COURT FILE NO.: 1087-19

DATE: 2020/10/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ROBERT STEVEN WRIGHT

Applicant

R. Parsons and J. Ostapiw, for the Respondent

B. Keaney and M. Venturi, for the Applicant

HEARD: July 20 and 21, 2020

PUBLICATION RESTRICTION NOTICE

By court order, only certain portions of these reasons may be published, broadcast or transmitted in any manner.

For information on what portions of the reasons may be published, see para. 147, below.

ellies r.s.j.

REASONS FOR DECISION ON CHANGE OF VENUE APPLICATION

CONTENTS

OVERVIEW... 2

FACTS. 2

The Police Investigation. 2

The Charges. 3

ISSUES. 4

ANALYSIS. 4

The Legal Framework. 4

Issue 1: Is there partiality or prejudice throughout the Northeast Region?. 6

The Nature of the Offence. 7

Public Support for the Victim.. 8

Pre-trial Publicity. 9

The Size of the Venue. 21

Online Public Commentary. 21

Results of the Survey Poll 23

Conclusion Regarding the Probability of Partiality or Prejudice. 26

Issue 2: Can the prejudice or partiality be remedied?. 26

CONCLUSION.. 27

POSSIBILITY OF A VENUE CHANGE DUE TO COVID-19. 27

PUBLICATION BAN.. 28

OVERVIEW

[1] Robert Steven Wright is charged with the second-degree murder of Renee Sweeney, a young woman who was stabbed to death on January 27, 1998. Mr. Wright applies to change the venue of his trial from Sudbury, where the killing took place, to Toronto, where he submits there has been less media coverage of the crime.

[2] These reasons explain why the application must be dismissed. Mr. Wright has failed to displace the presumption of juror impartiality.

[3] However, these reasons also explain that the trial may, nonetheless, have to be held in a venue within the Northeast Region outside of Sudbury because of constraints imposed by the COVID-19 pandemic.

FACTS

The Police Investigation

[4] Ms. Sweeney’s lifeless body was found by the police near the check-out area of the adult video store at which she worked following a 911 call made on the morning she was killed. She had been stabbed as many as 30 times. Approximately $190 had been taken from the till. Two witnesses said that they had gone into the store and found a male crouched down beside a display rack. The unidentified man ran past the two witnesses onto Paris Street and disappeared, leaving bloody shoe prints behind.

[5] The witnesses each gave the police a description of the man, from which the Sudbury police prepared a sketch of the suspect. The sketch was released to the public the next day. A second sketch was prepared a month or two later by the Toronto police, based on another witness’s description, and that sketch was also released to the public.

[6] The Sudbury police used a tracking dog to try to locate the suspect on the day Ms. Sweeney’s body was found. While their efforts failed to locate the suspect, they did turn up two key pieces of evidence. One was a teal-coloured nylon jacket. The other was a blood-soaked white cotton gardening glove. Both were found not far from the scene of the crime. Both had the victim’s blood on them and both yielded DNA from a second person, which the police had analyzed.

[7] The crime scene itself also yielded several key pieces of evidence. Fingerprints, one of them in the victim’s blood, were lifted from the cash drawer and DNA sufficient for analysis was taken from under the fingernails of the victim’s right hand. According to the Crown, subsequent DNA analysis of the samples taken from the victim and the two articles of clothing revealed that the samples had come from three different male donors and that the DNA on the items of clothing came from someone related to the person whose DNA was found under the victim’s fingernails.

[8] Although at least one person confessed to the crime and one person was once even charged with it briefly, these pieces of evidence inculpated no one until 2018. That was the year in which an American company, Parabon Nanolabs (“Parabon”), offered to assist the Sudbury police by comparing the DNA profiles taken from the victim, the jacket, and the glove to information provided on public ancestry databases. That offer was accepted.

[9] The efforts of Parabon led the police to conclude that a male offspring of Robert and Wendy Wright would fit the ancestry relationship of the person whose DNA was found under the victim’s fingernails. The police obtained “cast-off” samples of DNA from Mr. and Mrs. Wright, and from the accused and his brother.

[10] The Crown alleges that the analysis of those samples reveals that the DNA found on the glove is that of Mr. Wright’s father, the DNA found on the jacket is that of Mr. Wright’s brother, and the DNA found under the victim’s fingernails is that of Mr. Wright himself. So, too, are the fingerprints found on the cash drawer, according to the Crown.

The Charges

[11] Mr. Wright was originally charged with first degree murder and arrested for that offence while working as a lab technician at the North Bay Regional Health Centre on December 11, 2018.

[12] In August 2019, a few months before a preliminary inquiry into the charge was set to begin, the Crown preferred a direct indictment on the charge of second degree murder. This had the effect of depriving Mr. Wright of the right to have a preliminary inquiry and requiring him to go directly to trial on the charge. Of course, the trial date cannot be set until this application is decided.

ISSES

[13] On behalf of Mr. Wright, counsel argues that it is not possible to empanel an impartial jury in the Northeast Region because of the wide-spread dissemination of information in the media and the reaction of the public to that information. As I will explain, in legal terms, this means that the issue is whether Mr. Wright has established on a balance of probabilities that there is a fair and reasonable likelihood of partiality or prejudice throughout the Northeast Region that cannot be overcome by the safeguards of the jury system. These safeguards include the oath taken by each juror to “well and truly try” the case, instructions from the trial judge, jury screening, peremptory challenges, challenges for cause, and the rules of evidence.

[14] Thus, there are two questions to answer:

(1) Is there a likelihood of partiality or prejudice throughout the Northeast Region; and

(2) If so, can it be overcome using the tools available in the jury system?

[15] Mr. Wright bears the onus of establishing that the answers to both questions weigh in favour of a change of venue.

[16] Based on the jurisprudence that I will review, the defence submits that the nature of the offence, the extent of the publicity surrounding the investigation, the prejudicial nature of that publicity, the evidence of public support for the victim, the size of the city, the results of a survey poll, and the publicity surrounding the change of venue application all combine to preclude the possibility of empanelling an impartial jury anywhere in the Northeast Region. They submit that the procedural safeguards built into our jury system are inadequate to remedy the situation.

ANALYSIS

The Legal Framework

[17] This application is brought under s. 599(1)(a) of the Code, which reads:

599 (1) 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, on 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, including

(i) to promote a fair and efficient trial, and

(ii) to ensure the safety and security of a victim or witness or to protect their interests and those of society

[18] This is not the first murder charge in Sudbury to have been the subject of a change of venue application. In R. v. Suzack, 2000 CanLII 5630 (ON CA), the appellants were charged with the first-degree murder of a young police constable. The allegations against the appellants were horrific. It was alleged that the appellants had first beaten and then shot the officer, who had pulled them over as part of a routine traffic stop. There was a great deal of publicity and public outcry about the crime. The trial judge, Trainor J., refused to grant the accused individuals a change of venue and they were convicted at trial. They appealed, arguing among other things that Trainor J. had erred in not changing the venue of the trial.

[19] The Court of Appeal dismissed the appeal. Writing for the court, Doherty J.A. began his analysis of the change of venue issue by setting out the following principle (at para. 31):

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.

[20] Doherty J.A. then quoted the trial judge, stating that the approach he took to the discretion vested in him under s. 599(1) was consistent with the case law (at para. 35):

The obligation or onus is on the defence to show, on a balance of probabilities, that there is a fair and reasonable likelihood of partiality or prejudice in the Sudbury area, that cannot be overcome by the safeguards in jury selection, including the oath, instructions from the trial judge to the jury panel including jury screening, peremptory challenges, challenges for cause and the rules of evidence.

[21] The test as set out by Trainor J. and approved by the Court of Appeal in Suzack continues to be the test today under s. 599(1). That decision and a number of other important cases were helpfully summarized by M. F. Brown J. in R. v. Spiers, [2013] O.J. No. 6692 (at para. 16):

A review of the case law identifies several principles or factors the court must consider when exercising its discretion to change the venue of a trial.

(a) A change of venue remedy is discretionary, to be exercised judicially and only granted with great caution and on compelling grounds (R. v. Collins (1989), 1989 CanLII 264 (ON CA), 32 O.A.C. 296).

(b) The onus is on the applicant to establish 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 (Suzack, at paras. 35 and 43).

(c) It is the totality of the circumstances which will determine an application for the change of venue. Among those circumstances are the nature and extent of the offence, the nature and extent of the public opinion in the area, the size of the community, the status of the accused in the community and, the popularity and prominence of the victim (R. v. Wilson, 1983 CanLII 2094 (SK QB), [1983] S.J. No. 623 (Q.B), at para. 7).

(d) There is a presumption that accused persons will be tried in the community where the offence occurred (R. v. Yarema, [1990] O.J. No. 2785 (H.C.); R. v. Adams, 1946 CanLII 64 (ON SC), [1946] O.R. 506; R. v. Fitzgerald and Schoenberger (1981), 1981 CanLII 3272 (ON SC), 61 C.C.C. (2d) 504).

(e) In most cases, media coverage and publicity alone will not be sufficient to grant a change of venue. In Yarema, at para. 24, Watt J., as he then was, stated the following:

...Publicity is generally given to somewhat rare events. Culpable homicide has yet to become commonplace in our society. It is a fortiori in less populous areas where homicides occur with even less frequency. It should surprise no-one that they receive media attention. To hold that such publicity, without more, ought to engage a change of venue, would be wholly inimical of the best interests of the administration of justice.

(f) There are many procedural safeguards in place to ensure trial fairness and impartiality such as jury vetting, opening instructions to jurors, juror's oath, peremptory challenges, and challenges for cause.

(g) The objective in all cases is a fair trial.

[22] In making their submissions, counsel for Mr. Wright have used the framework laid out by Brown J. in Spiers. I propose to do the same in my analysis, although I will deal with the factors in a different order.

Issue 1: Is there partiality or prejudice throughout the Northeast Region?

[23] Before I begin to answer this question, I believe it is important to define what we mean by partiality and prejudice. “Partiality” is defined in the Canadian Oxford Dictionary, 2d ed. (Don Mills: Oxford University Press, 2004) as meaning “bias, favouritism” or “fondness”. “Prejudice” is defined as meaning “a preconceived opinion”, “bias or partiality”, or “distrust of a person”. Both words, therefore, involve the concept of bias. As Le Dain J. wrote on behalf of the court in Valente v. The Queen (1985), 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, (at p. 685):

Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word impartial ... connotes absence of bias, actual or perceived.

[24] However, when we speak of partiality or prejudice in the context of a change of venue application, we are not talking about the mere presence of bias. As the Supreme Court of Canada held in R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, when discussing the concept of bias in the context of challenges for cause, “the law accepts that jurors may enter the trial with biases” (at para. 40). The court held that more than mere bias must be shown (at para. 36):

It is evident from the definition of bias that not every emotional or stereotypical attitude constitutes bias. Prejudice capable of unfairly affecting the outcome of the case is required. Bias is not determined at large, but in the context of the specific case. What must be shown is a bias that could, as a matter of logic and experience, incline a juror to a certain party or conclusion in a manner that is unfair. This is determined without regard to the cleansing effect of trial safeguards and the direction of the trial judge, which become relevant only at the second stage consideration of the behavioural effect of the bias. [Emphasis added.]

[25] In Find, the Supreme Court held that, in order to establish a basis to challenge jurors for cause under s. 638(1)(b) of the Code, not only must this type of bias be established, but it must also be established that the bias is wide-spread within the community (at para. 32). This is also true where a party seeks to change the venue of a trial, in which case it must also be shown that even challenges for cause cannot guarantee a fair trial in the original venue.

The Nature of the Offence

[26] The defence argues that members of the public chosen as jurors cannot be expected to be as dispassionate as judges when it comes to crimes of violence: R. v. Frederick, 1978 CanLII 2373, 41 C.C.C. (2d) 532, at p. 535. They submit that, while it may not be enough on its own, when the violent nature of the crime is combined with the other factors to be considered in this case, it weighs in favour of a change of venue.

[27] I accept that jurors, like most judges, will react emotionally to the violent nature of this crime. However, it is important not to confuse abhorrence of a crime with bias against an accused. As the Supreme Court of Canada made clear in Find(at paras. 70-71):

Crimes commonly arouse deep and strong emotions. They represent a fundamental breach of the perpetrator’s compact with society. Crimes make victims, and jurors cannot help but sympathize with them. Yet these indisputable facts do not necessarily establish bias, in the sense of an attitude that could unfairly prejudice jurors against the accused or toward conviction. Many crimes routinely tried by jurors are abhorrent. Brutal murders, ruthless frauds and violent attacks are standard fare for jurors. Abhorred as they are, these crimes seldom provoke suggestions of bias incompatible with a fair verdict.

One cannot automatically equate strong emotions with an unfair and prejudicial bias against the accused. Jurors are not expected to be indifferent toward crimes. Nor are they expected to remain neutral toward those shown to have committed such offences. If this were the case, prospective jurors would be routinely and successfully challenged for cause as a preliminary stage in the trial of all serious criminal offences. Instead, we accept that jurors often abhor the crime alleged to have been committed – indeed there would be cause for alarm if representatives of a community did not deplore heinous criminal acts. It would be equally alarming if jurors did not feel empathy or compassion for persons shown to be victims of such acts. These facts alone do not establish bias. There is simply no indication that these attitudes, commendable in themselves, unfairly prejudice jurors against the accused or toward conviction. They are common to the trial of many serious offences and have never grounded a right to challenge for cause.

[28] As the public is now well aware, the attack on Ms. Sweeney was a violent one. However, it must be said that many, if not most, killings are violent. I do not mean to diminish in any way the abhorrent nature of what happened to Ms. Sweeney, but I do not see the circumstances of this killing as being so extraordinary that they create more of a risk that a juror will decide the case unfairly against Mr. Wright than in most other murder cases.

[29] As a result, I do not believe the violent nature of the crime weighs in favour of a change of venue.

Public Support for the Victim

[30] As the Supreme Court recognized in Find, it is natural for members of the public to feel empathy and compassion for victims of crimes. This case is no exception. Following Ms. Sweeney’s death, a local business offered $20,000 for information leading to the arrest and conviction of the person responsible. A scholarship in Ms. Sweeney’s name was established by Laurentian University (where she was a student) and Huntington University, with respect to which the Sudbury Symphony Orchestra (of which she was a member) held a benefit concert.

[31] However, these things happened shortly after Ms. Sweeney was killed, 20 years before Mr. Wright was arrested. For that reason, I do not give them much weight.

[32] At some point in time – there is no evidence as to when – a “GoFundMe” account was established on the Internet in Ms. Sweeney’s name by her sister. Again, I do not place much weight on this. According to the evidence, the fund only raised $485. Of course, this is no reflection on the popularity of the victim. It is more likely a reflection of when the fund was set up. I suspect that it was quite a while after the victim’s death. However, I cannot ignore the amount raised when considering the effect of the establishment of the fund on Mr. Wright’s ability to have a fair trial in the Northeast Region.

[33] After Mr. Wright was arrested, CTV News Northern Ontario: News for the North (“CTV News”) replayed archival footage of the victim’s funeral, which generated many Facebook comments by members of the public who were critical of the broadcaster for doing so. The press in Sudbury and North Bay published an article in which the victim’s sister thanked the police and the public for their support over the 20 years that followed her sister’s death. On December 13, 2018, Sudbury.com posted an article in which Ms. Sweeney’s sister is quoted asking members of the public to show their love for the victim by changing their Facebook profile pictures to that of the deceased. As well, during Mr. Wright’s bail hearing, the victim’s sister had approximately 2000 decals printed that read: “Honouring Renée 1998”. The decals were made available for vehicles in the Sudbury area. An article published in The Sudbury Star on March 26, 2019 seems to state that over 1,000 of the decals had been distributed.

[34] I bear in mind that every case is unique and must be decided on its own facts: R. v. Kully (1973), 1973 CanLII 833 (ON SC), 2 O.R. (2d) 463 (Ont. H.C.), at p. 464; Yarema, at para. 23. However, I believe it is still helpful to compare the evidence of public sympathy for the victim in this case with the evidence of public sympathy shown in Suzack. In Suzack, not only was a trust fund set up for the children of the victim and a scholarship set up for disadvantaged children, but 12,000 people signed a petition calling for the return of the death penalty and 40,000 black ribbons were distributed in memory of the young officer. Still the case was not moved.

[35] In my view, public support for the victim does not weigh much in favour of changing the venue of the trial in this case.

Pre-trial Publicity

[36] There are two aspects to pre-trial publicity that may impact trial fairness: the extent of the publicity, and the content of that publicity. The defence submits that both aspects weigh heavily in favour of a change of venue. I will begin by examining the extent of the publicity.

The Extent of the Publicity

[37] The potential for extensive pre-trial publicity to harm an accused’s right to a fair trial by an impartial jury is well-recognized in the jurisprudence. Dagenais v. CBC, 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, was a case in which the Supreme Court was required to determine the principles upon which a court should exercise its common law jurisdiction to ban pre-trial publication of information in order to preserve an accused’s fair trial right. In the course of writing for the majority of the court, Lamer C.J. contrasted the efficacy of various publication bans. With respect to extensive publicity lasting over a long period of time, he wrote (p. 886):

More problematic is the situation in which there is a period of sustained pre-trial publicity concerning matters that will be the subject of the trial. In such circumstances, the effect of instructions is considerably lessened. Impressions may be created in the minds of the jury that cannot be consciously dispelled. The jury may at the end of the day be unable to separate the evidence in court from information that was implanted by a steady stream of publicity.

[38] As the defence concedes, rarely will the extent of pre-trial publicity alone be enough to warrant a change of venue: Yarema, at para. 24; R. v. Genereux, [2001] O.J. No. 2391 (Ont. S.C.), at para. 21. The defence submits, however, that the extent of the pre-trial publicity in this case is exceptional. It argues that media coverage has been consistent over the nearly 22 years since Ms. Sweeney was killed such that there has never been an opportunity for the crime to fade from the collective memory of potential jurors in the Northeast Region.

[39] The defence has filed copies of hundreds of reports from the media in Northeastern Ontario, and a few reports from southern Ontario. The earliest reports have been submitted as photocopies of articles that first appeared in print. Most, if not all, of those early articles come from either The Sudbury Star or Northern Life newspapers. It seems that most of the stories about the crime were either first published or later re-published by these news sources over the Internet (“online”). I gather from the affidavits to which the reports were attached as exhibits that the Northern Life newspaper’s online alter ego is “Sudbury.com”.

[40] The earliest evidence of possible television coverage consists of a video taken at Ms. Sweeney’s funeral in 1998. However, most of the evidence of television coverage dates from after Mr. Wright’s arrest and consists of online articles that I believe relate to earlier television coverage by CTV News.

[41] According to the evidence, The Sudbury Star newspaper currently has about 6,000 daily subscribers. It has about 30,000 unique visitors to its website each day and about 33,200 followers on its Facebook account.

[42] At the time the evidence in support of the application was gathered, the Northern Life newspaper distributed about 50,000 copies of its newspaper on a weekly basis. It had about 150,000 unique visitors to its website each day and about 32,187 Facebook followers.

[43] CTV News is produced in Sudbury and made available to 702,301 people on television screens throughout Northern Ontario. In addition, it has an online presence with a varying number of unique monthly visits that approximated 670,000 in January 2020.

[44] I have no evidence as to the readership of the newspapers or the viewership of CTV News at the time the crime was committed in 1998. However, I am prepared to accept that each was about the same then as it is now, and I will analyze the publicity both before and after Mr. Wright’s arrest on that basis.

(a) Coverage Before the Arrest of Mr. Wright

[45] The police released a media report on the day the crime occurred. Not surprisingly, from that point on and for most of the rest of 1998, there was extensive coverage of the case by the local media. The coverage included a video re-enactment of the event produced by the police in cooperation with Mid-Canada Television, which was broadcast on that station’s news program over two days as the first anniversary of Ms. Sweeney’s death approached.

[46] However, the evidence shows that media coverage began to fade after the first year. By January 2001 it had dropped off to the point where it appears from the evidence to have been the subject of media reports on average about once per year, usually around the anniversary of Ms. Sweeney’s death.

[47] The defence submits that the continuous media coverage from 1998 to 2019, even though it was reduced, never allowed the memory of Ms. Sweeney’s death to fade in the minds of potential jurors. I accept that submission. However, I am not persuaded that a story or two per year about the killing over those 17 years should weigh much in favour of a change of venue. It does not, in my view, rise to the level of “sustained” pre-trial publicity referred to by Lamer C.J. in Dagenais. Nonetheless, this evidence must be considered in connection with all of the other evidence, including the media coverage after Mr. Wright was arrested.

(b) Coverage After Mr. Wright was Arrested

[48] Mr. Wright was arrested for the first-degree murder of Ms. Sweeney on December 11, 2018. Again, not surprisingly, that touched off a firestorm of media coverage about the crime.

[49] Since then, it is fair to say that practically every court appearance made by or on behalf of Mr. Wright has resulted in at least one news report in each of Sudbury’s newspapers (both in print and online) and, perhaps a little less frequently, on CTV News. To a lesser extent, reports have also appeared in newspapers in North Bay and, to an even lesser extent, in newspapers in Orangeville, Kingston, and West Elgin.

[50] I am not able to agree that the extent of the publicity following the arrest of Mr. Wright weighs in favour of a change of venue. Publicity like this is very common following the arrest of someone for a notorious crime. What one might call “the modern approach to jury impartiality” was expressed by Cory J. in Phillips v. Nova Scotia (Westray Mine Inquiry), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97, at pp. 132 and 133:

The objective of finding twelve jurors who know nothing of the facts of a highly-publicized case is, today, patently unrealistic. Just as clearly, impartiality cannot be equated with ignorance of all the facts of the case. A definition of an impartial juror today must take into account not only all our present methods of communication and news reporting techniques, but also the heightened protection of individual rights which has existed in this country since the introduction of the Charter in 1982. 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.

I am of the view that this objective is readily attainable in the vast majority of criminal trials even in the face of a great deal of publicity. The jury system is a cornerstone of our democratic society. The presence of a jury has for centuries been the hallmark of a fair trial. I cannot accept the contention that increasing mass media attention to a particular case has made this vital institution either obsolete or unworkable. There is no doubt that extensive publicity can prompt discussion, speculation, and the formation of preliminary opinions in the minds of potential jurors. However, the strength of the jury has always been the faith accorded to the good will and good sense of the individual jurors in any given case.

[51] Watt J. (as he then was) explained in Yarema that the extent of pre-trial publicity will rarely result in a change of venue (at para. 25):

Save in exceptional cases, where the extent of the repetition of such matters in the media renders their fair trial in the original venue impossible, neither the circumstances of the offence nor their pretrial disclosure, per se, would warrant an exceptional order changing the venue of trial.

[52] In my view, there is nothing exceptional in the circumstances of the offence in this case nor in the extent to which they have been the subject of pre-trial publicity such as to weigh in favour of a change of venue.

The Content of the Publicity

[53] As the jurisprudence demonstrates, the content of pre-trial publicity is more likely to impair an accused’s right to a fair trial than the extent of the pre-trial publicity. As Watt J. wrote in Yarema (at para. 26):

On the other hand, one must be ever-vigilant to ensure that the prospect of a fair trial is not diminished by advance disclosure of prejudicial information that could not, or is unlikely to become, evidence at trial, whether on account of lack of relevance, contravention of an exclusionary canon of the law of evidence, constitutional precept, or otherwise. [Citations omitted.]

[54] The defence contends that prejudicial information has been disclosed to potential jurors in this case.

(a) Information About the Crime and the Suspect

[55] The initial press coverage immediately following the death of Ms. Sweeney included information about the crime and about the suspect. It included information about the path the suspect allegedly followed, the jacket and glove found later by the police, speculation about the suspect’s relationship with the victim, and about his motive for killing her. A headline above a story published in 1999 read: “Murderer’s DNA found under victim’s fingernails”. A newspaper article published two years after the crime (and still available online, it appears from the evidence) contained details including the finding of a footprint at the scene and information about the size of the shoe that made it. Details provided by the police and published online in 2010 included information about the finding of a fingerprint at the scene and signs of what the police believed was a struggle. In 2017, a podcast was produced which repeated much of the information to which I have referred. Headlines after Mr. Wright was arrested in 2018 read: “Killer found” and “Renee fought hard”. In 2019, a book was published containing 50 pages of information about the crime and references to newspaper and online articles about it.

[56] In my view, none of this publicity weighs in favour of a change of venue. Contrary to the submissions of counsel for Mr. Wright, as far as I can tell from the evidence I have before me, all of this evidence is likely to be adduced during the trial, either by the Crown or by the defence, and will be relied upon by them in support of their theories of the case. I include the defence in my comment because, for example, there is an apparent conflict between the size of the footprint found at the scene and the size of the shoes worn by Mr. Wright at the time, which may be exculpatory. Even where the potentially exculpatory evidence is not adduced by the defence at trial, an accused person can hardly complain that the pre-trial publicity about that evidence is potentially prejudicial.

[57] Where the pre-trial publicity consists of information that will likely emerge at trial, a change of venue is of no assistance. As Doherty J.A. wrote in Suzack (at para. 38):

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.

[58] I agree that there has been some pre-trial publicity that includes information or speculation that will not likely be before the jury at trial. This includes a theory that the assailant “could have been a fanatic objecting to pornography, an ex-boyfriend, a classmate the victim wouldn’t help or a drug addict” and a psychological profile of the suspect. There is no basis to believe that the Crown would be entitled to adduce any of this evidence, although I repeat my comment about the possibility of the defence wanting to introduce this evidence because it may conflict with what is known about Mr. Wright.

[59] In my view, this evidence weighs little, if at all, in favour of a change of venue. The timing of what is published must be considered: Yarema, at para. 18. These things were published a long time ago. As the defence concedes, change of venue applications based on pre-trial publicity often fail based on “the shortness and transitory nature of the human memory”: Genereux, at para. 21. The theory about the perpetrator was published in 1999 and appears to be available only in newspaper archives. The information about the psychological profile was published in 2001. While it may still be available online, it also appears to be something for which one must go looking.

(b) The Direct Indictment

[60] On August 9, 2019, the Crown preferred a direct indictment under s. 577 of the Code. The press reported on the event and this generated online public commentary. The defence submits that this pre-trial publicity also weighs in favour of a change of venue. I am unable to see why. There is nothing inherently prejudicial in the fact that a direct indictment was preferred.

[61] I will deal below with the online commentary that stories like this generated.

(c) The Application to Remove Defence Counsel

[62] On February 10, 1998, the police charged another individual with the murder of Ms. Sweeney. That charge was withdrawn by the police two days later.

[63] In December 2019, the Crown applied to have Mr. Wright’s counsel removed from the record on the basis that Mr. Keaney had represented the person who was first charged with Ms. Sweeney’s murder in 1998. That application was dismissed by Fregeau J. on February 10, 2020 (2020 ONSC 897). Fregeau J. made an order banning publication under s. 648(1) of the Code. It appears that the press respected the order. Although both the fact that the application had been brought and the fact that it was dismissed were publicized, there is no evidence that Fregeau J.’s reasons were reported anywhere.

[64] The defence submits that the publication ban actually weighs in favour of changing the venue. It maintains that it led to “a fervor of speculation” as to the reason the Crown brought the application. That submission is not borne out by the evidence. I have read the comments posted on social media in relation to the press coverage about the application. While it is true that there was some degree of speculation expressed, it was hardly what one could call “fervent”.

[65] In my view, nothing about the application weighs in favour of a change of venue.

(d) The Rowbotham Application

[66] The defence also lists what is commonly known as a “Rowbotham” application as one of the pre-trial applications with respect to which the publicity surrounding the application requires a change of venue. However, I have not been referred to any specific parts of the record relating to this application or the publicity surrounding it. I have only been able to find a few news reports in which it is mentioned, although I have found some comments in some of the social media evidence about the application that were made in connection with news reports that were not about the Rowbotham application.

[67] Again, there is nothing inherently prejudicial to Mr. Wright’s fair trial rights in the publication of Mr. Wright’s intention to bring an application for financial assistance to defend himself. While the social media evidence does reveal that some people were opposed to the idea of government-funded assistance for Mr. Wright, I am unable to conclude that it constitutes evidence of widespread bias amongst members of the jury pool.

[68] In my opinion, publicity surrounding the possibility of a Rowbotham application is not a factor weighing in favour of a change of venue.

(e) The Change of Venue Application

[69] Beginning on February 18, 2020, the press began reporting that the defence was planning on bringing this application. That reporting continued even after the hearing began, on July 20, 2020. At the conclusion of the hearing that day, I made a temporary order banning publication, both of the evidence called during the hearing and of the nature of application. As of about 8:30 a.m. on July 22, 2020, many of the stories were still available online. I am not aware of whether any further reporting on the application has taken place.

[70] The defence submits that mere publication of the fact that this change of venue application was brought should weigh in favour of granting the application. It relies in support of its submission on a number of cases in which that has been the ruling.

[71] In R. v. Fosbraey (1950), 1950 CanLII 120 (ON SC), 98 C.C.C. 275 (Ont. H.C.), the court initially dismissed an application by the accused to change the venue of his trial from Napanee. At the conclusion of the hearing, the court directed that nothing be published in the press about the application. However, the court order was not respected. In allowing a renewed application to change the venue, Spence J. held:

I cannot … imagine a more probable cause of prejudice in a juryman than for him to learn that the accused had so mistrusted the fairness of him and the other citizens of the county that he had vainly attempted to have the trial taken out of the county.

[72] But Fosbraey is distinguishable from this case in one very important way. In Fosbraey, the judge had found that prejudice did exist in Napanee during the first change of venue application. However, he also held that it could be put aside by the average juror based on the trial judge’s instructions. In the present case, for the reasons I am explaining, I do not find that the defence has established wide-spread prejudice or partiality.

[73] Fosbraey is also distinguishable from this case in another important way. As the application judge held in the later case of R. v. Arenburg, [1997] O.J. No. 2411, another case emanating out of the East Region, the population of Napanee when Fosbraey was decided was only 3,625 and the pool of jurors drawn from the entire county from which the jury was chosen consisted of only 4,000 people. In Arenburg, the defence had also renewed an application to change the venue of the trial, this time from Ottawa, based on the breach of a publication ban about the application. The trial judge in Arenbury dismissed the application, noting that the jury pool consisted of approximately 700,000 people and that he had agreed to permit challenges for cause.

[74] In R. v. Nicholas, [1986] N.J. No. 60, a Newfoundland case, before a change of venue application could be heard, the press published information about it in contravention of a publication ban. The judge in Nicholas, referring to Fosbraey, granted a change of venue. Again, however, that case is distinguishable from this one. Nicholas involved a murder charge being tried in Gander, where the jurors would be drawn from a pool of only 6,000 people.

[75] Finally, the defence relies on the more recent decision of my colleague, Heeney J., in R. v. Rafferty, 2011 ONSC 1425. In Rafferty, Heeney J. fully embraced the reasoning of the court in Fosbraey. After setting out the comments of Spence J. just as I have done, he wrote (at para. 46):

The logic of these comments is unassailable. I am satisfied that publishing the position taken by the accused would present a real and substantial risk to the fairness of the trial. There is no measure short of a publication ban that will eliminate that risk.

[76] With great respect for my colleague, I must disagree.

[77] The Supreme Court of Canada in Find addressed the basis upon which a court may conclude that there is partiality in the jury pool. On behalf of the court, Lamer C.J. explained that there are three ways in which a judge may reach such a conclusion (at paras. 46):

A party may displace the presumption of juror impartiality by calling evidence, by asking the judge to take judicial notice of facts, or both. In addition, the judge may draw inferences from events that occur in the proceedings and may make common sense inferences about how certain biases, if proved, may affect the decision-making process.

[78] There was no expert or other evidence before the judges in either Fosbraey or Rafferty as to how jurors react to hearing that an accused has applied to change the venue of his trial due to the possibility of partiality or prejudice. Therefore, both judges must have either taken judicial notice of how potential jurors would react or relied on a common-sense inference from events in the proceedings before them to reach the conclusions they did. If they purported to take judicial notice of this aspect of human nature, then I would suggest, with respect, that they erred in law by doing so. As Lamer C.J. wrote in Find, the dangers of taking judicial notice of facts require that those facts be indisputable (at para. 48):

In this case, the appellant relies heavily on proof by judicial notice. Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: [Citations omitted].

[79] I do not believe that it is beyond dispute that a potential juror who hears that his or her partiality was challenged will become partial. As proof, I offer the fact that the judge in Nicholas shared my view. After quoting Spence J. from Fosbraey, Noel J. wrote:

While I do not take as severe a view of the publication of an accused’s application for a change of venue as did the learned justice, and would not hold that the publication of an accused’s application for a change of venue, without more, was justification for a change, nevertheless, in this case, a change will be ordered.

[80] Like Noel J., I do not accept that potential jurors will become prejudiced or partial against an accused simply because they find out that he was fearful that they already were. My common sense and experience lead me to a different conclusion. Instead, I believe that someone whose partiality is challenged will respond by trying to show that it should not have been.

[81] For this reason, I do not accept the defence submission that publication of the fact that this application has been brought weighs in favour of a change of venue. Nonetheless, unfortunately, there is other potentially prejudicial pre-trial publicity that does.

(f) The Child Pornography Charge

[82] On February 15, 2019, just four days before his bail hearing was scheduled to start, the police charged Mr. Wright with possession of child pornography based on something that had been found on his computer shortly after his arrest months earlier. That charge has been adjourned to some date in 2021, according to news reports submitted as evidence in this application.

[83] The bail judge characterized the timing of the pornography charge as a “failed attempt to bolster an argument for the detention in custody of Mr. Wright on the secondary ground” in his reasons on the original bail hearing (2019 ONSC 1598, at para. 34). I agree. It is hard to understand why the Crown would lay a child pornography charge— a charge based on a single typewritten page – mere days before Mr. Wright’s bail hearing, unless the bail judge was right.

[84] Clearly, the fact that Mr. Wright has been charged with child pornography is highly unlikely to be admitted into evidence at his murder trial. For this reason, publicity surrounding the charge has the potential to prejudice Mr. Wright’s fair trial rights in two ways, one being more general, but no less harmful, than the other. First, the charge risks functioning as general evidence of bad character on the part of Mr. Wright. Second, and more specific to this case, the charge risks functioning as evidence of identity because Ms. Sweeney was killed while working in an adult video store.

[85] However, I do not believe that publication of the child pornography charge should be given much weight on the issue of a change of venue. As I will explain when I address the results of a survey undertaken for the defence, there is evidence that the charge has not had the feared effect.

(g) The Bail Judge’s Reasons

[86] An accused charged with murder must have the question of his release pending trial decided by a judge of the Superior Court of Justice, rather than by a justice of the peace, as is the case for most other offences: Code, s. 522. However, it is common for an accused to appear before a justice of the peace immediately after his arrest, before having a bail hearing in the Superior Court. Where that happens, the justice of the peace must order that the accused be detained “until he is dealt with according to law”: Code, s. 515(11).

[87] The court record reveals that this is what happened here. The justice of the peace before whom Mr. Wright appeared made the necessary order detaining Mr. Wright. As he was empowered to do, he also made an order under s. 517 of the Code prohibiting publication. That section reads:

517 (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) Every person who fails, without lawful excuse, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

[88] Mr. Wright made two attempts at obtaining release on bail pending the trial: one at a bail hearing held in February 2019, and the other at a bail review held in May 2020. Both attempts were made in front of the same judge and both attempts failed.

[89] On February 19, 2019, Mr. Wright appeared before my colleague, Gareau J. (the “bail judge”), to begin a three-day bail hearing. For reasons released on March 27, 2019, the bail judge dismissed Mr. Wright’s application for release. In the course of his reasons, as he is required to do, the bail judge analyzed the evidence to determine, under s. 515(10)(c):

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[90] The bail judge detained Mr. Wright based on the tertiary ground set out in s. 515(10(c). Like the justice of the peace, the bail judge made an order banning publication under s. 517. Unfortunately, however, the reasons of the bail judge released on March 27, 2019 did not contain the usual notice that a publication ban had been made. Perhaps as a consequence, the reasons were published on at least one online legal information site, namely Lexis Advance Quicklaw (“Lexis”).

[91] While it was unfortunate that the bail judge’s reasons were made available to legal information sites, this had very little effect on the potential for prejudice or partiality amongst potential jurors. Lexis is a subscription service, only available to those who pay for a subscription. Further, as soon as it came to my attention that the reasons were available on Lexis, I directed that they be removed from that site and from any other legal information site. This was done on June 15, 2020.

[92] However, publication of the bail judge’s reasons was not limited to subscription legal information websites. The reasons were also reported in the press. An article from The Sudbury Star published on June 12, 2019 reported, among other things:

On March 27, Wright…was denied bail.

“I am satisfied that every factor to be considered under… the Criminal Code of Canada leads to the conclusion that the detention of the accused is necessary to maintain confidence in the administration of justice” Superior Court Justice Gareau said in his ruling on whether Wright should be released on bail.

Gareau said he has to consider four factors in determining bail: the strength of the prosecution’s case; the gravity of the offence; the circumstances surrounding the commission of the offence; and an accused looking at a lengthy jail term if convicted.

[93] The bail judge’s reasons were reported upon again in articles that were published by The Sudbury Star on December 12, 2019, and on February 12, 2020.

[94] On May 4 and 5, 2020, Mr. Wright appeared before the bail judge again, this time virtually. The COVID-19 pandemic had broken out and Mr. Wright applied for a review of his bail under s. 520 of the Code, based on that new circumstance and on what he submitted was a stronger plan for release. By that point in time, the charge had been reduced from first degree to second degree murder, as well.

[95] For written reasons released on May 14, 2020, the bail judge again dismissed Mr. Wright’s application on the tertiary grounds.

[96] There is no indication in the court file that the bail judge made an order banning publication at that time under s.517, which section is applicable at a bail review pursuant to s. 520(9) of the Code. Nonetheless, this time, the bail judge’s reasons made it clear that there was a publication ban in place. A notice stating “[b]an on publication pursuant to section 517 of the Criminal Code of Canada” appeared in bold letters in a box on the front page of the bail judge’s reasons. However, notwithstanding that notice, the media again reported on the reasons. In an article that appeared in the Sudbury Star on May 14, 2020, the press reported the following excerpt from those reasons (at para. 41):

When the factors to be considered under the tertiary ground of detention under section 515(10)(c) are balanced and weighed, given the seriousness of the crime that Mr. Wright faces, the circumstances surrounding the commission of the offence and the strength of the Crown’s case based on the evidence the court is aware of at the present time, this court is left with the inescapable conclusion that the continued detention of Robert Steven Wright in custody is necessary to maintain confidence in the administration of justice.

[97] In the penultimate paragraph of his reasons, the bail judge referred to the Supreme Court of Canada’s decision in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, which he said were “equally applicable to the case at bar” (para. 42). He quoted from para. 40 of the Hall decision, as follows:

Where, as here, the crime is horrific, inexplicable, and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence upon which the bail system and the justice system as a whole repose.

[98] This, too, was reported in the media.

[99] I am unable to comprehend how this reporting occurred in the face of the publication bans that had been made by the justice of the peace and by the bail judge under s. 517 of the Code. Clearly, the media was aware of the orders. Media reports from February 2019 states that a publication ban had been put in place.

[100] What appeared in the media following the release of the bail judge’s bail and bail review decisions had the potential to do serious harm to Mr. Wright’s right to a fair trial. It is one thing for a trial judge to ask jurors to ignore media reports about the case from unknown, untested, or untrustworthy sources. It is entirely another thing for a trial judge to ask jurors to ignore the opinion of another judge.

[101] I am not the first to recognize this. In Phillips, the Supreme Court was asked to consider the propriety of an order staying a public inquiry into a mining disaster pending the trials of a number of individuals charged with criminal offences arising from the accident. A majority of the court held that the issue need not be decided because the accused individuals had elected trial by judge alone following argument and, therefore, there was no longer an issue about the effect of pre-trial publicity. Cory J., however, on behalf of himself, Iacobucci and Major JJ., addressed the issue. He dismissed the argument that jurors were incapable of disabusing themselves of the effects of pre-trial reports about the inquiry. However, he drew a distinction between the prejudicial effects of publication of the evidence taken at the inquiry and the prejudicial effects of publication of the inquiry commissioner’s final report. He wrote (at para. 124):

In the eyes of most citizens, a public inquiry has many of the characteristics of a criminal trial. The inquiry is often chaired by a judge, who hears the testimony of witnesses under oath and the submissions of lawyers, and who draws conclusions from the evidence presented. A potential juror watching parts of televised hearings may not be unduly influenced by the testimony of any particular witness or witnesses. Common sense, however, suggests that the potential for lasting impartiality is much less when what is published are the carefully reasoned conclusions of a judge who has heard all the testimony and examined all of the evidence relevant to the inquiry mandate. The publication of these findings of facts and conclusions will create a much greater risk of prejudice to fair trial rights. It is this distinction which may require a different treatment of evidence presented in a public hearing and the final inquiry report.

[102] In my view, publication of the bail judge’s reasons weighs significantly in favour of a change of venue. However, this factor must still be balanced against the other factors to be considered. As with the child pornography charge, there is evidence that publication of the bail judge’s reasons has not had much of an effect on potential jurors.

The Size of the Venue

[103] The size of a venue is a factor to consider when dealing with the effect of pre-trial publicity on an accused’s right to a fair trial. A change of venue is more likely to be granted on the basis of partiality or prejudice where the original venue is a smaller community: Genereux, at para. 20.

[104] Sudbury is the largest city in Northeastern Ontario. As of 2016, the City of Greater Sudbury had a population of 161,531 people. The Crown estimates that over 115,000 of these people are eligible to sit on a jury.

[105] The defence relies on the fact that over 2,000 people with ties to the city were investigated by the police in connection with the death of Ms. Sweeney. It concedes that the number of people who were investigated “is not ominous in isolation” but argues that the effect of this must be expanded beyond those individuals to their friends and family in the community.

[106] I have a hard time understanding how the fact that 2,000 people were investigated (and exonerated) translates into the possibility of partiality or prejudice, even among those people who were the subject of the investigation. The defence has not made the reasoning clear to me. If the argument is that these people would resent being investigated and, therefore, “poison the well” of jurors for Mr. Wright, I do not accept that reasoning. It has no support in the evidence and does not accord with common sense and experience. It is just as possible that a person who has been investigated would resent the police for even suspecting them and would call into question the merits of the investigation leading to the arrest of Mr. Wright in this case.

[107] In my view, this factor does not weigh in favour of a change of venue.

Online Public Commentary

[108] The evidence I have considered to this point is mainly circumstantial evidence. Some of the more recent cases dealing with applications to change the venue of a trial have called for more direct evidence of prejudice and partiality than the circumstantial evidence that once sufficed: Rafferty, at para. 32. I do have more direct evidence to consider in this case.

[109] Many of the online news articles submitted into evidence by the defence include printouts of social media commentary made after publication of the story. Some of the comments are disturbing:

Kill the f…er. Or I will.

He is totally guilty as sin…

Dig a deep hole and throw him in …

Throw the book at him …

[110] Unfortunately, it is a sad fact that many people assume that because the police have charged a person with a crime, that person must be guilty. After all, they reason, why would they charge the person otherwise? The comments made on social media show that this case is no exception, even though the police once charged another person with the crime.

[111] Of course, it is fundamentally wrong to assume that an accusation is true just because it has been made. It is also wrong to assume that DNA evidence proves all, especially in a case in which the DNA used to compare to that of Mr. Wright was seized 20 years before Mr. Wright was charged.

[112] Notwithstanding the disturbing nature of these kinds of comments, I do not believe that the social medial commentary weighs much, if at all, in favour of a change of venue. I arrive at this conclusion for two reasons.

[113] First, I have no baseline to which to compare the commentary. None of the experts to whose evidence I will refer in a moment were able to say how this compares to venues in which other murder cases have been tried. As I mentioned earlier, the law presumes that people will react strongly to violent crimes.

[114] Second, and perhaps more importantly, the social media commentary also shows that the presumption of innocence is alive and well within the pool of prospective jurors in Sudbury. In practically all of the strings of commentary that followed reports about this case, comments like these appear:

All depends on where and on what they found the DNA. Might not be so cut and dry.

…if he is guilty. If not, then an innocent man is sitting in jail over [the Christmas] holidays.

Everyone is presumed innocent till convicted in court.

…it’s up to the judge and jury to weigh the facts.

…just because they charged him doesn’t mean he’s guilty.

…if the charges are proven…

Another day, another batch of keyboard warrior idiots who don’t understand the concept of the rule of law and innocent until proven guilty.

[115] I realize that there is no evidence as to where the people who made these comments live. However, if, as the defence submits, I should consider the social media commentary as evidence of partiality and prejudice existing within the pool of potential jurors in the Northeast Region, then I should consider all of the social media commentary in that regard. When that is done, the social media commentary does not weigh much, if at all, in favour of a change of venue.

Results of the Survey Poll

[116] The defence retained a professional polling company to conduct a survey to determine the level of awareness and perceptions of members of the public in Sudbury about this case. The defence submits that, while the survey was not perfect, the results of the survey demonstrate that there is significant public awareness of this case and that many of those people surveyed have already made up their minds that Mr. Wright is guilty. I am unable to accept that submission. The survey evidence suffers from a number of weaknesses.

[117] I start with the quality of the evidence called in support of the survey results. The defence called the principal of the polling company to give evidence about the survey. This witness was responsible for the design of the survey. The defence sought to have him qualified as an expert to give an opinion on what the survey showed. For reasons delivered orally, I declined to do that. As I stated during the hearing, I was troubled by the lack of indicia of expertise on the part of the witness. When asked what specific training he had undertaken in survey research within the last two years, he testified that he avoided specific conferences and reads articles, instead. When asked what specific articles he had read, he could not name any. He was also unable to name any recognized textbooks in the field of survey research. There is no evidence that he has written anything himself in the field, or ever taught in that area of study.

[118] For these reasons, I permitted the witness to testify only what he set out to do, how he set out to do it, why he did it that way, whether he believes that the answers to the survey questions are representative of the adult population of Greater Sudbury, and why he believes that. I did not permit him to give an opinion on whether there is widespread partiality or prejudice in Northeastern Ontario.

[119] The defence witness stood in stark contrast to the witnesses called by the Crown, both of whom I qualified as experts in their field. The first was David Northrup, the Director of Survey Research at the Institute for Social Research at York University. Mr. Northrup has worked, written and taught in the area of survey research for roughly 30 years. I permitted him to give expert opinion evidence in the area of survey research and methodology.

[120] The second expert called by the Crown was Neil Neville, a professor in the Department of Political Science at the University of Toronto. Professor Neville began in the field of survey research in the 1970s, first at Harvard University, where he later held a Fulbright Senior Research Fellowship. Like the defence witness, Professor Neville’s background is in political science, an area in which survey research appears to play a prominent role. However, unlike the defence witness, Professor Neville’s curriculum vitae is filled with the titles of books and articles he has authored or co-authored, the names of research awards he has won, and the names of the universities at which he has taught in Europe and North America. I permitted Professor Neville to give expert opinion evidence in the area of public opinion and research methods.

[121] Professor Neville and Mr. Northrup prepared a report following their analysis of the defence survey. Based on their report, they testified that the survey suffered from a number of significant flaws. These included:

(a) The fact that the survey began by asking respondents if they were aware of the case and, where they answered that they were not, they were asked no further questions. This had the effect of raising the percentage of respondents who appeared to have specific knowledge of aspects of the case when the percentage should have been based on the entire group of respondents.

(b) The fact that none of the respondents were asked if they had any personal connection to the victim or the accused.

(c) “Question order effects” that contaminated the reliability of the survey. The introduction to the first two questions supplied respondents with information they used to answer later questions. The introduction to Q.1 told respondents that the murder took place in 1998. The introduction to Q.2 told the respondents that a suspect has been arrested. This had the effect of reducing the reliability of the responses to Q.4, which asked respondents what they knew about the case. Twenty-six percent of the respondents said they knew it was a murder that happened a long time ago, and nine percent said they knew it was a murder and that a suspect was arrested.

(d) “Social desirability effects”, a well-known psychological phenomenon which causes people to inflate the extent to which they embrace desirable attributes that place them in a good light. This phenomenon reduced the reliability of the responses people gave to self-reporting questions, such as Q.3 which asked the respondents to rate their own knowledge of the case.

(e) Conflating the word “awareness” with the word “knowledge”. Q.3 asked the respondents to rate their knowledge, but gave them a response list that asked them to rate how aware they were. I agree with Professor Neville and Mr. Northrup that they are not the same thing. I also agree that it is not surprising that people would say they are aware of the evidence after telling them there was a murder and providing them with the names of both the victim and the accused.

(f) Using the word “feel” in Q.6, which asked, “From what you have seen or heard do you feel that the Police charged the right person?” By failing to ask how sure the respondents were, this question did not adequately measure the respondents’ level of certainty.

[122] The Crown’s experts readily admitted that no survey is perfect. However, they also offered concrete, common-sense ways in which these and other problems with the survey could have been avoided. As the survey stands now, I am unable to conclude that it provides reliable evidence of partiality or prejudice on the part of potential jurors in Sudbury based on either the extent or the content of the media coverage.

[123] Indeed, if the survey can be relied upon for any purpose, I find that it demonstrates that the media coverage has not had the effect on the public that I first feared it might, as I will now explain.

[124] Question 4 was described by the witnesses as a “top of mind” question. Interviewers asked respondents, “Can you tell me what you know about the Renee Sweeney case?” As I mentioned above, the answers to this question were contaminated by information the interviewers gave the respondents in the earlier questions. However, the interviewers did not give the respondents any information about either the status of Mr. Wright’s bail, the child pornography charge, or the change of venue application. Of the 884 respondents who answered this question, only 3 percent mentioned “trying to get bail/trial moved out of City”. None of them mentioned the child pornography charge.

[125] Of the responses to Q.4 which could not have come from information provided in earlier questions, the two most frequently given were “DNA evidence” (28 percent) and “murder at adult video store” (16 percent). These responses refer to evidence that the jurors will most certainly hear about at trial.

[126] Notwithstanding the problems with the wording of the question and with the social desirability effects posed by Q.3 that would make respondents answer positively about their awareness or knowledge of the case, 45 percent of the respondents answered that they were either neutral, not aware, or not at all aware of the evidence against Mr. Wright.

[127] Question 5 asked the respondents “What impact have media reports or what you have (recently) seen or heard about this case had on your opinion of suspect Robert Steven Wright?” While I am alive to the possibility of social desirability effects having an impact on the reliability of the responses to this question, I note that fully 32 percent said “nothing” and 13 percent said they were unsure. Again, this totals 45 percent of the respondents who were either unsure that they have been impacted by what they have seen or heard about the case, or were sure that they have not.

[128] Finally, notwithstanding the problem with the wording of Q.6, 39 percent of the respondents answered that they either did not feel or were unsure whether they felt that the police had charged the right person. The Crown’s witnesses testified that this percentage would likely have been higher had the survey been conducted properly. Question 6 did not give the respondents any choices other than “yes” or “no”. Yet 36 percent of the respondents still said they were unsure. As the Crown’s witnesses pointed out, survey research shows that if respondents are given the opportunity in the question to respond that they are uncertain, the number of respondents who give that response goes up.

[129] For these reasons, I find that the survey results weigh against a change of venue.

Conclusion Regarding the Probability of Partiality or Prejudice

[130] While publication of the child pornography charge and the bail judge’s reasons weigh in favour of a change of venue, the results of the survey and the social media evidence weigh against it, in my view.

[131] Based on the evidence, I am not satisfied that there is a fair and reasonable likelihood of widespread partiality or prejudice in the Sudbury area. Given that the news coverage and social media commentary was less in other parts of Northeastern Ontario, it follows that I am not persuaded that there is widespread partiality or prejudice in the rest of the Northeast Region, either.

Issue 2: Can the prejudice or partiality be remedied?

[132] Strictly speaking, I need not consider this issue because Mr. Wright has not satisfied me that there is widespread partiality or prejudice of the type that would likely result in an unfair trial in the Northeast Region. However, I derive a certain level of comfort in knowing that, whatever the level of bias that may exist among potential jurors in the Northeast Region, there are safeguards that I believe can be used to overcome it. These safeguards were listed by Donnelly J. in R. v. Murray, [1997] O.J. No. 2692 and repeated by Heeney J. in R. v. Sandham 2008 CanLII 84099 (ON SC), at para. 46:

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[^1];

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. The instruction that the verdict must be based on the evidence;

12. The instruction to set aside prejudice or bias, to disregard information beyond the evidence; and

13. The unanimity required for a verdict.

[133] The Crown is prepared to consent to orders allowing challenges for cause, peremptory challenges, an enlarged jury panel, the selection of additional jurors under s. 631(2.2), and a list of individuals being provided by the defence who have made comments about the case on social media.

[134] I am confident that an impartial jury can be chosen anywhere in the Northeast Region using these tools in this case.

CONCLUSION

[135] Mr. Wright has failed to displace the presumption of juror impartiality among the potential jurors in Sudbury or elsewhere in the Northeast Region. His application must be dismissed.

POSSIBILITY OF A VENUE CHANGE DUE TO COVID-19

[136] It is now well-settled that, as the Chief Justice’s delegate in the Northeast Region, I have the authority to move a trial from one judicial centre to another within the region where it is necessary to do so for the proper administration of justice: R. v. Jeffries, 2010 ONSC 772, at para. 62; R. v. Lane, 2014 ONSC 4553, at para. 13; R. v. Singh, 2018 ONSC 1532, at para. 147; R. v. Davis, 2018 ONSC 4630, at para. 31. This power exists independently of the authority granted by s. 599 of the Code.

[137] On March 17, 2020, the Superior Court of Justice suspended normal operations due to the pandemic caused by the novel coronavirus, COVID-19. All in-person criminal proceedings were adjourned, and the court began to do what it could remotely. In early July, the court began hearing a limited number of in-person proceedings in courtrooms specially outfitted for COVID-19 located in the Northeast Region’s three largest centres: Sudbury, Sault Ste. Marie, and North Bay. While in-person hearings remain cumbersome when compared to pre-pandemic proceedings, we are nonetheless able to conduct judge alone trials in our three largest centres and we will soon be able to do so in the remaining five centres in the region.

[138] Jury trials, however, pose a unique challenge because of the number of people involved and the risk of spreading the virus as a result. As I write these reasons, the Superior Court is only just resuming jury trials in Toronto, Brampton, and London. In order to conduct jury trials in the first two cities, convention centres had to be rented. As of the time of writing, there are no facilities yet available to conduct jury trials in the Northeast Region.

[139] Our hope is that we will soon be able to conduct jury trials in our three largest judicial centres. However, those centres must be used to conduct jury trials for cases from throughout the region and it will, therefore, be necessary for me to prioritize the region’s cases. This means that the trial in this case may be moved from Sudbury to another judicial centre in order to ensure the timely disposition of all of the outstanding cases in our region. In the event that I am called upon to make such a decision, I will invite further submissions from counsel.

PUBLICATION BAN

[140] During the hearing of this application, I made a temporary ban on publication and invited members of the press to make submissions on that issue during a hearing held on September 11, 2020. My decision on the law relating to the publication ban will be delivered in separate reasons to follow. As I will explain in those reasons, I am not able to agree with cases in which it has been held that ss. 645(5) and 648(1) of the Code operate to prohibit publication of information relating to all pre-trial applications. Even if I was able to agree, the decisions in those cases were based upon the fact that the pre-trial applications were being made before the trial judge and I have not yet assigned a trial judge in this case. As a result, I have concluded that the common law test set out in the decisions in Dagenais, cited above, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 (together, “the Dagenais/Mentuck test”) governs the determination of what publication ban, if any, should be imposed in this case.

[141] The Dagenais/Mentuck test requires me to give equal weight to the right to freedom of the press under s. 2(b) and to the right to a fair trial under s. 11(d) of the Charter of Rights and Freedoms. The test allows me to ban publication only when it is necessary to prevent a real and substantial risk to the fairness of Mr. Wright’s trial and only where the salutary effects of the ban outweigh the deleterious effects to the free expression of those affected by the ban.

[142] I have concluded that most of the “Facts” section of these reasons should not be published because to do so would violate the publication bans already in place under s. 517, as would publication of that part of these reasons relating to the bail judge’s reasons. Similarly, publication of that part of the reasons relating to the application to remove defence counsel would violate the publication ban imposed under s. 648(1) of the Code.

[143] Based on the concerns I have expressed about the potentially prejudicial effect of the child pornography charge, I believe it is necessary to ban publication of any information in these reasons about that charge and that the salutary effects of such a ban outweigh the deleterious effects to the right to free expression.

[144] I have also concluded that trial fairness in this case will be put at substantial risk if my reasons relating to the defence survey are published. In the same way that I have explained that publication of a bail judge’s reasons may prejudice an accused, I believe that publication of my reasons for rejecting the defence survey evidence may prejudice Mr. Wright. As I have tried to explain, that evidence suffered from a number of significant flaws. I believe that it would impair Mr. Wright’s fair trial rights if potential jurors were to interpret those reasons as suggesting that there was no merit to this application. It is one thing to challenge the impartiality of a jury pool, it is another thing altogether to challenge it based on evidence that a judge has suggested fails entirely to support the application.

[145] In addition, my discussion of the survey evidence is laced with references to facts that may or may not be adduced as evidence at the trial. The deleterious effect on freedom of speech by banning publication of even the admissible evidence is outweighed by the possible prejudice to Mr. Wright of repeating it publicly yet one more time prior to trial.

[146] Finally, for reasons I have already explained, publication should also be banned of certain facts mentioned in other portions of my reasons, such as the number of people who were investigated, where those facts might be prejudicial and would not normally be adduced as evidence at the trial.

[147] Because I am concerned about a further breach of a more general publication ban by the media, I will specify the paragraphs of these reasons that may be published or reported upon. They are as follows:

(1) Overview

a. Paras. 1-3

(2) Facts

a. Paras. 11-12

(3) Issues

a. Paras. 13-16

(4) The Legal Framework

a. Paras. 17-22

b. Paras. 23-25

c. Paras. 26-29

(5) Public Support for the Victim

a. Para. 35

(6) Pre-trial Publicity

a. Paras. 36-54

b. Para. 57

c. Paras. 60-61

d. Para. 65

e. Paras. 66-81

(7) The Size of the Venue

a. Paras. 103-104

b. Para. 107

(8) Online Public Commentary

a. Paras. 108-115, except for the specific comments listed in para. 109

(9) Results of the Survey Poll

a. Para. 116

(10) Conclusion Regarding the Probability of Partiality or Prejudice

a. Para. 131

(11) Can the prejudice or partiality be remedied?

a. Paras. 132-134

(12) Conclusion

a. Para. 135

(13) Possibility of a Venue Change Due to COVID-19

a. Paras. 136-139

(14) Publication Ban

a. Paras. 140-141

b. Paras. 147-148

[148] No other portion of these reasons may be published or reported upon.

Ellies R.S.J.

Released: October 8, 2020

COURT FILE NO.: 1087-19

DATE: 2020/10/08

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ROBERT STEVEN WRIGHT

REASONS FOR DECISION

eLlies r.s.j.

Released: October 8, 2020

[^1]: Subject to the Supreme Court of Canada’s decision in the pending appeal in R. v. Chouhan, 2020 ONCA 40; leave to appeal allowed: [2020] S.C.C.A. No. 19.