Full transcript of Niganobe venue ruling

The following is the full text of Superior Court Justice Larry Whalen's decision today granting a change of venue to Jeanette Niganobe.

Judge Whalen is expected to be allowed to continue presiding over the criminal trial, which is most likely to take place in Sudbury.

Jury selection in Sudbury could begin as early as February 11, said Whalen, and the pretrial applications will continue in the Sault.

For earlier SooToday.com coverage of this decision, please click here.

************************* [1] The accused is charged with impaired driving causing bodily harm and death, dangerous driving causing bodily harm and death, and impaired driving. Her trial has commenced with the hearing of pre-trial motions, including this one, and with a jury to be selected in Sault Ste. Marie on February 4, 2008. She has applied for a change of venue because she fears she cannot have a fair trial before a Sault Ste. Marie jury.

[2] Ms. Niganobe brought a similar application before Pardu J. on March 8, 2007 and was refused for reasons delivered on March 13, 2007. Although Pardu J. was not the trial judge, the application was brought before her by agreement of the parties in an attempt to clarify a contentious issue and thereby facilitate the trial process. The application before me is as trial judge.

[3] Section 599 of the Criminal Code of Canada is the basis for a change of venue application, which may be heard by a judge of the court before which the accused is indicted.

[4] Although it may be the preferred and ordinary practice to bring such applications before the trial judge, there is nothing prohibiting another judge from hearing it, especially if the parties are agreed. For that reason, Pardu J's conclusion is not diminished simply because she was not the trial judge.

[5] Also, although the defence argued that I am not bound by Pardu J.'s decision, I should defer to it unless I am convinced it was clearly wrong in all the circumstances. Nor should I grant relief unless new grounds or changed circumstances are demonstrated. Otherwise repeated applications could operate as appeals or become vexatious.

[6] As the defence recognized, relief of the kind sought is a discretionary remedy that an appeal court will only likely overturn if it is demonstrated that the exercise of discretion involved was an error in principle or unreasonable in the circumstances of the case: R. v> Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.) at paragraphs 36 and 39.

[7] the parties agree that it becomes "expedient to the ends of justice" to move the place of the trial only when the applicant has demonstrated on a balance of probabilities that there is fair and reasonable likelyhood of partiality or predjudice in the local community that cannot be overcome by the safeguards available during jury selection, and also during the trial process itself. See generally R. v. Suzack (Supra); R. v. Charest(1990), 57 C.C.C. (3d) 312 (Que. C.A.); R. v. Collins(1989), 48 C.C.C. (3d) 343 (Ont. C.A.); R. v. Talbot(1977), 38 C.C.C. (2d) 555 (Ont. S.C.); R. v. Frederick and Charter(1978, 41 C.C.C. (2d) 532 (Ont. S.C.); R. v. Fitzgerald and Shoenburger(1981), 61 C.C.C. (2d) 504 (Ont. S.C.). The scope of the test was discussed further in R. v. O'Connor(1995), 130 D.L.R. (4th) 235 at paragraph 193:

"[w]hat constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system and the lawful interests of others involved in the process... What the law demands in not perfect justice, but fundamentally fair justice."

[8] The importance of balancing the interests of both the community and the accused was stated in R. v. Find(2001), 154, C.C.C. (3d) 97 at paragraph 28, where the Supreme Court of Canada observed that a fair trial should not be confused with a perfect trial, or the most advantageous trial possible from the accused's perspective.

[9] The court continued that an "impartial jury" did not mean neutrality of opinion, or require that a juror come to court with a mind like a blank slate. All jurors come with their own beliefs and predispositions. Indeed, diversity and richness of life experience is a jury's great strength. The essential requirement that a juror be able to set his or her views and prejudices aside, and reach a conclusion based on the evidence presented at trial after applying the law according to the trial judge's instructions. R v. Find (supra, at paragraphs 26 and 43).

[10] Although the Find case dealt with jury partiality and fairness in the context of challenge for cause, the court's conclusions are equally applicable to questions of fairness and partiality in an application for change of venue. Both involve the trial process. The court's observation (at paragraph 45) that a judge must not exercise his discretion on whim, but rather only where "...a realistic potential for partiality exists", is also useful in considering when discretion should be exercised to order a change of venue.

[11] I therefore approach my task on the basis that the applicant must demonstrate on a balance of probabilities that there is a reasonable and realistic potential for partiality by a jury drawn from the District of Algoma. I must also be satisfied that such a partiality cannot be overcome by the safeguards available to protect accused persons in such circumstances.

[12] As discussed in R. v. Fitzgerald and Schoenberger (1981), 61 C.C.C. (2d) 504 and acknowledged in R v. Suzack.(supra), those safeguards consist of: (a) the trial judge's usual instructions that the case can only be determined on evidence admitted at trial; (b) the prospective juror's oath; (c) the fact that only admissible evidence may go before the jury (i.e. the rules of evidence); (d) the statutory right of pre-emptory challenges and challenges for cause of potential jurors, and; (e) any screening and questioning of the panel and individual prospective jurors that the trial judge considers necessary.

[13] I would add to this the requirement of unanimity of verdict by jurors in a criminal trial. It is a formidable requirement that all twelve jurors must agree on a verdict. This requirement is likely to weed out extreme views of bias.

[14] I also acknowledge the well-recognized proposition that a trial should take place in the locale where the alleged offence took place and that there is a strong presumption in favour of the local venue. I discussed this presumption more fully in R v. Witty, [2002] O.J. No. 1998. It is this strong presumption favouring the locality of the charge that an accused must overcome in seeking to change venue.

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