Court File and Parties

COURT FILE NO.: CR-16-0000325 DATE: 20180724 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JOHN MASSON MAXWELL WHITE Defendant

COUNSEL: Monica Heine, for the Crown Richard Litkowski and Jessica Zita, for the defendant

HEARD at Napanee: 23 July 2018

THESE PROCEEDINGS ARE SUBJECT TO AN ORDER MADE PURSUANT TO SECTION 517(1) OF THE CRIMINAL CODE THAT THE EVIDENCE TAKEN, THE INFORMATION GIVEN OR THE REPRESENTATIONS MADE AND THE REASONS, IF ANY, GIVEN OR TO BE GIVEN, SHALL NOT BE PUBLISHED IN ANY DOCUMENT, OR BROADCAST OR TRANSMITTED IN ANY WAY BEFORE SUCH TIME AS THE TRIAL IS ENDED, OR OTHER ORDER OF THIS COURT.

Mew J. (Orally)

REASONS FOR DECISION (Prior to Trial Applications)

[1] John White is charged with the murder of his stepmother, Gail White, on 16 April 2016. The record presently before me discloses that the victim was found dead in a residence in Roslin, Ontario.

[2] Roslin is located in Hastings County, approximately 23 km north of Belleville.

[3] Mr. White's trial is scheduled to commence on 19 January 2019 at the Lennox & Addington County Courthouse in Napanee.

[4] Three defence applications are presently before the court, seeking orders that:

1. Mr. White's trial be held in a territorial jurisdiction other than "the Napanee Region";
2. Allowing Mr. White to challenge prospective jurors for cause on the basis of pre-trial publicity;
3. Allowing Mr. White to question prospective jurors on the basis of their occupation.

[5] Jurors trying cases in Napanee are drawn from eligible citizens of Canada residing in the County of Lennox & Addington. By way of perspective, the county has a population of approximately 43,000 and covers an area of 2,841 km² stretching from Denbigh in the north to the shores of Lake Ontario, including Amherst Island, to the south. Greater Napanee is the largest town in the county, with a population of 13,449 people.

[6] Despite being in a neighbouring county, Roslin falls within the territorial responsibility of the Napanee detachment of the Ontario Provincial Police. As a result, charges laid by that detachment are usually heard in Napanee.

[7] The record discloses that there were eighteen media reports relating to Ms. White’s death. Twelve of those reports were published between the date of the death and 20 April 2016, i.e. within four days of the death. Four more reports appeared between 18 and 23 November 2016. The most recent report was on 20 April 2017.

[8] None of the reports appeared in media based in Napanee or elsewhere in Lennox & Addington. Eight of the reports were published in Hastings County or its neighbouring jurisdiction of Northumberland County. Two more were published by Kingston media outlets. Two were published by the Ottawa Citizen. Another was published by Jack News, based in the Smiths Falls area. The remaining three media reports were from Global News, Homicide Canada and the Canadian Press, all of which have province-wide or national reach.

[9] Most, if not all, of the media reports were, and remain, accessible online.

[10] Many of the media reports are similar, some virtually identical. Most limit the matters reported on to the identities of the accused person and the deceased, the place of death, the arrest of Mr. White, the laying of charges and the committal of Mr. White to stand trial. Seven of the reports make reference to Mr. White either being remanded or held in custody. Very little information is given as to the nature of the incident or the cause of death. One report refers to “social media rumours of the use of a firearm during the incident”. Some of the reports identify Mr. White as the deceased’s stepson. Another refers to “reliable sources close to the situation” confirming that Gail White’s death was caused by a firearm and that Mr. White’s Facebook page lists him as a heavy equipment operator at Lafarge Canada.

[11] On behalf of Mr. White it is argued that the nature and content of the pretrial publicity concerning Ms. White’s death gives rise to a realistic potential for juror impartiality, and that the size of the community from which the jury will be drawn would render it impossible for Mr. White to have a fair trial in Napanee.

[12] The defence also asks that, in the event that its application to permit a challenge for cause of prospective jurors based on pretrial publicity is granted, members of the jury panel should also be asked to verify their current employment or, if they declared themselves to be unemployed or retired, their last employment.

[13] All three applications are opposed by the Crown.

[14] I will take each of the applications in turn.

Change of Venue

[15] The principles applicable to the exercise of the court’s discretion to order a trial to be held in a different territorial division are not seriously in issue between the parties. The source of the court’s authority is section 599(1)(a) of the Criminal Code, which provides in such an order can be made if it appears expedient to the ends of justice.

[16] In R. v. Genereux, [2001] O.J. No 2391, Mr. Justice Valin of this court summarised the basic principles:

17 The current test applicable to an application for change of venue was set out in R. v. Collins (1989), , 48 C.C.C. (3d) 343 at 350-51 (Ont. C.A.) where Goodman J.A. stated:

The fundamental consideration is whether a change of venue is necessary in order to ensure that an accused has a fair trial with an impartial jury.

In R. v. Charest (1990), , 57 C.C.C. (3d) 312 at 349 (Que. C.A.), Fish J.A. expressed the view that "a fair trial can be conducted only in a reasonably serene environment". The Quebec Court of Appeal subsequently confirmed that view in R. v. Proulx (1992), , 76 C.C.C. (3d) 316 at 355.

18 In Collins (supra), Goodman J.A. stated that the decision to grant a change of venue lies within the discretion of the judge hearing the application and that the discretion must be exercised in a judicial manner. In this application, the 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 Timmins area that cannot be overcome by the safeguards inherent to the jury system; in other words, that there is a reasonable likelihood that he cannot receive a fair trial by an impartial jury in Timmins.

19 In R. v. Wilson, , [1983] 6 W.W.R 361 at 365 (Sask.Q.B.), Walker J. listed the following as being among the circumstances to be considered on an application for change of venue:

(1) The nature and extent of the offence. (2) The nature and extent of the public opinion in the area, its size, generality and crystallization, if any. (3) The size of the community. (4) The status of the accused in the community. (5) The popularity and prominence of the victim.

While none of these factors are by themselves sufficient to affect the decision, it is the totality of the circumstances that will determine the application.

20 The two most significant factors are the size of the community and the nature, extent and effect of publicity surrounding the case. The case of R. v. Miller , [1979] O.J. No. 1008 (H.C.J.) is authority for the proposition that the size of the community must always be taken into account. In that case, Steele J. stated in [para 6] that the probability of prejudice or partiality in a small community is not necessarily the same as that in a large community. The inference I draw from that comment is that the chance of a change of venue is greater in a smaller community than in a large metropolitan area where there would be a substantial proportion of the jury panel who would not retain the details of newspaper articles concerning the previous trial of the accused.

21 There are numerous authorities to support the proposition that publicity is not of itself a valid ground for a change of venue because it does not necessarily preclude a fair trial. The courts have continually recognized the shortness and transitory nature of the human memory. A change of venue will be justified only where there is strong evidence of a general prejudicial attitude in the community as a whole. Indeed, the Quebec Court of Appeal stated in Proulx (supra) at p. 355-56:

... the mere fact of sensationalist publicity does not in itself constitute a determinative factor in the decision whether or not to order a change of venue. Rather, it is a question of determining whether this publicity has gone beyond the point where it becomes difficult to ensure "a fair trial before an impartial jury".

22 Having noted the factors to be considered on an application for change of venue, the court will also give considerable weight to the safeguards in the criminal jury trial process which were set out by Craig J. in R. v. Fitzgerald and Schoenberger (1981), , 61 C.C.C. (2d) 504 at 512 (Ont. H.C.J.) as follows:

(a) the instruction of the trial judge in the ordinary course to jurors that the case is to be determined only on evidence elicited at trial; (b) the oath of the prospective jurors; (c) the fact that admissible evidence only is permitted to go before the jury; (d) the applicant's statutory right of challenge for cause and peremptory challenges in respect of potential jurors; and (e) any screening of the panel that the trial judge considers necessary.

[17] In R. v. Dow, 2010 QCCS 626, at para. 6, Grenier J. observed that it is a long established principle that a criminal case should be tried in the district or county where the offence was committed. The rationale for this can be found in R. v. Muise, (1992) , 118 N.S.R. (2nd) 363 (S.C.), at p. 365, where Kelly J. noted that, in addition to obvious convenience and cost factors, importance is attached to demonstrating to the region where the alleged crime occurred that justice will be fully and impartially administered in their community.

[18] As directed by the court in Genereux, the applicant places emphasis on the factors of the size of the community and the nature, extent and effect of publicity surrounding the case.

[19] In Genereux, a change of venue was ordered. The accused in that case had been charged with a murder that had occurred in the District of Cochrane. The Town of Cochrane has a population of about 4,600 people. The first trial took place in Timmins. A new trial was ordered by the Court of Appeal. An issue arose as to where the second trial should be held. Because the first trial had, on the consent of the parties, not taken place in Cochrane, Valin J. concluded that the weight that would normally be accorded to the fundamental principle that a criminal case should be tried in the community where the alleged crime was committed was significantly diminished. After the first trial, a newspaper editorial published in Timmins after the verdict was handed down began with the words “Justice has been done”. According to Valin J., following the first trial “[p]ublic opinion in Timmins appears to have crystallized”. went on to quote with approval from the following statement by Fish J.A. in R. v. Charest (1990) , 57 C.C.C. (3d) 312 (Que. C.A.) at p. 349:

Extensive prejudicial publicity shortly before the trial, pronounced hostility toward the accused, widespread sympathy for the victim, and a frightened or enraged community, surely create – especially in a small judicial district – the kind of emotionally charged atmosphere in which the ends of justice may best be served by removal of the trial to another venue.

[20] Having concluded on the basis of these authorities that Timmins would not be an appropriate venue for the second trial, Valin J. considered the alternatives. Cochrane does not appear to have been a serious runner, given that the community interest in having the trial take place there must have already been weighed and considered when the decision to change the venue was made the first time. Although mindful of the interest of the victim’s family and the additional hardship that would be placed on them by another change of venue, Valin J. concluded that when their interests were weighed against the rights of the accused to a fair trial by an impartial jury, the circumstances of the case warranted a change of venue to North Bay.

[21] A different conclusion was reached in Dow, which was a second degree murder case. There, too, after a first trial resulted in a conviction, a new trial was ordered on appeal. Grenier J. quoted at length from the decision of Valin J. in Genereux. Noting that media coverage of the first trial had been “reasonably fair and objective” and that there was no evidence of an emotionally charged atmosphere in the community where the first trial had taken place necessitating a change of venue, the court declined to make the order sought. Having so decided the court added, at para. 20, that “[t]he passage of time, which leads to the fading of memories, adequate questions to each prospective juror, instructions upon the law given to jurors” were all elements which satisfy the court that a second trial could be held in the original venue, and the verdict reached according to the evidence, free of any bias or partiality.

[22] Setting to one side the fact that, strictly speaking, Lennox & Addington, while nearby, is not the administrative territory in which the alleged offence occurred, there is no evidence before the court of an emotionally charged community or of any local animus towards the accused either in this county or next door in Hastings County.

[23] Although, as the defence noted, a total of two homicides were reported in Greater Napanee for the entire year of 2016, the fact that homicides are not regular occurrences is not in and of itself a basis for displacing the generally applicable principle that criminal cases should be tried in the community where the alleged offence was committed. There needs to be something more than that.

[24] Furthermore, although Belleville and Kingston, which are suggested as the alternative venues, may have larger populations to draw from, the fact is that there has been pretrial publicity emanating from those cities and their surrounding communities, whereas none of the pretrial media coverage has emanated from Napanee.

[25] Concerning the nature, extent and effect of the pretrial publicity, the defence argues that it has been “extensive” and that the reports have used “emotive language”.

[26] That argument is not supported by the evidence.

[27] This is not the sort of case that arose in R. v. Papadopoulos, [2006] O.J. No. 5403 (S.C.J.) at para. 5, where the court observed that while homicides attract the attention of the public and the media to some degree, the case in question had attracted more media attention that most homicides. In fact it is the converse: if anything, the nature and scope of the coverage is meagre. It does not include prejudicial comments regarding the accused or his family, nor is there any reference to evidence yet to be adduced (other than the reference in two of the eighteen stories to the unconfirmed involvement of a firearm) or, indeed, beyond the barest of details, to the circumstances of the offence.

[28] While I accept that just because none of the media coverage emanated from Lennox & Addington, it does not mean that prospective jurors would not have access to media coverage from other places via the Internet. But, the same could be said of all jurors no matter where they reside.

[29] However, the passage of time has a mitigating effect on the possibility of jurors being influenced by pretrial publicity. By way of example, although some of the media reports, as already noted, mentioned that Mr. White was in custody, the last such mention was on 20 April 2016, some 33 months before Mr. White’s trial is scheduled to commence.

[30] For the foregoing reasons I am not persuaded that I should exercise my discretion to change the venue of Mr. White’s trial.

Challenge for Cause Based on Pre-trial Publicity

[31] Prospective jurors may be challenged for cause on the ground that they are not indifferent between the Queen and the accused: Criminal Code, s. 638(1)(b).

[32] They are, of course, presumed to be impartial and capable of performing their duties without bias: R. v. Williams, , [1998] 1 S.C.R. 1128, at paras 13 and 52. The party who asserts that an issue has the realistic potential or possibility for partiality has the onus of showing that there is an air of reality to that assertion.

[33] Where pretrial publicity is relied upon to establish a lack of indifference, the distinction is drawn between, on the one hand, mere publication of the facts, and on the other, misrepresentation of the evidence, wide publicity of previous discreditable conduct by the accused and speculation as to guilt or innocence: R. v. Sherratt, , [1991] 1 S.C.R. 509, at para. 64, per L’Hereaux-Dubé J., who continues:

It may well be that the pre-trial publicity or other ground of alleged partiality will, in itself, provide sufficient reasons for a challenge for cause. The threshold question is not whether the ground of alleged partiality will create such partiality in a juror, but rather whether it could create that partiality which would prevent a juror from being indifferent as to the result. In the end, there must exist a realistic potential for the existence of partiality, on a ground sufficiently articulated in the application, before the challenger should be allowed to proceed.

[34] Although the determination of whether pre-trial publicity gives rise to a realistic potential for bias amongst members of the jury pool, despite the safeguards of the trial process, is a matter for judicial discretion, the Supreme Court in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 45, cautions that judicial discretion should not be confused with judicial whim. However, speaking for the Court, McLachlin C.J. continues:

If in doubt, the judge should err on the side of permitting challenges. Since the right of the accused to a fair trial is at stake, “[i]t is better to risk allowing what are in fact unnecessary challenges, than to risk prohibiting challenges which are necessary”: Williams, supra, at para. 22.

[35] In R. v. Knight, [2017] O.J. No. 5862, 2017 ONSC 6606, at para 9, the court summarised the factors that a trial judge should consider on an application such as this:

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

[36] Many of the comments which I have made about the pretrial publicity in the context of the application for a change of venue have application to the question of whether a challenge for cause process should be engaged.

[37] The pre-trial publicity has been limited and essentially benign in terms of any possible prejudicial effect.

[38] Furthermore, with the exception of two reports in April 2017, it occurred within two short windows of time in April and November 2016. A significant lapse of time may be an antidote against any realistic possibility of prejudice: R. v. Merz (1999), , 46 O.R. (3d) 161 (C.A.) at para. 36. But even if there had been more recent or more localised publicity of the limited nature that occurred, it would not, in my view, have risen to a level where there was a realistic potential for partiality.

[39] This is not a borderline situation where I should err on the side of caution in the exercise of my discretion and permit a challenge for cause on the basis of pretrial publicity to proceed.

[40] Rather, I am confident that the right of Mr. White to a fair trial will be unaffected by the very limited pretrial publicity that has occurred and that the well-established trial procedures including the admonition given to jurors to disregard anything that they may have heard from anyone else or read about the case, or the persons involved in it, offers more than adequate protection in the unlikely event that a juror has some recollection of it.

Questioning Jurors on their Occupations

[41] Having dismissed the application for a challenge for cause, the request by the applicant for an order allowing him to question prospective jurors on the basis of their occupation becomes academic (the applicant having conceded during the course of argument that having a challenge for cause solely for the purpose of asking such a question would not be appropriate).

[42] Nevertheless, I make two observations.

[43] The first is that a challenge for cause could not be grounded on a party’s desire to question prospective jurors on the basis of their occupation. The entitlement of a prosecutor or an accused to challenge prospective jurors for cause is limited to the grounds set out in section 638(1) of the Criminal Code. None of those grounds would support questioning prospective jurors about their employment. The applicant relies on the decision of Pardu J. in R. v. Schertzer, 2011 ONSC 917, [2011] O.J. No. 6525, where she noted, at para 14, that while, ordinarily, a juror’s occupation is read out when the potential juror’s name is called, the information is often outdated or wrong. Furthermore, if the occupation is “retired”, there is no indication of what sort of work the prospective juror did.

[44] In Schertzer, a determination had already been made to allow a challenge for cause process due to extensive pretrial publicity. While not related to the issue of pretrial publicity, Pardu J. concluded that in the circumstances it would be more efficient to add a question asking potential jurors “What is your present occupation and what kind of work do you do? If you are retired, what kind of work did you do?”

[45] I do not read the decision of Pardu J. as supporting a free-standing entitlement to question jurors about their occupations.

[46] The second observation is that if information relating to a potential juror’s occupation is provided, it ought to be accurate information. Prospective jurors are sent questionnaires as part of the process of assembling jury panels and it is their answers to questions asked at that stage from which the occupation information presented on the jury panel lists is obtained. As Pardu J. noted, sometimes by the time of trial that information will be outdated, or if the prospective juror is unemployed or retired, their previous occupation is undisclosed. The applicant’s legitimate concern about inaccurate information pertaining to a prospective juror’s occupation can be addressed at the time a potential juror is selected from the panel by the court asking each potential juror, after the court clerk has stated the roll number, name and indicated occupation of that potential juror, to confirm or correct their most recent occupation.

[47] I propose to follow such a process at Mr. White’s trial.

Disposition

[48] For the reasons given, Mr. White’s applications are dismissed.

Graeme Mew J. Handed down orally: 24 July 2018