COURT FILE NO.: CR-19-4703
ORIGINAL GIVEN TO REGISTRAR AND MADE AN EXHIBIT DATE: 20211022
CORRECTED RELEASED: 20211026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Jitesh Bhogal
Defendant
Kim Bertholet and Ilana Mizel, for the Crown
Peter Thorning and Maureen Salama, for the Defendant
HEARD: October 21, 2021
Corrected Decision: The date heard on the original decision was corrected to read from October 21, 2022 to October 21, 2021
RULING ON PRESENCE OF DECEASED’S REMAINS
POMERANCE J.
BACKGROUND
[1] The right of an accused to a fair trial is the touchstone of our legal system. So too is the presumption of innocence. Trials are designed to facilitate the dispassionate appraisal of evidence, without sympathy, prejudice, or partiality. The trial judge is the guardian of these principles, responsible for overseeing and maintaining the integrity of the process.
[2] At the same time, there has been increasing recognition of the rights of victims and victims’ families. Victims are not parties to the process, subject to certain statutory exceptions. Nonetheless, it is important that their interests be considered and that they be treated with sensitivity dignity and respect.
[3] There can be no doubt that, when the charge is murder, the trial process can be very difficult for the victims’ family who have suffered the loss of a loved one. It can be grueling for family members to listen to evidence about how the victim met his or her death. That said, family members often feel it imperative to be present and bear witness to the proceedings.
[4] In this case, family members are present, although they cannot be physically present in the courtroom where the trial is taking place. This is unfortunate, but it could not be prevented. The restrictions imposed by COVID-19 required the court to seat the jury in the area traditionally occupied by public observers. In other words, there has not been any selective exclusion of Ms. Taggart’s family members. There is simply no room for anyone who is not a participant to sit in the courtroom. This includes media representatives. Like the family, media must observe the proceedings as they are broadcast in an overflow courtroom, or from an outside location. There is a webinar link that facilitates remote access to the trial.
[5] We could not hold this trial at all if we did not restrict access to the courtroom.
[6] Because the family members are not physically present in the courtroom, they are not within the view of the jury. It is because of that, that I have been able to permit the signage on t-shirts which read “Justice for Autumn”. The jurors may see these shirts in passing as they enter and leave the courthouse, but the signage is not in the courtroom. I have instructed the jurors that they are not to be influenced by community views, including the views of a victim’s family members.
[7] It is important to accommodate the wishes of the family to the extent that I can do so. I am sensitive to their situation. I have therefore allowed the wearing of the t-shirts.
[8] However, there are limits on what can take place within the confines of the courthouse.
[9] I am advised that Ms. Taggart’s family members have brought an urn containing Ms. Taggart’s ashes into the overflow courtroom where they are watching the proceedings. I understand that it is a relatively small urn, but nonetheless identifiable as an urn that might contain human remains.
[10] This is an unusual situation without clear precedent in the case law. Having considered the matter, I have determined that it is not permissible for the deceased’s remains to be in the courthouse during the trial.
[11] First, there are practical concerns. At present, the family members are leaving the urn in the courthouse overnight. This poses significant concerns, in that it leaves the human remains in the custody of the court when family members are absent. The court cannot take responsibility for Ms. Taggart’s remains. At present, I have directed that the overflow room not be cleaned to ensure that no one touches the urn. However, that room must be cleaned during the course of the 8-week trial. The need for regular sanitation is enhanced given the impact of COVID-19. The court cannot assume the responsibility of ensuring the integrity and sanctity of Ms. Taggart’s remains.
[12] While the remains cannot be left in the courtroom, nor can they feasibly be taken in and out of the courthouse each day. To have the urn carried in and out each day would be to greatly increase the likelihood that jurors will see the item. That would be highly problematic. Were the jurors to learn that Ms. Taggart’s remains were in the courthouse, this could have very real implications for the fairness of trial.
[13] Indeed, that is the crux of the concern in this case. Jury trials invariably require that certain information be kept from the jurors, for example, the fact that an accused is in custody. We should not compound the issue by introducing additional matters that could potentially impact on the jury’s perceptions. If the jurors were to see the urn, or to learn of its existence through other means, this would be most unfortunate. I am not prepared to court that risk. It can be readily avoided by directing that the urn be removed.
[14] I accept that Ms. Taggart’s family members may take some comfort from being near Ms. Taggart’s remains during the trial. There is nothing stopping them from observing the proceedings from home, or some other non-court location. The overflow room broadcasts the webinar and that same webinar can be viewed from any place that has a computer or i‑Pad or phone.
[15] There may be other reasons why the urn should be removed from the courthouse. The courthouse stands within the community as a symbol of justice. The courtroom is a vehicle for the fair and dispassionate resolution of disputes between citizens, and/or between citizens and the state. The presence of the victim’s remains during a murder trial carries its own symbolic value, one that may clash with the model of dispassionate justice.
[16] The overflow courtroom is still a courtroom – it is an extension of the main courtroom where the trial is taking place. It is not a private room reserved exclusively for family members. It is conceivable that other members of the public or media will wish access to the overflow room. There is an age-old adage that justice must not only be done it must be seen to be done. The appearance of neutrality – critical to the court’s legitimacy – may be adversely impacted if Ms. Taggart’s remains were on display in a courtroom. I need not elaborate further on this notion, as I have already decided that the urn must be removed for practical reasons, relating to Mr. Bhogal’s right to a fair trial.
[17] Therefore, in closing, while I am sensitive to the needs of Ms. Taggart’s family members, I cannot allow the urn containing her remains to be in the courthouse during the trial, and would direct that the urn be removed by the end of the proceedings today. I direct that the item be removed while the court is in session with the jury in the courtroom, to ensure that it is not seen by the jurors.
“original signed and released and made an Exhibit by Pomerance J.”
Renee M. Pomerance
Justice
Released: Delivered Orally on October 22, 2021
Provided to Counsel on October 22, 2021
Corrected Released: Provided to Counsel on October 26, 2021
COURT FILE NO.: CR-19-4703
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Jitesh Bhogal
RULING ON PRESENCE OF
DECEASED’S REMAINS
Pomerance J.
Released: Delivered Orally on October 22, 2021
Provided to Counsel on October 22, 2021
Corrected Released: Provided to Counsel on October 26, 2021