Her Majesty the Queen v. Nathaniel Veltman
COURT FILE NO.: CR-21-174
DATE: 2022-08-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Nathaniel Veltman Defendant
Counsel: Lisa Mathews and Sarah Shaikh, Counsel for the Public Prosecution Service of Canada Fraser Ball and Jennifer Moser, Counsel for the Attorney General of Ontario Christopher Hicks, for the Defendant
HEARD: June 13 and 14, 2022
RULING ON APPLICATION – CHANGE OF VENUE
pomerance, j.
[1] The accused, Nathaniel Veltman, is charged with serious offences including four counts of first degree murder and one count of attempted murder. The charges arise out of an incident whereby members of a Muslim family were struck by a pick-up truck and killed on a crosswalk in northwest London, Ontario. The youngest member of the family survived. The accused was arrested and taken into custody shortly after the incident.
[2] The events giving rise to the charges, and subsequent related events, have generated extensive coverage and commentary in both conventional and social media. There have been vigils, marches, and other events designed to honour the memory of the victims and to speak out against Islamophobia. Various high-ranking politicians have weighed-in to publicly express shock and horror over the incident. There was recently a resurgence of coverage and community events on the anniversary of the incident. Media coverage is renewed each time there is another court appearance.
[3] The accused has applied for a change of venue. He says that given the nature and extent of the publicity surrounding the incident, including the sensational and conclusory nature of the commentary, it is not possible to obtain an impartial jury in the city of London. The accused’s right to a fair trial requires that the matter be tried somewhere other than the site of the alleged crimes. This is one of the exceptional cases that warrants a change of venue to increase the likelihood that an unbiased and impartial jury can be selected.
[4] The Crown resists the change of venue, arguing that there is no good reason to move the case from London. The Crown points to the fact that coverage has been voluminous not only in London, but across Ontario, Canada, and even international jurisdictions. The Crown says that because prolific coverage extends beyond London, there is no reason to think that the jury pool in a different centre will be any different than one in London. The Crown further argues that the safeguards inherent in the criminal process – such as the presumption of innocence, the challenge for cause, and judicial instructions – are sufficient to overcome the threat of prejudice arising from pre-trial publicity. The Crown argues that the prejudice in this case flows not from the publicity but from the shocking nature of the allegations.
[5] There is a presumption that offences will be tried within the local community. As a general rule, the trial is held where the crime is alleged to have been committed. There is good reason for this rule. However, like all rules it is subject to exception. Section 599(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, provides that a judge may order the trial to be held in a location other than the presumptive venue where “it appears expedient to the ends of justice, including…to promote a fair and efficient trial”.
[6] I have carefully considered counsel’s submissions, the authorities, and the record before me. I have determined that this is a case in which a change of venue is necessary and appropriate. I will explain why in the reasons that follow.
MEDIA COVERAGE
[7] Both Crown and defence have documented the nature and number of news articles, community events, and political statements arising out of the accused’s charges. The coverage is extensive. In many instances, emotive language is used to describe the alleged offences, which have routinely been described as hate crimes. Some articles reference information that may or may not be admitted before the jury, including bad character evidence. The case has become a centrepiece of an ongoing campaign against Islamophobia. These events have caused high-profile politicians, such as the Mayor of London, the Premier of Ontario, and the Prime Minister of Canada, to publicly express shock and outrage.
[8] London Mayor, Ed Holder, described the events as “an act of mass murder, and a grotesque expression of hatred rooted in Islamophobia”; Premier Doug Ford characterized what happened as “an act of terrorism against a family targeted for their religion”, and continued to state that “this type of racism and terrorism cannot and will not be tolerated”; Prime Minister Justin Trudeau called the actions of the applicant “an act of evil”, and further commented that the victims lives “were taken in a brutal, cowardly, and brazen act of violence. This killing was no accident. This was a terrorist attack motivated by hatred in the heart of one of our communities”.
[9] As one might imagine, these comments have been reported by media across Canada and elsewhere.
[10] The media serves a critically important role in a modern democracy. It is the vehicle through which citizens gain access to the courts and their operations. Section 2(b) of the Canadian Charter of Rights and Freedoms encompasses both the right to convey and the right to receive information. The press necessarily operates within a sphere of constitutional protection. It is appropriate that the media keep the public informed about this case and events unfolding inside and outside of the courtroom.
[11] Similarly, it is not surprising that those who live in London and elsewhere have chosen to organize and participate in public events designed to honour the lives of the victims. Persons often come together to grieve in the wake of a tragic event. It is in the public interest to encourage people to speak out against Islamophobia. This is an important issue that should remain in the public consciousness.
[12] The difficulty for present purposes is that the messaging builds a bridge between the accused’s alleged actions and the pernicious existence of Islamophobia. The crime has been routinely described in media and other commentary as a hate crime. Yet, the applicant’s motive is one of the issues to be determined by the jury in this case. Similarly, many reports refer to the incident as a planned and premeditated attack. This is another factual issue to be determined by the jury at the end of the trial.
[13] There are other aspects of the coverage said to increase the potential impact on the jury pool. These include the following:
a. Reference to the accused’s fascination with a notorious New Zealand mass murderer.
b. Reference to the applicant having access to the dark web, which implies access to illicit markets for child pornography, drugs, weapons, and other illegal items.
c. Reference to evidence that the accused lied to police about whether he had a cell phone with him.
d. Reference to the accused’s statement, the admissibility of which has yet to be determined.
[14] Accepting that media reports, community events, and public speeches are logical responses to tragedy, there remains the question of how dissemination of sensational and emotional commentary will affect the ability of the accused to receive a fair trial.
[15] I will deal with each of the Crown’s arguments in turn.
PUBLICITY IS EVERYWHERE
[16] The Crown argues that it is futile to seek a “reasonably serene environment” in which to hold the trial: see R. v. Charest (1990), 1990 3425 (QC CA), 28 Q.A.C. 258, at p. 349. The concept of serenity, attainable in days past, has been rendered obsolete by the proliferation of technology and the ubiquity of access to information. As noted in the Crown’s factum, at para. 24, “change of venue applications based on print media circulation and the reach of local television have been rendered quaint by the near limitless global reach of the internet”. The Crown points out that for the instant case, the number of media reports is measured in the thousands, with readership measured in the millions.
[17] I accept that the reach of reporting in this case goes well beyond the city of London. It is common ground that there has been voluminous coverage of this case in the media and that media coverage has proliferated across Ontario and across Canada, and it has gained some prominence in international jurisdictions. The Crown points to the nature and amount of publicity as a factor rendering a change of venue to be unnecessary. The Crown says that even if the case is moved from London, the jury pool in other centres will consist of people who have knowledge of the incident. Therefore, there is no good reason to move the trial from its presumptive location.
[18] There is no doubt that this case has achieved notoriety in the media. One can expect that wherever the trial is held, many prospective jurors will have heard, read, or seen information about the allegations.
[19] However, the question is not whether people have knowledge about the case; the question is whether, if they have information, they are willing and able to set such information aside and decide the case based solely on the evidence in the courtroom and the instructions of the trial judge.
[20] It is common ground that there should be a robust challenge for cause. Prospective jurors will be asked whether they can set aside their knowledge of the case and any pre-conceived opinions formed from media and other sources of information.
[21] Crown and defence differ to some extent on how specific and extensive the questions on the challenge should be. I will address that issue in a separate judgment. For present purposes, it suffices to observe that the Crown and defence agree that the impact of publicity should be meaningfully addressed on the challenge for cause and that this requires some direct questioning of prospective jurors.
[22] In light of the challenge for cause, and other safeguards, can it be said that London is as good a location as any other in which to hold the trial?
[23] I find that there are two reasons to distinguish London from other centres in the Southwest region. First, the sheer amount of coverage in London far exceeds that in other locations. National news media have local affiliates that concentrate on events directly affecting the community. CBC, CTV, Global news, and other companies have London stations that have focussed considerable attention on the events in issue. In addition, much of the coverage is found in the London Free Press. National newspapers have reported on these events but not with the same intensity or frequency as London affiliates. While publicity is everywhere, the saturation level is much higher in London than it is in centres some distance away.
[24] The second distinction concerns the impact of the allegations on those who live in London. The events have not only occurred in Londoners’ back yard, so to speak, but they have been portrayed as a direct affront to the city’s sense of itself. The events have been seen as striking at the very heart of the municipal identity. For example, the Mayor of London put it thus:
Let me be clear: this was an act of mass murder, perpetrated against Muslims — against Londoners — and rooted in unspeakable hatred. The magnitude of such hatred can make one question who we are as a city, and who we are as Londoners. It’s up to us — all of us — to answer that question, through not only our words, but our actions. We can say ‘this isn’t who we are,’ and I know that to be true. [.]
[25] I offer no criticism of these remarks, but I do note their potential impact. There is a risk that persons who live in London may, consciously or unconsciously, internalize the impulse to denounce what took place on their own city streets in order to restore the reputation and integrity of the community. The accused has described London as a small community, where people are likely to have some connection to the victims. I do not agree with that characterization. London is not as large as a city as Toronto, but within the Southwest region it is a substantial centre, capable of generating large jury pools. The issue is not knowledge of the victims per se. Rather, it is the notion that those who live in the city of London may feel a sense of personal violation associated with the tarnishing of their home jurisdiction. Persons in London may subconsciously internalize the Mayor’s call to action to redress the horror of what allegedly took place. The portrayal of the events as an affront to the entire community may cause prospective jurors to feel some degree of personal connection.
[26] This is not to say that anyone who has participated in a march or vigil cannot be impartial. It is only to say that bias is both conscious and unconscious: see R. v. Chouhan, 2021 SCC 26, 459 D.L.R. (4th) 193. The level of subconscious or implicit bias may be more resistant to challenge when an individual perceives that he or she has a personal connection to the events, or that there is a community stake in the outcome of the case.
[27] The Crown argues that there is no concrete evidence outlining the attitudes and opinions of those who live in London. It is true that I have not been presented with opinion polls or other such evidence. However, the court is at liberty to draw reasonable inferences from the evidence that has been presented. It is reasonable to infer that the publicity is capable of generating a general collective antipathy toward the accused and that such sentiment may be more pronounced in London than other centres.
THE IMPACT OF SAFEGUARDS
[28] The Crown argues that whatever the effect of the coverage, there are various safeguards built into the process to ensure that an impartial jury can be selected in London.
[29] In R. v. Suzack (2000), 2000 5630 (ON CA), 128 O.A.C. 140, leave to appeal refused, [2000] S.C.C.A. No. 583, Doherty J.A. stated, 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.
[30] It is true that these safeguards can be effective in minimizing the impact of pre-trial publicity. They will be invoked wherever the trial is ultimately held. However, it is not clear that these safeguards obviate the need for a change of venue. For one thing, s. 599(1) of the Criminal Code expressly contemplates that some cases may call for a change of venue. If the safeguards were always enough to guarantee a fair trial, there would be no need for any case to be tried in a different venue. Section 599(1) signals that while the venue of trial is usually the venue of the alleged crime, there will be cases where the interests of justice are better served in some other location.
[31] Canadian law places great faith in jurors. We presume that jurors abide by their oaths; that they follow trial judge’s instructions; and that they will discharge their duty of impartiality. The jury system hinges on these assumptions, and they are borne out by judicial experience. However, some circumstances may be so powerful as to overwhelm jurors, despite their best efforts and intentions. Section 599(1) of the Code contemplates this very situation. If the present case does not qualify for a change of venue, it is difficult to imagine what would be required to meet the test.
[32] It may well be possible to select an impartial jury in the city of London. However, the goal of impartiality will be more readily attainable in a different location
PREJUDICE OF THE FACTS
[33] The Crown has also argued that the real source of prejudice in this case is not publicity, but rather the facts of the offences themselves. The Crown relies on the decision in Suzack, where Doherty J.A. noted that much of the shock and horror would flow from the actual facts of offences, rather than the publicity describing those facts. Related to this is the Crown’s argument that, faced with evidence of the crimes, jurors are unlikely to remember the more mundane aspects of media coverage.
[34] The Crown argues that, as compared to the shocking facts of the alleged offence, something as “minor” as Mr. Veltman lying to police about a cell phone or surfing websites on the dark web (as is alleged in some media articles) would not be likely to impact on jurors’ perceptions. The Crown says that the negative information in media reports pales in comparison to the evidence that will be led at trial. Therefore, it is of little or no concern.
[35] With respect, I must disagree. It is true that the facts as alleged are such as to shock reasonable members of the community. However, the horror of the alleged offence requires the court to be more, rather than less, vigilant in protecting Mr. Veltman’s fair trial rights. It is precisely in a case such as this that the court must ensure that any potential prejudice, however minor, is averted to the extent possible. The fact is that lying to police and surfing the dark web may embed an impression of Mr. Veltman as a dishonest and disreputable person. Because the allegations themselves have the capacity to provoke antipathy toward the accused, it is critical that the potential for extraneous prejudice be strictly controlled. The change of venue is one mechanism by which to achieve that goal.
CONCLUSION
[36] In Suzack, Doherty J.A. offered the following observations, 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.
[37] After setting out s. 599(1) of the Criminal Code, he went on to say, at para. 31:
As the section indicates, a change of venue should be ordered where the judge is satisfied that it “appears expedient to the ends of justice”. This determination will depend on the judge’s assessment of the evidence led on the application and the weighing of the various factors which favour or tell against a change of venue. In short, the trial judge’s decision requires an exercise of discretion.
[38] In this case, I have exercised my discretion to remove the case from the city of London in order to increase the likelihood that a genuinely impartial jury can be selected to hear the trial. I appreciate that this decision may cause increased inconvenience or cost to the prosecution, as witnesses will have to be transported to the new venue. If that is the cost of ensuring a fair trial, it is one that is properly borne by the state.
[39] I will forward my decision on to Regional Senior Justice Bruce Thomas who, in accordance with the protocol, will determine where the trial will be heard, and will communicate that decision to the parties in due course.
Original Signed by “Justice R.M. Pomerance”
Renee M. Pomerance Justice
Released: August 9, 2022
COURT FILE NO.: CR-21-174
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – Nathaniel Veltman
RULING ON APPLICATION – CHANGE OF VENUE
Pomerance J.
Released: August 9, 2022