Court File and Parties

COURT FILE NO.: CR-15-0024 DATE: 2017-05-01 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Byron Joseph Kagige, Tammy Lou Elaine Trudeau & Robert Travis Wemigwans

Counsel: S. Haner for the Respondent S.T. Lyon, for the Applicant Kagige G. Sandberg, for the Applicant Wemigwans Ms. Trudeau took no part in the application

HEARD at Gore Bay: April 25, 2017

PUBLICATION RESTRICTION NOTICE:

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION BEFORE THE JURY IN THIS CASE SHALL RETIRE TO CONSIDER ITS VERDICT, BY ORDER OF JUSTICE A.D. KURKE, APRIL 25, 2017

REASONS ON APPLICATION

A.D. KURKE, J.

Overview

[1] The applicants (“Kagige” and “Wemigwans”) are charged along with Tammy Lou Elaine Trudeau (“Trudeau”) in the murder of Percy Simon Jr. (“Simon”) on May 17, 2015, in the Wikwemikong Unceded Indian Reserve on Manitoulin Island (“Wikwemikong”). They apply, pursuant to s. 599(1)(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Criminal Code”), to change the venue of the trial from Gore Bay to Sudbury, Ontario. The applicants assert that pre-trial publicity in the case, the potentially large number of accused persons and civilian witnesses in the context of the small potential jury pool in the District of Manitoulin, and matters of convenience, such as travel and lodging, combine to compromise the right of the applicants to be tried by an independent and impartial tribunal. The transfer of the charges to Sudbury, it is claimed, is therefore “expedient to the ends of justice.”

[2] The application was set by counsel for a three-day hearing. In fact, the hearing was based on evidence that had been filed by the applicants prior to the hearing; no viva voce evidence was presented. Submissions lasted less than 40 minutes for the two applicants and the respondent Crown.

[3] After hearing submissions, I dismissed the applications, with reasons to follow. These are those reasons.

Background Facts

[4] On May 17, 2015, the three accused persons became involved in a violent confrontation with Percy Simon Jr. (“Simon”) after a night of drinking at various house parties in Wikwemikong. During that confrontation, Simon was stabbed in the arm, by Wemigwans according to some witnesses, with Kagige and Trudeau also engaged in the course of conduct with Simon that led up to his death. Simon died as a result of blood loss from his injuries.

[5] In the ordinary course, trials by jury in the Superior Court of Justice for allegations arising in Wikwemikong are tried in the County Seat of the District of Manitoulin in Gore Bay. The District of Manitoulin encompasses all of Manitoulin, Birch Island, and Killarney. Communities on Manitoulin include Evansville, Gore Bay, Kagawong, Little Current, Manitowaning, Meldrum Bay, Mindemoya, Providence Bay, Sheshegwaning, Silver Water, South Baymouth, Spring Bay, Tehkummah, M’Chigeeng, Wikwemikong, Aundeck Omni Kaning, among others.

[6] A “Google search” by applicant Wemigwans resulted in various media reports from printed, radio, and electronic sources about the alleged killing. The bulk of the reports, articles and search results that were put into evidence date from May and June 2015, and offer fairly summary accounts of the event, or the court process, or describe such things as a “GoFundMe” campaign for Percy’s children and funeral, or aspects of a “Take Back the Night” community walk prompted by the killing, or set out an interview with Simon’s life partner. Articles from September 2016 report that the accused persons had been committed to stand trial after preliminary inquiry.

[7] Of note among the articles is the comment in the Manitoulin Expositor of June 30, 2015, in which an acting detective inspector told the newspaper that “a degree of planning the crime was involved … in order to charge them with first degree murder.” In fact, the route to first degree murder in the circumstances of this case appears to be that the killing took place during the commission of a forcible confinement of Simon (s. 231(5)(e)). In another article in the same newspaper in May 2015, the same officer stated that there was “lots of evidence” against the three accused, but he would offer no details about the case. In another article from June 2015, an inhabitant of Wikwemikong stated that “there is a lot of animosity in our community, a lot of judgment or jealousy.”

[8] Only six articles were printed in their entirety in the application record. No polls of Manitoulin or Wikwemikong residents were undertaken to determine their exposure to or recollection of press releases, and no evidence was presented to the court about the Manitoulin circulation or readership or audience of the various media sources referenced, which include the Sudbury Star, the Manitoulin Expositor, cbc.ca, thestart.com, myespanolawnow.com, among many others. Rather, many undigested pages of two or three line summaries from the Google search, some having no obvious connection to this case, were set out as exhibits in the application.

[9] Census data in the record indicates that the District of Manitoulin in 2016 had a population of 13,255. In 2011, 9,990 people in that district were 18 years old or older, and therefore eligible to serve on a jury. The City of Greater Sudbury’s 2016 population stood at 161,531. In 2011, 124,340 residents of Sudbury were 18 years of age or older.

[10] Evidence in the material shows the distance in time that it can take from various locations in the District of Manitoulin to get to Gore Bay. We learn that, depending on the route, the trip from Little Current to Gore Bay can take 49 or 58 minutes by car. It is more than an hour to South Baymouth, and about an hour and twenty minutes between Wikwemikong and Gore Bay. There is also evidence that demonstrates limits on accommodations in Gore Bay, while highlighting several fine hotels in Sudbury. No evidence is offered about accommodations in the District of Manitoulin outside of Gore Bay.

Law

[11] Section 599(1)(a) of the Criminal Code provides:

599. (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, on 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[.]

[12] There is a presumption that a trial should be held in the venue where the alleged offence took place: R. v. Suzack, 2000 ONCA 5630, 141 C.C.C. (3d) 449, at para. 30.

[13] The fundamental issue for determination on an application to change the venue of trial is whether the change is necessary to ensure that the accused has a fair trial before an impartial jury: R. v. Collins, 1989 ONCA 264, [1989] O.J. No. 488, at para. 20.

[14] It has been said that the presumption of the trial remaining in its home venue should be displaced only if the accused can satisfy the court, on the balance of probabilities, on strong grounds that the change must take place because of the existence of such prejudice as cannot be overcome by the safeguards in the jury selection and trial process: R. v. Bryant, 1980 ONSC 2859, 54 C.C.C. (2d) 54, [1980] O.J. No. 3914 (H.C.), at para. 10; Suzack, at paras. 35, 43. Polling of potential jurors in the home community offers an additional tool to determine the possibility of bias in a sampling of the population: see R. v. Theberge, [1995] O.J. No. 1064 (Gen. Div.); R. v. McGregor, 14 C.R.R. (2d) 155, [1992] O.J. No. 3040 (Gen. Div.).

[15] To succeed on an application to change the venue of trial on the grounds of juror partiality, the applicant must demonstrate a reasonable potential for the existence of partiality, as the result of widespread bias or prejudice in the community, and that some jurors may be incapable of setting aside that bias, despite trial safeguards, in order to render an impartial verdict in a fair trial: R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at paras. 23, 26; R. v. Genereux, [2001] O.J. No. 2391 (S.C.J.), at para. 18.

[16] It is not simply the fact of pre-trial publicity alone that suffices to show a fair and reasonable probability of prejudice in the community of the trial. Courts rather look to whether there is a realistic potential that, because of publicity, misrepresentation of evidence, dissemination of prior discreditable conduct by the accused persons, and speculation as to guilt or innocence, potential jurors would be rendered partial to a degree that would prevent them from being indifferent as to the result of the trial or from basing their decision only on the trial evidence: R. v. Yarema, [1990] O.J. No. 2785 (H.C., per Watt J., as he then was), at para. 24; R. v. Sherratt, 1991 SCC 86, [1991] 1 S.C.R. 509, at p. 536; Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 SCC 86, [1995] 2 S.C.R. 97, at para. 132.

[17] Pre-trial publicity can raise greater concern in smaller communities than large ones: R. v. Miller, 1979 ONSC 4455, 12 C.R. (3d) 126, [1979] O.J. No. 1008 (H.C.J.), at para. 6. In small isolated communities, issues such as extensive family connections to accused persons and witnesses can interfere with the ability to find an impartial jury, and logistical issues, such as scheduling the trial or accommodating jury panels, may also be considered: R. v. Beaverho, 2009 NWTSC 21, [2009] 3 C.N.L.R. 292, at para. 61; R. v. Haslam, 1991 NWTSC 13194, [1991] N.W.T.J. No. 104 (S.C.), at para. 17; R. v. Anablak, 1982 NWTSC 4938, [1984] N.W.T.R. 118 (S.C.), at para. 5.

[18] Where facts of the alleged offence are made known in pre-trial publicity, even if they are presented in pathetic or colourful language, prejudice is less a concern where the evidence at trial, no matter where the trial is to be held, will expose jurors to the same allegations. In such circumstances, it is the safeguards built into the jury trial process itself that must guide jurors to making appropriate determinations at a fair trial: Suzack, at para. 38.

[19] The justice system contains many safeguards to ensure that accused persons are protected against jurors who are not, in fact, capable of offering impartial judgment. Such protections can include (see R. v. Sandham, [2008] O.J. No. 5806, at paras. 45, 48; Suzack, at paras. 35-36):

a. A general screening by the trial judge of the panel to discover and exclude persons who hold a view to the extent that they could not render an impartial verdict on the evidence; b. An increased number of persons comprising the jury panel, or an increased number of jury panels; c. Peremptory challenges for the parties; d. The juror’s oath or affirmation; e. The presumption of innocence; f. The Crown’s burden of proof; g. The rules of evidence; h. The duty to follow the trial judge’s instructions; i. The duty to base a verdict on the evidence; j. The instruction to the jury to set aside prejudice or bias, and to disregard information beyond the evidence; k. The unanimity requirement; and l. The possibility of challenge for cause during the selection process.

Analysis

[20] The evidence in this application falls far short of displacing the presumption that the trial should be held at Gore Bay, Ontario.

[21] From the small body of evidence on the application, it is not possible for me to draw many conclusions concerning the effect of pre-trial publicity in the case. I do note that the bulk of published pieces concerning the death of Simon, and the charging of Kagige, Wemigwans, and Trudeau occurred in May or June 2015, close to the date of the event. A few dozen short synopses spat out from a “Google search” are of no assistance in making any determinations concerning the effect of publicity on the relevant population, the knowledge of that publicity by the population in question, or evidence of exposure of that population to the articles or pieces in the list.

[22] I have been provided with only six full articles concerned with the event or its aftermath. Those articles generally focus on people in Wikwemikong, and their feelings of sadness relating to the killing. I see nothing in the articles that have been presented that demonstrates evidence of such prejudice in favour of the deceased or against the accused persons in the community that would lead me to conclude that impartial jurors could not be found in Wikwemikong, let alone jurors who, though predisposed by some pre-trial publicity, could not set aside such bias to decide the case on the evidence presented at trial. What tool has been made available to me to help me to determine whether events in 2015 have any lingering impact on the current beliefs or prejudices of any particular member of the Wikwemikong community?

[23] A police officer apparently erroneously linked the charges of first degree murder to planning and deliberation on the part of the accused persons. The same officer expressed his view that there was “lots of evidence” against the accused persons. The effect of these statements in the community is unknown, but the many safeguards in the jury system will focus jurors on trial evidence rather than the officer’s opinion. And it may turn out in fact that there is “lots of evidence”. Expressions such as these, or the assertion by a single community member of generalized animosity or jealousy in the Wikwemikong community, do not displace the presumption that this trial should proceed in Gore Bay.

[24] So far for Wikwemikong itself. But Wikwemikong is but one community in the District of Manitoulin. Wikwemikong is not a remote isolated community such as the cases from the Supreme Court of the Northwest Territories describe. If there is little evidence to show any potential effect of pre-trial publicity in Wikwemikong, there is virtually none to demonstrate that any of the other communities that make up the District of Manitoulin face any such difficulties of bias resulting from pre-trial publicity, family relationship or friendship with accused person, witness, or deceased. What justifies the exclusion of their members from the jury pool for this trial by change to a different venue?

[25] As to logistical difficulties, such as sufficiency of lodging in Gore Bay or the road distance between the various communities in the District and Gore Bay, were I to give effect to those, I would be legislating that no jury trial could be held in Gore Bay. These are not new concerns, unique to this trial. Those who practice on the Island know that there are lodgings outside of Gore Bay. The time that it takes to drive from Wikwemikong to Gore Bay is little different from the commute between Oshawa and Toronto, yet many people travel that distance daily during their working lives. Such evidence cannot ground an application to move a murder trial from the originating community.

Conclusion

[26] The applicants have fallen far short of meeting their burden to demonstrate, on the balance of probabilities, that the venue of this trial must be changed because of their inability to receive a fair trial in Gore Bay as a result of such prejudice as cannot be overcome by the safeguards inherent in jury selection and trial process, or for any other reason.

[27] Although this finding is sufficient to dispose of this application, I cannot leave off without some consideration of the delay occasioned by this change of venue application in the time to trial of this matter. Requiring the Superior Court in a small jurisdiction to secure three days for a matter that is then argued in less than an hour may well appear to an objective observer as a tactic that must result in a significant period of delay between the setting of the date and the hearing of the application. And until this application was disposed of, no trial date could be set.

[28] We are instructed how such applications and periods of delay are to be dealt with in the s. 11(b) Charter context by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 63:

63 The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial" (R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.

[29] I cannot state conclusively that this application and the grossly excessive time stated for its hearing were a tactic calculated to delay the trial and feed into an application pursuant to s. 11(b) of the Charter. But it should be clear from these Reasons that I consider the application to have been without merit, and that any delay that has accrued as a result should be appropriately attributed to the defence in the event of an application pursuant to s. 11(b).

[30] Given the fact of three co-accused persons, and the potential that some members of the Manitoulin community will be disqualified from service by reason of their knowledge of the case or one or more of the accused persons or witnesses in the proceeding, I order that two jury panels be summoned for jury selection in this case.

[31] The application is dismissed.

A.D. KURKE J. Released: May 1, 2017