Court File and Parties

COURT FILE NO.: CR-23-0005 DATE: 2023/08/08 COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE

RE: HIS MAJESTY THE KING, (Respondent) AND: BRIAN NADLER, Defendant (Applicant)

BEFORE: Regional Senior Justice Calum MacLeod

COUNSEL: Matthew Humphries, for the Crown (Respondent) Brian H. Greenspan for the Defendant (Applicant) – by videoconference

HEARD: August 8, 2023

Decision & Reasons

C. MacLeod RSJ:

[1] The Defendant faces four counts of first-degree murder in relation to the deaths of four patients who were under his care as a doctor at the Hawkesbury and District General Hospital. The trial is expected to take six to eight weeks with a jury and is currently scheduled for trial at the Courthouse in L’Orignal.

[2] The Defendant Applicant seeks an order moving the trial to Ottawa for a number of reasons which I will address momentarily. The Crown consents to the transfer. I nevertheless directed that the Application be heard in open court in L’Orignal as this is a matter that is of significance to the residents of the United Counties of Prescott and Russell where the events in question took place.

[3] Since the division of Ontario into Judicial Regions in 1990 and the enactment of s. 470 of the Criminal Code of Canada, as well as certain changes to the provincial Juries Act, the Regional Senior Justice has the authority to move trials within a region where it is in the interests of justice to do so. This is distinct from a change of venue application under s. 599 of the Code. Nevertheless, there remains a strong presumption that crimes should be tried in the County where the crime took place. See R. v. Jeffries, 2010 ONSC 772 and R v. Lane, 2014 ONSC 4553.

[4] After hearing argument, I indicated that I would grant the transfer request. I vacated the next appearance date of August 25, 2023, in L’Orignal and instead directed the parties to appear for a Judicial Pretrial (JPT) in Ottawa on September 26, 2023 at 10:15 a.m. It is anticipated that the trial will commence on June 4, 2024, which is the same date that would have been assigned in L’Orignal. It will be the same judge who will preside but the transfer to Ottawa will mean that the jury will be drawn from the Ottawa jury pool rather than from Prescott and Russell.

[5] Despite the fact that the transfer was on consent, I indicated I would release written reasons. It is important not to give the impression that major trials cannot take place in local courts or that administrative transfers will be routinely granted. It is not the case that significant homicide trials can only be heard in large cities. Had the matter remained in L’Orignal, it would have been the responsibility of Counsel, Court Services Division and the Court to ensure that sufficient technology and other resources were made available and brought to bear.

[6] I note that there was a Preliminary Inquiry which did take place in L’Orignal. The evidence given at the Preliminary Inquiry remains subject to publication bans under s. 517 and s. 539 (1) of the Code but the experience of conducting that hearing in L’Orignal and certain difficulties encountered at that time inform the request for transfer and the consent given by the Crown.

[7] Mr. Greenspan submitted that the following factors justify a transfer. None of these facts are in dispute:

a. While not suggesting that there is evidence to support a change of venue under, s. 599, it is the case that in a highly publicized case involving the regional hospital and four deceased patients, drawing a jury from the limited jury pool in Prescott and Russell creates a heightened risk that potential jurors may have conflicts of interest.

b. The length of the trial will also be a significant burden on a smaller jury pool.

c. The L’Orignal courthouse is the oldest courthouse in the province that is still in daily use. As a small building that is almost 200 years old, while it has been retrofitted with modern technology, it is still limited in terms of its capacity for electronic trials. There are also limited numbers of electrical outlets.

d. There will be voluminous documentary evidence that must be presented electronically at trial. Ideally, there would be multiple screens for the jurors, something that is not currently available in the main courtroom in L’Orignal.

e. There is limited capacity in L’Orignal to accommodate individuals with mobility issues.

f. There is limited accommodation in the L’Orignal area such that it would be difficult over a lengthy trial for counsel to avoid any appearance of interaction with jurors or witnesses.

g. None of the counsel, the accused or any of the expert witnesses reside or work in or near L’Orignal and Ottawa is more convenient. Police and victim witness services do not consider that a transfer to Ottawa would pose a hardship for witnesses or staff.

[8] There are certainly significant deficiencies at the Superior Court site in L’Orignal. Besides the limitations identified by counsel in their submissions, there here are numerous other issues including security issues. The current premises are increasingly unsuitable for the needs of a modern court system. None of these problems are insurmountable, however, and as said earlier, the interests of justice include many factors. One of those is the open court principle and the presumption that justice should be delivered in the community most affected by the alleged crime. Just because it might be simpler or more convenient to hold the trial in a major centre is insufficient.

[9] There are also other options. From time to time, trials are held offsite when a suitable court room is not available or the local courthouse proves inadequate. Indeed, there was a jury trial held in L’Orignal in the county council chambers not long ago. No such alternatives were considered in this case.

[10] Both parties are requesting the transfer and no one is opposing it. The situation of four alleged murders taking place in the only major hospital is an unusual circumstance. The combination of factors along with the consent of the Crown justifies the transfer.

[11] I would add to this that there are currently two judicial vacancies in L’Orignal. The federal government has not yet filled these appointments, so Prescott and Russell are currently underserviced. The judge who will be presiding at this trial will be an experienced criminal judge from Ottawa regardless of the location of the trial.

[12] In conclusion, while administrative transfers within a region are permissible without meeting the s. 599 test for a change in venue, they will not be made routinely simply as a matter of convenience. There remains a strong presumption that justice should be done locally.

[13] In the case at bar, there is an unusual combination of circumstances. I have approved the transfer accordingly and the trial will be moved to Ottawa.

Justice C. MacLeod Date: August 8, 2023