R v. Knight and MacDonald, 2017 ONSC 6606

CITATION: R v. Knight and MacDonald, 2017 ONSC 6606

COURT FILE NO.: FC-16-14200

DATE: 20171106

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

DAVID KNIGHT Applicant

COUNSEL:

Paul T. Murray, counsel for the Respondent

Kristen Pollock, Co-Counsel for the Respondent

Victor Giourgas, for the Applicant

HEARD: October 5, 2017

RULING RE CHALLENGE FOR CAUSE ON BASIS OF PUBLICITY

SOSNA J.

Introduction:

[1] The applicants David Knight and Graham MacDonald are jointly charged with first-degree murder and conspiracy to commit murder in relation to the death of Carmella Knight, David Knight’s wife. They are also charged with arson arising from the same incident in September 2014. Both applicants were arrested on February 26, 2015 and have been in custody since. Their trial by judge and jury is scheduled to commence in Durham Region in January 2018.

[2] The applicants seek an Order granting them leave to challenge jurors for cause on the basis of publicity under s. 638(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46 (“the Code”).

[3] The Crown opposes the application and seeks that it be dismissed.

[4] The applicants argue there is a realistic potential that at least some members of the jury pool will have heard, read, or seen media reports in the newspaper, radio, or on television with respect to the investigation into the death of Carmella Knight and or the allegations against them individually or collectively.

[5] The Crown argues that the applicants have failed to establish either the existence of a widespread bias that could affect the outcome of the trial or the potential that some jurors will be incapable of setting that bias aside. The Crown argues that there is insufficient foundation for a challenge for cause, and that the presumption that jurors’ views and biases will be cleansed by the trial process has not been rebutted.

The Law

[6] Section 638(1)(b) of the Code provides that:

A prosecutor or the accused is entitled to any number of challenges on the ground that

(b) The juror is not indifferent between the Queen and the accused;

[7] In R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 31, the Supreme Court of Canada held that the term “not indifferent” in s. 683(1)(b) of the Code requires that an applicant “show a ‘realistic potential’ that the jury pool may contain people who are not impartial, in the sense that even upon proper instructions by the trial judge they may not be able to set aside their prejudice and decide fairly between the Crown and the accused” In order to establish a realistic potential for juror partiality, the applicant must satisfy the court that:

1. A widespread bias exists in the community; and
2. Some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision. (Find, at para. 32)

[8] The overarching consideration, in all cases, is whether there exists a realistic potential for partial juror behavior and that some jurors may decide the case on the basis of preconceived attitudes or beliefs, rather than on the evidence placed before them. (Find, at para. 33).

[9] For challenges based on pre-trial publicity the trial judge must consider:

a. The age of the coverage; b. The extent of the coverage; and c. The content of the coverage.

Findings

(a) The Age of the Coverage (how close or far in time in relation to the trial)

[10] The media coverage of the alleged murder of Carmella Knight including social media (i.e. Facebook, Twitter) began on September 15, 2014 when both applicants were arrested and ended on September 30, 2015. By the time that this trial is held in January 2018, two years and eight months will have elapsed since the last released media publication, including through social media.

[11] Although I agree with the Crown’s submission that a lapse of time, in this matter being two years and eight months, may be an antidote against any realistic possibility of prejudice (R. v. Merz, 1999 CanLII 1647 (ON CA), 46 O.R. (3d) 161, 127 O.A.C. 1 (C.A.), at para. 36), the lapse of time does not stand alone. The extent and content of the coverage must also be considered particularly in today’s internet age which provides instantaneous access to even dated media events.

(b) The Extent of the Coverage

[12] The coverage was sporadic. Articles including social media comments appeared on nine of the 380 days between September 15, 2014 and September 30, 2015. Following an initial three days of reporting, namely September 16 to 18, coverage stopped for five months before resuming on February 27 and 28, 2015. There was no coverage thereafter for seven months until September 2015 when it resumed for four days. After that date, coverage ceased altogether.

[13] The media (incl. print, digital, radio, and television) in Durham Region published approximately 15 reports, Toronto approximately 27 reports, other jurisdictions in Ontario (i.e. Niagara, Kingston, Orangeville, Cambridge, etc.) approximately 10 reports, jurisdictions outside of Ontario approximately four reports (i.e. Vancouver, Calgary, Edmonton), and social media (Twitter and Facebook) approximately 30 posts.

[14] The majority of the publications were outside of Durham Region. However, the jury pool will be drawn exclusively from within Durham Region. I find it would be speculative to assume that prospective jurors from Durham Region would be exposed to articles from local outlets in Kelowna, B.C., London, ON, Kingston, ON, and Niagara, ON, etc.

(c) The Content of the Coverage

[15] The content of the publicity is the third factor to be determined. Publicity, whether it be printed, electronic, or social commentary published online, is not unusual, particularly where there is an allegation of criminal homicide.

[16] The simple publication of facts is not sufficient to grant a challenge for cause. There must be content in the publication that would occasion a widespread bias against the accused that cannot be corrected or set aside. There is a distinction to be drawn “between mere publication of the facts of the case and situations where the media misrepresents the evidence, dredges up and widely publicizes discreditable incidents from an accused’s past or engages in speculation as to the accused’s guilt or innocence” (R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, at p. 511, R. v. Borbely, 2012 ONSC 5926, at paras. 9-13, R. v. Ronald, 2016 ONSC 3147, at para. 14).

[17] Overall, the content of the media coverage was factual and accurate, and was neither extreme, hysterical, nor speculative. The coverage provided information that there was a fire at a residence, that Carmella Knight was found dead inside with obvious signs of trauma, and that David Knight, Graham MacDonald, and later Matthew Knight were charged with murder.

[18] On September 8, 2015, the tenor, tone, and focus of the media coverage changed when the Toronto Sun, a widely circulated newspaper in Durham Region and the GTA, reported on its front page: “PRISON BREAK FOILED…Accused killer ‘came close’ to escaping from Ontario super jail, correctional officer says…PAGE 3.”

[19] At page 3, under the byline now worded “PRISON BREAK THWARTED…Accused killer ‘came close’ to breaking out of Lindsay super jail, correctional officer says,” the following in part was reported:

Lindsay’s super jail has been on lock down for five days after an alleged murderer’s escape attempt was thwarted by alert correctional officers…Sources say it was a close call and involved an inmate currently before the courts on murder…[The inmate] according to correctional sources, but not confirmed by the Ontario Ministry of Community Safety and Correctional Services, was none other than alleged wife killer David Knight…Sources say Knight has been put in isolation and there were discussions Monday about moving him to another facility.

[20] The Toronto Sun coverage was then distributed by two further news outlets, namely 24 hrs Vancouver and the Calgary Sun.

[21] On September 30, 2015, the Toronto Sun reported the arrest of Mathew Knight, the brother of the applicant David Knight. The news release read in part as follows:

Firefighters discovered 39 year old Carmella Knight’s charred remains after dousing a fire…at a home on Pebblestone Crescent…on Sept. 15, 2014. She was the mother of two.

Five months later, on Feb. 27, Durham Regional Police charged the woman’s husband, David Knight, then 42, and Graham Thomas MacDonald, then 28, with first-degree murder, conspiracy to commit murder and arson.

A Canada-wide warrant was issued for the brother-in-law in March.

The former Ajax resident was nabbed in the United States, police said.

Mathew Knight, 36, is charged with conspiracy to commit murder an accessory after the fact to murder.

He remains in custody awaiting a bail hearing.

David Knight made headlines earlier this month when the Toronto Sun learned of an escape attempt that was foiled by guards at the prison in Lindsay where the suspected killer has been held since his arrest.

Anyone with new information about this murder should call homicide investigators…

[22] I find the media coverage of Knight’s alleged attempted prison break was sensationalized in the first instance. The attempted prison break was further sensationalized three weeks later when it was reported that Mathew Knight was also charged with murder and accessory to after the fact to murder. Also reported in the lead story was the fact that Mathew Knight is the brother of David Knight who weeks earlier had attempted to escape from custody.

[23] Despite its age (September, 30, 2015) the prominence and ready access to the attempted escape media coverage was demonstrated in this application when a search query titled “David Knight Murder” was made by Crown and defence counsel using two different search engines. The media reports of Knight’s attempted escape came up as number one in the first search and number four in the second.

[24] I find the capacity for the passage of time to serve as an antidote against the realistic possibility of prejudice resulting from media coverage (Merz, at para. 36) is limited by the reality of the new internet world. A possible inference of guilt to the three counts in the indictment, arising from attempted escape, could reasonably be drawn by prospective jurors through an internet search of “David Knight Murder” at any time prior to the trial or when Knight and MacDonald are arraigned in the presence of the entire jury pool. As held in R. v. Howley, 2015 ONSC 7816, at para. 31:

[C]hallenges for cause are not granted only in extreme circumstances. There need only be an air of reality to the application: R. v. Sheratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509 (S.C.C.), at para. 63. In other words, there need only be an air of reality to the assertion that pre-trial publicity could potentially have the effect of undermining a prospective juror’s impartiality as between Crown and defence.

[25] For the aforementioned reasons, I find the circumstances in the present matter meet the air of reality test. The application for challenge for cause is granted for both applicants as they are jointly charged.

[26] In the event that the application for challenge for cause was granted, the Crown and defense counsel submitted proposed questions that would be put to each prospective juror.

The Position of the Applicants

[27] The applicants proposed that a preamble followed by three questions be asked of each prospective juror:

As the judge will tell you, it is necessary to judge the evidence in this case without bias, prejudice, or partiality: David Knight and Graham MacDonald are facing a charge of first-degree murder arising out of the death of Carmella Knight in Pickering, Ontario in September 2014.

i. Have you heard, read, or seen anything about this case in any form of media, for example, newspaper, radio, internet, or on television or through discussions with others with respect to the investigation into the death of Carmella Knight or the allegations against David Knight or Graham MacDonald?

ii. IF THE JUROR ANSWERS “YES” TO QESTION i: Based on what you have heard, read, or seen in the newspaper, radio, internet or on television or through discussions with others, have you formed any views about the guilt or innocence of David Knight or Graham MacDonald?

iii. IF THE JUROR ANSWERS “YES” TO QUESTION ii: Despite any opinion you have formed, would you be able to set that opinion aside, and decide this case based solely on the evidence presented to you at trial and the instructions of the trial judge without bias, prejudice or partiality?

The Position of the Crown

[28] The Crown takes no issue with the preamble suggested by the Applicants, but submits the questions proposed go beyond pre-trial publicity in that they also inquire of prospective jurors whether they had discussions with others about the case. Those discussions if any are irrelevant to pre-trial publicity, which is the core of this application.

[29] The Crown proposes that two questions be asked of each prospective juror:

Do you recall having seen, heard or read any information about this case on television, radio, newspaper or the internet? If so, would any opinion you may have formed based on this information prevent you from deciding this case based solely on the evidence at trial and according to the instructions of the trial judge?

Findings

[30] The court has wide discretion to determine the number and form of questions to be asked of potential jurors in any challenge for cause. (Howley, at para. 66). I note that the preamble suggested by the Applicants and not challenged by the Crown only speaks of David Knight and Graham MacDonald being charged with first-degree murder. However, the indictment sets out three charges: first-degree murder, conspiracy to commit murder, and arson. I find the preamble should set out all three offenses.

[31] The threshold question in an application under s. 638(1)(b) of the Code is whether publicity, namely media coverage, could potentially have the effect of destroying the prospective jurors’ indifference between the Crown and the accused. (Merz, at para 33). I agree with the Crown submission that prior discussions with others by members of the jury pool are irrelevant to the issue of publicity and media coverage. Therefore, any question or questions approved will not include “discussions with others” as proposed by the applicants.

[32] The court in Howley notes at para. 50, that questions in a challenge for cause to be put to prospective jurors are those that “will likely be of the greatest assistance to the prospective jurors in providing forthright answers, and to the triers in assessing those answers…The questions should be designed to trigger true self-reflection on the part of the prospective juror”.

[33] I find the three questions submitted by the Applicant are clear, succinct and will allow each juror to adequately reflect on each question. Depending on the answer to each question, the triers will have ample opportunity to find the juror to be acceptable or not acceptable.

[34] The questions to be put to each prospective juror therefore are as follows:

As the judge will tell you, it is necessary to judge the evidence in this case without bias, prejudice, or partiality. David Knight and Graham MacDonald are facing charges of first-degree murder, conspiracy to commit murder arising out of the death of Carmella Knight, and arson. The three offenses are alleged to have occurred in Pickering, Ontario in September 2014.

1. Have you heard, read, or seen anything about this case in any form of media for example, newspaper, radio, internet, or on television with respect to the investigation into the death of Carmella Knight or the allegations against David Knight or Graham MacDonald?

2. IF THE JUROR ANSWERS “YES” TO QUESTION 1: Based on what you have heard, read, or seen the newspaper, radio, internet or on television, have you formed any views about the guilt or innocence of David Knight or Graham MacDonald?

3. IF THE JUROR ANSWERS “YES” TO QUESTION 2: Despite any opinion you have formed, would you be able to set that opinion aside and decide this case solely on the evidence presented to you at trial and the instructions of the trial judge without bias, prejudice or partiality?

Justice A. Sosna

Released: November 6, 2017