CITATION: HMTQ v. BALL, 2017 ONSC 6159
COURT FILE NO.: CJ 8375
DATE: 2017-19-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent/Crown
– and –
MICHAEL JOHN WILLIAM BALL
Applicant/Accused
Roger Dietrich and Melissa Ernewein, Counsel for the Respondent / Crown
Paul Burstein and Anne Marie Morphew, Counsel for the Applicant / Accused
HEARD: October 10 and 11, 2017
The HonouRABLe Mr. Justice C. S. glithero
Ruling on Change of Venue Application
PUBLICATION BAN: Persuant to the combined effect of sections 645 (5) and 648 of the Criminal Code, there shall be no publication of this ruling or of the oral or written submissions of counsel on this application, or of the materials filed on this application, until such time as the jury retires to consider its verdict.
The fact that the court has ordered that the venue of the trial has been changed from Kitchener to a new venue to be named may be published.
[1] Mr. Ball faces a charge of first-degree murder which is scheduled to proceed to trial in Kitchener Ontario in April 2018. He applies for an order changing the venue of that trial from Kitchener to Toronto, Brampton, Oshawa or Newmarket or any location east of them.
Summary of Factual Allegations
[2] On July 5, 2013 the body of Erin Howlett was found in a duffel bag in the Grand River in Kitchener. The bag was weighed down by rocks. She had been dating Mr. Ball in April 2013. He supplied her with drugs. Evidence indicated that their relationship deteriorated in late May and early June 2013 as he came to believe that she was seeing other men, and using the drugs he supplied, with them. The last time she was seen alive was on June 27, 2013 when she was in the company of Mr. Ball. There is evidence of Mr. Ball expressing to others that he was upset and thought about killing her and that he had purchased a duffel bag in Kitchener for her body.
[3] The last text message she sent using her cell phone occurred at 9:44 p.m. on June 27 and that message and several before it registered from the closest cell site to Mr. Ball’s residence, the place at which she was last seen.
[4] The crown’s theory is that shortly after 9:44 PM on June 27, 2013 Mr. Ball murdered Ms. Howlett by choking her to death. Mr. Ball then drove to another drug dealer’s house, that of Daniel Warwick in Kitchener, and picked him up. On the way back to Mr. Ball’s residence Ms. Howlett’s cell phone was disposed of in a storm drain near the cell site at which the last incoming message to her phone registered. On arriving back at Mr. Ball’s residence Warwick obeyed Ball’s request to grab a black duffel bag and two pairs of gloves. Warwick observed Ms. Howlett’s lifeless body on Mr. Ball’s bed and Mr. Ball told him that he had choked Ms. Howlett and then kneeled on her chest to get the air out.
[5] Mr. Warwick held the duffel bag open at Ball’s request while Mr. Ball put Ms. Howlett’s body in the bag. The two of them carried the bag containing her body up the stairs to the trunk of the vehicle Mr. Ball was using. Her body was then driven by them in the duffel bag in the trunk of the vehicle to the river’s edge, weighted with rocks, and then thrown into the Grand River. The two men then took steps to dispose of other evidence into the garbage, including Mr. Ball’s mattress on which Ms. Howlett had been placed, and her purse.
[6] The pathologist conducting the autopsy on the badly decomposed body was unable to establish a cause of death.
[7] The upcoming trial is not the first trial. On November 2, 2015 Mr. Ball pleaded not guilty to the charge of murder and to a charge of causing indignity to the body of Ms. Howlett. His trial commenced and proceeded for approximately four months. During that first trial Warwick testified for the crown as to his involvement in the disposal of the body, and that of Mr. Ball in respect of the disposal of her body and his admissions as to the murder. His credibility was very much under attack by the defence who also suggested another suspect, and was critical of the police investigation. Mr. Ball testified at his first trial denying any involvement in either the killing of Ms. Howlett or in the disposal of her body. The defence also contended before the jury that the cause of death had not been proven and hence that the death of Ms. Howlett was not proven to be a murder.
[8] On March 4, 2016 the jury returned a verdict of guilty on the charge of causing indignity to her body, but the jury was unable to reach a verdict on the count charging first-degree murder and a mistrial was declared in relation to that count. A few days later a new indictment was presented charging first-degree murder.
Pre-trial Publicity
[9] Kitchener is in the Regional Municipality of Waterloo which has a population of approximately 530,000. Of those, approximately 400,000 persons are potential jurors based on age.
[10] CTV Kitchener (CKCO) is the local affiliate of CTV and broadcasts local news at noon, 6 PM and 11:30 PM. It also publishes written new stories on its website and that website includes links to the video stories aired during the newscasts. CTV Kitchener is the main local television station. It also maintains a Facebook page and the evidence is that it has in excess of 40,000 followers on its Facebook page. It also has a Twitter account and evidence indicates that it has approximately 150,000 users.
[11] The Waterloo Region Record (Record) is the largest local newspaper and publishes Monday through Saturday in print and as well posts articles to its website which can then be viewed freely by any member of the public. It’s reported print circulation for 2016 was approximately 53,000 each day. It reports that for 2016 there were 657,000 different visitors to its website, who in 2016 made 1.4 million visits and viewed 2.9 million pages. The Record also has a Facebook page with a reported 16,395 users and a Twitter account with 76,000 followers.
[12] 570 News is a local news and information radio station. In addition to airing new stories over the radio it maintains a Facebook page with over 6000 users and maintains a Twitter account currently having 86,000 followers.
[13] The CBC also has a local affiliate, CBC K-W which features local content at certain hours of the day. It maintains a Facebook page with an excess of 10,000 users and a Twitter account with an excess of 30,000 followers
[14] The Hamilton Spectator is the largest newspaper in Hamilton publishing Monday through Saturday and is owned by the same corporation that owns the Record. News stories are sometimes shared between the two papers. It ran 3 stories about this case in the pre-trial stage, 11 more during the trial, and 7 after the verdict. The evidene is that it has a print circulation of approximately 72,000 on weekdays and 77,000 on weekends, and a total readership in print and in electronic format of approximately 115,000.
[15] Following the discovery of Ms. Howlett’s body there were local media accounts of that finding, background accounts as to she and her family and as to Mr. Ball’s arrest on November 20, 2013. In this application there is no claim that this early coverage caused in a fair trial prejudice to Mr. Ball.
[16] The media coverage intensified during the first trial which commenced on November 2, 2015 and ended on March 4, 2016. In general terms the stories reported the case as involving two local residents, one a beautiful young lady and the other the son of a well-to-do construction company owner, and related disturbing allegations that the murder was planned and deliberate, reported the dumping of the body in the Grand River, and the drug sub culture implications. During the trial the Record published 46 articles about the case in print and online. Nine of the stories were on the front page of the printed paper. Many contained coloured pictures. During the trial CTV Kitchener published 32 stories with several of them involving “live reports” from the courthouse, and these print articles and videos were made available online at the CTV website. Both CTV Kitchener and the Record posted links to their stories on their Facebook and Twitter accounts.
[17] Following the March 4, 2016 jury verdict of guilty on the charge of causing indignity to Ms. Howlett’s body, and the jury’s inability to reach a verdict on the murder charge and the resulting declaration of a mistrial, the media widely reported this “split verdict” result. These media accounts were shared and commented on through the Internet. One theme of such comments indicated that if Mr. Ball disposed of the body he must have been involved in the killing, and there were many comments critical of the jurors for not having finding him guilty of the murder.
[18] On March 9, 2016 the crown attorney’s office announced its plan to retry the accused on the murder which again generated publicity.
[19] Two days after that Mr. Ball was sentenced on the indignity count to one day in custody, having been given credit to the time he already spent in custody. This development also generated significant media coverage. In the local media in the week or so following the verdict and the mistrial 21 stories and video clips were published and aired in local media. In addition an editorial appeared in the Record on March 8, 2016 claiming that the Crown had made the correct decision in retrying Mr. Ball because “jurors concluded that he dumped the body and could not unanimously ruled him out as the killer.”
[20] One published letter to the editor expressed disbelief as to how any juror could believe the accused when he denied murdering Ms. Howlett yet at the same time disbelieved him when he denied disposing of her body. A regular crime reporter of the Hamilton Spectator that same week wrote an article describing the trial as a “slut–shaming”.
[21] In June 2016 the Record published a story about how the local police had charged 4 men, including Mr. Ball, with murdering women in 2014, and yet none had been convicted of murder.
[22] CTV Kitchener named Mr. Ball’s first trial as the number 4 top news story of the year 2016.
[23] Following the presentment of the new indictment Mr. Ball applied for but was denied legal aid and appeared before the court on several occasions seeking an order for state funding in the form of a Rowbotham application, and on several other occasions to report to the court his progress in obtaining counsel. These court appearances were each covered in stories in the Record and on CTV Kitchener. Almost every story referenced the history of the matter including references to his conviction for causing an indignity to the body of Ms. Howlett, and the inability of the jury to reach a verdict on the first trial for murder.
[24] The undisputed evidence placed before the court on this application indicates that the online comments on Facebook and Twitter often expressed the view that Mr. Ball must be guilty of murder and ought to be in jail, and are generally strong worded and negative towards Mr. Ball. A few of those commented in his support but then were typically berated by other users. On the very day of the jury’s verdict there were many comments posted referring the outcome as a miscarriage, and an injustice, and that the jury’s decision made no sense. They generally expressed displeasure with the result of the first trial. One such item expressed the view that murder goes hand-in-hand with committing an indignity to the body and that Mr. Ball got away with murder because of the rich father.
[25] On March 11, 2016, a week after the jury’s verdict CTV Kitchener’s Facebook page reported the sentencing and received numerous comments unfavourable to the defendant, and of the criminal justice system, and expressing the view that Mr. Ball was guilty of murder. Some of these comments reflected disbelief that the jury could convict of the indignity charge but not on the murder.
[26] On November 30, 2016 a CTV Kitchener’s Facebook posting relating to Mr. Ball’s Rowbotham application received a large number of comments unfavourable to him, to his family’s wealth and raised the specter that perhaps his family was unwilling to pay for a second trial because they believed he was guilty of the murder. Others expressed views as to the inconsistency between the guilty verdict on the indignity count and the inability to decide the murder count. Many were highly critical of the idea that taxpayers should pay for his next defence. Most contained comments unfavourable to Mr. Ball, to his having obtained public funding, and as to a belief in his guilt.
[27] On this application counsel for Mr. Ball do not claim that any of the media coverage prior to the verdict in the first trial created prejudice such as to properly form the basis for a change of venue application. However, counsel does not say that such pre-verdict publicity was irrelevant, and rather that it created a high level of community interest in this case as a local news story. With the general high level of interest in the community as a result of the pre-verdict publicity, the applicant submits that the reporting of the jury’s verdict of guilty on the indignity to the body charge and the inability to reach a verdict on the murder charge constitutes a widespread item of prejudicial publicity which meets the test for a change of venue.
The Social Science Evidence
[28] The applicant relies upon two types of social science evidence. The first is a brief containing 20 articles by various social scientists who have conducted various kinds of studies dealing with different aspects of the effects, if any, of pre-trial publicity on juror behaviour. For a variety of reasons I did not find most of these articles to be of much use. None of them involve a reporting of the experiences of actual jurors in real cases. All but 3 of the studies are American, and still did not involve examination of real jurors in real trials, although apparently there is no prohibition against such juror contact in that country. Instead they involve mock trial situations or surveys. Several are surveys of university students by university students, and hence not representative of the age span in the general population.
[29] Some involved studies in which two groups of pretend jurors were each fed different types of pretend pre-trial publicity, and not surprisingly, the more negative or damaging the pre-trial publicity, the more negative is the jurors attitude towards the accused. Some are public opinion polls done by telephone survey which in my view are quite simplistic as compared to the real-life experience of an actual trial, with real courtroom procedure and witnesses, and real sworn jurors.
[30] One found that greater amounts of pre-trial publicity have more room of an effect on juror’s attitudes then does less pre-trial publicity, which I would have thought seems obvious. Some studies concluded that the voir dire conducted, (the American equivalent of our challenge for cause), reduced the mock jurors’ perceptions of guilt. Another study concluded that neither judicial instructions nor the jury deliberation process tended to reduce the negative effects of pre-trial publicity. Again, those were not studies of real jurors, in a real trial, receiving real judicial instructions from a real judge. Nor were they studies of sworn jurors who deliberated knowing their decision affected the liberty of the citizen as opposed to constituting nothing more than an experiment. That study also concluded that the longer the time lapse between the publication of the pre-trial publicity and the holding of the trial, the less effective the former had on the letter, which seems to make general good sense.
[31] Another study reached the conclusion that pre-trial publicity containing of both television and newspaper reporting had more of an effect than newspaper reporting alone, which again I would’ve thought to be rather obvious as surely two forms of media are more likely to reach more people than would one. Another study concluded that judge’s instructions have no effect in terms of overcoming pre-trial publicity, but again based on make-believe cases in artificial circumstances.
[32] With respect to those conducting such studies, I don’t believe we need the results of their work to appreciate that pre-trial publicity can affect the impartiality of the jury here in Canada. We have so recognized for decades and have procedures in place to try and address the problem. These procedures include applications to change the venue of the trial, challenge for cause based on pre-trial publicity, judges opening and closing instructions which invariably tell jurors to ignore anything heard outside of the courtroom.
[33] With respect to those studies that sought to measure the effectiveness of a judge’s instructions and the cleansing effect of the jury deliberation process, I am of the view that artificial situations are not the appropriate format in which to evaluate the effectiveness of those procedures. Mock jurors as used in these studies have nothing to lose other than perhaps a lower grade in a psychology course, or disappointing a caller conducting a phone survey. Real jurors have taken an oath or affirm to perform their duties and to decide the case on the evidence. Anyone who has had occasion to observe jurors as they enter a courtroom immediately before delivering their verdict can see by the look on their faces that they know their duty is serious.
[34] Similarly instructions from a real judge, in a real courtroom in my opinion cannot be accurately replaced by material read over the phone or delivered in written form as part of a study
[35] One study I found useful is that found at tab five of Exhibit 3, a Canadian study done by Jonathan L Freedman and Tara M Burke at the University of Toronto. Dr. Freedman also gave expert evidence on this application, which was the second type of social science evidence relied upon by the applicant. Dr. Freedman has spent decades teaching psychology with particular interest in the effects of pre-trial publicity on juror neutrality and the effects of our safeguards against bias.
[36] Dr. Freedman’s study at tab five was based on the Bernardo case, one of obvious extensive and negative pre-trial publicity. As he points out, many of the earlier studies deal with the effects of pre-trial publicity on the pre-trial opinions of mock jurors, and on the effects of pre-trial publicity on them during the course of the trial. The important concern, however, as he concludes, is the effect if any of pre-trial publicity on the final result, the verdict. His study concluded that pre-trial publicity in general has less effect on the judgment of a juror than is commonly thought, and the effect that it does have depends on the content of the pre-trial publicity.
[37] His study indicates that pre-trial publicity, even in a sensational and “ugly” case has little effect unless the pre-trial publicity includes information which is expressly damaging to the case to be tried or to the character of the accused. In his study both groups were given the same information about the Bernardo case. One group were also advised that he was charged as well with the Scarborough rapes, and the other group was not. It was the group who were advised that Bernardo was charged with the Scarborough rapes which reflected a marked increased level of bias against the accused compared to those were not so advised.
[38] With the consent of the crown I ruled Dr. Freedman to be qualified to give expert evidence on the effects of pre-trial publicity on the ability of a jury to judge issues without prejudice or bias. His professional opinion is that given the trial process as we have it in Canada, as a general rule there is no negative effect to pre-trial publicity when it comes to a verdict. It may well have an effect on jurors’ tentative opinions before a trial starts. But he is of the opinion that certain types of pre-trial publicity are likely to impact on a juror’s ability to judge a case fairly and without bias. This can include unconscious bias. As examples of that certain type of evidence which he believes are likely to negatively impact on a juror’s neutrality he cites evidence of prior convictions of certain types of crimes, or the killing of a child.
[39] He testified that he was supplied with and read all of the materials filed on this application. Based on his professional experience, years of studying the available materials in this field, his own studies and the application record here is of the view that there is one feature of the pre-trial publicity that is likely to negatively impact on the ability of a juror to be impartial. It is the publicity of the results of the first trial where the jury found Mr. Ball guilty on the indignity to the body charge, but could not reach a decision on the murder count. In his view that as a striking piece of evidence and one likely to be remembered in a situation where the defence was that there was nothing to do with the killing or the disposal of the body at all. He believes that any juror knowing of the outcome of the first trial would think Mr. Ball to be guilty of the murder and that nothing in this course of a second trial would overcome the tainting effect of knowledge of the result of the first trial. As it is the evidence of Mr. Warwick that implicates Mr. Ball as the leading figure in the disposal of the body, and implicates him in the murder, he believes that knowledge of the outcome of the first trial would lead a jury to conclude that Mr. Warwick’s evidence was accepted as the foundation of the verdict of guilty on the indignity charge, and that Mr. Ball’s evidence was rejected by the first jury.
[40] In his opinion our safeguards and procedures would not be enough to overcome the negative effect flowing from knowledge of the result of the first trial. He points out that in many cases jurors are told to ignore certain evidence, but they know what they are being told to ignore. Here a jury could not effectively be told to ignore the results of the first trial without being told what those results were, which is the very inadmissible item sought to be kept from the jury.
[41] Similarly in a challenge for cause procedure here specific questions could not be asked about knowledge of the outcome from the first trial without disclosing the very fact you are trying to ensure the juror knows nothing about. In his opinion a generalized question as to whether juror knows anything about this case will not suffice to adequately guard against the problem. If the juror admits to knowing something about the case but testifies that it would not affect his or her ability to be impartial, he or she would do so at a time when he or she would not yet be in a position to fully understand the impact of the first trial results on the credibility of two key witnesses, Mr. Ball and Mr. Warwick.
[42] Secondly, in the circumstances of this case, Dr. Freedman thinks it entirely possible that a juror could honestly claim to know nothing about this case at the time of the challenge for cause, but during the trial, as a result of hearing the evidence as to the circumstances of the killing and the disposal of the body, could have his or her memory of what he heard in the pre-trial publicity rekindled concerning the results of the first trial.
[43] His conclusion is that in the circumstances of this case the pre-trial publicity will probably affect the jury’s ability to decide the case without prejudice. In cross-examination he opined that it to be likely that at least one juror would know the pre-trial publicity or remember during the trial, or be advised of it in conversations with others, and share the information.
[44] In cross-examination Dr. Freedman was asked about all of our protective measures that bear on the problem and was of the view that individually, and taken collectively, it is likely that they would not be enough to prevent juror prejudice here because of the nature and extent of the pre-trial publicity relating to the results of the first trial. He repeated that in his view the striking feature of the pre-trial publicity is that it repeatedly dealt with the apparent inconsistency between the treatment by the jury of the two charges.
[45] I find much of what Dr. Freedman had to say interesting and useful. I remind myself, however, that the decision as to whether the test for a change of venue has been that is one for me to make.
The Legal Principles
[46] Section 599 (1) (a) of the Criminal Code provides that the venue of the trial may be changed if “it appears expedient to the ends of justice”. That restriction appears quite general and open-ended but has become much more defined by the jurisprudence.
[47] In R v. Suzak[^1], the Court of Appeal at paragraph 35 approved the trial judge’s formulation of the test for a change of venue as being “ the obligation or onus is on the defence to show, on a balance of probabilities, that there is a fair and reasonable likelihood of partiality or prejudice in the Sudbury area, that cannot be overcome by the safeguards in jury selection, including the oath, instructions from the trial judge to the jury panel including jury screening, peremptory challenges, challenges for cause and the rules of evidence.” There is no contest as between counsel before me that that is the appropriate test.
[48] At paragraph 38 of Suzak it was also observed that “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 and accused right to a fair trial. The many safeguards built into the trial process itself must provide that protection.”
[49] In R v.Yarema[^2] at paragraph 24 it was held that it is not the fact of pre-trial publicity which will support a change of venue but rather the nature and extent of the publicity that may do so. Justice Watt observed that it is not surprising that murders received media attention and that in itself will not justify a change of venue. Where the pre-trial publicity refers to facts which would be admissible as evidence at the trial the venue of the trial would not normally be changed. But as noted at paragraph 26 the situation is or may be different if the fair trial right is adversely affected “by advance disclosure of prejudicial information that could not, or is unlikely to become, evidence at trial, whether on account of lack of relevance, contravention of an exclusionary canon of the law of evidence, constitutional precept or otherwise.”
[50] In R v. Murray[^3] Justice Donnelly at paragraph 25 set forth a list of 13 procedural safeguards designed to guard against partiality at a trial. The law has always placed great faith in these various safeguards and in the ability of juries to abide by legal instructions, as evidenced in cases cited and relied on by the crown here, as for example Corbett v. The Queen[^4] at paragraphs 38 and 39, and Phillips v. Nova Scotia [^5]at paragraphs 130 to 134.
[51] R. v. Papadopoulos[^6] raised many of the concerns also existing in this case. As outlined at paragraph 16 there was pre-trial newspaper publicity reporting erroneously that all of the accused had made admissions of participation in the offense. Pre-trial media accounts suggested that all five accuseds were members of a gang and yet it appeared that no such evidence was likely to be placed before a jury at trial, and was of questionable admissibility in any event. Justice Dawson concluded that “the prejudicial effect of much of what has been published is not inherent the case. This raises a real concern that the jury pool will contain persons who have been exposed to the most prejudicial form of publicity: the publication of inadmissible, and sometimes untrue, evidence of bad character which may also associate the accused with [two other unrelated incidents].”
[52] At paragraph 20 Justice Dawson voiced his concern that while potential jurors may have a limited recollection of the prejudicial pre-trial information at the outset of trial the circumstances of the case were such that they may well have their memories refreshed as the case proceeds and the evidence unfolds. In respect of the ability of the challenge for cause process to address the issue he noted that a general question concerning previous knowledge of the case may well be inadequate to discover the problems related to pre-trial publicity as they may unfold as the trial progresses, and that on the other hand more specific questions may well undermine the process by leading to a potential juror giving an answer which could contaminate the jurors already sworn. Lastly, Justice Dawson had regard to the level of media interest shown in the case to that point in time and concluded that it was likely that media pre-trial publicity would continue as the case progressed through various stages, and that very a review of the pre-trial media publicity to that point in time made it likely that such future stories would continue to repeat much of the prejudicial information previously reported.
[53] In R v. Genereux[^7], Justice Valin was faced with some of the same problems in the context of a re-trial following the publication of evidence ruled on appeal to have been improperly admitted at a first trial. Based on the evidence before him he concluded that it was likely the jury would know that the accused was convicted of murder in the first trial. He took into account the very negative newspaper editorial accounts following the original conviction. He concluded that in the circumstances of that case it would be difficult if not impossible to formulate challenge for cause questions that would be effective and yet not remind the jury of the previous conviction, or the previous publicity disclosing the inadmissible evidence.
[54] In R. v. Bains[^8], Justice Watt, beginning at paragraph 109, and in part relying on the Court of Appeal decision in R.v. Farinacci[^9], formulated a number suggestions as to expanded instructions that might be given to jurors to try and protect against juror electronic research or other forms of investigative inquiry. His suggestions are in addition to the updated instructions to jurors with respect to these issues as found in Watts Manual of Criminal Jury Instructions, Second Edition 9 Toronto: Carswell, (2015). These comments demonstrate the concern as to how to overcome the pre-trial publicity problems.
[55] Each case involving a requested change of venue based on pre-trial publicity must consider the quantity, timing and nature of the pre-trial publicity. Reference to previous cases dealing with the change of venue issue is useful in terms of the principles established therein. To the extent that the case at bar has circumstances similar to those in the precedent, the value of the precedent increases.
[56] Our legal system places great reliance on the numerous safeguards we have available. The Crown stresses their importance and relies on many cases which have commented on their effectiveness, particularly those speaking of challenge for cause. The fact remains that a change of venue is one such safeguard. If the other safeguards were sufficient in all cases there would be no need for the change of venue remedy. It remains available where as a matter of discretion, based on the circumstances of the case, the application judge determines it to be necessary to protect the fair trial interests of the accused (and of society).
Discussion
[57] Based on the material placed before me on this application I conclude the following:
a. the publicity preceding the first trial was not prejudicial to the extent of supporting an application for change of venue, but was of a nature giving rise to significant community interest in the case.
b. Secondly, in my assessment the publicity given this case during the first trial was sufficiently extensive in terms of frequency and details to generate further widespread interest in the case.
c. Thirdly I am satisfied that the post-verdict publicity created yet additional interest in the case, and created an attitude negative towards the accused within the community. I am further of the view that the publicity, and the reaction to it, fostered the idea that guilt on the indignity charge should have led to a verdict of guilt on the murder charge.
d. Next, I am satisfied that the continued publicity given this case, after the verdict and as it has continued to unfold, including the publicity generated with respect to the setting of the trial date, and the application for public funding, together with the history of media crime coverage in this area makes it likely that additional media publicity will be forthcoming as the re-trial nears, and that it is likely that such additional publicity will again refer to the “split verdict” feature of the first trial.
e. I also think it more likely than not that during the expected four months duration of the trial and one or more jurors, although mindful of the trial judge’s instructions, will inadvertently hear about the “split verdict” outcome of the first trial by way of casual conversations or other forms of unsolicited input.
f. I also recognize a very real possibility in this case that a perfectly honest juror could profess during challenge for cause to have no knowledge of this case that would prevent him or her from deciding the case and partially, and yet become more susceptible to partiality as the trial evidence unfolds and brings back to the juror’s mind features of the publicity that he or she had previously forgotten.
[58] In the upcoming trial it is agreed between counsel that the evidence with respect to the indignity to the victim’s body will be admissible at will be led at trial. It is further agreed that the fact of the conviction for that charge at the first trial will not be placed before this jury. Nevertheless, in my opinion it is likely that jurors will be aware, or become aware, of the split verdict result and accordingly will become aware of information agreed by counsel to be inadmissible at trial. As the evidence unfolds at the upcoming trial, in my opinion it will become obvious to jurors likely to be aware of the “split verdict” that the first jury accepted the evidence of Mr. Warwick concerning the disposal of the body, and rejected the evidence of Mr. Ball as to his complicity in the disposal of the body.
[59] Re-trials commonly involve problems where the new trial is the result of appellate court direction, but jurors can appreciate that there was some kind of error in the first trial which vitiated the original verdict. But in this case knowledge of the results of the first trial carries with it knowledge that the verdict of guilty was ratified by the court by the registration of a conviction and the imposition of a sentence.
[60] Awareness by the jury of the verdict from the first trial, implicit in which is the juries rejection of the accused denial and acceptance of the evidence of Warwick, together with the appearance of acceptance as being correct by the published registration of a conviction in my opinion give rise to a fair and reasonable likelihood of partiality or prejudice that would not be overcome or removed by the procedural safeguards.
Result
[61] For these reasons I allow the application and direct that the venue of the trial be changed from Kitchener. In accordance with the protocol of the court, the new venue for the trial will be determined by the R.S.J.
C.S. Glithero J.
Date: October 19, 2017
CITATION: HMTQ v. BALL, 2017 ONSC 6159
COURT FILE NO.: CJ 8375
DATE: 2017-19-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent/Crown
– and –
MICHAEL JOHN WILLIAM BALL
Applicant/Accused
RULING ON CHANGE OF VENUE APPLICATION
C.S. Glithero J.
Released: October 19, 2017
[^1]: R. v Suzak, 2000 5630 (ON CA), [2000] O.J.No. 100 (C.A.)
[^2]: R v Yarema, [1990] O.J.No. 2785 (H.C.)
[^3]: R.v.Murray, [1997] O.J.No. 2692 (Gen. Div.)
[^4]: Corbett v. The Queen, 1998 831 (SCC), [1998] S.C.J. No. 40 (S.C.C.)
[^5]: Phillips v, Nova Scotia 1995 86 (SCC), [1995] S.C.J. No. 36 (S.C.C.).
[^6]: R. v. Papadopoulos, [2006] O.J.No. 5403 (S.C.)
[^7]: R.v.Genereux, [2001] O.J.No.2391 (S.C.)
[^8]: R,V.Bains, 2015 ONCA 677, [2015] O.J.No. 5191 (C.A.)
[^9]: R. v. Farinacci, 2015 ONCA 392, [2015] O.J.No. 2835 (C.A.)