R. v. Scalzo, 2019 ONSC 6061

Her Majesty the Queen v. Joel Scalzo

COURT FILE NO.: CR 19-36

DATE: 2019/10/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

JOEL SCALZO Applicant

COUNSEL: L. Brock, on behalf of the Crown J. Goldlist, on behalf of the Applicant

HEARD: October 9, 2019

A. J. Goodman J.:

RULING ON APPLICATION FOR A CHANGE OF VENUE

THIS RULING IS SUBJECT TO A BAN ON PUBLICATION in accordance with s. 648 of the criminal code AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTIL THE JURY IS SEQUESTERED OR A FURTHER ORDER OF THIS COURT.

1This is an Application brought by the applicant, Joel Scalzo (“Scalzo”) for a change of venue for the trial. The Crown Attorney oppose the Application.

2The applicant applies for an Order pursuant to s. 599 of the Criminal Code directing that his trial be held in a venue other than Brantford. The applicant also sought and was granted an Order pursuant to s. 648(1) of the Criminal Code, prohibiting the publication or broadcast of the fact that a change of venue has been sought, the evidence, submissions, or ruling on this Application, until after the completion of the trial.

Background:

3On January 1, 2018 Jeffery Maxner (“Maxner”) was shot and killed while he was the passenger in a parked motor vehicle in a Brantford parking lot.

4On January 3, 2018, the applicant was arrested for uttering death threats against Maxner. Approximately a week later, the police· executed a search warrant at the applicant's residence looking for evidence connected to Maxner's murder. No such evidence was located but drugs and other weapons were found. The applicant was then charged in relation to illegal weapons and illegal drugs located at his residence. This has been reported in the local media.

5Prior to Maxner's death, he and his girlfriend Katrina Oakes, allegedly exchanged heated words with the applicant over the phone earlier in the day. As a result of this exchange, the applicant was arrested on January 4, 2018 for uttering threats. The media released information about the applicant's arrest and indicated that it was connected to Maxner's murder. Approximately one week later, the applicant was charged with multiple drug and weapons offences. The local media released further information about the applicant's charges and indicated that they were connected to Maxner's murder.

6In January 2018, when the applicant was arrested for uttering threats, Maxner's friends and relatives attended the applicant's appearance in bail court.

7On February 2, 2018, the applicant was charged with the murder of Maxner. An article from the local newspaper, the Brantford Expositor, made specific reference to the fact that more than two dozen family members and friends were in attendance at the Brantford Courthouse on that date.

8On October 5, 2018, the applicant plead guilty to possessing cocaine for the purpose of trafficking and was sentenced accordingly. Members of the community were present at the appearance and the plea was reported in the local paper.

9In November 2018, the Brantford Expositor published a news article in relation to the applicant's guilty plea and sentence for his drug and weapons charges. The article stated that "a drug dealer who still stands accused on the New Year's shooting of Jeff Maxner was sentenced on drug and weapons charges last month." The article additionally stated that the court ordered the items which were seized from the applicant upon his arrest, namely brass knuckles, brass knuckles with a blade and a switchblade knife, to be forfeited.

10Daniel Marcovitch, a student at JHG Criminal Law, attended routine court appearances for the applicant throughout the summer months of 2018. At each of these court appearances, Mr. Marcovitch observed a number of persons in the body of the court wearing t-shirts with "Justice for Jeffery" written across the front. On one occasion, the applicant's matter had to be spoken to prior to all of the other matters on the list due to the amount of community members that were present in the body of the court.

11The applicant's preliminary inquiry was held over the course of five days: on November 16, 2018, December 3, 2018, December 7, 2018, December 12, 2018, and March 4, 2019. On each date of the preliminary inquiry, numerous members of the community attended at court. Again, most of them wore t-shirts which read "Justice for Jeffrey". Scalzo did not want any of his family or friends to attend the appearances for fear they would be ridiculed or threatened by the Maxner family and friends.

12On March 28, 2019 and April 25, 2019, Ms. Ashley Audet appeared for the applicant in the Superior Court assignment court. On both of these dates Ms. Audet observed numerous members of the community in the body of the court while she spoke to Scalzo's matter and who exited immediately after his matter was addressed.

13Articles were published by the Brantford Expositor on April 3, 2019 and June 6, 2019 referencing that in February 2018, the courtroom was filled with Maxner's family and friends when it was announced that the applicant was charged with first degree murder. The April 3, 2019 article indicating that the applicant had been committed to stand trial following his preliminary hearing. The article provided a chronology of the above events and reiterated that the applicant was charged for being in possession of drugs, brass knuckles and a switchblade knife.

14On June 5, 2019, another male person was arrested and charged with the first degree murder of Maxner. Following this arrest, numerous news articles were published including another article from the Brantford Expositor which again referred to the applicant. Amongst other accounts, the article stated that the applicant “had pleaded guilty to the drug and weapons charges" and was sentenced to a period of custody.¹

Positions of the Parties:

15The applicant says that he is charged with the murder of Maxner, a well-known and liked member of the Brantford community. His murder has shocked and upset numerous members of his family and friends.

16The applicant submits that due to the publicity, the pool of potential jurors in the Branford region has been irreparably tainted, necessitating a change of venue for this trial. The applicant submits that this investigation attracted significant media attention and community involvement.

17At each and every one of the applicant's court appearances, numerous members of the community attended the courthouse and filled the body of the court. Many of them wore t-shirts with "Justice for Jeffery" written across the front. The fact that community members were present in court has been mentioned by the media in news articles.

18While the community’s sense of loss and the overwhelming show of support and compassion for the victim is entirely appropriate, the applicant submits that the visceral hostility towards him makes it impossible for him to receive a fair trial in the city of Brantford, even with a challenge for cause. Moreover, the elimination of peremptory challenges removes a significant safeguard for a fair trial based on the concerns raised here.

19The media coverage in this case has been exceptional and has been highly adverse and prejudicial to him. No doubt, the publicity will escalate significantly once the trial draws near. Selecting impartial jurors from this community that have been so moved and devastated by the reporting and community involvement including social media comments; the applicant submits that in these exceptional circumstances, the ends of justice demand the applicant be tried elsewhere.

20In response, the Crown agrees that a charge of first degree murder in any community garners media attention. It is typical for the family and friends of the deceased to attend court proceedings, especially when the accused is present.

21The Crown submits that there is a strong presumption in favour of trying this case in Brantford and an absence of compelling grounds to justify a move of the trial. The Crown says that Maxner's family and friends, regardless of the venue, would be present at the applicant's court appearances. Further, nothing in their behaviour at court would taint a potential jury pool. The reasonable person would expect in most cases that the family and friends of a victim of a homicide would harbour negative feelings towards a person accused with their loved one's murder. Pre-trial publicity alone, or even attendance by those interested persons at various court appearances, are insufficient factors to overcome the presumption.

22The applicant continually refers to the victim as being very well known and well liked in Brantford. The Crown responds that Maxner was certainly well liked by his family and friends, but there is no basis to ground the notion that this sentiment extends to the Brantford community at large. The applicant does not refer to any community work, employment, political involvement or other activity that would cause the victim to be well known to the Brantford community. There is no factual basis upon which the applicant can rely for this unsupported claim.

23The Crown submits that the applicant has not demonstrated that moving the trial would improve his chances at a fair and impartial trial. The Crown submits that the fair trial rights of the applicant can be effectively dealt with through the traditional and evidentiary safeguards including an expanded challenge for cause for publicity, along with clear instructions to the jury.

Legal Principles:

24The Application is brought pursuant to s. 599(1) of the Criminal Code, R.S.C. 1985, c. C-46, the relevant part of which reads as follows:

A court before which an accused is or may be indicted, at any term or sittings thereof, or a judge who may hold or sit in that court, may at any time before or after an indictment is found, upon the application of the prosecutor or the accused, order the trial to be held in a territorial division in the same province other than that in which the offence would otherwise be tried if

(a) it appears expedient to the ends of justice ...

25Jurisprudence from the various courts of appeal tend to uphold the well-established principle and presumption that criminal trials should be held in the venue in which the alleged crime took place. This presumption was reiterated by the Ontario Court of Appeal in R. v. Suzack, 2000 5630 (ON CA), 141 C.C.C. (3d) 449, [2000] O.J. No. 100, at para. 30:

It is a well-established principle that criminal trials should be held in the venue in which the alleged crime took place. This principle serves both the interests of the community and those of the accused. There will, however, be cases where either or both the community’s interests and the accused’s interests in a fair trial are best served by a trial in some other venue.

26In R v. Charest, [1990] J.Q. No. 405, the Quebec Court of Appeal stated that the question to be asked is whether a change of venue is necessary to ensure that the accused has a fair trial in a serene environment and is heard by an impartial jury. Extensive prejudicial publicity before the trial, pronounced hostility toward the accused, widespread sympathy for the victim, and an enraged community can create, especially in a small judicial district, the kind of emotionally-charged atmosphere in which the ends of justice may be best served by removal of the trial to another venue.

27One of the leading authorities that has survived the test of time is R. v. Bryant (1980), 1980 2859 (ON SC), 54 C.C.C. (2d) 54 at 56-57, (Ont. H.C.), wherein Henry J. outlined the burden where a change of venue is sought:

There is a very fundamental principle at common law (of which this section is a codification) that an accused should be tried in the territorial jurisdiction within which the offence alleged was committed. The authorities are consistent that that venue should not lightly be changed and the trial moved elsewhere; the Court's discretion should be exercised with great caution and only on strong grounds. The onus is on the applicant to satisfy the Court that this principle should be displaced by the exercise of the Court's discretion: see R. v. Adams (1946), 1946 64 (ON SC), 86 C.C.C. 425, [1947] 1 D.L.R. 634, [1946] O.R. 506; R. v. DeBruge (1927), 1927 536 (ON SC), 47 C.C.C. 311, 60 O.L.R. 277, 32 O.W.N. 38; and R. v. Kully (1973), 1973 833 (ON SC), 15 C.C.C. (2d) 488, 44 D.L.R. (3d) 401, 2 O.R. (3d) 463.

28The decision whether to grant a change of venue lies within the discretion of the judge hearing the motion. The fundamental consideration is whether a change of venue is necessary in order to ensure that the accused has a fair trial with an impartial jury: R. v. Collins (1989), 1989 264 (ON CA), 48 C.C.C. (3d) 343, [1989] O.J. No. 488 (Ont. C.A.).

There can be no doubt that s. 599(1) must operate in a manner that is consistent with Charter rights and in particular, the right to a fair trial. I regard s. 599(1) as one of many mechanisms designed to protect an accused's right to a fair trial. If a judge is satisfied, having regard to the various mechanisms available to protect an accused's right to a fair trial, that an accused cannot receive a fair trial in the assigned venue, then the interests of justice would clearly require a change of venue under s. 599(1)(a).

There is nothing inconsistent with an accused's right to a fair trial and the placing of the onus on an accused to demonstrate that a change of venue is "expedient to the ends of justice." Placing the onus on the accused, if he is the applicant on the change of venue motion, is nothing more than an application of the traditional and well-established rules of the adversarial process. A party who seeks a remedy bears the onus of showing the need for that remedy. The Charter itself reflects this traditional approach in that it is the party alleging a breach of his or her Charter rights who bears the onus of establishing a breach and the onus of establishing the appropriate remedy under s. 24 of the Charter.

Nor in my view does the right to a fair trial require a change of venue wherever pre-trial publicity poses a risk to that right. The risk will exist to some extent in virtually every case where there has been pre-trial publicity. The right to a fair trial is compromised where despite the available safeguards there is a reasonable likelihood that an accused cannot receive a fair trial in the local venue.

Analysis:

29It is settled law that a change of venue should only be granted when despite procedural and evidential safeguards, it is unlikely that the accused will receive a fair trial.

30The onus is on the applicant to show, on a balance of probabilities, that there is a fair and reasonable likelihood of partiality or prejudice in the local community that cannot be overcome by the safeguards available during jury selection and the trial process. Specifically, in this case, the applicant must demonstrate there is a fair and reasonable probability of prejudice in the City of Brantford and environs in order to obtain the exceptional order of a change of venue to another location.

31The applicant asks this Court to draw the inference from the materials filed, that the jury pool in Brantford has been tainted such that it is not now impossible to obtain a fair and impartial jury. The basis for the Application is, as already noted, the pervasive publicity and notoriety that this case has received in Brantford from media reporting and the internet and community involvement.

32There is no question that this case drew community attention during the time of the applicant’s arrest for this and other crimes, and the months immediately following. Media and community interest still remain.

33It is also clear that the right to a fair trial does not require a change of venue wherever the fact of pretrial publicity poses a risk to that right. The risk will exist to some extent in virtually every case where there has been pre-trial publicity.

34As Watt J. stated in R. v. Yarema, [1990] O.J. No. 2785 (H.C.), at para. 24:

It has been several times and well said that it is not the fact but, rather, the nature and extent of pre-trial publicity that may create a fair and reasonable probability of prejudice in the territorial division in which the trial would, prima facie, be held. In other words, the mere fact of publicity will not, per se, afford a ground for changing the venue of a criminal trial.

35A significant amount of media coverage, as is the case here, is only one part of the pre-trial publicity consideration.

36Prejudice may lie where such information was disseminated or published with substantial details of what was unlikely to become evidence at trial. For example, there might be prejudice if media coverage disclosed a considerable or significant amount of prejudicial or inadmissible information about an accused, or disclosed evidence a jury would not be permitted to consider at trial. Those and other considerations would be important and compelling factors for a change of venue.

37In the context of prejudicial information being disseminated prior to trial, I considered the case of R. v. Papadopoulos, [2006] O.J. No. 5403 (S.C.). Dawson J. granted a change of venue on very specific facts including that an article had been published indicating all five accused acknowledged their participation in the homicide. But at trial, only two accused admitted responsibility for manslaughter, and the responsibility of the other three remained a live issue for the jury. The underlying fact pattern that arose in Papadopoulos is distinguishable.

38In R. v. Sandham, [2008] O.J. No. 5806, (S.C.), Heeney J. faced a similar situation where there was a change of venue request based on the substantial amount of local media reports. At para. 38, Heeney J. stated:

Another point to be considered is whether there are any other exacerbating factors, such as evidence of a particular local reaction to the crime or the accused. Here, there is no evidence of any such factors, nor can any be inferred from the circumstances. This is not, for example, a case like the Bernardo case, where two young girls were abducted, raped, murdered and then butchered.

39Heeney J. continued with instructive comments found at para. 41: “It is apparent, though, that the hostility has to be extreme to warrant a change of venue on this ground.”

40In support of his argument, Mr. Brock refers to my ruling in the notorious case of R. v. Millard, 2015 ONSC 6206, (also known as the “Bosma trial”), a case that garnered far more publicity pre-trial than this prosecution. In Millard, I denied the change of venue application. I stated at para. 50 that "a significant amount of media coverage, as is the case here, is only one part of the pre-trial publicity consideration and, in and of itself, would not give rise to a successful change of venue application".

41It was acknowledged that even the Millard matter, which in and of itself garnered significant media attention, and included much sympathy to the victim and the victim's family, did not get the same level of negative public sentiment as found in the case of R. v. Forcillo, 2015 ONSC 4876. As I stated at para. 63, in relation to Millard, "here, I do not have similar depth or volume of articles that detail the actual events that are alleged to have occurred with opinion directed to the actions of the application or the nature of the prosecution's evidence compared to the media coverage surrounding Mr. Forcillo”.

42From these cases, it is recognized that if the nature of the information in a case is seriously misleading, obviously in error, or the media has set out to vilify the accused, these factors can often be a feature of successful change of venue applications.

43So, is there evidence of publicity or articles published by the media that have not been favourable to the applicant or in disseminating prejudicial or hostile information about the alleged events that goes beyond the point to ensure that the applicant has a fair trial judged by an impartial jury in Brantford?

44In delving fully into the issue of prejudicial content, in Forcillo, Then J. had the opportunity to consider the specific facts of that notorious case. The accused, a police officer was charged with second degree murder. While on duty, he was alleged to have repeatedly shot and killed a mentally distressed individual who had commandeered a street car. A video captured the entire event and subsequently went “viral” on the internet.

45At para. 27, of the decision, Then J. outlined some of the abundant opinions published by the Toronto Star that were unfavourable to the accused. Indeed, the video of the incident in the public domain along with the various expressions of opinion in the Toronto Star did not enhance Forcillo’s fair trial rights.

46Here, the Crown responds that the media coverage in the case does not rise even close to the level of the media coverage as found in infamous cases such as Forcillo or Millard, or even other notorious cases in Hamilton or Toronto. The coverage that has occurred in the case at bar is limited to local media coverage of a crime.

47According to the evidence filed, a simple Google search of Jeff Maxner and/or Joel Scalzo reveals numerous news articles about the murder, most of which claim that Joel Scalzo is a drug dealer. Copies of 17 news articles which span the period from January 11, 2018 to June 7, 2019 are included in the materials. Uncontradicted evidence from the applicant suggests that 46,500 copies of the Brantford Expositor newspaper are distributed throughout Brantford every Thursday. The dates of these four articles are February 2, 2018, November 11, 2018, April 3, 2019 and June 6, 2019. The last three of these articles refer to Scalzo's previous convictions for weapon offences.

48The Crown submits that despite there having been pretrial media coverage of the matter, there is no evidence showing that the applicant has been unfairly portrayed in the media as a heinous person. There is little mention of the specific evidence or opinion on the merits of the prosecution one way or the other.

49Nonetheless, as part of determining whether there is prejudice or hostility, I must assess the impact of the publicity generated by the media, appearances by individual community members at court, the circulation of the various publications and the temporal aspects of such circulation. Additionally, social media and the internet may play a role.

50Two of the more significant factors to be considered are the size of the community and the nature, extent and effect of publicity surrounding the case: R. v. Genereux, [2001] O.J. No. 2391 at para 20. In certain circumstances, the strong feelings of a community can contribute to the difficulty in empanelling an impartial and uninfluenced jury: R. v. Anablak, (1982] N.W.T.J. No. 31 (S.C.).

51In R. v Wilson, 1983 2094 (SK KB), [1983] S.J. No. 623, at para. 7, the court listed the following factors as among those that should be considered in an application for a change of venue: i. Nature and extent of the offence; ii. Nature and extent of public opinion in the area, its size, generality and crystallization, if any; iii. Size of community; iv. Status of accused in community; and v. Popularity and prominence of the victim.

52Nature and Extent of the Offence: The applicant is charged with the most serious offence in the Criminal Code; first degree murder. The nature of the allegations consists of a very-well liked member of the Brantford community being shot and killed in a public place in broad daylight.

53Size of Community: I note that in R. v. Miller, (1979), 1979 4455 (ON SC), O.J. No. 1008, the court held that the size of the community must always be taken into account. The probability of prejudice or partiality in a small community is not the same as in a large community.

54The underlying factors in several cases relied upon by the applicant must be analyzed. For example, in Wilson, the community size was 6,100 residents. The population in Genereux was 4,600 residents and involved the brutal murder of a child. The size of the community in Anablak was 800 residents in the Northwest Territories. The size of the community in R. v. J.I. was 565 residents, with half under the age of 19, also located in the Northwest Territories.

55I agree with the Crown that considerations regarding community size and prejudgment would be quite different in those very small, close-knit communities compared to an area the size of Brantford and Brant County.

56The most recent Census Canada data that is available for Brantford is from 2016. The data indicates that the population of Brantford and Brant County in 2016 was 130,296 people. The cases referenced by the applicant can be distinguished on the facts based on community size alone.

57Status of Accused in the Community: The applicant was convicted of drugs and weapons offences within the past year. The limited details of these offences and court proceedings were publicized in the media as fact, without opinion. I do not have specific evidence before me that as a result the applicant is not an accused person held in high regard by the local community.

58Popularity and Prominence of the Victim: Maxner was very well-known and liked within the Brantford community. The volume of people who attend the applicant's court appearances may be indicative of Maxner's popularity.

59In denying the appeal from Trainor J.’s refusal for a change of venue, the Ontario Court of Appeal in Suzack, wrote at paras. 37-38:

Trainor J. was correct in identifying exposure to the facts of this case as the strongest source of potential prejudice. On any version of events, this was a cold-blooded murder of a helpless police officer acting in the execution of his duties. Further, on any version of events, both appellants were implicated in the attack and one or both had committed murder. Any jury, no matter where the venue, would hear that Suzack was a parole violator and that both appellants were involved in criminal activity. Wherever the trial was to take place, the jury selected would have their ability to act impartially and dispassionately severely tested by the evidence they would hear.

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 an accused’s right to a fair trial. The many safeguards built into the trial process itself must provide that protection. Trainor J. properly considered the real source of the potential prejudice to the appellants’ fair trial interests in considering whether a change of venue would serve the ends of justice.

60That being said, in Suzack, the trial involved the murder of a respected police officer. The media coverage was extensive and highly emotional and expressed the community's outrage at the murder and its profound sympathy for the victim and his family. There was also mention in the media that Suzack was a parole violator at the time of the killing. The public called out for tougher laws and better armed police, spearheaded by a "black ribbon campaign" led by a group, which distributed 40,000 black ribbons among the local population. Notwithstanding all of that activity, Trainor J., did not find that the local reaction warranted a change in venue.

61There are some fundamental dissimilarities between the case at bar and Millard, Suzack and Forcillo, including the scope of the publicity and the meaning of various articles that appeared to be unfavourable to the accused in the context of those other cases. Here, I do not have similar depth or volume of articles that detail the actual events that are alleged to have occurred.

62In my opinion, none of the articles the applicant has included about the murder or himself contain any inflammatory opinions about him. The articles lay out very basic facts in the matter including the names of the accused and victim, the date of the offences and the fact that the victim subsequently died. The articles also mention briefly the other offences the accused was charged with in relation to the investigation on the charge of first degree murder.

63I am not satisfied that the continuous media reporting on this matter in Brantford as compared to other areas of the province greatly increase the likelihood that the jury will be partial or prejudiced towards the applicant even with the erroneous reporting of findings of guilt for weapons offences.

64To the extent that I am able to analyze the information provided by the applicant, there is no evidence showing the applicant has been unfairly portrayed in the media and by various community members as a heinous person. The gist of these articles appears to be balanced. There is no mention of specific evidence or opinion on the merits of the prosecution one way or the other. I am not persuaded that articles tend to impute blame or comment on the applicant’s guilt or innocence to the extent that they will impact on the jury panel.

Community Members’ Attendance at Court:

65It is true that there were community members attending court appearances premised on providing some support for the victim. It also shows that, over time some community response has not waned. The appellant argues that the real source of potential prejudice to the applicant is the involvement of the community members who have shown up to each and every court proceeding and have made their positions known publicly.

66Can it be said that certain members of the community of Brantford are merely showing empathy towards the victim’s family? Or is it a vindictive response intended to be a form of retribution or revenge against the applicant leading to systemic partiality or bias?

67Despite the able submissions of counsel, I do not have evidence to sustain the argument that there is a high level of demonstrated hostility towards the applicant. The number of persons attending the applicant's court appearances, even prior to him being charged for Maxner's murder, does not demonstrate that there is also a high proportion of persons already convinced of his guilt.

68In these types of applications, there is no requirement for a survey or poll. Whether or not a poll would have served its purpose in this case, the applicant has not established the landscape of the local community opinion and has relied on general assertions.

69There are no general public comments from those in a position to influence, local community leaders and others. While anyone can form an opinion about any case, the situation here is unlike the ubiquitous negative perspective or comments in cases like Millard by community leaders or those in authority, including the Chief of Police for Hamilton, the Mayor of Hamilton and the Attorney General of Ontario.

70The applicant also refers to the "visceral hostility" that he has received as a result of the victim's friends and family attending at court, some wearing t-shirts in support. However, again, there is no factual basis for this assertion. The applicant cites no negative interactions between counsel and supporters of the victim, no outbursts in the courtroom and no occasion where security had to be called to the courtroom due to the behaviour of Maxner's supporters. With respect, the applicant did not provide reliable and cogent evidence to sustain the argument of widespread prejudice or animosity against the applicant in Brantford.

Timing of the Publicity:

71There is authority for the proposition that adverse publicity occurring months prior to, rather than immediately before, trial may weigh against a change of venue application: Suzack, at para 36, R. v. Charest (1990), 1990 3425 (QC CA), 57 C.C.C. (3d) 312, (Que. C.A.) at p. 349, Yarema, at paras. 18-23.

72The timing of such widespread publicity and interest must be considered. I am persuaded that the evidence tends to show a considerable reduction in the media and community interest of those principal persons involved in this case. In the past four months, it has been radio silence. Further, it is unlikely that anything else will be newsworthy as no other steps are being contemplated by the parties between this date and the commencement of the trial in June 2020.

73While it is true that interest still exists in the case, I am satisfied that the bulk and impact of the media response and public interest has waned. Unlike Charest and Millard, there is not the same level of extensive media publicity immediately preceding the trial.

Social Media and the Internet:

74I have already touched upon this issue in this case and in Millard. We live in a time of ever-increasing technologies and the era of instantaneous information being shared over the World Wide Web. Social media can pose challenges in that opinion and information may be skewed, uninformed and anonymous.

75I also have evidence where Facebook members posted comments. The affiant observed many comments with the hashtag "Justice for Jeffery" and most talked negatively about Scalzo's past and his involvement in the murder. One referred to Scalzo as the "scum of the earth". She also observed a comment someone posted about Scalzo's prior criminal charges and indicated that he has a violent past.

76I am not about to begin the exercise of parceling out the quantum of articles favourable or unfavourable to the applicant. The evidence furnished in this case is a smattering of comments on social media. The results also leave a significant gap in my assessment of its impact on the jury pool in Brantford.

77I remain unconvinced that certain subscribers to Facebook and other social media sites have or continue to influence a local population or potential jury array. I am not aware of any studies that report on the frequency that potential jurors’ resort to social media. Further, I have no geographical context for the Google results or Twitter activity. There is no evidence of the identity, locations or origin of those persons who have expressed a comment or opined on the case or, for that matter, have conducted some research about the principal participants. I do not have any information as to the nature or scope of the Facebook or Twitter commentary, unfavourable or otherwise. It may be the case that this information is unascertainable and is for my purpose, unreliable.

78I agree with the Crown that the age of the internet and social media has altered the manner of assessing the impact of pre-trial publicity on an accused’s fair trial rights. In the past, it was common to consider the audience reach of local newspapers and television stations in an attempt to quantify the publicity associated to an accused. If the media coverage was extensive, the crime particularly heinous, the community relatively small, and the portrayal of the accused as gratuitously bad, a change of venue was expected.

79I harken to the comments from my colleague, Ramsay J. in the case of R. v. Chaulk, [2012] OJ. 2437 at para 11:

I conclude that the newspaper accounts relied upon by the defendant in support of this application, are nothing more than what one would expect in a community. Certainly none of the accounts reach the level described in R. v. Suzack and Pennett, where the publicity was not found to be of undue concern. Quite frankly, it is comforting to know that a community is publishing accounts such as these. It speaks to the interest of the residents in the criminal and legal proceedings in the community. Such reporting should not only not be discouraged, it should be encouraged as part of the dialogue that should take place amongst the citizens who are concerned about their community, policing, and the administration of justice .... The community has a stake in this case, its journey through the courts and its outcome. That right should not be lightly interfered with.

80As mentioned, it is generally accepted that, the smaller the community and the more notorious the crime, and the more intense the publicity, the greater the likelihood of irreparable prejudice and therefore a change of venue is more likely necessary. I can characterize Brantford and Brant County as mid-size from which to draw a representative jury array. With this size of city and population base in Brantford, and Brant County, this is less of a concern when all the other procedural and evidentiary safeguards are factored in.

81It is important to recognize that the objective in choosing a jury is not to find twelve jurors who know nothing about the case: Phillips v. Nova Scotia, 1995 86 (SCC), [1995] S.C.J. No. 36.

82Indeed, in Phillips, Cory J. provided guidance to trial judges on this issue as stated at para. 132:

It comes down to this: in order to hold a fair trial it must be possible to find jurors who, although familiar with the case, are able to discard any previously formed opinions and to embark upon their duties armed with both an assumption that the accused is innocent until proven otherwise, and a willingness to determine liability based solely on the evidence presented at trial.

83As found in many cases past and present, from the appellate courts of this country, there is solid affirmation in the judicial confidence in jurors to be faithful to their oath, and to follow the instructions given to them by the trial judge: Corbett v. R. (1988), 1988 80 (SCC), 41 C.C.C. (3d) 385 (S.C.C.)

Elimination of Peremptory challenges:

84In oral argument, the applicant argues that as a result of the recent legislative changes arising from Bill C-75, and the elimination of peremptory challenges, this, in effect, removes another safeguard for him. It is submitted that the peremptory challenge provides another layer to address - albeit subjectively - any concerns arising from publicity or bias towards the applicant; that may not be captured by the four corners of the challenge for cause questioning and process. The applicant is entirely correct that Canadian law does not permit the expanded interrogation of jurors by what is coined as the “American-style” questioning during a challenge for cause.

85On a broader, perhaps practical or fairness approach to jury selection, the applicant may have a valid point. However, it is not within the ambit of this Application to opine further on counsel’s concerns beyond the extent necessary to address the applicant’s request for a change of venue.

86In response, the Crown does not directly challenge or dispute Ms. Goldlist’s assertions about the abolition of peremptory challenges. Nonetheless, Mr. Brock submits that the other factors referred to in Millard at para. 101 have adequate built-in safeguards to ensure a fair trial for the applicant, even with the elimination of peremptory challenges. The reference to these safeguards is found in the case of R. v. Murray, [1997] O.J. No. 2692 (Gen. Div.) at para. 25, wherein Donnelly J. enumerated certain factors:

1. A general screening by the trial judge for persons who have knowledge of the circumstances or who hold a view to the extent that they could not render an impartial verdict according to the evidence;
2. An increased number of persons comprising the panel;
3. Twelve peremptory challenges for each of Crown and Defence [twenty plus in the case at bar ];
4. Unlimited challenges for cause;
5. The juror's oath;
6. The presumption of innocence;
7. The burden on the Crown;
8. The requirement of proof beyond reasonable doubt;
9. The rules of evidence;
10. The duty to follow the trial judge's instruction;
11. That the verdict must be based on the evidence;
12. The specific jury instruction to set aside prejudice or bias, to disregard information beyond the evidence;
13. The unanimity required for a verdict.

87In this regard, I tend to agree entirely with the Crown attorney’s argument.

88For the purposes of this Application, the fact that the applicant will not be able to challenge a prospective juror peremptorily, in and of itself, does not disturb my finding that the necessity of a change of venue is required in this case in order that he will have the benefit of a fair trial.

Challenge for Cause for Pre-Trial Publicity:

89In the Application, Scalzo seeks a ruling that he be able to challenge potential jurors for cause on the grounds that each juror would not be indifferent between Her Majesty the Queen and the applicant.

90I am advised that the Crown consents to a flexible and enhanced questioning during the challenge for cause process. The ultimate determination of the nature and scope of the challenge for cause procedure is best left to the discretion of the trial judge.

Conclusion:

91The evidence raised in the Application is not indicative of ubiquitous intimidation or antagonism towards the applicant. Moreover, the media coverage in this matter appears to be remarkably diminutive on specific information surrounding the facts of this case and the evidence that the jury might hear during the trial. Even with reference to the applicant’s participation in other criminal offences, there has not been publication or dissemination of factual allegations that are especially detrimental or prejudicial to the applicant.

92The limited social media content or the persons appearing in court to support the victim does neither suggest a pre-ordained version of the narrative, nor does it rise to the level to support the assertion that the community in Brantford, as a whole, is influenced, hostile or convinced of the applicant's guilt. In my opinion, other procedural and substantive safeguards would be available to adequately address any of the applicant’s concerns; including the exercise of challenges for cause for publicity in an expanded and meaningful fashion.

93The applicant has not met his onus of establishing that a fair and impartial trial cannot be held in Brantford, warranting the exceptional remedy of a change of venue. The Application is dismissed.

Footnotes

1. 1According to the applicant, the article is erroneous as he only plead to the drug charge and the weapons offences were withdrawn by the Crown.