CITATION: R. v. D’Souza, 2016 ONSC 777
COURT FILE NO.: CR-15-169
DATE: 20160129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Mr. Michael Martin for the Provincial Crown and Mr. David Foulds for the Federal Crown
- and -
David Joachim D’Souza
Ms. Vanessa Christie, for the Accused
Accused
HEARD: January 28, 2016
REASONS FOR DECISION ON DEFENCE PRETRIAL APPLICATIONS: CHANGE OF VENUE AND SEVERANCE
Conlan J.
I. Introduction
The Charges and the History of the Proceedings
[1] David D’Souza stands charged on a thirteen count Indictment, as follows.
Her Majesty the Queen presents that David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region, and elsewhere in the Province, did unlawfully recruit, transport, harbor or exercise control, direction or influence over the movements of D.P., a person under the age of 18 years, for the purpose of exploiting her person, contrary to section 279.011(1) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014 at the City of Owen Sound, Central West Region and elsewhere in the Province, did unlawfully receive a financial benefit knowing that it results from the commission of an offence under subsection 279.011(1) Criminal Code of Canada; contrary to section 279.02 of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did live partly on the avails of prostitution of D.P., a person under the age of 18 years, contrary to section 212(2) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did procure D.P. to become a prostitute, contrary to section 212(1)(d) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did possess child pornography for the purpose of transmission to others, to wit: a computer graphic picture, contrary to section 163.1(3) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did without lawful excuse, point a firearm, to wit: a long-barreled gun at D.P., contrary to section 87 of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did possess a weapon or an imitation of a weapon, for a purpose dangerous to the public peace, contrary to section 88 of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did by speaking directly knowingly utter a threat to D.P., to cause death to D.P., contrary to section 264.1(1) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did have in his possession, a prohibited weapon, to wit: two push daggers, without being the holder of a licence under which he may possess it, contrary to section 91(2) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did possess a substance included in Schedule I, to wit: Cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did possess a substance included in Schedule II, to wit: Cannabis, contrary to section 4(1) of the Controlled Drugs and Substances Act.
And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did possess a substance included in Schedule I, to wit: Methylenedioxyamphetine, contrary to section 4(1) of the Controlled Drugs and Substances Act.
And further, David Joachim D’Souza, between September 1, 2013 and January 1, 2014, at the City of Owen Sound, Central West Region, did traffic in a substance included in Schedule I, to wit: Cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act.
[2] The accused has elected to be tried in the Superior Court of Justice, by a judge and jury. No trial dates have yet been set.
[3] Ms. D’Souza was arrested in late May 2014. In early June 2014, he was released on bail.
[4] In late July 2014, one of the drug charges against the accused (possession of heroin) was amended (to possession of MDMA).
[5] The preliminary inquiry in the Ontario Court of Justice was conducted in June 2015, with the accused being committed for trial in July 2015.
[6] At the commencement of the preliminary inquiry, two of the charges against Mr. D’Souza (sexual assault and the use of a firearm in the commission of an indictable offence) were withdrawn by the Crown.
The Allegations
[7] Succinctly put, it is alleged that a young lady, D.P. (17 years old at the time), worked as a prostitute for several months. She, a victim of the accused’s coercion, would perform sexual acts in exchange for money. She would meet clients in Toronto and at the residence of the accused in Owen Sound. The arrangements would be made by Mr. D’Souza, who would receive some of the revenues paid to D.P.
[8] It is further alleged that Mr. D’Souza once pointed a firearm at the complainant.
[9] In addition, it is alleged that the accused advertised the young lady’s sexual services on a website, showing provocative photos of her partially undressed.
[10] Upon the arrest of Mr. D’Souza at his residence, the police allegedly seized from that location, under warrant, a rifle and some other weapons, cocaine, MDMA, marihuana, cell phones, and a laptop computer. No charges were laid regarding the long guns as the accused was at all material times the holder of a valid firearms licence.
[11] A search warrant was also executed at the home of the accused’s parents in Scarborough. It is alleged that a handgun and ammunition were seized. Again, no charges were laid as a result of the handgun as it was properly registered to the accused, and he had a valid licence for it.
[12] At the preliminary inquiry, the complainant gave evidence that she was present to observe the accused conduct drug transactions and had been, from time to time, offered cocaine by Mr. D’Souza.
The Defence Pretrial Applications and the Positions of the Parties
[13] The Defence applies for a change of venue – an Order moving the trial from Owen Sound (and out of Grey and Bruce Counties) to somewhere else, even if still in the Central West Region.
[14] The crux of the Defence argument is that a change of venue is necessary to ensure that Mr. D’Souza receives a fair trial. Specifically, the Defence relies on pretrial publicity, much of it allegedly inaccurate and prejudicial to the accused.
[15] The change of venue Application is supported by an Application Record (which contains copies of the media reports in question), a Factum and a Book of Authorities. In addition, I had the benefit of Ms. Christie’s competent submissions at Court in Owen Sound on January 28, 2016.
[16] Second, the Defence applies for an Order severing the Criminal Code charges from the Controlled Drugs and Substances Act offences, such that the accused would have two separate trials.
[17] In essence, the chief submission made by the Defence is that severance is appropriate because Mr. D’Souza intends to testify only with regard to the Criminal Code offences. The drug charges, it is alleged by the Defence, will be resolved primarily on the basis of a Defence Charter Application.
[18] The severance Application is supported by a Factum and a Book of Authorities, and, again, I heard submissions by counsel at Court on January 28th.
[19] The Federal and Provincial Crowns oppose both Defence Applications.
[20] In short, the Respondents argue that a change of venue is not necessary; that the accused has failed to rebut the presumption against it; that the Defence has overstated the alleged pretrial publicity dilemma on the facts of this case; and that Mr. D’Souza can and will receive a fair trial in Grey County.
[21] On the severance Application, the Respondents focus on the alleged relative weakness of the Application on every factor except whether the accused intends to testify on only some but not all counts, and on the latter issue it is submitted by the Crowns that the stated intention of Mr. D’Souza is not a firm one and, in addition, not one that is objectively justified.
II. The Law
The Change of Venue Application
[22] The test for a change of venue is found in subsection 599(1) of the Criminal Code. Paragraph (a) of that subsection speaks of whether the change of venue is “expedient to the ends of justice”.
[23] The question for the Court to ask itself is whether a change of venue is necessary to ensure that Mr. D’Souza has a fair trial with an impartial jury. R. v. Collins (1989), 1989 CanLII 264 (ON CA), 48 C.C.C. (3d) 343 (Court of Appeal for Ontario); R. v. Proulx (1992), 1992 CanLII 3362 (QC CA), 76 C.C.C. (3d) 316 (Quebec Court of Appeal).
[24] Where, as here, pretrial publicity is the alleged reason why a change of venue is necessary, the issue becomes whether there is a reasonable likelihood of partiality or prejudice that could not be overcome by the usual trial safeguards. R. v. Wood, [2015] O.J. No. 2382 (C.A.).
[25] A change of venue is an exceptional order. There is a presumption against it. The burden of proof on this Application rests with the Defence. The standard of proof is on balance.
The Severance Application
[26] The Court’s authority to sever counts on an Indictment is found in paragraph (a) of subsection 591(3) of the Criminal Code. The test is whether “the interests of justice so require”.
[27] There is a balancing exercise between the risk of prejudice to the accused and the public interest in having a single trial.
[28] The key consideration is whether the interests of justice require severance. Mr. D’Souza’s constitutional right to a fair trial is a necessary ingredient of a just and proper verdict on each charge that he is facing.
[29] There is no exhaustive list of what factors the Court should consider on a severance application, however, the Supreme Court of Canada has provided a list of potential considerations: prejudice to the accused, the legal and factual nexus between the counts, the complexity of the evidence, whether the accused intends to testify on one count but not another, the possibility of inconsistent verdicts, the desire to avoid multiple proceedings, the use of similar fact evidence at trial, the length of the trial, the potential prejudice to the accused regarding his right to be tried within a reasonable time, and the existence of antagonistic defences as between co-accused persons. Last v. The Queen (2009), 2009 SCC 45, 247 C.C.C. (3d) 449 (S.C.C.).
[30] Where, as here, the severance request is premised upon the accused’s stated intention to testify on some but not all counts, the Court must ask itself whether that stated intention is objectively justifiable. Last, supra, at paragraph 26.
[31] Generally speaking, it is presumed that an accused will have one trial on all of the counts on the Indictment. The onus of proof on this Application is on the Defence. The standard is on balance.
III. Analysis
The Change of Venue Application
[32] In terms of the evidence, I have examined the affidavit of Ms. Teitelbaum, including the attached exhibits.
[33] I begin by noting that, with the exception of one media report in late July 2015, after the accused was committed to stand trial, all of the pretrial publicity complained about by the Defence is stale-dated – from May and June 2014. By the time that the jury is selected in this case, two years or longer will have elapsed.
[34] I recognize that at least some, if not all, of the stale media reports can still be accessed on the internet today. “News” is all about currency, however. I find it hard to believe that prospective jurors are in the habit of reading media stories from two years ago.
[35] I agree with the Defence that some of the media reports paint Mr. D’Souza in a negative light. For example, the press release put out by the Owen Sound Police Service on May 30, 2014 contains colourful expressions of the accused having “coerced”, “threatened”, “intimidated” and “maintained control” of the young female. It also mentions the possibility of “other victims”. And it does not highlight that these are allegations only.
[36] Further, it is true that some of those colourful expressions (or ones similar, such as “forced” instead of “coerced”) were repeated in subsequent media reports issued by independent news outlets, whether newspaper or radio.
[37] In June 2014, the Owen Sound Sun Times published an article which used other equally charged expressions like “pimping”. Further, that article attributed comments to the investigating police force that this was a “serious incident” but not an ongoing issue in these parts.
[38] These are not necessarily inaccuracies, however. At their highest, the Defence is correct that the said statements are debatable and not consistently supported by all of the complainant’s allegations whenever they were made, whether to the police or at the preliminary inquiry.
[39] Looking at the entire context, I do not share the Defence view that media reports which stated, essentially, that Mr. D’Souza had coerced or forced the victim in to a life of prostitution, by control, intimidation and threats (including with a firearm) are necessarily inaccurate. There is evidence from D.P. that she was threatened by the accused. There is evidence from D.P. that the accused pointed a gun to her head. There is circumstantial evidence that is capable of supporting the Crown’s theory that D.P. was not acting entirely of her own volition. Rather, she was, at least arguably, corrupted by Mr. D’Souza.
[40] It is correct that there is no direct evidence from D.P. where she has said something like “I was forced in to having sex with others because he threatened, controlled and intimidated me”. Context is what must govern, however.
[41] ln addition, the repeated use of the tag-line or headline “human trafficking” is something that, in my view, could potentially sour the taste in the mouth of a reader or listener.
[42] This is not surprising, however. One would be hard pressed to unearth any police service media release that does not paint the accused in a bad light. And it could be said in every criminal case that has received any degree of media attention that the usual sexy headlines might prejudice the accused in the eyes of some readers/listeners.
[43] Finally, I agree with the Defence that the post-committal to stand trial media reports on 98 the Beach and Bayshore Broadcasting were not entirely accurate. For example, they continued to refer to heroin instead of MDMA. As another example, they continued to refer to the already withdrawn charge of use of a firearm in the commission of an indictable offence.
[44] By the time that this case is tried, however, those post-committal to stand trial media reports, the most recent ones complained of, will be about one year old or more.
[45] Besides, the inaccurate reference to the firearm offence is probably harmless in that it was one of many charges listed and not likely to be the one that would attract the highest level of interest for the average listener/reader in this area. Firearms are common in Grey County. Prostitution is not. As for the mix-up between heroin and MDMA, the latter is likely seen in this area as just as much, if not more, of a significant scar than the former. Frankly, that inaccuracy was likely to the benefit of Mr. D’Souza.
[46] The Crown’s Affidavit evidence indicates that the population of Grey County is slightly more than 92,000, with the number of electors being just a few thousand less.
[47] A jury trial in Owen Sound draws potential jurors from the entire County. There is some flexibility in terms of how many persons can be summoned. That number could be anywhere from 150 to 250, or even more.
[48] It is of course open to the Defence to apply to challenge potential jurors for cause. Further, there are numerous other trial safeguards that will be in place to ensure that pretrial publicity does not in any way interfere with Mr. D’Souza’s right to have a fair trial, including a general vetting in open Court by the trial judge of anyone who has personal knowledge of the facts of the case and anyone who, for any reason, feels that s/he will not be able to be entirely impartial in deciding the case.
[49] Equally important, as part of the preliminary and final instructions by the trial judge, the selected jurors will be clearly told that they shall ignore, completely, all media reports about the case.
[50] In my opinion, given (i) the staleness of the vast majority of the media reports in question, (ii) their relative scarce number overall, (iii) the acknowledged but fairly limited degree of inaccuracy of those media reports, (iv) the numerous trial safeguards in place to combat against the potential problem highlighted by the Defence, and (v) the relatively strong presumption against a change of venue, I find that the accused has not met his onus. I am not satisfied on balance that a change of venue is necessary to ensure that Mr. D’Souza has a fair trial with an impartial jury.
The Severance Application
[51] The majority of the factors listed in Last, supra work against the Defence argument in this case.
[52] I find that there is a relatively strong nexus between the Criminal Code charges and the drug offences. In fact, the entire theory of the prosecution is that Mr. D’Souza used the carrot of narcotics, specifically cocaine, to get the young complainant to do what he wanted her to do. He repeatedly offered cocaine to the young lady in an effort to get her addicted to the substance and make it easier to control, coerce and intimidate her.
[53] Further, the offences are closely interrelated in terms of participants (the accused and D.P.) and the timeframe. It would be cumbersome, to say the least, to conduct a trial on the Criminal Code counts without running afoul of mentioning the narcotics, particularly during the testimony of D.P. Practically speaking, the narrative, contrary to the submission made by the Defence, is not divisible.
[54] Ms. Christie makes a point that is not without merit. There is no direct evidence from D.P. that she did what she did regarding the prostitution because of the narcotics. That is not fatal to the drawing of the link, however. Circumstantially, there is evidence, in my opinion, to support the Crown’s theory of the case.
[55] Complexity of the evidence is not a significant issue here. My view is that the narcotics offences are relatively straight-forward. As examples only, this is not a case that involves conspiracy or criminal organization allegations. The drug charges are simple, and their inclusion on the same Indictment as the Criminal Code offences is not something that is likely to overwhelm or confuse the jury.
[56] With separate trials, there is the possibility of inconsistent findings regarding the credibility and reliability of D.P. and, thus, the potential for inconsistent verdicts, although I place little weight on that factor in this case.
[57] The desire to avoid multiple proceedings clearly tilts the decision against the granting of the severance application.
[58] The use of similar fact evidence is not something that appears likely in this case.
[59] As for the length of the trial, although severance may result in the first trial being somewhat shorter, the combined length of the two trials will almost surely be significantly longer than one combined proceeding on all counts. D.P. will definitely have to testify at both trials.
[60] Severance will inevitably result in further delay and potential prejudice to Mr. D’Souza in terms of his constitutional right to be tried on all of the charges within a reasonable period of time.
[61] I agree with the Defence that the dangers of prohibited reasoning and prejudice to the accused being tried on a multi-count Indictment are generally more in play in a jury trial, as this is currently scheduled to be, than where the mode of trial is judge-alone. Having said that, I am confident that the trial judge will provide the usual instructions to the jury in an effort to ensure, for example, that the jury allows for different verdicts across the various counts and does not improperly use evidence related to one count to bolster the Crown’s case on another count.
[62] The only factor that would appear to run in favour of severance is that Mr. D’Souza has stated his intention to testify on the Criminal Code charges only.
[63] Even if the Court assumes that the said intention is a firm one, and even if the Court assumes that the said intention is objectively justifiable, which assumption is debatable given that one would think that, absent exclusion of the evidence seized by the police under warrant pursuant to the Charter, the drugs found in the accused’s residence might reasonably require some explanation by Mr. D’Souza (even if simply a blanket denial of knowledge, for example), that one factor is substantially outweighed by the other considerations taken as a whole.
[64] Consequently, I have concluded that the accused has failed to demonstrate on balance that the interests of justice require severance as requested. Any minimal risk of prejudice to the accused is heavily outweighed by the public interest in having a single trial on all of the counts on the present Indictment.
IV. Conclusion
[65] For all of these reasons, despite the very able submissions of Ms. Christie on behalf of the accused, the Defence Applications for a change of venue and for severance are both dismissed.
Conlan J.
Released: January 29, 2016
CITATION: R. v. D’Souza, 2016 ONSC 777
COURT FILE NO.: CR-15-169
DATE: 20160129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
David Joachim D’Souza
Accused
REASONS FOR DECISION ON DEFENCE PRETRIAL APPLICATIONS: CHANGE OF VENUE AND SEVERANCE
Conlan J.
Released: January 29, 2016