COURT FILE NO.: CR-22-8690
DATE: 2023/09/25
BETWEEN:
HIS MAJESTY THE KING
-and-
Randy Hillier
ONTARIO SUPERIOR COURT OF JUSTICE
) Dallas Mack and Emma Loignon-Giroux
) for the Crown
) David Anber for the Applicant
Applicant
) HEARD: September 19, 2023
RULING ON APPLICATION FOR CHANGE OF VENUE
ANNE LONDON-WEINSTEIN J.
[1] The Applicant is a retired, former elected member of the Ontario provincial legislature who served in that capacity from 2007 to 2022. He is charged with offences arising from the three-week-long Freedom Convoy protest in January of 2022.
[2] He seeks leave to change the location of his trial from Ottawa, Ontario, to elsewhere in the East Region, on the basis that pervasive bias prevents him from having a fair trial. He has elected a trial by judge and jury.
[3] The Applicant argues that pervasive bias exists not only against him individually, but also that there is pervasive and institutional bias in the Ottawa community that the Freedom Convoy protest met the elements of the offence of mischief. He points to the fact that significant portions of the Ottawa citizenry are named as plaintiffs in a civil lawsuit against participants of the Freedom Convoy protest. He argues that the bias cannot be remedied by any other means.
[4] The Respondent's position is that the Applicant has not established on a balance of probabilities that he will be deprived of a fair trial if this matter is tried in Ottawa. The Respondent also argues that I am bound by the decision of Hackland J. in the convoy-related matter of R. v. James Ralph Bauder, 2023 ONSC 996. In that case, Hackland J. found that Mr. Bauder had not established that he would not receive a fair trial if his matter remained in Ottawa. Mr. Bauder was also charged as a result of his alleged involvement in the "Freedom Convoy". The Respondent's position is that the principles of horizontal stare decisis as articulated in R. v. Sullivan, 2022 SCC 19, compel me to follow the decision in Bauder. The Applicant argues that this case is distinguishable from Bauder in that Mr. Hillier is a far more polarizing and notorious figure than Mr. Bauder, that his charges are different and that he was the focus of a targeted social media campaign which called for his arrest. I will deal first with whether I am bound by the decision of Hackland J., in Bauder.
Legal Analysis:
Horizontal stare decisis:
[5] A superior court judge in first instance should follow prior decisions made by their own court on all questions of law, including questions of constitutional law, unless one or more of the exceptions in Re Hansard Spruce Mills, 1954 253 (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.), are met: Sullivan, at para. 44.
[6] In Sullivan, the Supreme Court of Canada held, at paras. 65 and 75, as follows:
[65] Horizontal stare decisis applies to courts of coordinate jurisdiction within a province and applies to a ruling on the constitutionality of legislation as it does to any other legal issue decided by a court, if the ruling is binding. While not strictly binding in the same way as vertical stare decisis, decisions of the same court should be followed as a matter of judicial comity, as well as for the reasons supporting stare decisis generally (Parkes at p. 158). [Emphasis added.]
[75] The principles of judicial comity - that judges treat fellow judge's decisions with courtesy and consideration - as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. Correctly stated and applied, the Spruce Mills criteria strike the appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law. Trial courts should only depart form binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:
The rationale of an earlier decision has been undermined by subsequent appellate decisions;
The earlier decision was reached per incuriam ("through carelessness" or "by inadvertence"); or
The earlier decision was not fully considered, e.g. taken in exigent circumstances.
[7] These criteria do not detract from the narrow circumstances outlined in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 42-45, describing when a lower court may depart from binding vertical precedent: Sullivan, at para. 80.
[8] The Applicant argues that the doctrine of horizontal stare decisis does not apply in this case, as the facts of this case distinguish it from Bauder. The Respondent points out that the Supreme Court in Sullivan emphasized certainty over other competing values. To permit a case to be distinguished solely because it is factually different would be inconsistent with the Court's intention.
[9] In determining the question of law to be answered, and whether different facts would eliminate the binding authority of horizontal stare decisis, I considered the issue of stare decisis
generally. In Bedford, the Court agreed that trial judges are not "mere scribes", creating a record and findings without conducting a legal analysis: at para. 43.
[10] Writing for the court, McLachlin C.J. agreed that the role of trial judges is not to merely transcribe the edicts of higher courts without analysis. However, courts cannot simply depart from binding precedent without justification. The threshold for when such a departure is justified is "when a new legal issue is raised, or if there is a significant change in the circumstances or evidence" (emphasis added). The court noted that this threshold requirement prior to departing from binding precedent "balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role": Bedford, at para. 44.
[11] While Bedford dealt with vertical stare decisis, I do not read Sullivan as precluding departure from following a judge of co-ordinate jurisdiction's decision where a new legal issue is raised, or, as in this case, there is a significant change in the circumstances or evidence.
[12] In fact, Sullivan expressly notes that the criteria for departing from vertical stare decisis as set out in Bedford remain. It would be an illogical and anomalous result if a significant change in the circumstances or evidence would permit the court to depart from an otherwise binding authority from a higher court, but not a court of co-ordinate jurisdiction. Therefore, I conclude that where there is a significant change in the circumstances or evidence, a court of co-ordinate jurisdiction is not bound to follow the prior decision of the court.
[13] The question then is whether this case represents a significant change in the circumstances or evidence such that the doctrine of horizontal stare decisis would not apply.
[14] In Bauder, Hackland J. held that a change of venue was not necessary for those persons accused in connection with the "Freedom Convoy".
[15] Mr. Bauder was involved in the "Freedom Convoy" and he applied for a change of venue on the basis that negative publicity about himself and his involvement with the "Freedom Convoy" would prevent him from having a fair trial in Ottawa. He sought to move his trial to either
Brockville or North Bay. Hackland J. found that if prejudice of the sort described by Mr. Bauder existed, procedural safeguards could address those potential prejudices: at paras. 15-17.
[16] Hackland J. found that the facts before him did not establish that Mr. Bauder had established on a balance of probabilities that a change of venue was necessary pursuant to s. 599(1) of the Criminal Code, R.S.C. 1985, c. C-46, which reads:
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; or
(b) a competent authority has directed that a jury is not to be summoned at the time appointed in a territorial division where the trial would otherwise by law be held.
[17] While Bauder held that whatever prejudice existed could be remedied for Mr. Bauder to ensure that he, as an alleged member of the "Freedom Convoy", received a fair trial, there is evidence in the case before me which is significantly different from Bauder.
[18] Hackland J. found that there was not a great deal of media-coverage focused on Mr. Bauder. The court seriously doubted that Mr. Bauder was well known to Ottawa residents. The court noted that the adverse coverage in the media that Mr. Bauder complained of was directed at the "Freedom Convoy", not at Mr. Bauder specifically. The court concluded that there was nothing about the media coverage that would make it unlikely that Mr. Bauder would not receive a fair trial in the community of Ottawa.
[19] Hackland J. found that the concerns raised by Mr. Bauder regarding securing an unbiased jury, arising from the fact that Ottawa residents may have been disturbed by the protest, could be adequately managed by the normal procedural safeguards available to an accused person in a jury trial. Hackland J. observed that 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.
[20] In the case before me, I accept that Mr. Hillier is a well-known and polarizing figure. He was the focus of a targeted Twitter (now X) social media campaign where he was singled out by Professor Peter Sankoff, an Alberta law professor and defence lawyer, for arrest. The hashtag "Arrest Randy Hillier" was trending on Twitter and there is no question that Mr. Hillier would have gained some degree of notoriety in the City of Ottawa at the time of the "Freedom Convoy" as a result of the efforts of Mr. Sankoff and others.
[21] I find that Hackland J. placed considerable weight on the fact that Mr. Bauder was a relatively unknown individual, and that the adverse coverage in the media that he complained of was directed at the "Freedom Convoy" and not Mr. Bauder specifically. Mr. Hillier is well known and was individually targeted for arrest on social media.
[22] The circumstances and evidence in the case before me are therefore significantly different from Bauder on a central issue.
[23] For this reason, I find that I am not bound by the decision ofHackland J. in Bauder.
[24] The Crown points out that the vilification of Mr. Hillier is not widespread and that he is not a named defendant to the civil lawsuit filed by certain citizens of Ottawa in a class-action suit against the "Freedom Convoy".
[25] However, I am concerned that the impact of a targeted social media campaign against Mr. Hillier calling for his arrest generated prejudice against him. I note however, that in a city of a million persons, sentiment opposing the "Freedom Convoy" was not universal.
[26] I also considered the other arguments raised on behalf of Mr. Hiller, including:
• The animosity fomented by local politicians and the media;
• The formal position of the City of Ottawa;
• The civil action;
• The "snowball effect" of the "Arrest Randy Hillier tweets;
• The tweets of now-suspended lawyer James Bowie;
• The call by former MP Catherine McKenna for the arrest of Mr. Hillier issued on Twitter;
• The tweets by local MPP Joel Harden (Ottawa Centre) publicly calling for both the ethics commissioner and police to investigate Mr. Hillier for a tweet he allegedly issued;
• Numerous news reports concerning Mr. Hillier's arrest, many of them eliciting engagement involving the "Arrest Randy Hillier" hashtag. I also considered that by February 19, 2022, over 5,000 tweets had been sent involving this hashtag.
[27] Also central to Mr. Hillier's application is the widespread use of the "Arrest Randy Hillier" hashtag by members of the Ottawa community. In addition, I considered the evidence relating to the "Ram Ranch Resistance" (RRR) and the "demonization" of the "Freedom Convoy". The RRR hashtag is a vulgar reference to a gay "porno metal" song which was used by counter protesters during the "Freedom Convoy" protests. A plaque commemorating the "Battle of Billings Bridge" which resembles an official City of Ottawa plaque referred to the so-called "Ram Ranch Resistance". The plaque was depicted in MPP Harden's profile picture. I also considered the evidence relating to Zexi Li, the lead plaintiff in the civil action brought on behalf of tens of thousands of Ottawa Citizens against the participants of the "Freedom Convoy", the evidence relating to the Ottawa "People's Commission", the expansion of the civil action and the official positions expressed on behalf of the City of Ottawa.
[28] As Justice Doherty indicated in R v. Suzack 2000 5630 (ON CA), [2000] O.J. No. 100 (Ont. Sup. Ct.) 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.
[29] Having found that there is some prejudice towards Mr. Hillier, the issue for this court is whether any prejudice can be eliminated. Mr. Hillier has chosen to be tried by judge and jury. A number of safeguards exist to ensure that an accused receives a fair trial by jury.
[30] Some of these safeguards include:
• The juror's oath;
• Unlimited challenges for cause;
• The presumption of innocence;
• The burden on the Crown;
• The rules of evidence and the fact that only admissible evidence is permitted to go before jurors;
• The duty to follow the instructions of the trial judge;
• The judge's instructions; and
• The unanimity required for a verdict.
[31] In this case, there will also be an increased number of persons comprising the panel. I note the decision of the Supreme Court of Canada in R v. Chauhan, 2021 SCC 26, appears to have heralded a more robust challenge for cause process referenced by Justice Abella at para 160 of Chauhan. For example see: R v. Martin, 2021 ONSC 5333; R v. Bailey, 2023 ONSC 2497; R v. K.P., 2023 ONSC 57; R v. Ampadu, 2022 ONSC 3290, R v. Stanley, 2021 ONSC 5333. In addition,
both the jury panel an_d the jury itself are instructed by the trial judge to exam_ine their conscience for bias, including unconscious bias: see R. v. Bhagal, 2021 ONSC 4925. Jurors are instructed to follow the directions of the trial judge.
[32] Given the media attention directed at Mr. Hillier, the potential jury should be appropriately screened. The evidence before me is that this screening will not be opposed by the Crown.
[33] In conclusion, while I am satisfied on a balance of probabilities that there was prejudice generated toward Mr. Hillier in the City of Ottawa, I am also satisfied that the existing safeguards are sufficiently robust to ensure that Mr. Hillier receives a fair trial.
[34] The Crown has indicated that it will not oppose the safeguards discussed in Bauder being applied in this case to ensure that Mr. Hillier's fair trial rights are protected. This concession was a significant factor in my conclusion that whatever prejudice was generated against Mr. Hillier could be overcome. I am satisfied that he is able to have a fair trial here in Ottawa.
[35] The application for change of venue is therefore dismissed.
Released: September 25, 2023
COURT FILE NO.: CR-22-8690
DATE: 2023/09/25
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
-and-
Randy Hillier
Applicant
RUILING ON APPLICATION FOR CHANGE OF VENUE
Anne London-Weinstein J.
Released: September 25, 2023