R.S.C. 1985, c. C-46, seeking to move this proceeding from the City of Sarnia in Lambton County. The respondent Crown resists.
BACKGROUND
[2] The applicants Tanya Bogdanovich (Bogdanovich) and Michael MacGregor (MacGregor) are charged with the first degree murder of Noelle Paquette.
[3] The incident is alleged to have taken place in the early morning hours of January 1, 2013. The allegations include that the applicants abducted, confined, sexually assaulted and brutally murdered the deceased in a secluded wooded area outside Sarnia.
[4] It is alleged that the applicants have ties to a BDSM (bondage, discipline, domination, submission, sadism, masochism) lifestyle, which includes membership on a BDSM website (Fetlife.com), and that the applicants committed the murder of the deceased in order to fulfill their extreme sexual fetishes.
[5] The Crown further alleges that this murder was carried out in furtherance of a plan the applicants developed as early as December 1, 2013.
[6] Ms. Paquette was 27 years old and an elementary school teacher in Sarnia at the time of her death.
[7] Given the very serious nature of the allegations, the applicants are detained in custody pending their trial, and neither has brought an application for bail.
[8] This matter was before me a year ago on a Crown application to remove defence counsel for MacGregor. At that time a limited publication ban was imposed by my reasons dated May 1, 2014. That publication ban remains in effect.
[9] Since then the Crown has preferred an indictment. A trial date has been set for April 4, 2016 with eight weeks of pre-trial motions scattered over the next year. This motion seeking a change of venue is the first of those.
[10] The trial is estimated to take three to four months.
THE LAW
[11] The relevant portion of s. 599 is set out below.
- (1) A court before which an accused is or may be indicted, at any term or sittings thereof, or a judge who may hold or sit in that court, may at any time before or after an indictment is found, upon the application of the prosecutor or the accused, order the trial to be held in a territorial division in the same province other than that in which the offence would otherwise be tried if
(a) it appears expedient to the ends of justice, or
[12] A definitive meaning of the phrase “expedient to the ends of justice” has proven rather elusive and has been considered regularly by the courts. Below, I will attempt to summarize only a few of the major cases which consider a change of venue and assist in defining the term.
[13] The common law has developed a strong presumption that a criminal trial should be held where the offence was alleged to be committed.
The authorities are consistent that that venue should not lightly be changed and the trial moved elsewhere; the Court’s discretion should be exercised with great caution and only on strong grounds.
R. v. Bryant (1980), 1980 CanLII 2859 (ON SC), 54 C.C.C. (2d) 54 (H.C.J.) para.10.
[14] There are a number of reasons that dictate this presumption, including the convenience afforded to Crown and defence witnesses, foremost, is however, the community’s need to see justice being carried out with regard to a crime committed in its midst, thereby hopefully enhancing the community’s respect for the administration of justice: see R. v. Muise (1992), 188 N.S.R. (2d) 363, (NSSC) p. 2.
[15] In a s. 599 application for a change of venue, the applicants must offer proof that “there is a fair and reasonable probability of prejudice in the territorial division where the trial, prima facie, would be held…”. See R. v. Yarema, [1990] O.J. No. 2785, 1990 CarswellOnt 2341 (H.C.J.) at paras. 23 and 28.
[16] Because many crimes, particularly those evidencing extreme violence, promote hostility and prejudice in the community, there is an added consideration that the accused are entitled to an impartial jury and a “serene” trial environment. See R. v. Charest (1990), 1990 CanLII 3425 (QC CA), 76 C.R. (3d) 63, 57 C.C.C. (3d) 312 (QCCA); R. v. Proulx (1992), 1992 CanLII 3362 (QC CA), 76 C.C.C. (3d) 316, 11 C.R.R. (2d) 298 (QCCA). The application judge, however, must consider whether, because of the nature of the allegations and the access to media, a serene environment is possible even if the trial is moved: R. v. Stewart, [1997] O.J. No. 633, 1997 CarswellOnt 7527 (ONCJ) at para. 23 (Stewart).
[17] In R. v. Wilson (1983), 1983 CanLII 2094 (SK QB), 25 Sask. R. 221, [1983] 6 W.W.R. 361 (SKQB) at para. 7 (Wilson), Walker J. detailed the considerations to be examined in determining the probability of prejudice and therefore an unfair trial.
While it is the totality of circumstances which will determine an application for change of venue, among these circumstances, from time to time, will be these:
(1) The nature and extent of the offence.
(2) The nature and extent of the public opinion in the area, its size, generality and crystallization, if any.
(3) The size of the community.
(4) The status of the accused in the community.
(5) The popularity and prominence of the victim.
These factors listed are of indeterminate weight and there will, of course, be any number of other factors from case to case.
[18] The arguments raised by the applicants considered below capture each of the Wilson criteria as well as others specific to this prosecution.
[19] When considering any potential prejudice, the application judge must consider the inherent safeguards and their potential effect. The safeguards have been described as follows.
(1) the representative jury pool, drawn from across the District;
(2) the right to challenge for cause and peremptory challenges in the jury selection process;
(3) a strong statement by the trial judge at the opening of trial and/or at other times during the trial directed at the feared partiality and emphasizing the necessity to determine the case only on the basis of evidence elicited at trial;
(4) the jurors’ oath to decide the case upon the evidence at trial and the judge’s instructions on the application law;
(5) the fact that only admissible evidence is admitted to go before the jurors.
R. v. Witty, [2002] O.J. No. 1998 (ONSC) at para. 26.
THE APPLICATION
[20] The applicants contend that changing the venue of the trial would be expedient to the ends of justice given:
(a) the size of the community,
(b) the large amount of publicity that has taken place of both the offence and the alleged offenders,
(c) the extraordinary response of the community,
(d) the fact that the father of the deceased is a court services officer in the Superior Court of Justice in Sarnia,
(e) the courthouse is ill-equipped to host a trial of this nature, as is the local correctional facility,
(f) the impact on other litigation in Lambton County.
[21] In the following sections, I will consider each of the above concerns by summarizing the evidence and arguments, and assessing them individually and collectively.
(A) THE SIZE OF THE COMMUNITY
[22] The City of Sarnia, the present site of this proceeding, and the location from which it is alleged Ms. Paquette was abducted, has a population of about 72,000.
[23] The applicants contend that this amounts to a relatively small community from which to pick this jury and that this is an accepted factor for consideration, especially when considering it in connection with the extent of local publicity and ongoing notoriety. See Wilson, R. v. Genereux, [2001] O.J. No. 2391, 2001 CarswellOnt 2181 (ONSC); Stewart at para. 9.
[24] The respondent reminds me that the prospective jury in this trial would be drawn not just from Sarnia but from all of Lambton County where 101,560 residents may serve as potential jurors. This makes Lambton County the third largest population base in the Southwest Region.
[25] The respondent suggests that while most residents may have heard of this crime, many will have no connection beyond the media reports produced in the earlier days of the investigation and that few will recall the details of the articles published in 2013, which suggest the online activities of the applicants: see Genereux at para. 21. The respondent believes the potential jury pool is more than adequate to supply an impartial jury, taking into account all available procedural safeguards.
[26] While Lambton County does not contain a major metropolitan centre like Toronto, or even London or Windsor, the county does provide 101,560 persons available, by their age, to form a jury pool.
[27] In R. v. MacNeil (1993), 1993 CanLII 4442 (NS SC), 125 N.S.R. (2d) 346 (NSSC) at para. 68, the application judge took notice, as well, of the close knit nature of the community of Cape Breton when deciding to transfer the case to Halifax. I am not in a position to reach the same conclusion about Sarnia/Lambton.
[28] The issue of the size of the community is a real consideration but its importance is inextricably intertwined with other concerns; those of prejudicial publicity, the local popularity of the victim as compared to the accused and the nature of the crime: Stewart at para. 9. It is undeniable that the presence of those factors will have a greater effect on a smaller centre. My real focus must be on the balance of the factors argued here, the seriousness of those concerns and their impact on Sarnia/Lambton residents, taking into account the availability of challenges for cause and peremptory challenges as well as the other procedural safeguards. The size of the community is but a piece of this puzzle.
(B) PUBLICITY
[29] The applicants describe the level of publicity as substantial, particularly in Sarnia, starting from the time of Ms. Paquette’s disappearance, through discovery of her body, the funeral, the arrest of the applicants and each appearance since. They particularly point to the early articles from January 2013 which link the applicants to the Fetlife website and their violent sexual practices, including rape and torture. They remind the Court that these allegations may never turn into admissible evidence. They point to several publications as being dangerously prejudicial, notably, where the applicants are described as communicating on fetish websites and appearing to be obsessed with rape and torture and performing violent sex acts on one another.
[30] My removal of a defence counsel prompted more media reporting, although controlled by a partial ban, that included a suggestion that the applicants exchanged salacious letters while incarcerated and prohibited from doing so. The fact that the applicants seek the change of venue has been reported upon several times.
[31] The applicants have provided volumes of publications as examples of the concerning coverage. Those articles, often printed off-line, invite reader comments which predictably speak of the vile nature of the applicants and the need to incarcerate them swiftly and indeterminately. The applicants argue that these commentaries provide a glimpse of the local mood.
[32] The respondent has provided an affidavit from Detective Dan Drury, assigned to this prosecution. The Drury affidavit attached a Registry of News Print Media. It has collected the published articles and sorted them by publication and location. It is clear that several print media outlets have covered this homicide, including publications in Windsor, London, St. Thomas, Chatham and Toronto. The bulk of the articles come from Lambton County; 54 in total. The majority of those articles report on the arrest and appearances of the accused and the reaction of the community (which will be described below).
[33] The respondent argues that this is far from the kind of publicity that has led to successful change of venue applications. It points to the decision in R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 30 C.R. (5th) 346, 128 O.A.C. 140 as an instance where a change of venue was declined despite far more media coverage.
[34] In Suzack, where the focus was the death of a young Sudbury police officer, 12,000 persons signed a petition for the return of the death penalty, 40,000 received black ribbons and a trust fund, scholarship and youth football league were created in the deceased’s honour.
[35] The respondent argues that even substantial media coverage is insufficient, in and of itself to prompt an ordered change of venue. Rather, it is the substance of the reporting that matters; the disclosure of prejudicial information or perhaps information that could not or is unlikely to even become evidence at trial is what matters: see Yarema at paras. 25-26.
[36] The respondent suggests that the publishing of details linking the applicants to a BDSM lifestyle are, for the most part, over two years old and will be almost three and one-half years old by the time of trial. It proposes that the appropriate mechanisms put in place by the police and the Court, with the cooperation of the press, have controlled any further dissemination of prejudicial information.
[37] The respondent proposes that it cannot be assumed that those few who regularly comment online are representative of the Sarnia/Lambton jury pool, particularly in the absence of polling results.
[38] The respondent is correct that compared to other very visible homicides the publicity here was not overwhelming. However, in Sarnia/Lambton 54 local publications might very well be enough to taint the local population depending on the nature of the publicity.
[39] As Watt J. described it in paras. 24 - 26 of Yarema:
24 It has been several times and well said that it is not the fact but, rather, the nature and extent of pre-trial publicity that may create a fair and reasonable probability of prejudice in the territorial division in which the trial would, prima facie, be held. In other words, the mere fact of publicity will not, per se, afford a ground for changing the venue of a criminal trial. Publicity is generally given to somewhat rare events. Culpable homicide has yet to become commonplace in our society. It is a fortiori in less populous areas where homicides occur with even less frequency. It should surprise no-one that they receive media attention. To hold that such publicity, without more, ought to engage a change of venue, would be wholly inimical of the best interests of the administration of justice. See R. v. Dorrington [1969] 1 N.SW.L.R. 381; R. v. Alward (1976) 1976 CanLII 1214 (NB CA), 32 C.C.C. (2d) 416, 426-7; and R. v. Fitzgerald and Schoenberger supra, at 509 C.C.C. (2d).
25 In some instances, it is rather the circumstances of the offence which may be aid to raise a spectre of prejudice in the prima facie venue of trial. The cases of the killing of a young child during a sexual assault are frequently marshalled in support. Regrettably, the circumstances which give rise to certain offences, and are properly receivable in evidence at their trial, from time to time severely test even the most equanimous trier of fact. Save in exceptional cases, where the extent of the repetition of such matters in the media renders their fair trial in the original venue impossible, neither the circumstances of the offence nor their pretrial disclosure, per se, would warrant an exceptional order changing the venue of trial.
26 On the other hand, one must be ever-vigilant to ensure that the prospect of a fair trial is not diminished by advance disclosure of prejudicial information that could not, or is unlikely to become, evidence at trial…
[40] Media coverage of the initial search, then the arrest, and subsequently the individual court appearances should not be seen as the kind of publicity that could lead to juror prejudice.
[41] However, the January 2013 reporting of the applicants’ link to the Fetlife.com website and their preference for violent sex acts and a shared obsession with rape and torture are concerning. Thankfully those reports are limited to the early days of the investigation. Continued publication bans and the co-operation of police and press have limited the dissemination of that kind of prejudicial information, which is particularly important considering no rulings have been made on admissibility.
[42] That kind of salacious evidence, linked with the nature and circumstances of the offence here, could easily capture the attention of the community if not appropriately controlled. That is the concern that troubles the applicants.
[43] The “nature of the offence” is one of the Wilson criteria mentioned above. In this case the allegations are highly inflammatory; the crime abhorrent. It will test the resolve of the empanelled jurors but that would be true wherever this case is tried. A description of the circumstances of the offence has been limited in media coverage including the coverage in Sarnia/Lambton. The Court of Appeal considered this issue in Suzack at para. 38:
Where the real potential for prejudice lies in the evidence which the jury eventually selected to try the case will hear, a change of venue does not assist in protecting an accused’s right to a fair trial. The many safeguards built into the trial process itself must provide that protection…
[44] It is likely that the media coverage has not been so pervasive and prejudicial as to warrant a change of venue on its own.
(C) COMMUNITY RESPONSE
[45] There can be no doubt that the community of Sarnia/Lambton has embraced the death of Ms. Paquette. They searched for her, mourned her loss, and embraced her legacy.
[46] Hundreds of residents assisted in the search for Ms. Paquette. Over 1,000 persons attended her funeral and over 2,000 persons participated in a candlelight vigil. A Facebook page “Prayers for Noelle Maria Paquette” was opened and is maintained to this date with 10,402 “likes”. Since that time a charitable foundation known as “Noelle’s Gift” has been established. It has an online presence. Funds have been raised in a very visible fashion through well publicized events throughout the community. Local pubs have held benefits. Local businesses have provided corporate sponsorship. Participants have shown support through a variety of walks and fitness related events. T-shirts have been sold with angel wings on the back depicting the community’s image of Ms. Paquette. Five further events are already scheduled for 2015.
[47] The charity has raised $400,000 in the memory of Noelle Paquette. Thousands of dollars have been distributed to school boards to support the needs of under-resourced students in the Sarnia/Lambton area.
[48] In August, 2014 the Elementary Teachers’ Federation of Ontario posthumously recognized Ms. Paquette with its 2014 Humanitarian Award for improving the lives of children.
[49] The applicants argue that the ongoing and visible community response in memory of Ms. Paquette is, as well, a reminder of the crime and those charged. The applicants argue their position is prejudiced by the media reports of their alleged activities, juxtaposed next to the wide spread community perception of an angel being taken from them far too soon.
[50] The respondent argues that it is impossible to determine the source of support for the Paquette charity. Even if the majority of donations have come from Sarnia/Lambton, this is not indicative of citizens prejudiced against the applicants and posing a realistic danger to their rights of fair trial. It suggests that many supporters of the charity may have been previously inclined to support this cause and that “Noelle’s Gift” has only provided them with a vehicle through which to fulfill their previous intentions.
[51] There is no doubt that Ms. Paquette’s brutal murder has captured the hearts and minds of the public. I am unable to determine the geographic source of either the charitable donations or the Facebook “likes”. I am able to acknowledge that at the time of death and then at times of celebration and remembrance many residents of Sarnia/Lambton have embraced the loss and actively supported the good works flowing from Ms. Paquette’s charity. Those events have come to the attention of the local public through media exposure and local on-site advertisements.
[52] The fact that $400,000 has been raised by a charity called “Noelle’s Gift” must be an important factor in my analysis. This kind of issue has been judicially considered before; in R. v. Talbot (1977), 1977 CanLII 2121 (ON SC), 38 C.C.C. (2d) 555, [1977] O.J. No. 2596 (H.C.J.) which considered the homicide of a prominent union leader in Windsor, Ontario, and in Suzack (where as previously described a Sudbury police officer was slain).
[53] In MacNeil at para. 66, the Court considered two trust funds established in Cape Breton and concluded “that the establishment of a trust fund is by itself not determinative of these issue of impartiality within the community”. The issue is one to be considered as part of the collective assessment. The Court went on to observe the uncertainties posed by the presence of the funds:
The funds may be a measure of the depth of the feelings of the community as a whole; they may reflect the sympathy for the victims for whose benefits the funds are established or anger at the perpetrators, or a combination of them.
[54] The community of Sarnia/Lambton has responded to the death of Noelle Paquette and been supportive of her charity and her family. That response, however, does not necessarily translate on its own into “a fair and reasonable probability of prejudice”: Yarema at para. 23. I cannot determine if the response is a reflection of sympathy for the victim, a connection to the charitable cause or anger at the applicants.
(D) THE VICTIM’S FATHER
[55] Noelle Paquette’s father has been employed for some time as a Court Services Officer at the Superior Court in Sarnia. Administrative steps have been taken to ensure that he is scheduled off work on each occasion that this matter returns to court and that his staff access to the courthouse is suspended. In-court staff have been imported from another court location for all appearances.
[56] The applicants suggest that if potential jurors learn of the familial connection to court staff they may develop sympathies that will cloud their impartiality.
[57] The respondent responds that this is far-fetched speculation and that the present safeguards can be applied until the trial is completed.
[58] Through two multi-day applications to date, imported staff have provided neutral staffing in the Superior Court where the victim’s father works part-time. This process has costs. Those costs are not a factor in this analysis. This is about a fair trial for the applicants. There is no evidence that the employment status of Mr. Paquette will somehow influence potential jurors.
[59] The respondent raises the costs to the Paquette family if the trial is moved considering their intention to attend on a daily basis. While one of the considerations captured by the presumption, this concern would be somewhat tempered by the selection of an alternative venue within the Region which would limit travel.
(E) FACILITY ISSUES
[60] The applicants suggest that facility issues regarding both the courthouse and the Sarnia Jail, next door, adversely affect their fair trial rights and are within the scope of a s. 599 analysis: see R. v. Cocks, [2012] B.C.J. No. 1857, R. v. Burnett et al (1984), 12 W.C.B. 396, 1984 CarswellOnt 2204 (Ont. H.C.J.); and R. v. Francis, 2007 NSSC 108, 155 C.R.R (2d) 206. The applicants’ concerns can be itemized as follows:
(i) the available courtrooms will not accommodate seating for the large numbers of public and media anticipated to be present,
(ii) the courthouse cannot meet the technological needs of counsel in the court and media out of it (including lack of internet access and minimal electrical outlets),
(iii) the courthouse poses security issues with keeping the applicants separate from jurors, judiciary and court staff,
(iv) the Sarnia Jail will likely only house MacGregor for the trial proceeding where he will, when not in court, be required to remain in his segregation cell but for a single 30 minute fresh-air break, while Bogdanovich will be transported from Elgin-Middlesex Detention Centre in London, an hour each way.
[61] As part of the materials before me I have a report prepared by Courts Administration in Sarnia entitled “Impacts on the Sarnia Court – R v. Bogdanovich & MacGregor”. The report is a wide-ranging view of the potential impact of this trial on the administration of justice in Lambton County. It is a fair report from administration’s perspective and certainly does not advocate for maintaining this prosecution in Sarnia.
[62] The following excerpt from pages 1 and 2 of the report describes the Sarnia Courthouse and the two available courtrooms.
The Sarnia Court House was built in the late 1950s/early 1960s. It was originally built and used as the Administration Building for the County of Lambton. When it was later converted to the Lambton County Court House, the premise of court security was not as prevalent in the design of court buildings as it is now.
There are two courtrooms assigned to the Superior Court of Justice in Sarnia and they are located on the second floor of the main court building. Both are jury courtrooms. There is a third, much smaller courtroom located in the basement level of the main court building, Courtroom #B01, which is used by and shared with the Ontario Court of Justice. This courtroom is primarily used for Small Claims Court matters and Rota sittings when the other two courtrooms are in use with trial sittings.
Courtroom #202 is larger and sits a 12-person jury. Courtroom #201 is smaller and can accommodate a 14-person jury. There are currently two separate prisoners’ boxes in Courtroom #202. Should a lengthy criminal jury matter be heard in Sarnia, it would require the use of a 14-person jury courtroom. Should the R v. Bogdanovich and MacGregor matter be heard in Courtroom #201, it would require the second prisoner’s box to be moved from Courtroom #202 to Courtroom #201.
[63] In all likelihood, the need for space would require Courtroom #202 to be used for this trial. The jury box would need to be renovated to accommodate 14 jurors.
[64] The second floor of the courthouse accommodates the Superior Court staff offices, judicial chambers, two holding cells and two jury rooms. There is no divided path of circulation. Jurors must use the same hallways as judges and accused. Office staff must keep their doors closed and their movement from their offices often places them in contact with accused and jurors.
[65] In this matter, with male and female accused, both holding cells will be used at each end of the hallway with the jury room between them. For the purposes of the pre-trial proceeding heard in Sarnia to date, five to six armed Ontario Provincial Police officers were regularly in the same hallway. It is impossible to believe jurors would not see them at some point.
[66] The public lobby area between courtrooms 201 and 202 is very small. During jury selection it is almost impassable. With a large trial which promises to include numerous family members, the police, media and excluded witnesses, the space will be pushed to its limits, particularly so when considering the other courtroom will be in use throughout.
[67] In a multi-month trial it is routine for counsel, particularly out-of-town defence counsel, to be provided with a locked interview room in which to store documents and conduct their business. This is not possible in the Sarnia Courthouse. The few rooms that are available are already over-used by regular participants in the justice system throughout the balance of the Courthouse.
[68] The following section related to technology is set out on pages 3 and 4 of the administrative report.
The level of technology available to serve the courts in Sarnia is antiquated and inadequate to meet its’ needs. At present there is an “IT cart” which consists of an out of date laptop, a projector, a document viewer (ELMO) and a stand-alone printer. None of the equipment can be used on the Justice Network. There is a portable tube-style television with a DVD player that is brought into the courtroom to show video evidence. The IT cart is shared with the Ontario Court of Justice and must be reserved in advance for use.
There is no dedicated technical support for the Sarnia Court. We share a Regional Systems Officer (RSO) resource person with the London, Goderich and St. Thomas courts. We have a RSO on site approximately once every three weeks. When technical problems arise, court staff is instructed to log a ticket with the Justice Technology Centre. Depending on the severity of the issue and the availability of Systems Officer supports, a RSO may ask to trouble shoot remotely using on-site staff, or they will send an RSO the next day.
The amount of bandwidth available to the Sarnia Court is less than satisfactory to support additional use. Any requirement to stream video via a web-chat or video presentation will cause freezing and long lag times in the real time live feed.
[69] An electrical review was done of the Sarnia Courthouse and a report dated February 10, 2015 was generated by a consulting engineering firm. The report was requested to identify the ability of the electrical capacity of the Sarnia Courthouse to accommodate this trial. The conclusion was that serious deficiencies exist and that approximately $122,500 would need to be spent to rectify all of them.
[70] The report of administration also identifies the disruption and expense of transporting neutral staff to Sarnia for the proceedings.
[71] I received oral evidence from Kimberley Wright, superintendent of the Sarnia Jail. Ms. Wright confirmed that the Sarnia facility is busy and most often at capacity. While it houses both male and female inmates, the majority of the facility is used for males.
[72] She confirmed that MacGregor was being housed at the Sarnia facility for these proceedings in protective custody and in a special handling unit. Bogdanovich could not be accommodated presently because of fewer segregated cells for females and because the jail was full. It was Wright’s position that these applicants needed to be kept from other inmates for their own safety due to the high profile of the case in the community.
[73] Superintendent Wright confirmed that Bogdanovich was being transported a total of two hours per day from the London facility.
[74] Whether either or both of the applicants would be able to be housed in the Sarnia Jail for the trial would depend on the population and nature of the population at the time. Corrections would assess the circumstances and attempt to accommodate if possible.
[75] In addition, Wright confirmed that MacGregor’s status meant he came in contact with no other inmates, and was outside 30 minutes each day. She suggested that if he were there on a more extended stay, adjustments for more personal comfort might be attempted.
[76] Neither of the applicants was being housed in Sarnia before their appearances on this application.
[77] The applicants suggest that while a number of these deficiencies can be accommodated, collectively the inadequacies of the facilities impact their fair trial rights and are therefore s. 599 concerns.
[78] In regards to safety concerns, the applicants argue that the very visible presence of multiple police officers in the hallway outside the holding cells and the jury room amounts to perceived evidence of bad character.
[79] The correctional facility situation may mean that the applicants are transported several hours each day over a four month trial, adversely affecting their ability to effectively participate in their own trial.
[80] The respondent’s position is that adjustments can be made to ensure security and to limit the visibility of security in the area of the jury. The respondent will adapt its trial presentation to conform with the level of technology and electrical capacity available and, as is the practice in smaller centres, will import equipment for the duration of the trial.
[81] It suggests accommodations can be made to temper the effect of the jail facilities and that this issue, along with the others, cannot be used to deny the Sarnia/Lambton community of this trial. It points to the fact that homicide trials are regularly held in the Sarnia courthouse, perhaps not ones of this duration or attracting this interest, but nonetheless this is not one of those cases where a criminal jury trial has not been accommodated for years: Francis at para. 16.
[82] The Sarnia courthouse is far from the perfect facility for this trial. It was never constructed as a courthouse. Like many court locations in the Province it has seen a patchwork of renovations to make it minimally functional and in an attempt to cope with increasing caseloads and technological demands. It continues to serve its purpose not because of government investment but rather because of the commitment of those who work within.
[83] To hold the trial in Sarnia staff would need to be extremely vigilant to ensure jurors and accused do not cross paths.
[84] I would need to scrutinize security to maintain necessary levels without suggesting to the triers of fact that they are working within an armed camp as a result of the threat level posed by the applicants.
[85] The respondent has suggested it will import the technology necessary to run this trial and to adequately provide jurors with their case. It would need to extend that same assistance to applicants’ counsel.
[86] The lack of space is a problem but not one that on its own can determine the issues.
[87] A grossly inadequate courthouse can affect the fair trial rights of accused persons, but trials cannot be transferred simply because facilities are old and marginally adequate as it would confound the ability of the communities to see justice done in their midst.
[88] The issue of jail facilities have been brought to my attention. Certainly the transporting of accused persons several hours per day during a long trial is less than ideal. The Province has committed itself to the closure of small antiquated jails in favour of regional detention centres. This will, by necessity, require daily transport for many proceedings. It has become a reality in many locations.
[89] Here, the Sarnia Jail remains open and is connected to the courthouse by a tunnel. For this motion MacGregor was housed there. The evidence of Superintendent Wright suggests the situation will be assessed on its merits as this proceeding continues. She holds outs the possibility that arrangements might be made for both applicants to remain in Sarnia.
[90] The arrangements for the detention of the applicants is in a fluid state. I cannot at this time find fault with an undetermined arrangement but I am concerned that this is another complication that adds to weight of the applicant’s submissions.
(F) IMPACT ON OTHER CASES
[91] The Superior Court in Sarnia is extremely busy. As mentioned, it effectively has two courtrooms and a motions room. There is one full-time judge and two supernumerary judges assigned there. Compared to other locations in the Province, it is under-resourced and under-equipped. Page 1 of the report of administration, previously referenced, describes the impact this trial would have on other matters pressing for trial time.
The Superior Court of Justice in Sarnia has 56 matters booked to December, 2015. If a lengthy trial of 12 to 16 weeks was to be scheduled in Sarnia, it would impact our ability to hear other trials.
The Superior Court of Justice in Sarnia saw a 100% increase in the number of criminal indictments received from 36 in 2011-2012 to 72 in 2012-2013. This increase is also reflected in the number of criminal indictments pending that went from 30 in 2011-2012 to 57 in 2012-2013. In contrast, the Ontario Court of Justice has seen a decrease in the number of cases received in the same time period.
As a result of the number of pending matters for trial at this point in time, sittings weeks previously dedicated to hear civil matters are being cancelled and the sittings are being converted to criminal sittings. The number of matters being added to the civil trial list is increasing on a weekly basis. There are 30 matters currently pending trial.
[92] Counsel for the applicant Bogdanovich argues that the significant impact this trial would have on the administration of justice in Sarnia is proper concern for the Court in this application. She points to R. v. Lane, 2014 ONSC 4553 (Lane), as a recent example of a homicide trial that Maranger J. moved from Brockville to Ottawa, in part, due to the scheduling impact of that trial.
[93] The respondent reminds me that unlike Lane, this is a s. 599 application and suggests that the impact of this trial on the remainder of the court’s litigation is outside the bounds of my jurisdiction.
[94] It is important to remember that this is a s. 599 application. It addresses issues that impact potential juror prejudice and thereby the fair trial rights of the applicants.
[95] It does not, in my view, concern itself with purely administrative issues like the impact a certain trial will have on a busy court. There is no doubt a trial can be transferred for administrative reasons by the order of the Regional Senior Judge, exercising power devolved from the Chief Justice of the Superior Court.
[96] The creation of that power was skilfully traced by Gauthier J. in R. v. Jeffries, 2010 ONSC 772, [2010] O.J. No. 457 where she considered s. 92(14) of the Constitution Act, 1867 and various sections of the Courts of Justice Act, R.S.O. 1990, c. C43. The result was the following at para. 61:
I conclude that the legislative authority granted to the Chief Justice and the RSJ in relation to these administrative tasks extends to the authority to determine the venue of a trial in the region over which he or she presides.
[97] Interestingly, in Lane the applicant conceded a lack of the necessary grounds to satisfy a s. 599 transfer and therefore sought an administrative transfer.
[98] The Crown in Lane offered the following guiding principle duplicated by the Court in para. 20 of its reasons:
The Superior Court has administrative jurisdiction and discretion to displace the presumption that a trial should take place in the locale or community where the offence took place. That administrative discretion should only be exercised for articulable systemic reasons after due process or for exceptional ad hoc reasons.
[99] Maranger J. found that the “best interests of the administration of justice” and “articulable systemic reasons” favoured the transfer. The evidence canvassed under the best interests of the administration of justice strongly resemble those regularly considered in a s. 599 application, including issues of publicity, notoriety and difficulties in jury selection.
[100] The articulable systemic reasons stress the impact of Ms. Lane’s trial upon a busy court schedule in a centre that has a serious shortage of space.
[101] While I agree with the principle that the Superior Court possesses the administrative jurisdiction and discretion described, I respectfully conclude it resides only in the Chief Justice or the Regional Senior Judge.
[102] I have been urged to consider the inherent jurisdiction of the Superior Court in ordering a transfer for administrative reasons. This Court’s inherent jurisdiction has been recently considered in Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3 (C.L.A.) and Parsons v Canadian Red Cross Society, 2015 ONCA 158, 2015 CarswellOnt 3336 (Parsons).
[103] Both decisions consider the limits on this Court’s inherent jurisdiction. In Parsons, Laforme J.A. relying upon the Supreme Court of Canada’s decision in MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, 44 C.R. (4th) 277, at paras. 30-35 directed the following at para. 70:
In contrast, inherent jurisdiction provides the superior court with a “reserve or fund of powers, a residual source of powers” (Jacob, at p.51) that may be used to serve four functions: (i) to ensure convenience and fairness in legal proceedings; (ii) to thwart actions that would render judicial proceedings ineffective; (iii) to prevent abuse of process; and (iv) to act in aid of superior courts and in aid or control of inferior courts and tribunals…
[104] Karakatsanis J. in C.L.A. was considering the trial judge’s ability to appoint amici and fix remuneration. At para. 47 she commented on the limit of inherent jurisdiction:
… First, the assistance of amici must be essential to the judge discharging her judicial functions in the case at hand. Second, as my colleague Fish J. observes, much as is the case for other elements of inherent jurisdiction, the authority to appoint amicus should be used sparingly and with caution, in response to specific and exceptional circumstances (para.115).
[105] Seizing upon that direction, Laforme J. A. adopted that position in Parsons at para. 161.
I accept that when inherent jurisdiction is relied upon it must be necessary to address the “specific and exceptional circumstances” of the case: Criminal Lawyers’ Assn., at par. 47.
[106] For the purposes of the application before me I take from this discussion that a judge of the Superior Court has inherent jurisdiction to control its process and “ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them”. See I.H. Jacob, “The Inherent Jurisdiction of the Court,” (1970) 23 Curr. Legal Probs. 23 at p. 51.
[107] That jurisdiction must respect the separation of powers and any legislation occupying the field in issue: C.L.A. at para. 27.
[108] Most importantly for our purposes, the inherent jurisdiction must be exercised to protect the litigation at hand and not serve a broader administrative function. Concerns about other litigants in Sarnia/Lambton do not figure into the fair trial issues of the applicants. Those concerns must be left to the Regional Senior Judge.
CONCLUSION
[109] On a strict application of the law regarding changes of venue this case might not qualify to be moved, but I am concerned about the cumulative effect of all the relevant factors. It is my responsibility to provide the applicants with not a perfect trial, but a fair one. At all cost I need to prevent the potential of a miscarriage of justice.
[110] I consider then the effect of the totality of the circumstances set out below.
(a) The jury pool, even from Lambton County, will be relatively small and Sarnia, where the victim was best known, and where there is the most publicity, will supply the majority of potential jurors.
(b) There has been prejudicial publicity related to the character of the applicants. In addition the abduction and location of the body have been disclosed by the press. While the most concerning media coverage has been early on the nature of the crime and the alleged sexual interests of the applicants is certain to have made a more significant impact on the community psyche than the quantity of coverage would normally dictate. The local knowledge of the crime puts the applicants at risk even in the Sarnia Jail.
(c) The nature of the offence is vile and disturbing. It is alleged the victim was randomly targeted and abducted from a city street. It strikes at the community’s concern about its security.
(d) The community has embraced the victim’s legacy and the grieving family. Ms. Paquette’s image is before the public, particularly in Sarnia, on a regular and continuing basis. A huge sum of money has been raised for her charity and visibly distributed regularly. Public events are planned and advertised to take place throughout 2015.
(e) The applicants have little connection to the community. The media reports place them at the other end of the moral spectrum from Ms. Paquette.
(f) The Sarnia Courthouse is marginally functional and can only provide the level of security deemed necessary by the presence of multiple armed officers. The difficulties posed by the layout and the single corridor have already been described. The plan for the local detention of the applicants is entirely unknown.
[111] I acknowledge that a change of venue is an exceptionally rare remedy and that a “reasonable probability of prejudice” is a difficult hurdle for the applicants. I am deeply concerned about whether an impartial jury can be assembled and whether even if assembled the horrific nature of the evidence will overwhelm all available safeguards as the jury considers the very direct loss to their community. On top of that there are some very tangible deficiencies in the Sarnia Courthouse that impact the applicants’ fair trial rights.
[112] For those reasons the applicants’ requested relief is granted pursuant to the discretionary power invested in me by s. 599. The trial and further pre-trial motions will be transferred from Sarnia/Lambton to a location selected by the Regional Senior Justice of the Southwest Region.
PUBLICATION BAN
[113] There was, as well, two publication ban applications before me, one brought by the Crown and one by the applicant MacGregor. Mr. MacKinnon appeared for a media coalition and a consent order was achieved.
[114] An order has been in place since the argument of the change of venue application on April 8, 2015. On consent the following order will remain in place until the jury in this trial is sequestered:
(a) An order banning the publication of any evidence and submissions that refer to or identify culpability relevant facts.
Signed “B. Thomas”
Bruce Thomas
Justice
Released: April 20, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
MICHAEL RYAN MACGREGOR and TANYA BOGDANOVICH
Applicants
RULING – APPLICATION FOR CHANGE OF VENUE
Bruce Thomas
Justice
Released: April 20, 2015