Court File and Parties

Court File No.: CR-22-R15544 Date: 2023/04/26 Ontario Superior Court of Justice

Between: His Majesty the King, Respondent – and – Patrick King, Applicant

Counsel: Moiz Karimjee, for the Respondent Natasha Calvinho, for the Applicant

Heard: In Writing

Decision on Change of Venue Application

Phillips J.

[1] Patrick King is charged with a series of offences arising out of his alleged involvement in the “Freedom Convoy” that visited Ottawa in February 2022. Presently, Mr. King applies for an order changing the venue of his forthcoming trial, arguing that he cannot be tried fairly in Ottawa.

[2] Mr. King points out that the Crown alleges that he, along with a large number of separately charged co-accused individuals, “interfered with the citizens of Ottawa's lawful use and enjoyment of their city”. It is argued that there is probability of prejudice in that the occupation of Ottawa was felt, in one way or another, by all of its residents. Therefore, it would be impossible for Mr. King to receive a fair trial if his jury was comprised of Ottawa residents.

[3] In addition, Mr. King asserts that there has been extensive prejudicial media coverage of the allegations and surrounding circumstances. Not only was the protest high profile but the local news media coverage was profuse, he submits, including articles containing some evidence about both Mr. King and other separately charged protesters. Mr. King argues that the majority of the media coverage was adverse to his interests and the presumption of innocence.

[4] The court has discretion to control its process. Indeed, the Criminal Proceedings Rules for the Superior Court of Justice provide that a judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry. I have decided that Mr. King’s application shall be dismissed. It is important for the proper administration of justice that applications devoid of any reasonable prospect of success not take up the court's limited resources.

[5] This application has no prospect of success because the issue of change of venue in cases of accused persons facing charges arising out of the “Freedom Convoy” has been decided by Hackland J. of this Court in R v. Bauder, 2023 ONSC 996.

[6] Hackland J. considered and dismissed any concern about pretrial publicity arising from the Freedom Convoy. He determined, in effect, that the local Ottawa news organizations did not single out any particular participant any more than did the larger news media. In his view, the overwhelming majority of the news coverage was about the Convoy itself as opposed to any individual, a finding that leads to the conclusion that to the extent that any individual was focused upon, such focus was diluted by the broader coverage which was copious, comprehensive and sustained. Importantly, Hackland J. noted that the media coverage was national and even international. In so doing, it would appear that Hackland J. found it impossible to see how a change of venue could address the issue of extensive news coverage given that the coverage was most certainly not confined to Ottawa.

[7] More particularly, I note that Hackland J. grappled with the core of the issue at play here. As he framed it:

…there may be legitimate concern about securing an unbiased jury which arises from the fact that a large number of Ottawa residents who reside or work in the downtown areas were injured or suffered physically, psychologically, or economically by the Freedom Convoy. The protesters blocked their neighborhoods, kept them awake at nights by the honking of truck horns, and gasoline fumes, and in some cases subjected them to personal harassment, and obstructed their businesses. It is well established that persons ought not to serve on a jury if they are victims or witnesses to the activities giving rise to the charges.

[8] Hackland J. analysed the issue and concluded that all concerns can be adequately managed by the normal procedural safeguards which are available to an accused person in a jury trial. He accepted a list of such safeguards which is reproduced below:

i. 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; ii. Unlimited challenges for cause, as deemed appropriate by the trial judge; iii. The juror's oath; iv. The presumption of innocence; v. The burden on the Crown; vi. The requirement of proof beyond reasonable doubt; vii. The rules of evidence and the fact that only admissible evidence is permitted to go before the jurors; viii. The duty to follow the trial judge's instructions; ix. The instruction that the verdict must be based on the evidence; x. The instruction to set aside prejudice or bias, to disregard information beyond the evidence; and xi. The unanimity required for a verdict.

[9] In accepting that all concerns about ensuring a fair trial to those charged out of the Freedom Convoy can be adequately managed by the normal procedural safeguards which are available to an accused person in a jury trial, Hackland J. cited Phillips v. Nova Scotia (Commissioner, Public Inquiries Act), [1995] 2 SCR 97 at paras. 132-133, where Cory J. explained that “the jury system is a cornerstone of our democratic society. We do not as a society expect our jurors to be a tabula rasa devoid of any political views. Rather, and with the assistance of robust procedural safeguards, we trust jurors to leave their views at the door of the deliberation room and decide the case on the evidence, as per the trial judge’s instructions”. Hackland J. concluded:

“… having the matter tried in Ottawa complies with the local venue rule and serves the interests of justice by ensuring that the community alleged to have been impacted by the criminal conduct sees justice being done. I am satisfied that the measures normally available to a court during a jury trial, such as screening questions under section 632 and potential challenges for cause under section 638 will be adequate to ensure that Mr. Bauder receives a trial from an unbiased jury”.

[10] The Supreme Court of Canada in R v. Sullivan, 2022 SCC 19 requires decisions of judges of the same court to be followed except for special circumstances which do not exist here. This is known as the principle of judicial comity and is said to strike an appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law.

[11] I consider that Hackland J.’s treatment of essentially the same issues that Mr. King raises in pursuit of the same remedy is entitled to deference by this court and subsequent courts tasked with deciding basically the same thing. No one could argue that Hackland J.’s decision was not fully considered or was arrived at through carelessness or inadvertence. The public has a legitimate expectation that the courts will operate themselves with some degree of efficiency. It would be contrary to the proper administration of justice to allow Mr. King to now take the same kick at the same can.

[12] The application is dismissed.

Justice Kevin B. Phillips Released: April 26, 2023