Court File and Parties
COURT FILE NO.: CR-22-15630 DATE: 2023/02/09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: His Majesty the King, Respondent AND James Ralph Bauder, Applicant
BEFORE: Justice Charles T. Hackland
COUNSEL: Dallas Mack and Don Couturier, Counsel for the Respondent James Ralph Bauder, self-represented
HEARD: February 3, 2023
Reasons for Decision
Background
[1] The applicant James Bauder (Mr. Bauder) applies for a change of venue for his trial, currently set to proceed in the Superior Court of Justice in Ottawa starting on June 5, 2023.
[2] Mr. Bauder is charged with two counts of counseling to commit an indictable offence contrary to s. 464(a) of the Criminal Code [counts 1 & 2]; mischief contrary to s. 430(1)(c) of the Criminal Code [count 3]; intimidation contrary to s. 423(a)(g) of the Criminal Code [count 4]; and obstructing a peace officer contrary to s. 129(a) of the Criminal Code [count 5].
[3] These charges arise out of his alleged involvement in the "Freedom Convoy", a three week-long protest against vaccine mandates and certain other public health measures taken by various levels of government in response to the Covid-19 pandemic. During this period certain participants in the protest parked large trucks including hundreds of tractor-trailers on major roadways in Ottawa's downtown area. Large numbers of residents and workers in the downtown area suffered stress, personal injury and economic losses during the convoy occupation.
[4] On February 20, 2022, Mr. Bauder was in the downtown core when he allegedly refused the direction of an Ottawa Police officer to leave the area. He was arrested, read his rights to counsel and cautioned and was subsequently released on an undertaking.
[5] Mr. Bauder, who is self represented in these proceedings, requests a change in venue for his trial to either Brockville or North Bay. He did not explain in either his material filed on this motion or in his submissions at the hearing of the motion why he thinks either of these communities would be an appropriate venue for his trial. An applicant accused has the burden of establishing the necessity for a change in venue on a balance of probabilities.
Issue
[6] The issue before this court is whether it should exercise its discretionary power pursuant to section 599 of the Criminal Code to order that the applicant stand trial in another community, outside of the City of Ottawa.
Legal Principles
[7] The Crown's factum helpfully enumerates the key principles which the court must consider on a change of venue motion, as follows:
An order changing the venue of a trial is a discretionary remedy to be exercised with great caution and only on compelling grounds. The fundamental consideration on s. 599(1)(a) of the Criminal Code is whether a change of venue is necessary to ensure that the accused has a fair trial with an impartial jury: see R. v. Collins (1989), 1989 CanLII 264 (ON CA), 48 C.C.C. (3d) 343, at pp. 350-351 (Ont. C.A.).
There is a strong and longstanding presumption that criminal trials will be held in the jurisdiction in which the alleged offence took place. It is well established than "that all causes shall be tried in the county, where the act is committed": R. v. Harris et al. (1762), 97 E.R. 858 at 860. That rule ought never to be infringed, unless it plainly appears that a fair and impartial trial can not be had in that county.
Based on the "local venue rule," this presumption preserves the interests of both the accused and the community, which has an interest in seeing justice done and in participating in the process. Indeed, courts continue to recognize the importance of holding trials in the alleged offence's locality, so that "[j]ustice is done and seen to be done in the community where the crime occurred": see R. v. Davis, 2018 ONSC 4630, at paras. 13, 26, aff'd 2018 ONCA 946, at para. 10.
Given the strong presumption in favour of the local jurisdiction, the party seeking to change the venue bears the burden on the Application. The applicant must prove on a balance of probabilities that the change of venue "appears expedient to the ends of justice." Put differently, the applicant must satisfy the Court that the only way to ensure trial fairness is by changing the venue of the trial because a fair and impartial trial cannot be had in the local jurisdiction: see R. v. Fitzgerald and Schoenberger (1981), 1981 CanLII 3272 (ON SC), 61 C.C.C. (2d) 504 (Ont. S.C.), at p. 506, aff'd 1982 CanLII 1762 (ON CA), 70 C.C.C. (2d) 87 (Ont. C.A.)
In the Suzack decision, the Ontario Court of Appeal set out a two-part test for Change of Venue Applications. First, the applicant must show reasonable probability of partiality or prejudice in the jury panel. Second, the applicant must establish that traditional safeguards will not assist in eliminating the prejudice: R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 128 O.A.C. 140, at para. 35 (C.A.), leave to appeal refused, [2000] S.C.C.A. No. 583.
The totality of the circumstances determines a Change of Venue Application. Among those circumstances are the nature and extent of the offence, the nature and extent of the public opinion in the area, the size of the community, the status of the accused in the community, and the popularity and prominence of the victim.
The ultimate consideration on a Change of Venue Application is whether the change of venue is necessary to ensure that either party has a fair trial with an impartial jury.
Applicant's position
[8] The applicant argues that the freedom convoy and his own role in being a leader or organizer of the convoy was extensively publicized. He says this publicity has been negative and biased against him.
[9] In his oral submissions Mr. Bauder argued that he would not get a fair trial in Ottawa because he participated in "a very high profile, highly politicized, lawful protest directed at the federal government in Ottawa". He said that because Ottawa is associated with "all of the federal employees, federal contractors, lobbyists, and lawmakers, it would be very challenging to find someone who is not associated with the federal government" or who had not been exposed to the profuse adverse media coverage the convoy received. He re-iterated that "the character and personality types in Ottawa are government workers and the convoy was a protest against government overreach". He said, "these government employees are not my peers".
Respondent's position
[10] The Crown took issue with the applicant's assertion that a great deal of negative media coverage was directed at Mr. Bauder personally. The Crown also disagreed with his assertion that everyone in Ottawa either works for the government or shares the government's outlook on public issues. However, the Crown's principal submission is that the traditional safeguards used in jury selection are adequate to protect the applicant's right to be tried by a fair and impartial jury.
Analysis
[11] On the issue of publicity, I have reviewed the media reports filed by the parties and will take judicial notice that the Freedom Convoy was covered by media in Canada and internationally. Further, there was a massive amount of communication and internet postings online. This coverage reflected a broad cross-section of viewpoints about the convoy.
[12] There was not a great deal of media coverage focused on Mr. Bauder. What there was tended to simply report what he had said from time to time. I seriously doubt that Mr. Bauder is well known to Ottawa residents. The adverse coverage in the media that Mr. Bauder complains of is directed at the Freedom Convoy, not at Mr. Bauder specifically. There is nothing about the media coverage that would make it unlikely that Mr. Bauder would receive a fair trial in this community.
[13] I find that Mr. Bauder's concerns about the attitudes of persons employed by the federal government, is baseless in fact and boils down to his concern that most Ottawa residents do not share his political views. There is no right to be tried by persons who share one's political views.
[14] While not mentioned by Mr. Bauder, there may be a 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 neighbourhoods, 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.
[15] The Crown submits that these concerns can be adequately managed by the normal procedural safeguards which are available to an accused person in a jury trial.
[16] The Crown notes the following safeguards:
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. An increased number of persons comprising the panel;
iii. Unlimited challenges for cause;
iv. The juror's oath;
v. The presumption of innocence;
vi. The burden on the Crown;
vii. The requirement of proof beyond reasonable doubt;
viii. The rules of evidence and fact that only admissible evidence is permitted to go before the jurors;
ix. The duty to follow the trial judge's instruction;
x. The instruction that the verdict must be based on the evidence;
xi. The instruction to set aside prejudice or bias, to disregard information beyond the evidence; and
xii. The unanimity required for a verdict.
[17] Further, Mr. Mack, for the Crown, assures the court that the Crown will support an increased jury panel and will consent to appropriate challenges for cause pursuant to s. 638 of the Criminal Code. Further, the Crown will support appropriate screening questions for potential jurors under s. 632 of the Criminal Code. In argument, some examples of appropriate screening questions and challenge for cause questions were reviewed. This will of course be a matter for the trial judge, but I am satisfied that such measures would be entirely adequate to deal with concerns of bias by jurors who have been directed affected by the Freedom Convoy.
[18] Mr. Bauder is not on trial for his politics, but for his alleged criminal conduct. He will be tried, and a verdict will be rendered, based on the evidence before the court. In Phillips v. Nova Scotia (Commissioner, Public Inquiries Act), 1995 CanLII 86 (SCC), [1995] 2 SCR 97 at paras. 132-133, 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. There is no reason to think that this will not be the case in Mr. Bauder's trial.
[19] In this case, 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.
[20] I am satisfied that the measures normally available to a court during a jury trial, such as screening questions under s. 632 and potential challenges for cause under s. 638 will be adequate to ensure that Mr. Bauder receives a trial from an unbiased jury.
[21] The accused's motion for a change in venue is dismissed.
Justice Charles T. Hackland
Date: February 9, 2023
COURT FILE NO.: CR-22-15630 DATE: 2023/02/09
ONTARIO SUPERIOR COURT OF JUSTICE
RE: His Majesty the King, Respondent AND James Ralph Bauder, Applicant
COUNSEL: Dallas Mack and Don Couturier, Counsel for the Respondent James Ralph Bauder, self-represented
REASONS FOR DECISION
Justice Charles T. Hackland
Released: February 9, 2023