Criminal Law

Change of venue bids different for small-town retrials

By AdvocateDaily.com Staff

There are four main considerations when bringing a change of venue application for retrials, says Toronto criminal lawyer Tyler Smith, whose firm recently made such a request.

“Change of venue applications under the Criminal Code can essentially be brought when it’s in the best interest of justice to move the trial, which is a very wide test. But case law makes it clear that defendants generally won’t win the day when it comes to these applications,” says Smith, a partner with Hicks Adams LLP.

“Basically, the courts have ruled that the public has a short memory when it comes to these cases being reported in the media.

However, there are circumstances where this isn’t the case, he tells AdvocateDaily.com.

Smith recently represented a client who was convicted in a small Ontario city of the first-degree murder of his ex-girlfriend and mother of his oldest daughter.

After being found guilty in 2015, the conviction was appealed. Earlier this year, the Ontario Court of Appeal, finding fault with the judge’s charge to the jury, set aside the conviction, ordered a stay on a kidnapping charge, and ruled there should be a new trial on both counts.

Hicks Adams LLP subsequently applied for a change of venue for the retrial.

“When you are dealing with a first trial, usually change of venue applications are unsuccessful because the public is hearing and reading the news stories while the trial is ongoing, and those people aren’t members of the jury. The jurors are sitting in the trial and have been instructed not to look at media accounts,” Smith says.

“It gets complicated when there is a retrial, particularly in a small city or town. In this instance, the community was highly involved in the case because it included a very sympathetic victim, and the first trial was covered wire-to-wire in the media,” he says.

That recreates a challenge for a retrial because the potential jury pool in a small community has likely heard about all or parts of the trial, Smith says.

The fear is prospective jurors will come to the selection process with pre-conceived notions of what the evidence is going to be, he says.

“In many cases, the court has ruled that it is not that much of a concern because of the issue of short memories of community members,” Smith says. “In this particular case, however, the media was so interested that it followed it through conviction and sentencing. They covered it when the appeal was filed, and they reported on the appeal itself and the fact that a new trial was ordered.

“So that continued media coverage is a significant factor that a court will consider in granting a change of venue because it really keeps refreshing the memory of the community about the evidence in the trial,” he says.

Smith says there are four considerations in such cases when bringing an application for a change of venue.

  • Was the community particularly interested in this case?
  • Is the victim in the crime very sympathetic within the community?
  • Has the coverage been continuous to the point of keeping it fresh in the minds of the jury pool?
  • What is the size of the community involved in the case?

“In a city the size of Toronto or the GTA, youre probably not going to find a receptive audience when making an application because there are so many serious crimes that are all heavily reported on, and then the next one comes along, and people tend to focus on what’s new and fresh,” he says.

“In a small community, that isn’t the case.”

In Ontario, even if a trial venue is changed, it is moved within regional boundaries of the judicial district, Smith says.

In this case, the district is central-east, meaning possible locations for the retrial are Lindsay, Peterborough, Cobourg, Oshawa, and Bracebridge.

“Some of those communities are quite close together. If this trial had happened in Lindsay, there is a good chance the people in Peterborough would have heard about it,” he says.

“If an order is granted, you don’t get to choose where it will be held. The regional senior justice and administrators make the decision. That’s a practical consideration that a defence lawyer should take into account before bringing a decision like this, making a point about proximity.”

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