Court File and Parties

COURT FILE NO.: CR-23-17 DATE: 2024-11-21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – Sajieth Kamaraj, Umainesan Manuel, Jeromie Simon, Jerome Fuller, Warren Mills and Prince Graham

Counsel: James Cavanagh and Alicia Chiesa for the Crown Susan Von Achten for Prince Graham

HEARD: in person and via Zoom: November 12, 2024.

Decision on change of venue applications

P.J. Boucher, R.S.J.

Introduction

[1] The accused, Prince Graham, and the Crown apply to change the venue for this first degree murder trial from Gore Bay to Toronto or to Sudbury, respectively.

[2] This is the second time the accused and the Crown have applied this year for a change of venue. At the time of the first applications in July 2024, there were six accused on the indictment. Shortly after argument of those applications, the five other co-accused reached a resolution of their matters with the Crown and their change of venue applications became moot.

[3] This substantially changed the landscape for the remaining change of venue applications, because one of the main arguments originally advanced related to the inability of the Gore Bay courthouse to accommodate a jury trial for six in-custody accused. At the direction of the court, the Crown and the accused filed updated materials and submissions were heard on November 12, 2024.

[4] This is my decision on the two outstanding change of venue applications.

Background

[5] Jerome Fuller, Saijeth Kamaraj, Umainesan Manuel, Warren Mills and Jeromie Simon (the five co-accused) were jointly charged with first degree murder in the death of Brandan Brooks, who was shot and killed in the First Nation community of M’Chigeeng, on Manitoulin Island. The five co-accused had a preliminary hearing that was conducted remotely from Sudbury. They were committed to stand trial for first degree murder.

[6] Prince Graham was charged in a separate information. He did not have a preliminary hearing. The Crown preferred a direct indictment against Prince Graham and joined him with the five co-accused in an indictment preferred by the Deputy Attorney General on March 06, 2024.

[7] Gore Bay is the judicial seat for the Manitoulin District, which encompasses Manitoulin Island. Indictments on matters originating in the Manitoulin District are filed in Gore Bay, where the proceedings are heard. There is a permanent courthouse in Gore Bay which includes a jury courtroom and jury deliberation room. However, the Manitoulin District does not have a jail. The Sudbury District Jail, where prisoners are normally held for matters arising in the Manitoulin District, is approximately a two-and-a-half-hour drive from Gore Bay.

[8] The Sudbury District abuts the Manitoulin District to the east. Indictments are filed in the Sudbury District Courthouse on Elm Street, where the proceedings are heard. The Sudbury District Jail is immediately adjacent to the Sudbury District Courthouse. The buildings are connected by a secure underground tunnel, which is used for the transportation of prisoners between the buildings.

[9] The province is divided into eight judicial regions. The Manitoulin District and the Sudbury District are both in the Northeast Region: Courts of Justice Act, RSO 1990, c. C. 43, s 79(1), RRO 1990, Reg 186, s 1. The judicial region of Toronto is located approximately six hours’ drive from Gore Bay and four hours’ drive from Sudbury.

[10] The accused’s trial is scheduled to start the week of January 13, 2025. Jury courtrooms in Gore Bay and Sudbury are available to host this trial. Ten weeks were set aside in the schedule for this trial because it originally involved six co-accused. Counsel agree less time will be required. It is reasonable to assume half that time will be saved.

The Law

[11] It is a well-established principle that criminal trials should be heard in the community in which the alleged crime took place: R. v. Suzack at para. 30; R. v. Sandham at para. 13. In some cases the interests of the accused and/or the community will require the trial take place in another venue, where it appears “expedient to the ends of justice”: Suzack, at para. 30; Criminal Code, RSC 1985, c. C. 46, para. 599(1)(a).

[12] Regional Senior Judges are delegated by the Chief Justice as the administrative authority to determine the proper venue for a trial: Courts of Justice Act, s 75(1); R. v. Jeffries, 2010 ONSC 601 at para. 61.

The Positions of the Parties

[13] The parties jointly submit Gore Bay is not the proper venue for this trial. They argue the lack of a jail in the Manitoulin District will negatively impact the accused’s ability to meet with counsel during the trial because of the daily five hours of travel back and forth from the Sudbury District Jail. They remind the court this trial is scheduled to take place during possibly the worst time for winter travel in this region, which would imperil the accused’s daily commute.

The Accused

[14] Prince Graham submits Toronto is the proper venue. He argues he needs to be close to family and counsel in Toronto for support and to properly prepare for his trial. He submits the conditions at the Sudbury District Jail currently prevent him from meeting with counsel and it is too expensive for his counsel to travel to Sudbury from Toronto to meet with him in person. He states he is sleeping on the floor and has been the subject of physical attacks and threats. He further states the jail is infested with vermin, the water is unfit to drink and as a Muslim he is not provided with culturally appropriate meals. He submits only Toronto and the jails located there can provide him with a “reasonably serene environment” in which his trial can take place. In the alternative, the accused asks that if the trial remains in the Northeast Region, it should be transferred to North Bay where he has had a more positive experience in the local jail.

The Crown

[15] The Crown argues Sudbury is the proper venue, in large part because it is closest to Gore Bay and the Sudbury District Jail is next door to the courthouse. Having the trial in Sudbury would better respect the principle that trials should take place in the community where the crime is alleged to have occurred. It would also, the Crown argues, accommodate the accused’s need to meet with counsel during the trial. For example, the Greater Sudbury Police Service can accommodate counsel visits within the courthouse on trial days.

Analysis

[16] I begin my analysis by finding it is “expedient to the ends of justice” that the trial take place outside the Manitoulin District. This will be a lengthy trial, likely five weeks. The cumulative effect of the daily travel for the accused from Sudbury to Gore Bay and back, and the consequential impact it has on other aspects of his trial, will be extremely difficult. The travel will also take place during the worst part of winter, when storms can close the highway, or make it very hazardous to navigate, causing delays. In these circumstances, trial fairness, efficiency, and the safety of the applicant and police will best be achieved in another venue.

[17] The party seeking a change of venue bears the onus of establishing on a balance of probabilities that a change is “expedient to the ends of justice”: Suzack, at para. 43. This is a unique situation. Most cases involve either the Crown or the accused applying to change the venue. Here, I agree with the parties that the venue needs to be changed. For the purposes of these applications, each party has the onus of establishing the appropriate venue.

[18] In my view, Sudbury is the appropriate venue for this trial.

[19] Sudbury is the closest judicial district and would be the shortest distance for witnesses to travel from Manitoulin Island. It is also closer to the community in which Brandan Brooks was killed. The jail where the accused will be housed for the trial is next door to the Sudbury courthouse. The large jury courtroom in Sudbury is available for this trial on the dates that have been set. The Greater Sudbury Police Service can accommodate within the courthouse private visits with counsel every day the court sits. Holding the trial in a neighbouring district also better preserves the principle that local cases be tried locally: Sandham, at paras 13-16.

[20] These factors far outweigh the arguments put forward by the accused. It is evidently more convenient to the accused that the trial be held in Toronto. It is his home community, where he can receive the support of family and friends and where his counsel has an office. However, out of region counsel are routinely retained on criminal matters in the Northeast Region. They arrange to see their in-custody clients in person and/or remotely.

[21] Meeting with in-custody clients, even for local counsel, can be difficult at times. Lockdowns and staff shortages can lead to disruptions in scheduling or completing appointments. The accused filed an affidavit setting out difficulties his counsel had scheduling meetings with him in April 2024. The most recent affidavit filed for this application suggests his counsel “has suffered huge difficulties in securing her access to Mr. Graham.” In submissions, he also relied on the evidence filed on behalf of some of the co-accused in the earlier change of venue applications. Jeromie Simon missed nine of fifteen scheduled meetings (eight of which were in 2023). Umainesan Manuel missed one scheduled meeting. Jerome Fuller missed six out of ten scheduled meetings between January and May 2024.

[22] The accused submits, without evidence, that the problems he has experienced in the Sudbury District Jail would be alleviated by a transfer to a Toronto Region jail. These include meeting with counsel, sleeping on the floor, having culturally appropriate food, and experiencing physical violence and threats of violence.

[23] The accused further argues a fair trial can only be achieved in Toronto because it will afford him a “reasonably serene environment” for the hearing. This phrase, found in the change of venue jurisprudence, is tied to the accused’s right to a fair trial before an impartial jury. It was first used by Fish J.A. (as he then was) in R. v. Charest in the following passage at para. 117:

…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 to another venue.

[24] But the accused urges the court to expand this phrase to include the conditions of his pre-trial incarceration and the proximity of his family and counsel, relying on R. v. Mearow, 2015 ONSC 7149. In that case, logistical concerns such as the size of the courtroom, the number of counsel tables and a multi-person prisoner’s dock were, in the court’s view, insufficient to support a change in venue. However, the main concern was the potential impact on the applicants’ fair trial interests caused by their notoriety in the community and the “extensive graphic media attention concerning the mutilation of the deceased”: Mearow, at para. 16.

[25] There is no evidence in this application that the accused cannot have an impartial jury in Sudbury. I decline to apply Charest in the broad way suggested by the accused. This would stretch its meaning well beyond its purpose. Even applying an expanded view of Charest, I am not persuaded the accused’s stated pre-trial conditions and distance from his family and his counsel’s office impair his fair trial interests. The accused’s bare assertions about the conditions and his safety in the Sudbury District Jail are not supported by any other evidence on this application.

[26] In oral argument the accused further suggested North Bay as an alternative venue to Toronto, submitting the North Bay Jail is more appropriate. Again, the accused’s stated preference for where he should be held, alone, does not tip the scales in favour of moving the venue to another judicial district, an hour and a half east of Sudbury, and even further from Manitoulin Island, from where witnesses must travel.

[27] In closing, I note that while this trial can start in Sudbury in less than two months’ time, I am advised by the office of the Regional Senior Justice for Toronto that the earliest date it could start on a list in Toronto is November 03, 2025. I am also advised by the Local Administrative Judge in North Bay that a five-week jury trial would require a special sitting of the court that could only be scheduled in 2026. There is a strong interest for the accused and the community in having this matter determined on its merits sooner rather than later.

Conclusion

[28] For these reasons, the accused’s application is dismissed and the Crown’s application is granted. I accordingly order the trial on the indictment shall take place in Sudbury, in the Northeast Region.

The Honourable Regional Senior Justice P. J. Boucher Released: November 21, 2024