R. v. Cote, 2023 ONSC 6361

COURT FILE NO.: CR-22-00000046 DATE: 2023-11-20 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING S. Ford, for the Crown/Respondent Respondent

• and -

BROCQUE JOHN COTE C. Rosemond, for the Accused/Applicant Applicant

HEARD: October 30, 2023

RULING REGARDING DEFENCE APPLICATION FOR CHANGE OF VENUE

OVERVIEW

[1] The accused brings an application for a change of venue pursuant to Section 599 of the Criminal Code.

[2] It is alleged that on July 7, 2020 the accused was in a single motor vehicle accident, wherein he was the impaired driver of a vehicle that rolled over onto its roof. There were two passengers in the vehicle. It is alleged that the rollover resulted in the death of one of the passengers – Port Colborne resident Brett Bennett and serious bodily harm to the other passenger, James Delaney. There was significant publicity and the accused argues the trial should occur in an alternate jurisdiction, in order for the accused to receive a fair trial before an impartial jury.

[3] The accused was charged with 5 drinking and driving type of offences which are set for a jury trial in Welland on January 8, 2024 for a 20 day trial.

ISSUE

[4] Is it expedient to the ends of justice, pursuant to Section 599(1) of the Criminal Code that the accused be tried in an alternate territorial division?

[5] The accused argues that this order is necessary to ensure that the accused receive a fair trial before an impartial jury.

LAW

ONUS OF PROOF

[6] A change of venue order is a discretionary remedy – see R. v. Collins, [1998] O.J. No. 488 (ONSC) at p. 3. The Court of Appeal in Collins held that the fundamental consideration is whether a change of venue is necessary in order to ensure that an accused has a fair trial with an impartial jury. Such discretion must be exercised judicially – see Collins at p. 3.

[7] In R. v. Suzack, [2000] O.J. No. 100 (ONCA), the Ontario Court of Appeal held at paras 30, 35, 44:

[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. Section 599(1) (a) of the Criminal Code provides in part:

A court…upon the application of the prosecutor or the accused [may] 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,…

[35] Trainor J., the trial judge, described his approach to the discretion vested in him by Section 599(1) in terms that are consistent with the case law:

…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.

[44] Nor in my view does the right to a fair trial require a change of venue wherever pre-trial publicity poses a risk that right. The risk will exist to some extent in virtually every case where there was been pre-trial publicity. The right to a fair trial is compromised where despite the available safeguards there is a reasonable likelihood that an accused cannot receive a fair trial in the local venue.

[8] Accordingly in this application, the onus of proof is on the defence to show, on a balance of probabilities, that

(1) There is a fair and reasonable likelihood of partiality or prejudice in the local jurisdiction, (2) That cannot be overcome by appropriate safeguards inherent in the jury selection and trial process.

[9] This two-part test requires

(1) An examination regarding whether there exists a fair and reasonable likelihood of partiality or prejudice in the local jurisdiction and (2) Whether relevant safeguards are sufficient to overcome any partiality or prejudice that may exist.

TEST-PART ONE – PARTIALITY OR PREJUDICE IN JURY PANEL

[10] Several cases submitted before me outline the type of prejudice required to grant a change of venue. Pre-trial publicity per se is not sufficient to grant a change of venue.

[11] In R. v. Millard, 2015 ONSC 6206, Justice Goodman indicated at paras 49-52, 90:

[49] The jurisprudence clearly indicates the mere fact of pre-trial publicity is not enough to support a change of venue application. As Watt J. stated in Yarema, at para. 24 and oft-quoted by trial courts:

It has been several times and well said that is not the fact but, rather, the nature and extent of pre-trial publicity that may create a fair and reasonable probability of prejudice in the territorial division in which the trial would prima facie, be held. In other words, the mere fact of publicity will not, per se, afford a ground for changing the venue of a criminal trial.

[50] A significant amount of media coverage, as is the case here, is only one part of the pre-trial publicity consideration and, in of itself, would not give rise to a successful change of venue application.

[51] Quite fairly, Mr Pillay acknowledges that the volume of coverage is not the central premise for this application. Rather, the nub of this application is focussed on the nature and content of the pre-trial publicity.

[52] Prejudice may lie where such information was disseminated or published with substantial details of what was unlikely to become evidence at trial. For example, there might be prejudice if media coverage disclosed a considerable or significant amount of prejudicial or inadmissible information about an accused, or disclosed evidence a jury would not be permitted to consider at trial. Those and other considerations would an important and compelling factor for a change of venue.

[90] I agree with Crown counsel’s submissions that the age of the internet and social media has altered the manner of assessing the impact of pre-trial publicity on the fair trial rights of an accused. In the past, it was common to consider the audience reach of local newspapers and television station in an attempt to quantify the publicity associated to an accused and his trial. If the media coverage was extensive, the crime particularly heinous, the community relatively small, and the portrayal of the accused as gratuitously bad, a change of venue was expected.

[12] In R. v. Papadopoulos, [2006] O.J. No. 5403 (ONSC), Justice Dawson indicated at para 19:

[19] For the purpose of deciding this application, I conclude that some of the prejudicial gang evidence and bad character evidence repeatedly published will not be tendered, and the admissibility of some remains an open question. The significance of theses comments is that it appears to me that the prejudicial effect of much of what has been published is not inherent in the case. This raises a real concern that the jury pool will contain persons who have been exposed to the most prejudicial form of publicity: the publication of inadmissible, and sometimes untrue, evidence of bad character which may also associate the accused with the Felker’s Falls and firebombing incidents.

[13] In R. v. Wilson, [1983] S.J. No. 623 (SKQB), Justice Walker held at para 7:

[7] While it is the totality of circumstances which will determine an application for change of venue, among these circumstances, from time to time, will be these:

(1) The nature and extent of the offence. (2) The nature and extent of the public opinion in the area – its size, generality and crystallization, if any. (3) The size of the community. (4) The status of the accused in the community. (5) The popularity and prominence of the victim.

These factors listed are of indeterminate weight and there will, of course, be any number of other factors from case to case.

[14] The Quebec Court of Appeal indicated in R. v. Charest, [1990] J.Q. No. 405 (QCCA), at page 21:

[21] With respect, I prefer the test formulated in Collins to the narrower one laid down by Aikins J. in Beaudry. It adds to the “impartial jury” standard the additional and broader concept of a fair trial. In my view, a fair trial can be conducted only in a reasonably serene environment. Extensive prejudicial publicity shortly before the trial, pronounced hostility toward the accused, widespread sympathy for the victim, and a frightened or enraged community, surely create – especially in a small judicial district – the kind of emotionally-charged atmosphere in which the ends of justice may be best served by removal of the trial co another venue.

[15] In R. v. A.S.M., [2021] A.J. No. 1775, Justice Sidnell indicated at paras 10, 11, 68, 70:

[10] Taking these cases together, and noting the abolition of peremptory challenges in the jury selection process, I find that the principles and the factors to consider the change of venue application in this case are as follows:

Principles to consider in a change of venue application

(a) There is a strong presumption that criminal trials should be held in the venue in which the alleged crime took place. (b) The onus in a change of venue application is upon the applicant and onus is a heavy one to discharge the presumption of venue in the community where the alleged crime took place. (c) The goal is to ensure that both Crown and the accused have a fair trial with an impartial jury. (d) The standard of proof to be applied is a balance of probabilities.

Factors to consider in a change of venue application

[11] The applicant must establish, on a balance of probabilities, that:

Part 1: A fair and impartial trial, in a reasonably serene environment, cannot be held in the jurisdiction where the alleged crime occurred, considering the following factors:

A. Extensive prejudicial publicity, including: (1) The timing of the publicity; (2) Related proceedings (3) Size of the jurisdiction where the trial will take place; (4) The geographical breadth of the publicity; and (5) Publicity of incorrect information; B. Pronounced hostility toward the accused; C. Widespread sympathy for the victim; D. A frightened or enraged community; and E. Whether the accused would be in a better position in the proposed venue.

Part 2: The applicant must also show that these conditions that affect a fair and impartial trial cannot be overcome or sufficiently mitigated by:

(A) Jury screening (B) Challenges for cause; and (C) The cleansing inherent in the trial process.

[68] Comments from community leaders may reflect, or lead, the community perspective on a crime. Community leaders frequently issue public acknowledgments of crimes with accompanying sentiments of shock, condolences to persons involved, and resolve that the community does not accept violent crime. These kinds of comments cannot be used as a support for change of venue when they are a common sentiment. There would have to be some type of extraordinary sentiment or bias in a comment to raise it to the level where this is cause for concern.

[70] The Young Person asserted that the community has a vested interest in seeing justice done in that place and reference the comments in Suzack, see para [2], above. The Young Person submitted that when the vested interest spills-over into an overriding interest in one result, being the conviction of the accused, and emotions takes-over, there can be no fair and impartial trial. The Young Person referred to the social media and mainstream media comments to demonstrate that this point had been reached. I disagree. Some heinous, racist or hateful social media comments and comments in response to mainstream media, from persons of unknown locations and perhaps identities, does not prove that the community has reached the point where the vested interest in seeing justice has transformed into an emotional state where fairness, balance and objectivity has been lost. It is, rather, a sign of our times that some individuals post unacceptable comments on internet platforms. Without evidence, these unacceptable comments cannot be accepted as representative of the community’s view.

TEST-PART 2 - SAFEGUARDS

[16] In A.S.M., Justice Sidnell provides a convenient updated list of protection mechanisms inherent in the justice system at para 85 as follows:

[85] In Millard and Smich, at para 101, Goodman J adopted a list of mechanisms of protection within the justice system afforded to an accused. Since that decision, peremptory challenges have been removed and the language relating to challenges for cause has been revised, which revision has been described as “cosmetic”. See Santiago at para 46. The list referred to by Goodman J. can be updated as follows:

1. A 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;
2. Unlimited challenges for cause;
3. The juror’s oath;
4. The presumption of innocence;
5. The burden on the Crown;
6. The requirement of proof beyond a reasonable doubt;
7. The rules of evidence;
8. The duty to follow the trial judge’s instruction;
9. That the verdict must be based on the evidence;
10. The specific jury instruction to set aside prejudice or bias, to disregard information beyond the evidence; and
11. The unanimity required for a verdict.

FACTS

[17] As indicated in the caselaw, the onus is on the accused, on a balance of probabilities, to establish that a fair trial before an impartial jury cannot take place in this jurisdiction.

COMMUNITY ATTITUDE/HOSTILITY

[18] The accused in his factum, in the section entitled, “Hostility Demonstrated Towards the Applicant” at paras 14-21 and “The Preliminary Inquiry” at paras 22-24 indicates:

[23] The community came out to passionately support the case against Mr. Bennett was deeply loved and much of the community showed its interest in the case throughout the preliminary inquiry.

August 8, 2022, Transcripts of Preliminary Inquiry at page 9.

[24] Conversely, Mr Cote was belittled throughout preliminary inquiry evidence. There is a significant polarization in the expressed attitudes of those online when referring to the accused and his alleged victim.

August 10, 2022, Transcripts of Preliminary Inquiry, at page 101.

[19] Regarding para 23 of the accused’s factum, the August 8, 2022 Preliminary Inquiry transcript indicates at page 9 the following:

Ms. Ford: Thank you, Your Honour. For the Court’s knowledge, you’ll see there are some individuals who remain in the courtroom at this time. There are a number of family members of Mr. Bennett who are interested as spectators in these proceedings. They are not anticipated Crown witnesses.

The Court: All right. Well, it is, it is a public forum. So, I don’t know who the people are, but I see there are six or seven people who are in the body of the court. They’re welcome to stay. It’s a public forum.

[20] Based on the evidence detailed at page 9 of the August 8, 2022 Preliminary Inquiry transcript, that evidence cannot reasonably lead to the conclusion that the community came out to passionately support the case involving Mr. Bennett.

[21] At para 24, of his factum, the accused says he was belittled throughout the Preliminary Inquiry evidence. The only citation referred to is page 101 of the August 10, 2022 Preliminary Inquiry transcript. The relevant excerpt is the evidence of Elizabeth Bruce who testifies at page 101 as follows:

A. I had seen it the day before when my friends has commented on the way he drives because he was doing burnouts in front of the quarry and they had told him to not drive like that because it’s a lot of truck for such a little guy to handle.

[22] In my opinion, these comments, assuming there are admissible (i.e. it is not clear whether the witness was present when the friends made these comments to the accused), are minimally prejudicial. In any event, this Preliminary Inquiry excerpt does not constitute significant prejudicial evidence that the accused was belittled throughout the Preliminary Inquiry evidence.

PRE-TRIAL PUBLICITY – SIZE OF JURISDICTION

[23] The caselaw indicates that the size of the jurisdiction is a relevant consideration.

[24] It is not disputed that in 2021 the population of the Regional Municipality of Niagara was 477,000. In 2023, the jury pool is approximately 4,600 prospective jurors for St. Catherines. This trial is to take place in Welland where there are 7,000 prospective jurors in 2023 – see para 43 of the Crown’s factum.

THE PETITION – “JUSTICE FOR BRET BENNETT - BROC COTE (FRETZ) TO HAVE LICENCE REVOKED”

[25] This petition is alluded to in the Applicant’s factum in the section entitled, “Hostility Demonstrated Towards the Applicant”.

[26] At Tab 1 of the Applicant’s Exhibit Book is an affidavit sworn by Adrienne Mignardi dated January 20, 2023. At paras 9-13 of this affidavit, there is a reference to Ms. Kelsey Edwardson (the deceased’s girlfriend) posting a link to get persons to sign a petition entitled “Justice for Bret Bennett – Broc Cote (Fretz) to have Licence Revoked!” – see also Exhibits D, and E of the Applicant’s Exhibit Book.

[27] On October 21, 2022, the petition had 1,643 signatures – see Exhibit D of the Applicant’s Exhibit Book and paragraph 11 of the Mignardi January 20, 2023 affidavit. At paras 18-20 of the accused’s factum the accused contends that the description behind the petition, prepared by Ms. Edwardson, contains comments which are prejudicial to the accused.

[28] At para 16 of the Mignardi affidavit there is a reference that 59 comments are attached to the petition as to why people are signing the petition. As para 17 of the Mignardi affidavit and at para 21 of the accused’s factum, the comment is made that “the majority of those that have posted comments on the petition have displayed their location as being from Welland, Port Colborne, and other surrounding cities within the Central South Region”. Hamilton is in the Central South Region as are other smaller towns/cities outside of Niagara. There is no evidence as to exactly what number of people signing the petition are within Niagara Region or outside of it. Exhibit F of the Applicant’s Exhibit Book includes these 59 comments. In submissions, I indicated that in my review of the comments, perhaps 15 of the comments can be fairly inferred as belonging to individuals residing in Niagara.

[29] So the breakdown is 1,643 signatures as of October 21, 2022 along with 59 comments. 15 of those comments can be fairly said, on a balance of probabilities, as belonging to Niagara residents. That’s 1% of the total signatures.

[30] Further the Facebook Group entitled “Remembering Bret Bennett” had 314 members as of March 31, 2021 – see Exhibit C of the Applicant’s Exhibit Book. The Crown in its factum at para 50 indicates there are 314 members as at October 21, 2022. Nothing material turns on the dates. What is material is that the “Remembering Bret Bennett” Facebook Group had 314 members, a relatively small number for a municipality of approximately 477,000 people. It is unclear where these 314 members reside. Even if all of the members reside locally, I agree with the Crown that the applicant has not provided any evidence to the effect that these individuals represent the views of the general community. The comments of Coughlan J. in R. v. Maguire, 2010 NSSC 200 at para 28 are appropriate to our fact situation:

[28] There were Facebook groups established concerning the murder of Ms. Horne. Some intemperate statements were made on these Facebook sites. In the Facebook Articles Booklet entered into evidence in support of the application, it is set out that there are 1,692 members of Facebook sites. There is no evidence as to the place of residence of the members of Facebook sites – they may or may not be in the Halifax Regional Municipality. The existence of these Facebook sites do not show an impartial jury could not be had in Halifax. The jury selection process, including the challenge for cause procedure, can be utilized to deal with the Facebook issue.

PRE-TRIAL PUBLICITY – MEDIA REPORTS

[31] The pre-trial publicity involving the accused can be broken down into 3 categories:

1. July 8, 2020 – see Exhibit G of Applicant’s Exhibit Book – An article written by David Johnson appeared in the Toronto Star and also in several local Niagara papers. The article provides basic details of the accident and indicates the accused was charged with several alcohol related driving offences. The bulk of these details will be provided at trial and in my opinion, Mr. Johnson’s articles are minimally prejudicial to the accused if at all. Also minimally prejudicial for the same reasons are the media reports in the Applicant’s Exhibit Book included in Exhibit H Niagara Police Service press release printed in Thorold Today, Exhibit I TC radio and CHCH TV (Hamilton) media reports, and also media reports at Exhibits M and N. Exhibit N is entitled News Media 607 and has 571 subscribers. The July 8, 2020 media report on News Media 607 lists 2,972 views. There is no evidence as to who the members and/or viewers are or where they are from. The Exhibit N report has one paragraph that provides minimal details of the accident most, if not all, I anticipate will be adduced at trial. Similarly, Exhibit M is a YouTube video of approximately 40 seconds. Exhibit M has 332 subscribers and 2050 views on July 8, 2020 and has a two line caption that provides minimal details of the crash, all of which should be admissible at trial. Regarding Exhibit M, there again is no evidence as to who the members and/or viewers are or where they are from.

2. December 8 and 9, 2020 – see Exhibit K of Applicant’s Exhibit Book – Alison Langley reports in several local papers that the accused was convicted of breaching his bail condition not to drive. Assistant Crown Attorney Andrew Brown (now a judge) is quoted as saying “this was an egregious breach”. I agree that this information is prejudicial to the accused if jurors were aware of it, particularly since this information would not be admissible at trial.

3. February 3, 2021 – see Exhibit L of Applicant Exhibit Book – Alison Langley reports, in the Toronto Star and local papers, that the accused was convicted of Dangerous Driving & Fail to Remain at the scene of the crash which occurred a month before the fatal crash of July 7, 2020. Ms. Langley again refers to the bail breach conviction. Regarding the conviction of Dangerous Driving & Fail to Remain, the jury may or may not learn of it at trial depending on the outcome of a Corbett Application.

NIAGARA 411 NEWS – FACEBOOK

[32] In Ms. Mignardi’s second affidavit dated February 2, 2023 at Tab 2, Applicant’s Exhibit Book, reference is made to a Facebook group called Niagara 411. As of January 30, 2023, the Facebook group indicated it has 120,000 followers. There were 2 posts relating to Brocque Cote. The second post lists Mr. Cote as part of a list of individuals charged with impaired driving between July 6 to 19, 2020. There is very little prejudice to the accused regarding this second post.

[33] Exhibit B-1 is a screenshot of the first post dated July 8, 2020. The post gives a brief review of the allegations, most of which I believe would be admissible at a trial. The post details that the accused was charged and lists the charges. There is little, if any, information reported that is prejudicial to the accused. There is nothing in the report that vilifies the accused, in my opinion. There are 306 reactions, 302 comments and 156 shares. I have reviewed the comments and have identified 8 that definitely can be attributed to the Niagara community. It is totally speculative as to where the other 294 commentators reside. The comments provide a wide range of opinions. The defence contends that there are 156 shares and that if these shared posts have, for example, 200 followers, there are potentially 300,000 people who could have seen this post. These figures are pulled out of the air. There is no evidence before me of how many people would have seen or been exposed to this post pursuant to 150 shares or where those people are located. There is no proof that the comments as a whole would view the accused in a negative manner – see A.S.M. at paras 52-70.

PRE-TRIAL PUBLICITY – PRELIMINARY INQUIRY EVIDENCE

[34] Sierra Konig testified at the Preliminary Inquiry. She was at the quarry and had dealings with the accused before the July 7, 2020 accident. She testified that she read about the accident and expressed the opinion that everybody in Port Colborne saw something about it in Facebook, especially young people – see pages 34, 35 August 11, 2022 transcript. James Delaney, one of the complainants, testified that everyone in Port Colborne had an opinion regarding the accident – it was big local news. His opinion was it was an accident and for people not to be angry – see page 78 August 11, 2022 transcript.

[35] Peter De Leeuw testified he didn’t have any feedback from the community and wasn’t speaking to others about it – he just spoke to his partner and her mom about it – see August 10, 2022 transcript at pages 59-60.

[36] Morgen Allison testified she doesn’t recall reading anything on Facebook and has no recollection of a Gofundme – see August 10, 2022 transcript at page 82.

[37] Elizabeth Bruce testified that it was posted on Niagara 411 Facebook Group the night of the accident, but believes the comments were taken off to respect the next of kin. She doesn’t recall seeing anything on other media – see August 10, 2022 transcript at page 139.

[38] Putting the Preliminary Inquiry evidence together, I am satisfied that there was media coverage, and social media coverage of the July 7, 2020 incident. It is unclear exactly what was being said and discussed. There is minimal evidence of prejudicial media/social media coverage. There is no/minimal evidence that outlines details of what the jury would likely not hear. Regarding vilifying the accused, Ms. Bruce testified that the Niagara 411 comments were taken down and James Delaney, one of the complainants who was injured, testified it was an accident and for people not to be angry – testimony that is not prejudicial to be the accused at all.

CONCLUSION – APPLICATION OF LAW TO FACTS

[39] After reviewing the factors as outlined in the caselaw, I find the following factors to be relevant as to whether the accused has shown, on a balance of probabilities, that there is reasonable likelihood of partiality or prejudice in the jury panel:

1. The original media reports on July 8, 2020 were basically copies of the same report and contained few, if any, details that would not be admissible at trial.
2. The original media reports on July 8, 2020 contained few, if any details, that could be categorized as vilifying the accused.
3. Niagara has 477,000 people. The Welland jury panel is gleaned from a pool of 7,000 prospective jurors in 2023. This is not a small community.
4. Regarding the petition requesting the accused’s licence be revoked, the petition was signed by 1,643 people of generally unknown locations. There were 59 comments of which only 15 can be reasonably inferred to be made by local commentators. Accordingly, the defence has failed to prove that the petitioners or commentators represent the views of the general community of almost a half a million people.
5. Similarly the Facebook 411 News posted limited details of the July 7, 2020 accident. There is no reliable evidence as to how many people in the community actually or likely read the post. The defence numbers made in submissions are pure speculation. I find little, if any, prejudicial information in the post – it does not vilify the accused and does not include any significant information that the jury won’t be able to hear at trial.
6. The Preliminary Inquiry testimony that I have reviewed fails to establish that the accused would not be able to obtain a fair trial before an impartial jury.
7. The accused and the victims were not prominent members of the community who were well known in the community. The last article relating to the accused’s criminal allegations were on February 3, 2021 – almost 3 years before the trial date. There is no publicity regarding the Preliminary Inquiry date in August 2022, or any publicity prior to the approaching trial date. Accordingly, there is no extensive prejudicial publicity shortly before the trial. Further, Niagara and Welland are not small judicial districts and there is no evidence of current widespread hostility in the comments towards the accused or widespread sympathy for the victim – see Wilson at para 7 and Charest at page 21.
8. The only real concern regarding potential prejudicial evidence is the December 9, 2020 local media reports of the accused’s “egregious” breaches of bail terms and the February 3, 2021 media reports of the accused’s guilty plea to unrelated impaired charges.
9. In my opinion, these two potentially prejudicial matters can be adequately dealt with by the Step 2 safeguards outlined in the caselaw, specifically, as referred to in A.S.M. at para 85:

1. A 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;
2. Unlimited challenges for cause;
3. The juror’s oath;
4. The presumption of innocence;
5. The burden on the Crown;
6. The requirement of proof beyond reasonable doubt;
7. The rules of evidence;
8. The duty to follow the trial judge’s instruction;
9. That the verdict must be based on the evidence;
10. The specific jury instruction to set aside prejudice or bias, to disregard information beyond the evidence; and
11. The unanimity required for a verdict.

[40] The accused will have the benefit of all these judicial system protections. The accused has failed to show that the cleansing process will be inadequate to ensure a fair and impartial trial in Welland.

DECISION

[41] The accused has failed to prove, on a balance of probabilities, that there is a reasonable likelihood of partiality or prejudice in the Niagara/Welland area that cannot be overcome by judicial safeguards including jury screening, challenges for cause and other cleansing mechanisms inherent in any trial. The accused has failed to establish that a fair trial before an impartial jury cannot take place in this jurisdiction.

[42] In the result, the accused’s application for a change of venue is dismissed.