Court File and Parties

COURT FILE NO.: 3283/08 DATE: 2019-05-28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – MICHAEL DURANT Applicant

Counsel: Andrew Sabbadini, Counsel for the Crown Joseph Wilkinson and Deepa Negandhi, Counsel for the Applicant

HEARD: May 16, 2019

The Honourable Mr. Justice C. S. Glithero

Ruling on Change of Venue Application

PUBLICATION BAN: Pursuant 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 Both of the JURIES RETIRE to consider the verdict in each trial.

The fact that the court has ordered that the venue of the trials has been changed from Welland to a new venue to be named may be published.

[1] Michael Durant brings this application in respect of both indictments before me, each of which charge him with a count of first degree murder. One count is in respect of the death of D.D. in 2003, and the other is in respect of the death of C.C. in 2006.

[2] He was previously charged on one indictment with the two counts of first degree murder. The trial was held in Welland, Ontario. On November 28, 2012 a jury, after deliberating for seven days, returned verdicts of guilty on both counts and the accused was sentenced to the mandatory life imprisonment without eligibility for parole for 25 years.

[3] He appealed those convictions. On February 4, 2019, the Ontario Court of Appeal allowed his appeals on both counts and, importantly, ordered new and separate trials on each count.

[4] This application seeks a change of venue for these new and separate trials, as the primary relief, or as an alternative, an order permitting challenge for cause. The basis for the application is the publicity that has been given to this case throughout its history, before and during the trial and in respect of the appeal, and also on the basis of publicity that has been given to other matters of a related nature, which in turn has been linked to this case.

[5] The Crown opposes the change of venue application, submitting that concerns stemming from pre-trial publicity can be addressed by challenge for cause and the other normal precautionary measures including the jurors’ oath, the trial judge’s instructions, peremptory challenges and other measures as built into our criminal law.

[6] The applicant brought an application for a change of venue before and again during the first trial. They were denied. On this application the defence relies on the material filed on the original application at the first trial, and on evidence of further publicity occurring since then. The evidence regarding the publicity given this case is contained on a USB key marked as Exhibit E in the affidavit in support of this motion. The contents of that USB key are broken down as between the evidence presented at the first trial in support of the requested change of venue, and the new evidence presented in respect of this application.

[7] There are in excess of 250 articles produced. Some are now quite dated. The publicity given this matter has taken place in a way that serves to continually refresh the story and keep it alive. It is not simply the quantity of publicity that has been given to this case which causes concern, but more importantly the nature of the publicity and its particular application to this jurisdiction.

[8] The defence has produced 29 media articles published between the time of discovery of the body of D.D. on August 9, 2003 and January 30, 2006, at which time the accused was arrested for the murder of C.C.

[9] These articles related to the investigation into the death of D.D., which remained unsolved for almost three years. C.C. was reported missing on December 10, 2005 and her body was discovered on January 24, 2006. The applicant was arrested for her murder on January 30, 2006. Between those dates, the Niagara Regional Police Service (NRPS) gave six media releases pertaining to their investigation of her death. Three media stories were published during the time that C.C. was missing and her body not yet discovered. When it was discovered on January 24, 2006, three more media accounts were published reporting the finding.

[10] Three days later, the NRPS announced the formation of a task force to investigate the murder of five named young women said to have lead high risk lives as sex trade workers. Those five named women included D.D. and C.C. Media stories following the announcement of the formation of the task force speculated on the potential that a serial killer was at large in the community. Other stories suggested that a predator was at large in the community. The media’s account were repeated outside of the region according to the affidavit evidence before me. Some 14 articles relating to the task force announcement were published between January 27, 2006 and January 30, 2006, when the accused was arrested for the murder of C.C. The police sought the assistance of the public in their efforts to try and connect the five deaths. Two articles appeared in local media relating to the arrest of the applicant for the murder of C.C.

[11] Media accounts indicated that the investigation into the death of C.C. had provided leads to the police officers investigating the death of another sex trade worker, whose death in turn had resulted in the creation of Project Advocate in 2002. That project investigated the deaths of 12 sex trade workers in the Hamilton area. Media reports indicated that the NRPS had uncovered leads relating to Hamilton death during their investigation of the death of C.C., thereby suggesting a link or possible link between the two murders. Eight media stories were published relating to this aspect of the case. Two other media articles referred to police efforts to solve the other murders in this jurisdiction by reference to the NRPS investigation and the arrest of the applicant for the murder of C.C.

[12] On June 4, 2006, the NRPS announced that a press conference to be held the next day would announce a major breakthrough regarding the Niagara killings which were the subject matter of the task force investigation. The next day, the announcement was that the accused had been arrested for the murder of D.D. Three media accounts were published dealing with this announcement.

[13] A press conference took place with the father of D.D. present to answer media questions. The arrest of the accused for the second murder prompted media speculation that he was responsible as well for the remaining three deaths. The police continued to publicly seek input from anyone having knowledge that would link the killings. The Deputy Chief of the NRPS indicated to the press that the potential for the involvement of the accused in the other three murders was “not outside the realm of possibility.” In the same publication, the reference was made to a photograph of D.D. The article also contained a composite photo of the man believed to have killed N.G., another of the murdered woman. The article also indicated that N.F. was another of the women whose murder was being investigated by the task force whose efforts had resulted in the arrest of the accused for the murder of D.D.

[14] The same day, City News from Toronto used the same composite photograph in a story but incorrectly identified Mr. Durant as being the man being sought for the murder of N.G.

[15] On September 22, 2006, the Niagara Falls Review ran a front page article which misreported that the accused was charged in the death of yet another of the five murdered woman.

[16] Thereafter media coverage of this case continued with some 32 additional articles appearing in various publications, often on the front page of local media publications, dealing with relatively routine matters such as video remands, and alleged smirk by the accused towards D.D.’s father at a court appearance, Legal Aid issues arising with respect to the retainer of counsel and a change of counsel for the accused.

[17] On March 4, 2007, the body of Stephanie Beck was found at the side of a rural road in Vineland. She was known to have lived a lifestyle similar to that of the five women who were the subject of the task force’s efforts. The media reported on her death. Wayne Ryczak was arrested and charged with her death and on May 14, 2008, pleaded guilty to manslaughter. The evidence on the plea raised issues related to the cause of death and to the circumstances existing at the time of her death, raising self-defence implications, as she was strangled while illegally in Ryczak’s home and after she had attacked him more than once when he discovered her there. The guilty plea was accepted on the express admission that Ryczak had used unreasonable force in repelling her attack. He was sentenced to 30 months but was given credit for pre-trial incarceration such that the remaining sentence was one day imprisonment plus probation.

[18] This outcome led to much local media coverage, and as well in surrounding areas, with the general theme being that the one day sentence was totally inadequate and was only imposed because the victim was a sex trade worker and accordingly was treated by the court as less worthy than others would be. Some 23 articles were published locally, perpetuating this theme. Protests were held. Petitions were circulated in an effort to pressure the Attorney General to appeal the sentence. All these matters were reported in the press. Ultimately the sentence was appealed. The Court of Appeal unanimously upheld the sentence and dismissed the appeal. The decision of the Court of Appeal similarly was greeted locally with condemnation and disdain in the local media and that in surrounding areas. Six media articles purported to record the dissatisfaction locally with the appellate decision.

[19] A further media article described the efforts of a local MPP to have the Attorney General appeal the sentence. Another local media article chronicled the outrage of the family members of D.D. and C.C., who expressed concern that Mr. Durant would ever receive such an inadequate sentence. Media accounts made it known that supporters of C.C. were instrumental in organizing the petitions which condemned the Ryczak sentence, and that one of such petitions was presented to the local MPP.

[20] Other media accounts reported that petitions had been provided to the local MPP and to the local MP. Further political involvement in this matter took the form of a private members’ bill introduced by a local MP, calling for the elimination of 2:1 credit for pre-trial custody. The bill died with that parliament, but another bill to the same effect was introduced at the subsequent parliament by the Minister of Justice, who was the MP for one of the local ridings here in Niagara. That bill was passed, and the local MP who had initiated the original bill indicated that it was a result of the cases here in the Niagara community. The Minister of Justice made similar comments. The local mayor also praised the community’s efforts in having the law changed.

[21] Despite the fact that the applicant was first charged 13 years ago and the fact that his first trial ended seven years ago, much of that earlier publicity surrounding his arrests and charges, the killing of other Niagara sex trade workers, the work of the NRPS Task Force investigating the unsolved killings of sex trade workers, the Ryczak case, the first trial and the appeal remains available on the internet.

[22] The first trial attracted media publicity, as one might expect. Some 10 articles or media videos were published relating to various events during the trial, including a detailed account of the evidence of Mr. Durant’s ex-wife, who claimed that he admitted the murder of D.D. to her and forced her to help him move the body, and including accounts of the closing addresses of both sides summarizing their respective positions.

[23] His convictions for both murders on November 28, 2012, prompted 8 media accounts of that fact that he was convicted of both counts of first degree murder.

[24] Mr. Durant appealed the convictions and the media continued to follow the story with some 13 published accounts, both locally and in surrounding areas. These accounts published that the successful appeal related to the convictions for killing the two women in the Niagara region. Another five publications reported the turmoil being experienced by family members of the deceased women as a result of new trials being ordered.

[25] Between February 4 and April 24 of this year, some 14 stories have appeared in the media. Every one of them refers to the fact that he was charged with and found guilty of the murders of two women.

[26] On this application the Crown has filed an affidavit from the officer in charge of this case, whose research on the issue of publicity. His search located 57 articles relating to this case between 2006 and 2019. With respect, the applicant’s affidavit materials show almost five times as many publications.

[27] Of the various published pieces placed in evidence, the majority are from the print media in the Niagara region, and include some from the Hamilton Spectator and a few from the Globe and Mail, Toronto Star or National Post. While I have no evidence on the matter, I think it fair to take judicial notice that many people living outside of Toronto subscribe to and read both a local paper as well as one of the (Toronto) national newspapers.

[28] Also in this day and age it is impossible to ignore the impact of the internet and social media. Many, if not most of these published articles that appear in print form, also are available in the internet. It is impossible to track discussions about a case such as this as between those who utilize social media.

[29] The Crown’s evidence indicates a total population for Niagara South, where Welland is located, of 225,000, with 157,700 of them being between the ages of 20 and 74.

[30] Affidavit evidence provided on behalf of the applicant on the original application prior and during the first trial indicated population figures from the 2006 censes for Niagara South indicating a total population of 235,000 and that of those 175,000 were eligible to be jurors.

Legal Principles

[31] Section 599(1) of the Criminal Code provides that the Court may order a change of venue when “(a) it appears expedient to the ends of justice.”

[32] Case law has served to add definition to that phrase in the Code. In R. v. Beaudry at para 9, the test was stated to be “on the material before me has it been made to appear that there is a fair and reasonable probability of partiality of prejudice in the jurisdiction within which the indictment has been laid and in which the accused in the ordinary course of events will stand trial? If it has been made to so appear then, in the words of the Code, it will undoubtedly be ‘expedient to the ends of justice’ that the accused by tried in some other territorial division.” With respect to the impact of publicity on a change of venue application, the Quebec Court of Appeal in R. v. Proulx (1972), 76 C.C.C. (3d) 316, beginning at 355 held the test to be ‘is a change of venue necessary in order to ensure that the accused has a fair trial in a serene environment and is heard by an impartial jury? We agree with the trial judge that the mere fact of sensationalists 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.’”

[33] As held in R. v. Collins (1989), 48 C.C.C. (3d) 343, the decision is discretionary but such discretion must be exercised judicially.

[34] The Ontario Court of Appeal in R. v. Suzack (2000), 141 C.C.C. (3d) 449 at para 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 of 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.”

[35] It was further observed at paragraph 38 of Suzack that where the real prejudice to an accused would arise from the evidence which the jury would hear during the trial in any event, a change of venue does not assist and the other safeguards must be relied upon in an effort to provide a fair trial. That restriction has only limited application here.

[36] In R. v. Murray, [1997] O.J. No. 2692 at para 25, Donnelly J listed 13 procedural safeguards designed to guard against partiality at a trial. The laws always place great faith in these various safeguards and in the ability of juries to abide by legal instructions. The fact remains that a change of venue is one safeguard provided by the Criminal Code. As noted in R. v. Kully (1973), 15 C.C.C. (2d) 488 at page 493, “If all these other safeguards were sufficient in all cases there would be no need for the change of venue remedy. Such remedy remains available where the circumstances of the case, in the discretion of the application judge, make it necessary to change the venue in order to protect the fair trial interests of the accused and hence of society.”

[37] In R. v. Yarema, [1990] O.J. No. 2785, Justice Watt (as he then was) observed that it was not the fact that pre-trial publicity which will support a change of venue, but rather the nature and extent of the publicity that may do so. He further observed it’s not surprising the murders receive media attention and that alone will not justify a change of venue, in particular where the pre-trial publicity refers to facts that would be admissible at trial in any event, but at paragraph 26 he notes the situation is or may be different if the fair trial rights of the accused are adversely affected “by advance disclosure of prejudicial information that could not, or is unlikely to become, evidence at trial.”

[38] R. v. Papadopoulos, [2006] O.J. No. 5403 was a case where pre-trial publicity contained erroneous reports relating to admissions by the accused of participation in the offence. The pre-trial publicity also referred to all five accused as members of a gang and yet it appeared such evidence would not be admitted at trial. Justice Dawson concluded that “the prejudicial effect of much of what has been published is not inherent to 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].”

[39] 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 and of the publicity were such that they may have their memories refreshed as the case proceeded and the evidence unfolded. He expressed concerns in that case that reliance on challenge for cause to address the issue might well prove inadequate as general questions simply enquiring as to previous knowledge of the case may not suffice to permit a perspective juror to give a meaningful response. He also observes that on the other hand if more specific questions are asked, they may in themselves undermine the process by refreshing the mind of a potential juror, or by prompting answers by one potential juror which would contaminate jurors already sworn. The case is also useful in that Justice Dawson recognises and enunciates the fact that the level of media interest shown in the case up to that point in time lead him to conclude that it was likely that media pre-trial publicity would continue as the case progressed through its various stages and also made it likely that future stories about the case would continue to repeat much of the prejudicial information previously reported.

[40] The case of R. v. Witty, [2002] O.J. No. 1998 dealt with a situation similar to this one. There had been publicity about another case involving the same accused, involving the same charge but in relation to a difference incident. That published information would not be admissible at the trial for which the change of venue was sought. The change of venue is granted as it would found to be very likely that the jury pool would have considerable potentially inadmissible evidence in their minds before the trial commenced.

[41] Also of assistance is R. v. Genereux, [2001] O.J. No. 2391 as it involved a re-trial following the publication of evidence ruled on appeal to have been improperly admitted at the first trial. As a result, the trial judge concluded it was likely the jury would know of the conviction in the first trial. Justice Valin took into account the negative newspaper accounts which followed from the original conviction and was of the view that it would be difficult if not impossible to formulate challenge for cause questions that would be affective and yet not remind potential jurors of the previous conviction or of the evidence which was not to be admitted at the new trial.

[42] The Crown placed considerable reliance on R. v. Millard, [2015] O.J. No. 7207 where the trial judge held that the evidence of pre-trial publicity was shown to be “ubiquitous”, and that there was no place in Ontario of sufficient size to provide an appropriate panel that had been immune from the publicity such as to benefit trial fairness by moving the trial to that location. I would add the case of R. v. Forcillo, 2015 ONSC 4876 to the same effect. Both cases received extensive pre-trial publicity including video coverage in the Forcillo case repeatedly shown and carried in all major media outlets.

[43] 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 this case has circumstances analogous to those in the precedents, the value of the precedents increases.

Discussion

[44] Undoubtedly the ability to challenge for cause is a useful tool in the search for an impartial jury. The Crown asserts here that challenge for cause in this case would be a sufficient mechanism and that accordingly a change of venue is not required. However, this case demonstrates that a challenge for cause is not always effective. The Court of Appeal decision in this case at paras. 111 through to 157 details what happened during the first trial.

[45] In short, shortly after the evidentiary portion of the first trial had commenced, a Crown witness, whose name had been read out by the Crown in accordance with the standard procedure during the judge’s opening instructions to the panel, came forward to the Crown indicating that she knew one of the jurors. That Crown witness was a step-mother of one of the victims and had been active in promoting concern for victimized sex trade workers in that area. During the inquiry into the suitability of the juror to continue, both the Crown witness and the juror in question were questioned. The accounts they gave as to the nature of their prior acquaintance varied widely, with the witness claiming that she and the juror had been to each other’s homes, had hung out at the same bar, and had mutual friends. The juror claimed to know a person with the same first name as the juror, but that he did not know the juror’s last name, and that he had seen her at the courthouse that morning, but that he did not know of her relationship to one of the victims, and denied ever having been at the home of the witness or having ever discussed the case. The Court of Appeal allowed the appeal on this ground as well, finding that it was an error to have failed to excuse the juror as that was required to maintain the appropriate appearance of justice. As I read the decision, the Court of Appeal doesn’t make any finding as to which of the two accounts, that of the juror or that of the witness, was accurate. Regardless, had the issue not been raised, it would appear the case would have proceeded with the problem surfacing in one of two ways. Either the juror would have disclosed the relationship once the Crown witness testified and the juror recognized her, raising the potential for a mistrial after the trial had already started. Or, the juror may have said nothing when the witness testified and participated in the jury’s determination of the case despite at least an appearance of partiality.

[46] It seems to me that the smaller the size of the jury pool in a particular community, the greater the danger that a juror will know someone with a connection to the case, but not be aware of that fact until the evidence begins to unfold and aspects of the circumstances of the case become known, such as to then trigger a recollection on the part of the juror of which he or she was unaware at the time of being challenged for cause.

[47] In my opinion it would be difficult, if not impossible, to formulate challenge for cause questions which would be effective in this case.

[48] At the first trial, potential jurors were asked “Have you learned anything about Mr. Durant or the deaths of C.C. or D.D. by hearing or reading reports either in newspapers, on television, on the radio or on the internet that has caused you to form an opinion about whether Mr. Durant is likely guilty or innocent?” If the juror answered in the affirmative they were then asked “Would you be able to put that opinion aside and decide the case based only on the evidence presented in this court?”

[49] In my opinion, the nature of the publicity in this case, together with the history of this prosecution would require much more extensive and pointed questioning in order to be effective. Jurors may very well know things about this case, given the publicity it has received, and yet not be aware of the names of either the accused or the victims. To be effective, they ought to be asked about any knowledge of the fact that there are five murdered sex trade workers, that their local police force formed a task force to investigate the murders, that the two victims in this case are two of the five cases and that the other three cases are still unresolved. To be effective they ought to be asked about any knowledge of the Ryczak case and the publicity given to the sentencing, or the appeal of the sentencing. They ought to be asked whether they are aware of any concerns about a serial killer or predator being at large in the community. That they ought to be asked whether or not they are aware that the accused was previously tried and convicted of not one, but two murders. The difficulty is that in formulating questions in order to seek out such knowledge on the part of a potential juror, the very nature of the question would alert the potential juror to the existence of the kind of information they ought not to have.

[50] This type of concern has been raised in previous cases.

[51] See for example R. v. Effert, 2008 ABQB 200 at paras. 39-40, overturned on other grounds, 2011 ABCA 134. As observed there, the problem is greater in re-trial situations.

[52] As Justice Dawson put it in R. v. Papadopoulos, [2006] O.J. No. 5403 at para. 20 “Challenge for cause questions of a “closed-ended” nature may prove inadequate to discover potential problems related to this publicity. More open-ended questions risk undermining the purpose of the process by contaminating potential jurors and also pose a risk of a potential juror blurting out something which could contaminate jurors already sworn.”

[53] In my opinion, the quantity of publicity given this case, both prior to the first trial and since, has been substantial and continuing.

[54] While the quantity of publicity is not determinative, nevertheless the more there has been, the greater the risk potential jurors will have knowledge of the case.

[55] More importantly, in my opinion the nature of the publicity received by this case is such as to have given rise to significant community interest and concern, over and above that generated in many murder cases.

[56] The fact that five women, said to be sex trade workers, were all found murdered and their bodies discarded would understandably attract the attention of an average potential juror, and for good reason, particularly in a relatively small community.

[57] The often publicized fact that C.C. and D.D. are two of those five murders, and the fact that the other three remain unsolved, is another feature that would have gained the attention of potential jurors.

[58] The media accounts with respect to the missing women gave rise to concerns as to whether a serial killer or predator was responsible for these deaths. In my opinion, a suggestion of the possibility that a serial killer or predator was at work in a community understandably would concern any potential juror who heard of it, directly or indirectly, and that such concern would remain in the memory of a potential juror who proceeded to hear the case.

[59] In my opinion the considerable publicity concerning concerns for the wellbeing and safety of sex trade workers in this locale, understandable and well intentioned, is something that would catch the attention of potential jurors. In my opinion that kind of community concern, as expressed in the media publicity, demonstrations, petitions and the like is of an unusual nature and extent such that potential jurors are likely to have become aware to some extent of this feature. These types of concerns became publicized early on in the investigation and during the early proceedings after Mr. Durant’s arrest.

[60] The oft reported formation of a task force by the local police force to investigate the five deaths, and to work with neighbouring police forces to coordinate investigations, is again in my view a noteworthy feature of the pretrial publicity which is likely to have gained the attention of potential jurors and to remain in their memory.

[61] The attention given to the sentence in the Ryczak case, and in the appeal from that sentencing, and the public clamour which followed, with some of the media accounts relating it to the Durant case by expressing family concerns that he would receive that type of sentence is something that understandably would catch the public attention and retain in the awareness of potential jurors.

[62] Both of the upcoming separate trials for the two deaths are the result of the much publicized Court of Appeal decision, which in turn was preceded by publicity that the accused was appealing his earlier convictions. The principle ground upon which the Court of Appeal ordered new trials was on the basis that there had been an error in permitting the evidence in one case to have been applied as similar fact evidence in the other. The Court of Appeal ordered separate new trials. Just as it was held that a jury determining the case with respect to the death of one of these women ought not to have been made aware of the allegation of murder with respect to the other, similarly a new jury on either of the new separate trials directed, ought not to be aware that Mr. Durant is charged with the murder of the other victim.

[63] Nor should the jury on either of the new trials be aware that Mr. Durant was previously convicted by another jury drawn from the same community.

[64] Since the arrest of Mr. Durant for the murder of D.D., virtually every publication about this case has mentioned the fact that he is accused of the murder of both women, and the majority of the stories also make known that the other three deaths remain unsolved.

[65] Given the history of the media attention paid to this case, I am of the view it is reasonable and appropriate to conclude that it will continue to receive significant publicity as it proceeds towards the two separate upcoming trials. There is nothing to prevent re-publication of any of the media stories relating to the missing women, their deaths, the arrests, the first trial, the appeal or the Ryczak case as the new trials approach.

[66] I think there to be a realistic potential that potential jurors, in either or both of the upcoming trials, both of which will be of some significant length, are likely to inadvertently hear about one or more of the factors set out above, whether by way of casual conversations or other forms of unsolicited input.

[67] I also recognize a very real possibility in this case that a perfectly honest jury could profess during challenge for cause to have no knowledge of this case that would prevent him or her from deciding the case impartially, and yet become more susceptible to partiality as the trial evidence unfolds and brings back to that juror’s mind one or more features of the publicity that he or she had previously forgotten.

[68] While some of the publicity given this case has appeared in media outlets from outside this immediate Niagara South area, in such publications as the Globe & Mail, the Toronto Star and the National Post, and hence be potentially known by members of the jury pool wherever this case might be tried, in my estimation it is much more likely that potential jurors from this area will remember features of this case because it would understandably be of greater concern to them. Gruesome events such as those that form the subject matter of these charges are fairly said to have more impact in the area where they occurred, than would be the case elsewhere.

[69] I am of the view that the pretrial and post-trial publicity given to this case, while extensive, is not of the nature or breadth as was the case in both the Millard or the Forcillo cases. The decision in each of those two cases was that the publicity had been so widespread that no new venue would be immune. In my opinion the pre-trial publicity in this case was not so widespread as to give rise to that problem.

[70] In my judgement the applicant has succeeded in demonstrating, on a balance of probabilities, that there is a fair and reasonable likelihood of prejudice in Niagara South which cannot be overcome by the other jury selection and trial safeguards.

[71] For these reasons I allow the application and order that the venue of each of the two new trials be changed from Welland. In accordance with the protocol of the court, the new venue(s) will be determined by the RSJ.

[72] While challenge for cause might still also be warranted, that is best determined when the new venue(s) are known and the new trials are more imminent.

C.S. Glithero J. Date: May 28, 2019