ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-049

DATE: 2015-08-07

B E T W E E N:

HER MAJESTY THE QUEEN

Peter Keen, for the Crown, Respondent

Respondent

• and -

Anthony Mannella

Michael Hargadon, for the Defendant, Applicant

Applicant

HEARD: August 6, 2015
at Kenora,, Ontario

Mr. Justice J.S. Fregeau

Reasons on Pre-Trial Applications

Introduction

1Anthony Mannella (the “Applicant”) is charged with aggravated assault, assault with a weapon and forcible confinement, contrary to sections 268, 267(a) and 279(2) of the Criminal Code respectively. The Crown has proceeded by indictment and the Applicant has elected to be tried by a Superior Court Justice sitting with a jury. The Applicant’s trial is scheduled to begin on December 8, 2015.

2The offences are alleged to have occurred in Ignace, Ontario, a small community within the territorial District of Kenora. The trial is to take place in Kenora, Ontario, the Superior Court’s only site in the District of Kenora.

3The complainant in all charges is the Applicant’s wife. It is alleged that between June 28 and 29, 2014, the Applicant attacked her with a knife, cutting her hand and then forcibly confined her in the matrimonial home for approximately 12 hours. The allegations, if proven, represent an extreme case of domestic violence.

4The Applicant has brought two pre-trial applications. First, pursuant to section 599 of the Code, the Applicant has applied for an order permitting a change of venue to the District of Thunder Bay, approximately 300 miles east of Kenora. Second, should the change of venue application be dismissed, the Applicant, pursuant to section 638(1)(b) of the Code, applies for an order permitting him to challenge prospective jurors for cause during the jury selection process.

Background

5On March 15, 1988, the Applicant attended the Women’s Resource Centre, a women’s shelter located in Kenora, Ontario. Under the guise of a pre-arranged visit, the Applicant shot and killed his then wife, Mrs. Elizabeth Mannella. It cannot be disputed that the actions of the Applicant represent the most extreme form of domestic violence, perpetrated in a sensational fashion.

6The Applicant was charged with first degree murder. On September 18, 1989 the Applicant pleaded guilty to and was convicted of second degree murder. The Applicant was sentenced to life imprisonment.

7In 1988, the local newspaper in Kenora was the Kenora Daily Miner and News (the “Miner and News”). The Miner and News ran articles about the March 1988 shooting, the jury selection process in September 1988, the declaration of a mistrial in September 1988 and about the second trial, guilty plea and sentencing in September 1989. In November 1989, the Miner and News also published an article outlining an interview with Alice Park, the mother of the murder victim.

8In total, the Miner and News ran ten articles about this matter between March 1988 and November 1989.

9On September 19, 1989, the Winnipeg Free Press, a newspaper based in Winnipeg, Manitoba, published an article about the 1988 shooting and the Applicant’s 1989 guilty plea and sentencing. Winnipeg is approximately 120 miles west of Kenora.

The Change of Venue Application

Position of the Applicant

10The Applicant submits that the publicity surrounding the 1988 shooting, the 1988 mistrial and the 1989 guilty plea, conviction and sentencing was extensive. Despite the fact that this publicity is 26-27 years ago, the Applicant submits that it has tainted the Applicant’s right to a fair trial in the District of Kenora by creating a general prejudicial attitude toward him in the community.

11The Applicant also submits that Ignace, the location of the alleged present offences, while within the territorial District of Kenora, is approximately equidistance between Kenora and Thunder Bay. Further, given that the Applicant is currently incarcerated at the Thunder Bay District Jail, the Applicant submits that changing the venue of the Applicant’s trial on the present offences to Thunder Bay would cause minimal inconvenience.

12The Applicant further submits that the sensational nature of the 1988 murder coupled with the fact that it and the present offences are both extreme examples of domestic violence exacerbates the concern of prejudice toward the Applicant during his trial on the current charges.

13In all of the circumstances the Applicant submits that a change of venue from Kenora to Thunder Bay is expedient to the ends of justice within the meaning of section 599 of the Code.

Position of the Crown

14The Crown submits that there is no evidence before the court of any pre-trial publicity with respect to the Applicant’s current charges. It is submitted that the only evidence of any pre-trial publicity relating to the Applicant’s prior conviction is 26-27 years old and was limited to 10 articles in the local paper over an 18 month span and a single article in a Winnipeg paper.

15It is submitted that the Juries Act, R.S.O. 1990, c. J.3, requires potential jurors to be drawn from the entire District of Kenora which comprises at least six municipalities (Kenora, Dryden, Red Lake, Ignace, Vermillion Bay/Machin, Sioux Lookout) as well as unorganized territories and over 30 First Nations communities. While the current population of the City of Kenora is approximately 15,000, the population of the Kenora District is approximately 57,607. It is submitted that there is no evidence of any pre-trial publicity in publications from any of the numerous other communities in the district.

16The Crown submits that the Applicant must establish on a balance of probabilities and based on case specific evidence, that a change of venue is necessary to guarantee a fair trial before an impartial jury. The Crown submits that publicity over 25 years old and limited to articles in a local and Winnipeg paper does not amount to evidence of a general prejudicial attitude in the community as a whole to justify a change of venue. The Crown further submits that this dated publicity is insufficient to allow this court to infer a current general prejudicial attitude toward the Applicant throughout the district.

17The Crown submits that the change of venue application should be dismissed.

Discussion

18In the normal course, criminal trials are held in the territorial district in which the offence is alleged to have occurred. Pursuant to section 599(1) of the Code, an accused may apply for an order that his trial be held in a territorial division in the same province other than that in which the offence would otherwise be tried if it “appears expedient to the ends of justice.” A change of venue is thus an exception to the general rule.

19Section 599(1) of the Code is one of many mechanisms designed to protect an accused’s right to a fair trial. As stated in R. v. Suzak, (2000), 2000 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.) at para. 44:

If a judge is satisfied, having regard to the various mechanisms available to protect an accused’s right to a fair trial, that an accused cannot receive a fair trial in the assigned venue, then the interests of justice would clearly require a change of venue under s. 599(1)(a).

20Specifically addressing the issue of pre-trial publicity, the Court in Suzak provided the following at para. 44:

Nor in my view does the right to a fair trial require a change of venue wherever pre-trial publicity poses a risk to that right. The risk will exist to some extent in virtually every case where there has been some pre-trial publicity. The right to a fair trial is compromised where despite the available safeguards there is a reasonable likelihood that an accused cannot receive a fair trial in the local venue.

21The onus is on the accused to demonstrate that a change of venue is required to ensure trial fairness. In the present case, the Applicant provides no evidence of any pre-trial publicity as to his present charges. On this Application, the Applicant submits that a limited number of Kenora media reports and a single Winnipeg article pertaining to the 1988 murder of his first wife and his 1989 guilty plea and sentencing for that offence establish the necessary threshold of a reasonable probability that he cannot receive a fair trial in Kenora for his present offences. I do not agree.

22The publicity in issue is over 25 years old. It consisted of 10 articles in the local Kenora paper and one article in a Winnipeg paper. The population of Kenora then and now is approximately 15,000. The Applicant’s jury panel will be drawn from the entire District of Kenora, a huge geographical area with several municipalities and numerous remote First Nations and a total population of over 57,000. Considering all relevant factors, I am not persuaded that there is a “reasonable likelihood” that the Applicant cannot receive a fair trial on his present charges in Kenora.

23The application for a change of venue is dismissed.

The Challenge for Cause Application

Position of the Applicant

24The Applicant submits that the publicity generated as a result of the Applicant’s prosecution in 1988/1989 presents a real risk that prospective jurors drawn from the district might remember the Applicant in connection with his previous conviction and that their memories of him in connection with his previous conviction might affect jurors ability to deliver an impartial verdict in the present case.

25In this Application, the Applicant again points to the sensational nature of the 1988 murder and the fact that it and the current charges are both extreme examples of domestic violence, to support his submission that the Applicant remains notorious throughout the jury panel catchment area. It is submitted that this court can and should infer that prospective jurors may be unable to remain impartial, despite the usual pre-screening by the trial judge.

26The Applicant also submits that the complainant in the present offences has both worked and lived in Kenora, population 15,000. Given same, the Applicant submits that it is statistically probable that prospective jurors know the complainant or her family.

27The applicant requests that he be allowed to assess the impartiality of prospective jurors by asking each of them the following questions, narrowly drafted:

a. Do you recognize the name Anthony “Tony” Mannella?

b. Do you recognize or know the accused that is before you?

c. If so, where do you recognize or know him from, and in what capacity?

d. Do you know his family?

e. If so, what is your connection with his family?

f. Do you know Ms. Penny Lucas, the complainant in this matter?

g. If so, where do you know her from, and in what capacity?

h. Do you know Ms. Lucas’ family?

i. If so, what is your connection with her family?

j. Do you have any reservation about being a juror in this case?

k. Do you have any doubt about your ability to deliver a verdict without bias or prejudice against the accused, and in accordance with the evidence?

Position of the Crown

28The Crown submits that potential jurors are presumed impartial unless the trial judge is satisfied that a realistic potential for jury impartiality exists. In order to be granted leave to challenge for cause, an accused must establish a realistic potential that the jury pool may contain members who are not impartial, such that even after receiving proper instructions from the trial judge they may not be able to set aside any prejudices and decide impartially between the Crown and accused.

29The Crown submits that the test of a realistic potential for jury partiality requires the Applicant to satisfy the court that widespread bias exists in the community from which the jury pool is drawn and that some jurors may be incapable of setting aside this bias despite trial safeguards.

30The Crown submits that limited publicity from 26/27 years ago in the Kenora and Winnipeg papers does not establish that there is a current widespread bias within the much larger Kenora District and that some jurors may be incapable of setting aside any bias. It is submitted that a trial judge’s usual screening procedure of questioning the panel as to their knowledge of the accused, witnesses, counsel or parties to the case would be sufficient to ensure jurors’ indifference between the Crown and the Applicant in this case.

31The Crown submits that the application requesting leave to challenge jurors for cause should be dismissed.

Discussion

32Section 638(1)(b) of the Code authorizes the challenge of prospective jurors for cause on the ground that a juror is not indifferent between the Queen and the accused.

33The Canadian criminal jury system starts from the presumption that jurors are capable of setting aside their views and prejudices and acting impartially between the prosecution and the accused upon proper instruction by the trial judge as to their duties. This presumption is displaced only where potential bias is clear and obvious (addressed by judicial screening), or where the accused shows reason to suspect that members of the jury array may possess biases that cannot be set aside (addressed by the challenge for cause process). See R. v. Find, 2001 SCC 32, [2001] S.C.J. No. 34 (S.C.C.) para. 26.

34In order to challenge for cause under S. 638(1)(b), an accused must establish a realistic potential that the jury pool may contain people who are not impartial – jurors who may remain partial even after receiving proper instructions from the trial judge. See Find, para. 31.

35Establishing a realistic potential for juror partiality requires an accused to satisfy the court as to two matters:

1. That a widespread bias exists in the community; and,

2. That some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision. See Find, para. 32.

36I accept without reservation that the 1988 murder perpetrated by the Applicant was the most extreme form of domestic violence imaginable. I am prepared to assume that it was, at the time and in the City of Kenora, sensational. However, this murder and the media coverage of it occurred over 25 years ago. There is no evidence that the media coverage of it extended throughout the District of Kenora. There is no evidence of any current media coverage linking the 1988 murder to the Applicant and his present charges.

37Sadly, the City of Kenora, being the judicial seat for a very large judicial district, is no stranger to Superior Court trials which involve various forms of extreme violence. Over the past 25 years there have been numerous Superior Court murder trials reported extensively in the local media.

38The alleged bias in the present case is said to arise from prejudice resulting from jurors’ prior exposure to 25 year old media reports of the Applicant’s 1989 murder conviction, together with the nature and circumstances of that offence and the present offence.

39The applicant’s jury will be drawn from the entire District of Kenora. I am not persuaded that the record before me establishes a current bias against the Applicant in the City of Kenora, let alone the District of Kenora. In my opinion, the possibility of potential jurors linking the two matters is remote. I find it even more unlikely, should any bias exist, that such bias is widespread throughout the district from which the jury panel will be drawn. As noted by the Supreme Court in Find at paragraph 39, “If only a few individuals in the community hold the alleged bias, the chances of this bias tainting the jury process are negligible.”

40In my opinion, any remote possibility of jury partiality in this case can be adequately addressed by way of the usual preliminary screening employed by the trial judge.

41The accused’s application to challenge prospective jurors for cause is dismissed.

The Hon. Mr. Justice J.S. Fregeau