R v ASM, 2021 ABQB 895

Court of Queen’s Bench of Alberta Citation: R v ASM, 2021 ABQB 895 Date: 20211110 Docket: 210000592Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - ASM Accused Restriction on Publication Identification Ban – See the Youth Criminal Justice Act , section 110(1). No person shall publish the name of a young person or any other information that may identify a young person as having been dealt with under the Youth Criminal Justice Act . NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published.

Trial information in Absence of Jury – See the Criminal Code , section 648(1) . Permission having been given to the jurors to separate, information regarding any portion of the trial at which the jury is not present shall not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file. It may be published after the jury retires to consider its verdict. _______________________________________________________ Reasons for Decision

of the Honourable Justice E.J. Sidnell _______________________________________________________ Introduction [1] The accused brings an application to change the venue of the trial from Calgary to Edmonton, or another judicial districtwithin Alberta. A fair trial conducted before an impartial jury is fundamental to the criminal justice system in Canada. In R v Find, 2001SCC 32, McLachlin CJ, ret, said, at para 1: Trial by jury is a cornerstone of Canadian criminal law. It offers the citizen the right to be tried by an impartial panel of peers andimposes on those peers the task of judging fairly and impartially.

Since our country’s earliest days, Canadian jurors have met thischallenge. Every year in scores of cases, jurors, instructed that they must be impartial between the prosecution and the accused, renderfair and carefully deliberated verdicts. Yet some cases may give rise to real fears that, despite the safeguards of the trial process and thedirections of the trial judge, some jurors may not be able to set aside personal views and function impartially. [2] In Find, the issue was the right to challenge potential jurors for cause, but the principles can also be applied to a change ofvenue application.

In R v Suzack, (ONCA), at para 30, the Ontario Court of Appeal succinctly summarized theconsiderations on a change of venue application in a criminal matter: It is a well-established principle that criminal trials should be held in the venue in which the alleged crime took place. This principleserves both the interests of the community and those of the accused.

There will, however, be cases where either or both the community’sinterests and the accused’s interests in a fair trial are best served by a trial in some other venue. ... [3] I find that this is not a case where either the community’s interests, or the accused’s interests, in a fair trial are best served bytrial in some other venue. [4] There is a publication ban in this case pursuant to s. 110(1) of the Youth Criminal Justice Act (YCJA). As a result, I will referto the accused as the “Young Person”. [5] The Young Person is charged with first-degree murder under s 231(1) of the Criminal Code, RSC 1985, c.

C-46, inconnection with the death of a police officer, Sgt. Harnett, in an incident which took place in Calgary on December 31, 2020 (theIncident). The Young Person brings this application to change the venue of his trial pursuant to s 599 of the Criminal Code whichprovides that the venue may be changed “if it appears expedient to the ends of justice, including to promote a fair and efficient trial”. [6] The Young Person brings this application on the following grounds: (

a) pretrial publicity has prejudiced, and continues to threaten, a fair trial; (

b) the jury screening and trial procedures are an insufficient guard against potential juror bias; and (

c) a fair trial with an impartial jury can be ensured by transferring the trial venue from Calgary to another jurisdiction withinAlberta. The principles and factors to consider [7] The Young Person submits that all of the factors must be considered in a holistic manner and I agree with that approach. It isnot just one factor which is determinative, rather it is the consideration of all factors, in their totality, that is required. [8] In R v Steinke, 2008 ABQB 201, at paras 8 to 10, Mahoney J summarized the principles to be applied in a change of venueapplication as follows: In a decision of this court in R. v.

Pappas, 2004 ABQB 668, Clackson J. summarized the principles governing an application for changeof venue, at para. 2: 1. It is well established that criminal trials should be held in the venue in which the alleged crime took place; 2. The onus in such an application is upon the applicant; 3. The onus upon the applicant to discharge the presumption of venue is a heavy one; 4. The applicant must establish on a balance of probabilities that there is a fair and reasonable likelihood of partiality or prejudice amongthe prospective jurors in the presumed venue; 5.

The applicant must also show on a balance of probabilities that partiality or prejudice cannot be overcome by jury screening,peremptory challenges, challenges for cause and the cleansing inherent in the trial process; 6. The goal is to ensure that both Crown and the accused have a fair trial with an impartial jury.

Factors to consider in deciding whether a trial will be fair are referred to in the case R. v Daunt, 2005 YKSC 33 where the YukonSupreme Court set out the following, at para. 8: 1. the size of the community; 2. prejudicial pre-trial publicity; 3. widespread animosity that people may have towards the accused or the victim; 4. widespread sympathy for the accused or the victim; 5. fear or revulsion in the community; 6. the nature of the crime; and 7. the nature of the issues. In R. v.

Charest (1990), ... (QC CA), 57 C.C.C. (3d) 312, the Court of Appeal of Quebec held that when decidingwhether a change of venue is warranted, courts should not restrict themselves to evaluating the impartiality of potential jurors; rather,courts should take a broader approach, at p. 348 the Court of Appeal said: 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 sereneenvironment.

Extensive prejudicial publicity shortly before the trial, pronounced hostility toward the accused, widespread sympathy forthe victim, and a frightened or enraged community, surely create – especially in a small judicial district – the kind of emotionallycharged atmosphere in which the end [sic] of justice may be best served by removal of the trial to another venue. [Emphasis in original] [9] In R v Bonnell, 2011 NBQB 246, Ferguson J, at paras 35 and 36, articulated the considerations on an application to changethe venue as follows: ... in venue change motions based upon adverse pre-trial publicity the accused must first establish a reasonable probability of prejudice inthe potential jury panel that will be chosen from the community in which the offence is alleged to have occurred based upon thatpublicity.

He or she must then establish the second aspect of the test, that is, that the legal processes that surround the empanelling of thejury, the trial processes designed to assure fairness and the various instructions during the trial by the trial judge will not be successful ineliminating any bias that a potential juror might harbour against the accused entering the selection process. Find at paragraph 40.

In Yarema Watt J. spoke of the first branch of the test in terms of evidence demonstrating: “…that there is a fair and reasonableprobability of prejudice in the territorial division where the trial, prima facie, would be held…” ... and that, secondly, as a result: “… theextent of the repetition of such matters in the media renders their fair trial in the original venue impossible…” ... [10] Taking these cases together, and noting the abolition of peremptory challenges in the jury selection process, I find that theprinciples and the factors to consider in 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 ofvenue 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. Information before the Court on this application Submissions made in the Young Person’s brief [ 12 ] Counsel for the Young Person included in its brief a commentary regarding the media and community attention regarding the Incident. This included a considerable amount of information, the following of which are examples, without footnotes, which are meant to be illustrative and not exhaustive: (

a) within days of the Incident, “Calgary media outlets [publishing] over 100 articles”, most of which were “highly inflammatory and likely to create extreme prejudice against the Young Person”; (b) “media disseminated the erroneous fact that the [Y]oung [P]erson’s vehicle struck Sgt. Harnett”; (c) “Authorities have not helped to the set the record straight.

The Calgary Police Service (CPS) posted on their Instagram, Facebook, and Twitter account, describing the incident as follows: ‘a Calgary Police Service officer was struck by a vehicle fleeing a traffic stop’”; (d) “The factually inaccurate posts on Instagram by the CPS have gathered tremendous attention. The Instagram post alone has upwards of 17,000 ‘likes’, representing other Instagram users who sympathize with the post. Some of the comments on this post expressed the wish that people who killed Sgt.

Harnett to receive the death sentence”; (e) “Posts on Facebook acquired similar levels of attention, with the initial post about Sgt. Harnett garnering over 21,000 likes and 5400 comments. Similar to the posts on Instagram, the comments

section contained an outpouring of sympathy for Sgt. Harnett, with individual comments expressing anger and resentment towards the Young Person; the [Y]oung [P]erson was described as ‘an animal’ and the death penalty was suggested multiple times. A post about Sgt. Harnett’s funeral acquired over 11,000 likes in 1400 comments. Many of the comments under this post expressed an outpouring of sympathy. Blue hearts were used to symbolize love for the police. Other posts on Facebook about Sgt.

Harnett average between 1000 and 4000 likes”; (f) “On Twitter, the Calgary Police Services initial post about the death acquired over 7500 likes, 1266 retweets and over 800 comments. ... The outpouring of support continued over Twitter; once again blue hearts and images of them blue lines were a frequent feature”; (g) “On Reddit, a social media platform designed to encourage conversation, there were discussions about the issuing of the warrants for the Young Person and his co-accused. ...

There were other comments making assumptions about why they ran based on their names and discussions about bringing back the death penalty”; (h) “The Calgary Tower lights were turned off in tribute to Sgt. Harnett”; (i) “A highly publicized special exemption is granted so the funeral could be held without COVID-health restrictions in force at the time”; (j) “The Chief of Police appeared on various news outlets to make a statement regarding this tragedy”; (

k) The Chief of Police “requested the Calgarian’s tie blue ribbons around trees and illuminate their porches with blue lights in a show of support and sympathy for Sgt. Harnett and the Calgary police family”; (l) “The community responded to this call for action, lighting their porches blue and hanging Christmas lights from their houses”; (m) “A large public regimental funeral procession was held for Sgt.

Harnett which included a fleet of police motorcycles as an escort, a flyover by two F-18 jets, firetrucks suspending a Canadian Flag, and a firearms salute”; and (n) “Calgary’s Mayor posted on Twitter ‘like all of us I am upset, I am angry at this senseless loss and I am profoundly sad’. Alberta’s Premier, Jason Kenney, expressed sympathy for the family, friends, and colleagues of Sgt. Harnett. He also called the incident a terrible crime and hoped that the perpetrators were quickly brought to justice. ... the Premiers social media post identified the [Y]oung [P]erson by name and included his photograph. ...

The replies to that post express almost universal prejudice against the Young Person. The Prime Minister’s office also released a statement expressing condolences to Sgt. Harnett’s family and the wider police community.”

[ 13 ] During oral argument, the Crown conceded that there was “vast media attention” regarding the Incident. The Crown also acknowledged the background information set out in the Young Person’s brief relating to media reporting, social media posts, comments from community leaders and the arrangements made for Sgt. Harnett’s funeral. For instance, in its brief the Crown said: The Crown does not dispute that such posts exist and that following the death of Sgt. Harnett numerous individuals either commented or offered sympathies via the ‘like’ function on such platforms. The Crown also does not dispute that Sgt.

Harnett’s funeral was viewed by numerous people. . . . “some of the initial information contained within media reports is inaccurate” [ 14 ] Based on the Crown’s acknowledgement of the background information regarding media reporting, including inaccurate reporting, social media posts, commentary from community leaders in the arrangements made for Sgt. Harnett’s funeral, I can accept this information as evidence in this application. Submissions by counsel on court proceedings [ 15 ] Counsel noted that the Young Person’s co-accused’s trial is scheduled to commence on December 6, 2021, before a judge sitting alone.

The Young Person’s trial is scheduled to commence on January 27, 2022, before a jury. [ 16 ] The submissions by counsel as officers of the court as to court proceedings can be accepted by me as information that I can consider on this application. Affidavit evidence [ 17 ] In an affidavit filed shortly before the hearing of this application, a student-at-law with the legal team representing the Young Person, provided evidence regarding comments on the Calgary Police Service website, media articles on the internet and Twitter posts (the Affidavit).

I address this evidence in my consideration of the factors for a change of venue. [ 18 ] The Crown did not provide any affidavit evidence. Other materials [ 19 ] I am unable to rely on hearsay evidence submitted to this Court by way of references to, and quotations from, articles contained in journals, whether or not such journals are peer-reviewed. The Young Person sought to rely on conclusions in James R.P Ogloff and Neil Vidmar, “The Impact of Pretrial Publicity on Jurors” (1994) 18:5 Law and Human Behaviour 507.

Regardless of the stature of the journal in its field, articles are hearsay evidence and cannot be used to prove the conclusion of the authors that “exposure to the various media [in their study] had a prejudicial impact on people, and that they were unaware of their biases” applies to this application. [ 20 ] In addition, judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute.

The court can accept a fact without the requirement of proof, because it is either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons, or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: Find , at para 48 . In my view some of the propositions asserted by the Young Person did not meet the test for acceptance into evidence by judicial notice. However, I address how the courts have accepted racial prejudice as a fact in our society, below. [ 21 ] I was asked to infer that the author of a media

article was suggesting that the Young Person should be dealt with as an adult and not as a youth because the Young Person was described as “a youth, who turned 18 just days after the incident”. The following paragraph in the

article said that provisions of the YCJA prohibit the Young Person from being identified. I find that I am unable to infer that the author was making a pejorative comment as opposed to merely reciting the facts. [ 22 ] I was also asked to infer that comments posted on the Calgary Sun website in relation to another media

article entitled “Justice will be delivered in officer’s death”, published on January 21, 2021, would be from Calgary residents and potential members of the jury pool. It is notorious, and generally accepted as not to be the subject of debate, that comments on websites can be made from around the world and I find that there is no basis upon which to make an inference that all, or even a majority of, comments in a Calgary Sun newspaper website are from residents of Calgary, let alone potential members of the jury pool. Factors to consider on an application to change the venue

Part 1: A fair and impartial trial, in a reasonably serene environment, cannot be held in the jurisdiction where the alleged crime occurred [ 23 ] The Young Person relied on a portion of R v Charest , (1990), CanLII 3425 (QC CA), to assert that a fair and impartial trial cannot be conducted in a reasonably serene environment in this case. While I agree with the comment in Charest , I have set out, above, all of the factors to be considered, in a holistic manner, in this case and address them in detail below.

(

A) Extensive prejudicial publicity [24] To illustrate his position, the Young Person refers to social media posts on sites such as Facebook, Instagram and Redditwhich he says shows that there has been sufficient pretrial publicity to affect the fairness of his trial. [25] The Young Person also refers to the extensive media publicity: (1) that was published shortly after the death of Sgt. Harnett;and (2) that will occur when the co-accused adult is tried by judge alone shortly before the Young Person’s jury trial is scheduled tocommence.

The Young Person also notes that when new articles are posted on mainstream media they frequently contain links toprevious articles. [26] The Young Person acknowledges that there will be a publication ban in effect in relation to his name in the co-accused’s trial,but states that his identity as the driver of the vehicle involved in the incident will be publicized and he will be identified in that rolebefore his trial even begins.

The connection with him being the driver, he asserts, will render potential jurors impartial. [27] In determining whether there should be a change of venue, it is not the mere fact that there will be pretrial publicity, it is thenature and extent of the pretrial publicity and whether it may create a probability of prejudice. In R v Effert, 2008 ABQB 200, Veit Jfound that there had been extensive publicity, but, as she noted at para 39, publicity in and of itself is not a ground for a change of venue: Here, there are serious concerns relating to the “impartial jury” issue.

These concerns do not relate primarily to the amount of publicitywhich these criminal proceedings have attracted, even though there has been extensive publicity. As the case law consistentlyemphasizes, “publicity in and of itself is not a ground for change of venue”. Rather, the concern arises from the post-trial publicityannouncing that Ms. Effert was a murderer. Time and again, for example in the context of assessing jury charges in their entirety or inthe context of trusting to cleansing mechanisms, courts are reminded that the courts should trust juries.

By the same token, it would notbe surprising if the community in which Ms. Effert resides trusted the first jury which tried her; it might well be difficult for members ofthat community to overcome the stigma which has been imposed on Ms. Effert as a result of the first trial.

As Mahoney J. observed inSteinke, because of this type of difficulty, case law demonstrates that there is a greater likelihood of a change of venue in a re-trialsituation or in a situation where there is more than one trial arising out of one series of events: see para. 16. [28] In Effert, the accused had been tried in Wetaskiwin, a small judicial district, and had been found guilty.

The re-trial wasmoved to another venue. [29] Similarly, in R v Pappas, 2004 ABQB 668, Clackson J observed, at para 6, that most of the prospective jurors would befamiliar with the case: Given the small size of Peace River and the prospective jury pool, and the pervasive nature of the media coverage of both the allegedcrime and the ensuing events, I think it is clear that most of the prospective jurors would have heard about this case and probably formedpreliminary opinions about it. [30] Notwithstanding that the prospective jurors would have been familiar with, and have formed preliminary opinions about, thecase, Clackson J found that the accused did not meet the onus to move the venue of the trial.

Clackson J found that there was nothingthat the accused offered which would justify the conclusion that jury screening processes would be unsuccessful at rooting out partiality.Further, he found that there was no basis to conclude the prospective jurors would not be able to set aside any partiality or prejudice theymight feel.

Relying on Find, Clackson J was of the view that even if some of the jurors were partial, there was no basis to conclude thatsuch partiality would withstand the cleansing process which is part of every criminal trial: see Pappas para 8. [31] In Suzack, Doherty JA said, at para 44: Nor in my view does the right to a fair trial require a change of venue wherever pre-trial publicity poses a risk to that right. The risk willexist to some extent in virtually every case where there has been pre-trial publicity.

The right to a fair trial is compromised where despitethe available safeguards there is a reasonable likelihood that an accused cannot receive a fair trial in the local venue. Timing of the publicity [32] As was noted in Suzack, at para 80, in some cases adverse publicity occurring months prior to rather than immediately beforetrial, may weigh against a change of venue application.

The Young Person relies on the publicity that occurred at the time of the Incidentto support his position that there will be substantial and harmful publicity before his trial as a result of the co-accused’s trial taking placein December and concluding as the jury notices are issued for his trial, which is scheduled to commence on January 27, 2022. [33] I find that the timing of the proceedings is a matter of concern in this case and that, based on the materials before me, thatthere will likely be a considerable amount of publicity about the co-accused’s trial in mainstream media and social media.

The YoungPerson cannot be named in connection with the co-accused’s trial, because of the YCJA publication ban, but the driver of the vehicleinvolved in the Incident will likely be referred to and the Young Person is alleged to be the driver.

However, I am also of the view thatthis one concern, in holistically considering all of the factors, does not create an overarching reason to change the venue of the trial. [34] Furthermore, while the Young Person is not obliged to take any steps, he has the option to seek a temporary or partialpublication ban in relation to the co-accused’s trial: see R v Valentine, (ONSC); R v Mason, (ONSC); and R v Johnson, 2010 ONSC 2086.

While there is no obligation on the Young Person to seek a publication ban, and noguarantee that it will be ordered, where such remedy would alleviate the Young Person’s temporal proximity concern, I am of the viewthat I should consider whether this is a more appropriate manner of mitigating this concern. [35] I am of the view that the temporal proximity of the Young Person’s jury trial to the co-accused’s trial is a concern, but,considering all factors holistically, it is not a determining factor in the constellation of factors, and this concern can be sufficientlymitigated for the reasons described in

Part 2, below. In addition, while not necessary to address this concern, the Young Person could

apply for a temporary or partial publication ban in relation to the co-accused’s trial, which, in this case, would be a more appropriateremedy. Related proceedings [36] The co-accused’s trial is scheduled to commence approximately a month and a half before the Young Person’s trial. I havefound that there will be significant publicity relating to the co-accused’s trial. The Young Person cannot be named in relation to the co-accused’s trial because of his age at the time of the alleged offence and the ban under the YCJA.

However, the Young Person is allegedto be the driver in the Incident and submits that the “driver” of the vehicle will be mentioned in the co-accused’s trial and such referencesin the media will be prejudicial to him. [37] In Steinke, Mahoney J described how the young offender, who was the co-accused, had been tried before Mr. Steinke’s trialwas scheduled to begin.

At paras 3 to 5, Mahoney J described the Crown’s position in the previous trial, the amount of media attention ithad received and the size of the jurisdiction in which the trial had taken place: The young offender co-accused was tried by a Justice of this court, sitting with a jury in June and July of 2007. On July 9, 2007, she wasconvicted of three counts of first degree murder. ... At the young offender’s jury trial it was the theory of the Crown that Steinke had stabbed Marc and Debra Richardson to death andkilled Jacob Richardson by slitting his throat and stabbing him.

According to the Crown, the young offender aided or abetted Steinke, orcounselled him to commit the murder of her family. The defence theory was that the young offender was a victim of the relationship shehad with the older Steinke who acted alone in carrying out the murders. The defence theory was rejected and, as stated, the youngoffender was convicted of three counts of first degree murder. These crimes attracted and continue to attract significant publicity. There was wide reporting in the local, provincial and national printand electronic media. ...

During the young offender’s trial and Steinke’s preliminary inquiry there have been hundreds of media reports.... Some of these articles gave a very detailed account of the evidence presented at the young offender’s trial.

In the city of Medicine Hat,with a population of around 57,000, the Medicine Hat News has a daily circulation in February of 2008 of 12,150 copies. ... [38] Mahoney J went on to note, in Steinke, at paras 15 and 16, the connections that can occur between media coverage and relatedproceedings: The mere fact of sensationalist publicity does not constitute the determining factor in the decision whether or not to order a change of thelocation of the trial.

Rather, it is a question of deciding whether this publicity is gone beyond the point where it becomes difficult toensure “a fair trial before an impartial jury”: R. v Proulx ... Media coverage can be particularly problematic when more than one trial results from the same series of events. In R. v. Taylor, 2000BCSC 626, the accused had been convicted, the conviction had been overturned and she was set to stand trial for a second time. In thatcase, a change of venue order was granted in response to the detailed reporting of the first trial in the local papers.

Similarly, in MacNeil,the third co-accused to be tried was granted a change of venue because the judge felt that the media surrounding the prior trial and guiltyplea of his two co-accused could result in prejudice to the third co-accused. [39] In Steinke, Mahoney J changed the venue from Medicine Hat to Calgary.

However, that case is distinguishable from this casebecause: (1) there have been no instructions to jurors that could give rise to a conclusion that the Young Person has already been foundguilty, and there will be none, because the co-accused will be tried by judge alone; (2) there was no public opinion poll submitted tosupport the application showing any prejudice in the Calgary jury pool; and

(3) Mr. Steinke was to be tried in Medicine Hat, which is arelatively small judicial district as compared to Calgary. [40] In R v MacNeil, (NS SC), an accused was on trial in relation to an event where, in 1992, three people werekilled, and one was seriously injured, at a McDonald's in Sydney, Nova Scotia. The case was referred to as the “most notorious crime orcrimes in contemporary Nova Scotia memory”. Unfortunately, that is no longer the case. One of the accused, and the third to be tried,sought a change in venue, which was granted, with the trial dates to remain in place.

Here there was no information before me to indicatethat this trial could be moved to Edmonton, or another venue, and that the trial dates could be maintained. [41] In MacNeil, Gruchy J, at page 15, concluded: As a result of the publicity surrounding the trials of Wood and Muise, together with the pre-trial publicity of the crime, there is now inCape Breton pronounced hostility toward the accused, as reported by the media. There is widespread sympathy for the victims. There isan emotionally charged atmosphere. The media reports detail the atmosphere in Cape Breton and at the same time fuel further rage.

That is particularly so as the communityis small and close-knit enough that there would be very few people in the area who have not been personally touched by the tragedy orknow somebody who has. [42] In Charest, the accused, a hockey coach, had strangled to death an 11 year-old boy who had been on his team. He admittedthe homicide, but not the mens rea as a result of his intoxication. Fish JA, as he then was, for the Quebec Court of Appeal, upheld thetrial judge’s denial of an application to change the venue of the trial, which resulted in the oft quoted reference to a “sereneenvironment”.

However, a new trial was ordered for other reasons and, in relation to that new trial, Fish JA order that it proceed in adifferent district. At pages 66 and 67, Fish JA explained why the second trial should not be in the same, relatively small, district: A new trial should in my view proceed in a different district. This appears to me, in the language of the Code, "expedient to the ends ofjustice". My conclusion is not at odds with any finding of fact by Cliche J. In support of the motion before him, serious evidence was presented to

indicate intense local hostility toward appellant and understandable outrage at his crime. This evidence was not disbelieved or rejected.One witness, a reporter who by then had covered sensational criminal trials throughout Quebec for nearly a quarter-century, said he hadrarely encountered an atmosphere as "aggressive" as the one greeting appellant outside the courthouse on his first court appearance (p.390). He heard shouts from the crowd such as, "Tuez-le, Coupez-y les couilles" and so forth (p. 389). Several other journalists testifiedthat, on the same occasion, they heard threats and shouts.

Crown counsel himself, not on the motion but in cross-examination of adefence witness during the trial, referred to the crime as one that had aroused "l'ire populaire" (at p. 742). It was committed inContrecoeur, a small municipality in a rural or semi-rural judicial district with a total population, in 1984, of 87,000. Since the hearing before Cliche J., apart from the trial and its attendant publicity, there have been other material developments. The dayafter the verdict, the municipal arena in Contrecoeur was renamed "Arena Steve Mandeville" to honour the victim's memory.

We are toldapproximately 1,000 people most presumably from the area -- attended the ceremony. In these circumstances, it is my opinion. that any further trial should be held in a district other than Richelieu. [43] In all of the cases above, the trial venue was moved from a smaller centre to another, often larger, venue. In a largercommunity, there is a greater opportunity to find jurors who have not been touched by the events, even if they have heard media reports.The objective is not to find jurors who have no knowledge of the event, but who can be impartial and fair.

This is reinforced in Millardand Smich, 2015 ONSC 6206, where Goodman J said, at paras 103 and 104: It is important to recognize that the objective in choosing a jury is not to find twelve jurors who know nothing about the case: Phillips v.Nova Scotia ...

Indeed, Cory J. provided guidance to trial judges on this issue as stated at para. 132: It comes down to this: in order to hold a fair trial it must be possible to find jurors who, although familiar with the case, are able todiscard any previously formed opinions and to embark upon their duties armed with both an assumption that the accused is innocent untilproven otherwise, and a willingness to determine liability based solely on the evidence presented at trial.

As found in many cases past and present, from the appellate courts of this Country, there is solid affirmation in the judicial confidence injurors to be faithful to their oath, and to follow the instructions given to them by the trial judge: Corbett v.

R. (1988), (SCC), 41 C.C.C. (3d) 385 (S.C.C.) [44] In the present case, it is reasonable to expect that there will be significant media attention arising from the co-accused’s trial.However, that media attention must be considered in light of the co-accused’s trial taking place in the same, but largest, urban centre inAlberta, the Young Person will not be named, and there will be no instructions to the jury in the co-accused’s trial. [45] Just because more than one trial arises from the same event, and one of the accused has a trial which generates significantmedia interest before the other accused goes to trial, does not mean that, without more, the accused whose jury trial is heard later mustbe tried in a different judicial district.

Size of the jurisdiction where the trial will take place [46] Closely related to the other considerations is the size of the jurisdiction where the trial will take place. In Millard and Smich,Goodman J said, at para 91: It is generally accepted that, the smaller the community and the more serious or notorious the crime, and the more intense the publicity,the greater the likelihood of irreparable prejudice and therefore a change of venue is more likely necessary. [47] As addressed above, the trial of the co-accused will be in the largest judicial district in Alberta.

That is also where the YoungPerson will be tried before a jury. Geographical breadth of the publicity [48] Maintaining geographical borders on information becomes more challenging with information being disseminated throughsocial media and the internet, which knows no boundaries. [49] The Affidavit included references to news articles published after July 1, 2021, which were retrieved after the affiantconducted web searches using the terms “Andrew Harnett”, “Andrew Harnett Rink”, and “Andrew Harnett Memorial”.

The listreferenced 11 news articles and of these five of them indicated they were published on a specific Calgary-based news website and theother six had names of general media sites without any reference to Calgary. [50] The Affidavit also provided comments on a Calgary Police Services Facebook page regarding the death of Sgt. Harnett. Theaffiant said that he chose the profiles “randomly” and did not include profiles for commentators who did not provide a location ofresidence.

Counsel for the Young Person said that the posts were not selected randomly, but posts were selected if the commentatorindicated a location of residence. Of the 50 Facebook posts comments that were contained in the Affidavit, 17 of the commentatorsindicated that they lived in Calgary. Five of the commentators indicated that they lived in Edmonton. The rest of the commentatorsindicated that they lived across Canada, the United States and other jurisdictions outside of Canada. [51] The Affidavit also included a selection of Twitter comments, some having been posted by community leaders on January 1,2021.

The other Twitter comments were posted on the same date by the Calgary Herald, The Star Phoenix, which I understand is anewspaper service serving Saskatoon, Saskatchewan, the Regina Leader Post and the Edmonton Sun. [52] In argument, counsel for the Young Person acknowledged that many of the media outlets are related and carry similar storiesacross their internet platforms, which may be tailored to readers depending on the readers locations and search terms, and other criteriabased on the media outlet’s algorithms. In Millard and Smich, Goodman J recognized how the internet is transforming society and

changing the way information is disseminated and consumed, and said, at para 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 ofpre-trial publicity on the fair trial rights of an accused.

In the past, it was common to consider the audience reach of local newspapersand television stations in an attempt to quantify the publicity associated to an accused and his trial. ... [53] I find that the Young Person has not shown that the publicity surrounding his case, which could potentially be prejudicial, isfocused on Calgary or even Calgary-centric. The Young Person included a Twitter message from the Premier of Alberta which showsthe geographical breadth of the publicity relating to Sgt. Harnett’s death.

I agree with counsel for the Crown, that when a police officer iskilled in the line of duty, it is so shocking to the public that it is not just local news but is provincial wide and even national news. [54] In Steinke, at para 22, Mahoney J said: There is case law stating that if the negative publicity was on a province-wide scale, then a change of venue cannot cure any potentialbias and should not be ordered: See R. v. Munson 2003 SKCA 28 ...; R. v. Alward (1976), (NB CA), 15 N.B.R. (2d)551 (C.A.), aff’d ...

This proposition does not apply here. [55] Establishing that the publicity about the alleged crime and the accused’s trial is focused in the judicial district where thealleged crime occurred, and the proposed trial is to take place, is more difficult in the age of the internet. It is well-known that mediaplatforms disseminate news from around the world to readers in every country and that people around the world have the opportunity toread, and comment on, news items at any time, from any location that has an internet connection.

In fact, the Young Person’s ownevidence shows the breath of the dissemination of publicity regarding the Incident. When a police officer is killed in the line of duty, asshown in this case, the publicity and media coverage is beyond local and provincial. Publication of incorrect information [56] Prejudice may occur where information is published with details that are not likely to become evidence at trial. In Millardand Smich, at para 52, Goodman J said: Prejudice may lie where such information was disseminated or published with substantial details of what was unlikely to becomeevidence at trial.

For example, there might be prejudice if media if coverage disclosed a considerable or significant amount of prejudicialor inadmissible information about an accused, or disclosed evidence a jury would not be permitted to consider at trial. Those and otherconsiderations would be an important and compelling factor for a change of venue. [57] The Young Person asserts that incorrect information in the media about Sgt.

Harnett being struck by the car that the YoungPerson was alleged to be driving could be prejudicial to him. [58] The Crown acknowledges that this incorrect information was published in some media and that Sgt. Harnett was struck byanother car.

However, the Crown submits that this is a minor error as the Crown will allege that Sgt Harnett was dragged by the vehiclethat the Young Person was driving at speeds up to 97 km/hr while Sgt Harnett was yelling at the Young Person to stop the vehicle. [59] I find that the Young Person has not shown that this incorrect information rises to the level of being a significant amount ofprejudicial or inadmissible information such that it could affect the fairness or impartiality of the trial. (

B) Pronounced hostility toward the accused [60] The Young Person also relies on the comments posted in response to media articles and on social media to demonstrate thatthere is a great deal of hostility towards the Young Person. There are numerous comments which are degrading, aggressive and, in somecases, illustrative of racial bias and supportive of vigilantism. All of these types of comments are contrary to our justice system where theaccused is innocent until proven guilty.

However, the Young Person could only assert that I should infer that these comments are madeprimarily by residents of Calgary and are indicative of the views of many within the jury pool. [61] While Calgary-based news items are likely to be most interesting to Calgary residents, when the death of a police officer isinvolved it has been shown by the evidence in this case that the interest is far broader.

In fact, the Affidavit shows that there has beenbroad interest, from diverse geographical locations, in the Incident on the Calgary Police Service Facebook page, on Twitter, and inmedia outlets. [62] Hostility has to be extreme to warrant a change of venue. If the publicized information, within a particular community, isseriously misleading, obviously in error or the media has set-out to vilify the accused, then there may be a need for a change of venue:see Millard and Smich, para 70. This was found to be the case in MacNeil, but there is no evidence to warrant such a finding in thiscase. (

C) Widespread sympathy for the victim [63] In Millard and Smich, Mr. Millard asserted that widespread sympathy for the alleged victim, Tim Bosma, who was a personselling a used pickup truck and accompanied Millard and Smich on a test drive, but never returned, irreparably tainted the pool ofpotential jurors in the Hamilton region. Goodman J found that it would not be appropriate to change the venue of the trial, and, at paras24 to 29, he described the indicia relied upon by Mr. Millard in support of his change of venue application: The applicant says that the announcement of Mr.

Bosma’s death resulted in an outpouring of grief and support for the family. On May15, 2013, the CBC reported that the City of Hamilton arranged for a book of condolences to be open to the public. ... The understandableand profound devastation of local residents is reflected in Hamilton Mayor Bratina’s statement.

Sharlene Bosma has been quoted in local newspapers and described the applicant in a most sinister manner. Molly Hayes, a journalist with the Hamilton Spectator, wrote a book titled, The Vilest Form of Evil. ... On the first anniversary of Bosma’s disappearance, journalists from the Toronto Star published an in-depth look at the investigation that included interviews with several individuals involved in the case. On social media, the Bosma case generated thousands of comments on Twitter and other sites.

The applicant submits that as would be expected, many of those comments expressed hostility and passionate judgement of Millard. Various local fundraisers were also set up in memory of Bosma. As to the proliferation of news articles, a search on the Hamilton Spectator’s website returns over 100 articles referring to Bosma. ... While the community’s sense of loss and the overwhelming show of support and compassion for Bosma’s family are admirable and entirely appropriate, the applicant submits it renders a fair trial exceptionally difficult.

According to the applicant, there are over 45,000 Google hits of relevance to this application. The concern, shock, grief and anger of local citizens, the Chief of Police, respected politicians and reporters means that few local jurors are capable of impartiality. The applicant submits selecting impartial jurors from this community that has been so moved and devastated by the disappearance and death of Bosma will be impossible. The applicant argues that he will not have a fair trial in this region and justice will suffer.

The applicant adds that the media coverage in this case has been exceptional and has been highly adverse and prejudicial to him. The publicity will escalate significantly once the trial begins. The applicant submits that in these exceptional circumstances, the ends of justice demand the applicant be tried elsewhere. [ 64 ] Goodman J acknowledged that Mr. Millard was not relying on the volume of media coverage, rather he focused on the nature and content of the pretrial publicity: see Millard and Smich para 51 . [ 65 ] Goodman J, at paras 68 and 69, also provided a

summary of the context of, and decision of the Ontario Court of Appeal to uphold the trial judge’s decision not to move the change of venue in, the Suzack case which related to the murder of a police officer: In my opinion, the real source of potential prejudice to [Millard] is the evidence to be adduced in the trial, rather than the pre-trial publicity. In Suzack , the trial involved the murder of a respected police officer. The media coverage was extensive and highly emotional, and expressed the community's outrage at the murder and its profound sympathy for the victim and his family.

A trust fund was set up for his children. There was also mention in the media that Suzack was a parole violator at the time of the killing. The crime generated a large number of individuals signing a petition calling for the return of the death penalty. The public called out for tougher laws and better armed police, spearheaded by a "black ribbon campaign" led by a group, which distributed 40,000 black ribbons among the local population. Notwithstanding all of that activity, Trainor J., did not find that the local reaction warranted a change in venue.

In denying the appeal from Trainor J.’s refusal for a change of venue, the Ontario Court of Appeal in Suzack , wrote at paras. 37-38 : Trainor J. was correct in identifying exposure to the facts of this case as the strongest source of potential prejudice. On any version of events, this was a cold-blooded murder of a helpless police officer acting in the execution of his duties. Further, on any version of events, both appellants were implicated in the attack and one or both had committed murder.

Any jury, no matter where the venue, would hear that Suzack was a parole violator and that both appellants were involved in criminal activity. Wherever the trial was to take place, the jury selected would have their ability to act impartially and dispassionately severely tested by the evidence they would hear. Where the real potential for prejudice lies in the evidence which the jury eventually selected to try the case will hear, a change of venue does not assist in protecting an accused’s right to a fair trial. The many safeguards built into the trial process itself must provide that protection.

Trainor J. properly considered the real source of the potential prejudice to the appellants’ fair trial interests in considering whether a change of venue would serve the ends of justice. [ 66 ] The Young Person submitted that Steinke and Charest indicate that sympathy for the victim, in certain cases, equates or corresponds to a likelihood that the community will view an accused in a negative manner. Neither of those cases make such a connection.

What the Quebec Court of Appeal said in Charest , and is often quoted, see para [8], above, is that “a fair trial can be conducted only in a reasonably serene environment”. The Court then listed four factors, which the Court said could “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”. I agree with the Young Person that the factors must be considered holistically, and that widespread sympathy for the victim is one factor.

It is my view, however, that sympathy on its own does not equate, or correspond to, a likelihood that the community will view an accused in a negative manner. In this case, there was, and likely is, widespread community sympathy for Sgt. Harnett and his family, but it has not been shown that this sympathy equates or corresponds to the community viewing the Young Person in a negative manner. [ 67 ] It would be extraordinary if a police officer being killed while on duty did not garner significant sympathy.

A police officer’s role is that of a protector of the community and it is normal that the community would show sympathy for the fallen officer. But as in Millard and Smich and Suzack , I do not find the sympathy in this case to be such that it would prevent a fair trial. (

D) A frightened or enraged community [ 68 ] Comments from community leaders may reflect, or lead, the community perspective on a crime. Community leaders frequently issue public acknowledgements 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 support for change of venue when they are a common sentiments. There would have to be some type of extraordinary sentiment or bias in a comment to raise it to the level where there is cause for concern.

In Millard and Smich , Goodman J recognized that the focus of the community leaders’ sentiments, in that case, was to offer support and condolence, without painting the accused in a poor light and, at para 77, said: At the same time, the applicant raises a concern about the prejudicial effect of local community leaders who have opined on this event.

While anyone can form an opinion about any case, the applicant complains about the effect of such commentary by various community leaders on the potential pool of jurors. It is true that the perspectives of some community leaders, including the Chief of Police for Hamilton, the Mayor of Hamilton and the Attorney General of Ontario have been publicized. They appear to have not shared any intimate or specific knowledge of the case and will not be witnesses at trial.

Their perspectives seemed to focus on a natural human reaction to offer support and condolences for the family without casting aspersions on the two accused. [ 69 ] I find that the opinions of community leaders in this case, whether quoted in newspapers or issued in statements through social media, also are in the nature of support and condolences for the family and community and they speak out against crime generally. There was no evidence of any attacks on the Young Person or suggestions that the Young Person is guilty in these messages.

That the Young Person was arrested is a matter of fact and is not so negative as to be a factor in changing the venue of the trial. All of the jurors will be aware that the Young Person was arrested at the commencement of the trial. [ 70 ] The Young Person asserted that the community has a vested interest in seeing justice done in that place and referenced 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 emotion 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. (

E) Whether the accused would be in a better position in the proposed venue [ 71 ] In Millard and Smich , Goodman J said that para 95: Another factor in determining whether a change of venue should be granted is whether the position of the applicant would be any better in the proposed venue ... [ 72 ] Ultimately, in the case of Mr. Millard, Goodman J found that he would not be in a better position if a change of venue was granted because Mr. Millard’s real source of potential prejudice was the evidence to be adduced at trial, as opposed to the nature or content of any pretrial publicity.

He further found that any potential juror who had read the media coverage, and who formed an opinion adverse to the accused as a result, would be screened-out from participation on the jury: see Millard and Smich para 108 . [ 73 ] I find that the Young Person would not be in a better position if the venue was changed for his trial. His trial is set to be heard in the largest judicial district in Alberta.

Calgary is not a small and close-knit community and the concerns raised in other cases regarding those kinds of communities do not apply in this case. [ 74 ] I also have no information that the trial dates could be maintained in another judicial district. [ 75 ] Media attention will not stop at the borders of Calgary. Even if the venue was changed, there will likely be significant province-wide publicity of the co-accused’s trial because the Incident involves a police officer being killed and this publicity will be disseminated on the internet and social media, which knows no boundaries.

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

A) Jury screening [ 76 ] The Young Person raised a concern that the jury list is now not available in advance without a court order, which will usually stipulate that the list is to be provided to counsel five days before the trial. Further, the list no longer contains the juror’s addresses.

As a result, it was submitted, it is very difficult to review the jury pool given the time constraints and limited information. [ 77 ] The Young Person also noted that the peremptory challenges of possible jury members has been removed by statute, but acknowledged that this provision has been upheld as being constitutional: R v Chouhan , 2021 SCC 26 . [ 78 ] The Young Person submitted that everything must be done to guard trial fairness and raised a concern about the unconscious bias of jurors.

To support this concern, the Young Person referred to a quote from Abella and Karakatsanis JJ, dissenting in part, in R v Barton , 2019 SCC 33 , at para 236 , where they said: “[it] affects the very foundations of a jury’s fact-finding function and decision- making”. In my view this quote was taken out of context in this application. In that sentence, Abella and Karakatsanis JJ were speaking of a trial “riddled with highly prejudicial testimony”. [ 79 ] The Young Person raised racial prejudice on numerous occasions during the application.

The Young Person referred to racial prejudice being accepted as a social fact in jurisprudence. In context, Abella and Karakatsanis JJ, said, at para 233, in Barton : Acknowledging, as this Court has for the last two decades, that racial prejudice is “a social fact not capable of reasonable dispute” ( Spence , at para. 5), is not an insult to the jury system, it is a wake-up call to trial judges to be acutely attentive to the undisputed reality of pervasive prejudice and to provide the jury instructions required by law.

That means that in cases where this reality is relevant, especially in the context of sexual assault, juries need to be carefully instructed on how to approach the evidence with an open mind, and not allow their reasoning to be obstructed by subconscious stereotypes. [ 80 ] While I take no issue with the submission that racial prejudice is a social fact, and the Young Person’s submission that he is

from a group racially targeted by prejudice, I was provided with no reason, and can find no basis, for determining that Edmonton or any other judicial district will be any different from Calgary as it relates to the jury selection or fairness at trial, which is what the quote above refers to. Furthermore, racial bias can be the subject of challenges for cause: R v Santiago , 2020 ABQB 446 . [ 81 ] While jury screening is a factor to consider, I do not consider this an opportunity to raise every possible problem in the jury selection process.

There was nothing to show me that the jury screening would be inadequate in this case if it occurs in Calgary rather than Edmonton, or some other judicial district in Alberta. (

B) Challenges for cause [ 82 ] It is open to the Young Person to challenge the jurors for cause. In Find , McLachlin, CJ, said, at paras 40 to 42, in the context of challenges for cause: If widespread bias is shown, a second question arises: may some jurors be unable to set aside their bias despite the cleansing effect of the judge’s instructions and the trial process? This is the behavioural component of the test. The law accepts that jurors may enter the trial with biases. But the law presumes that jurors’ views and biases will be cleansed by the trial process.

It therefore does not permit a party to challenge their right to sit on the jury because of the existence of widespread bias alone. Trial procedure has evolved over the centuries to counter biases. The jurors swear to discharge their functions impartially. The opening addresses of the judge and the lawyers impress upon jurors the gravity of their task, and enjoin them to be objective. The rules of process and evidence underline the fact that the verdict depends not on this or that person’s views, but on the evidence and the law.

At the end of the day, the jurors are objectively instructed on the facts and the law by the judge, and sent out to deliberate in accordance with those instructions. They are asked not to decide on the basis of their personal, individual views of the evidence and law, but to listen to each other’s views and evaluate their own inclinations in light of those views and the trial judge’s instructions. Finally, they are told that they must not convict unless they are satisfied of the accused’s guilt beyond a reasonable doubt and that they must be unanimous.

It is difficult to conceive stronger antidotes than these to emotion, preconception and prejudice. It is against the backdrop of these safeguards that the law presumes that the trial process will cleanse the biases jurors may bring with them, and allows challenges for cause only where a realistic potential exists that some jurors may not be able to function impartially, despite the rigours of the trial process. [ 83 ] The Criminal Code provides for challenges for cause in the jury selection process in s 638: 638

(1) A prosecutor or an accused is entitled to any number of challenges on the ground that (

a) the name of a juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it appears to the court that the description given on the panel sufficiently designates the person referred to; (

b) a juror is not impartial; (

c) a juror has been convicted of an offence for which they were sentenced to a term of imprisonment of two years or more and for which no pardon or record suspension is in effect; (

d) a juror is not a Canadian citizen; (

e) a juror, even with the aid of technical, personal, interpretative or other support services provided to the juror under

section 627, is physically unable to perform properly the duties of a juror; or (

f) a juror does not speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or both official languages of Canada, where the accused is required by reason of an order under

section 530 to be tried before a judge and jury who speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or who speak both official languages of Canada, as the case may be.

(2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1). [ 84 ] It is open to the Young Person to challenge a juror for partiality. The Young Person submits this is difficult. However, the primary reasons suggested for unfairness, being racial bias and the Young Person’s status as a youth, are subject to the same jury selection process regardless of the judicial district in which it takes place. The focus of this application must be whether fairness and impartiality require a change in venue. There is no basis on which to find that the challenge for cause in a judicial district other than Calgary would be fairer or more impartial. (

C) Cleansing inherent in the trial process [ 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 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. [ 86 ] The Young Person will have the benefit of all of these judicial system protections.

It has not been shown that the cleansing process will be inadequate to ensure a fair and impartial trial in Calgary. Conclusion [ 87 ] In this case, concerns have been raised regarding the fairness and impartiality of the Young Person’s trial that I find cannot be associated with the trial being held in Calgary. Many of the concerns will be present in any location and must be dealt with during the jury selection process and the trial itself. Furthermore, Calgary is not a small closely-knit community. It is the largest urban centre in Alberta with a population exceeding one million residents.

Proximity of the co-accused’s trial to the date when the jury notices will be issued for the Young Person’s trial, and the commencement of his trial is a particular concern, but considering all of the factors holistically, I find that the Young Person has not shown on a balance of probabilities that it is necessary for fairness and impartiality for the trial to be moved from Calgary to Edmonton, or another judicial district in Alberta. [ 88 ] The application to move the venue of the trial is dismissed. Heard on the 25 th day of October, 2021. Dated at the City of Calgary, Alberta this 10 th day of November, 2021.

E.J. Sidnell J.C.Q.B.A. Appearances: Michael Ewenson and Naina Singh for the Crown Bob Aloneissi QC and Zachary Al-Khatib for the Accused