R. v. Henoche, 2018 NLSC 166

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Henoche , 2018 NLSC 166 Date : August 9, 2018 Docket : 201708G0161 Her Majesty The Queen v. Jonathan Henoche Before: Justice Brian F. Furey Reasons for Judgment Given Orally Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Date of Hearing: May 29, 2018 Date of Oral Judgment: July 6, 2018

Summary: The Applicant, Jonathan Henoche, applied for a change of venue for his trial scheduled to be heard in Happy Valley-Goose Bay, NL, requesting that the venue be changed to St. John’s, NL. The Respondent Crown opposed the application. Held: The Court found that the Applicant had demonstrated on a balance of probabilities that a change of venue appears expedient to the ends of justice in that a change of venue is necessary to ensure that he receives a fair trial with an impartial jury. The application was granted.

Appearances: Michael Murray and Jennifer Standen Appearing on behalf of Her Majesty The Queen Robert Buckingham and Robert Hoskins Appearing on behalf of Jonathan Henoche Authorities Cited: CASES CONSIDERED: R. v. Royden Wood, 2011 ONSC 4726; R. v. Suzack (2000), (ON CA), 141 C.C.C. (3d)449, 45 W.C.B. (2d) 157 (ONCA); R. v. Wilson, (SK KB), [1983] S.J. No. 623, [1983] 6 W.W.R. 361 (Sask. Q.B.); R.v. Find, 2001 SCC 32; and R. v. Munson, 2003 SKCA 28. STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; and Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11. REASONS FOR JUDGMENT Furey, J.: INTRODUCTION [1] The Applicant has applied under

section 599 of the Criminal Code, R.S.C. 1985, c.

C-46 for a change of venue relating to histrial which is scheduled to take place in Happy Valley-Goose Bay, Newfoundland and Labrador, from February 4 to March 8, 2019. background [2] On September 2, 2016, the Applicant was charged that on or about July 24, 2016, at or near the town of Happy Valley-GooseBay, Newfoundland and Labrador, he did commit second degree murder of Anna Regula Schule, contrary to section 235(1) of theCriminal Code. [3] A preliminary inquiry was heard in the Provincial Court of Newfoundland and Labrador in Happy Valley-Goose Bay fromAugust 28 – September 1, 2017. [4] The Provincial Court Judge gave her decision from the preliminary inquiry on October 16, 2017.

The Provincial Court Judgeordered that the Applicant stand trial in the Supreme Court of Newfoundland and Labrador with a judge and jury at the Judicial Centreof Happy Valley-Goose Bay on the following charges: first degree murder, break and entry, robbery, arson with disregard for human lifeand arson with property damage. [5] The Bill of Indictment was filed in this Court on December 22, 2017.

It stated that Jonathan Henoche is charged that: Count 1 On or about the 24th day of July, 2016, at or near the Town of Happy Valley-Goose Bay in the Province of Newfoundland and Labrador,did commit first degree murder on the person of Anna Regula Schule, contrary to Section 235(1) of the Criminal Code. Count 2 On or about the 24th day of July, 2016, at or near the Town of Happy Valley-Goose Bay in the Province of Newfoundland and Labrador,

did break and enter the residence of Regula Schule and commit an indictable offence therein, contrary to Section 348(1) of the CriminalCode. Count 3 On or about the 24th day of July, 2016, at or near the Town of Happy Valley-Goose Bay in the Province of Newfoundland and Labrador,did rob Regula Schule thereby committing an indictable offence, contrary to

Section 343 of the Criminal Code. Count 4 On or about the 24th day of July, 2016, at or near the Town of Happy Valley-Goose Bay in the Province of Newfoundland and Labrador,did commit arson with disregard for human life, thereby committing an indictable offence, contrary to

Section 433 of the Criminal Code. Count 5 On or about the 24th day of July, 2016, at or near the Town of Happy Valley-Goose Bay in the Province of Newfoundland and Labrador,did commit arson with property damage, thereby committing an indictable offence, contrary to

Section 434 of the Criminal Code [6] The Applicant was arraigned on January 15, 2018. The Applicant’s counsel entered pleas of not guilty on the five counts. the issue [7] Should the application for a change of venue be granted? Counsel for the Applicant phrased the issue as “should the trial berelocated from the original venue of Happy Valley-Goose Bay, Newfoundland and Labrador to St.

John’s, Newfoundland and Labrador,to ensure “trial fairness” to the Applicant?” the law [8] Section 599(1) of the Criminal Code states: 599(1) A court before which an accused is or may be indicted, at any term or sittings thereof, or a judge who may hold or sit in thatcourt, may at any time before or after an indictment is found, on the application of the prosecutor or the accused, order the trial to beheld in a territorial division in the same province other than that in which the offence would otherwise be tried if (

a) it appears expedient to the ends of justice; or (

b) a competent authority has directed that a jury is not to be summoned at the time appointed in a territorial division where the trialwould otherwise by law be held. [9] A number of legal principles regarding a change of venue application are set out in the cases filed by both counsel. These are: a. The onus is on the Applicant to establish on a balance of probabilities that a change of venue is expedient to the ends of justice. InR. v.

Royden Wood, 2011 ONSC 4726, Tausendfreund, J. stated in paragraph 10: 10 The onus is on the Applicant to show on a balance of probabilities that a change of venue is necessary to ensure a fair trial before animpartial jury. To put it differently, the Applicant must show on a balance of probabilities that there is a fair and reasonable likelihoodthat partiality or prejudice cannot be overcome by the safeguards available during jury selection and the trial process: R. v. Randall, 2002Can LII 2757 p. 4 and R. v. Papadopoulos, 2006 Can LII 49051 at para 7. b.

The granting of a change of venue order is discretionary and is to be granted on clear evidence but with great caution. Clearevidence is to be presented before the venue of the trial will be changed from where it would normally be held. c. The specific circumstances of the case in question must be examined on its own unique facts to determine whether a court canreasonably conclude that such a change of venue appears expedient to the ends of justice. d. Criminal trials should be held in the venue in which the alleged crime took place. In R. v.

Suzack (2000), (ONCA), 141 C.C.C. (3d) 449, 45 W.C.B. (2d) 157 (ONCA), Doherty, J.A. stated in paragraph 30:

30 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. . . . e. The Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 being

Schedule B to the Canada Act 1982(UK), 1982, c. 11 must be considered in the discretionary decision of the judge. In R. v. Suzack, Doherty, J.A. stated in paragraph 42: 42 There can be no doubt that s. 599(1) must operate in a manner that is consistent with Charter rights and in particular, the right to a fairtrial. I regard s. 599(1) as one of many mechanisms designed to protect an accused's right to a fair trial.

If a judge is satisfied, havingregard to the various mechanisms available to protect an accused's right to a fair trial, that an accused cannot receive a fair trial in theassigned venue, then the interests of justice would clearly require a change of venue under s. 599(1)(a). submissions The Applicant [10] The Applicant and his counsel filed Affidavits.

Counsel also filed a Brief of Law with authorities. [11] The Applicant argues that this Court should grant the application for a change of venue on the ground that it appears expedientto the ends of justice. [12] Counsel stated the trial should be relocated outside the town of Happy Valley-Goose Bay to the city of St.

John’s because a fairand impartial trial cannot be held in Happy Valley-Goose Bay and it is necessary to ensure a fair trial for the Applicant. [13] Counsel summarized the Applicant’s rationale for his request for a change of venue in the following manner: 18 The rationale for his request for a change of venue in the current circumstances can best be summarized with the followingsubheadings: a. A fair and impartial trial cannot be held in Happy Valley-Goose Bay because; i. There is a fair and reasonable probability of prejudice within the Happy Valley-Goose Bay community; ii.

The nature and extent of the pre-trial publicity creates a significant prejudice to Mr. Henoche; iii. The status of Ms. Schule within the community is such that the small juror pool will be tainted and Mr. Henoche will beprejudiced; b. The partiality or prejudice in Happy Valley-Goose Bay cannot be remedied with the typical jury selection safeguards; and c. A fair trial cannot be held in Happy Valley-Goose Bay because of the personal circumstances of Mr.

Henoche. [14] With respect to whether a fair and impartial trial is able to be held in Happy Valley-Goose Bay, counsel argued that it is notfeasible to empanel an impartial jury in that community given the publication of prejudicial information in the local and regionalnewspapers, television programs, online sources and radio programs. Counsel pointed out that the media coverage was not just extensivebut it was personally sympathetic and predominantly driven by the story of the victim and her loss to the community. It was not the factof the publicity but the nature and content of it.

The matter generated a whole array of publicity outside the court process. Counselargued that the pre-trial publicity involved in this matter was much more than simply reporting court dates or mundane details.

Thereporting related to human interest, personality based reporting that engaged readers with detailed stories about the night of the allegedmurder, the aftermath and loss suffered by the victim’s adopted daughter and the tremendous loss to the community based on thevictim’s long-term contribution to the community. [15] He noted that the victim was a person well-known within the community for her extensive efforts in helping others for over 40years in her local Moravian church, in the aboriginal community, including prisoners at the Labrador Correctional Centre, at theWomen’s Centre and at schools.

She was a highly regarded individual in the community. [16] Counsel asserted that the Applicant has a Charter protected right to a fair trial with an impartial jury. He submitted that theApplicant will be prejudiced if the trial is commenced in Happy Valley-Goose Bay because of the victim’s prominent standing withinthe population of that community. The Applicant’s Charter rights will only be protected if the trial is relocated outside of Happy Valley-Goose Bay. Counsel referred to R. v. Wilson, (SK KB), [1983] S.J. No. 623, [1983] 6 W.W.R. 361 (Sask.

Q.B.), inwhich Walker, J. stated the following at paragraph 7: 7 While it is the totality of circumstances which will determine an application for change of venue, among these circumstances, from

time to time, will be these:

(1) The nature and extent of the offence.

(2) The nature and extent of the public opinion in the area - its size, generality and crystallization, if any.

(3) The size of the community.

(4) The status of the accused in the community.

(5) The popularity and prominence of the victim. These factors listed are of indeterminate weight and there will, of course, be any number of other factors from case to case. [17] He continued that the factors set out in Wilson signified a necessity to change the venue of the trial on the following basis: a. The charge of first degree murder is one of the most significant in the Criminal Code and carries a mandatory sentence of lifeimprisonment. b. The public opinion gathered from news articles and reporting is that the community cherished the victim and the alleged murdershook the conscience of the community. c.

Happy Valley-Goose Bay has a relatively small population. d. The Applicant is not from the community of Happy Valley-Goose Bay and he believes his status is quite low as he lived in socialhousing, received income support, had difficulties with alcohol and drugs and was in and out of prison. e.

The victim was very well known it the community, she was revered because of her involvement in many activities in thecommunity and quite a bit of sympathy was generated because of her death. [18] With respect to whether a fair and impartial trial is able to be held in Happy Valley-Goose Bay, the Applicant argued thatpartiality and prejudice cannot be remedied with the typical jury selection safeguards – the oath of the jurors, instructions from the trialjudge to the jury panel before beginning selection processes, peremptory challenges, challenges for cause and the rules of evidence. [19] The real source of prejudice is the media coverage and publicity in both the details of the case and the story behind the victimand her family and her community involvement, and not the evidence itself to be adduced by the Crown in the trial. [20] Counsel suggested that the prejudice to the Applicant through the nature of the media exposure is based on the smallpopulation size of the community, the immense popularity and prominence in which the victim was held and the nature and extent of thepublic opinion in Happy Valley-Goose Bay. [21] Counsel referred to R. v.

Find, 2001 SCC 32, in which McLachlin, C.J. described the paramount requirement of jury selectionbeing trial fairness. The Chief Justice stated the following at paragraph 28: 28 The ultimate requirement of a system of jury selection is that it results in a fair trial. A fair trial, however, should not be confusedwith a perfect trial, or the most advantageous trial possible from the accused’s perspective. As I stated in R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411, at para. 193, “[w]hat constitutes a fair trial takes into account not only the perspective of the accused, butthe practical limits of the system of justice and the lawful interests of others involved in the process. . . .

What the law demands is notperfect justice, but fundamentally fair justice”. . . . [22] Counsel argued that a change of venue was required because it is expedient to the ends of justice and relocation is required tosatisfy the concerns of trial fairness. [23] With respect to whether a fair trial can be held in Happy Valley-Goose Bay because of the Applicant’s personal circumstances,counsel argued that the Applicant’s low socio-economic position within the community, when paired with the revered position of thevictim, creates a formula for prejudice which impacts on the Applicant’s right to have a fair trial. [24] Counsel stated it was imperative that the Applicant be able to participate fully in his defence, including instructing and meetingwith his counsel prior to and during the trial.

He noted that the Applicant is currently incarcerated at Her Majesty’s Penitentiary in St.John’s. The Applicant was transferred out of the Correctional Centre in Happy Valley-Goose Bay for his own safety. Counsel suggestedthat if the trial were to be held at Happy Valley-Goose Bay, the Applicant would likely have to stay in the cells at the R.C.M.P.detachment thus affecting his ability to receive advice and instruct counsel during the trial. Counsel concluded that the issue of a fair trialfor the Applicant poses a unique circumstance which must be assessed in the analysis for relocation.

The Crown [25] The Crown pointed out that a change of venue is an extraordinary remedy to be exercised with caution and only upon stronggrounds. There is a strong presumption that a trial should occur in the judicial centre where the alleged offences were committed. [26] The judicial centres, outside of St. John’s and Corner Brook, are smaller judicial centres but all of those have held jury trials. [27] Counsel noted that even though a juror has heard information about an alleged crime does not mean the juror cannot beimpartial.

Counsel noted that no one who knows the Accused or the victim or a witness can be on the jury. As an example, he suggestedthat on a challenge for cause, a person could be asked if he or she contributed to a funeral fund for the victim. [28] He noted there is a strong presumption that a properly instructed jury will be able to render an unbiased verdict. He referred toR. v. Munson, 2003 SKCA 28 in which the Saskatchewan Court of Appeal at paragraph 28 adopted the following statements ofMcLaughlin, C.J. in R. v.

Find in paragraphs 41 and 42: 28 The additional safeguard of the use of challenges for cause is another factor that weighs against the appellants' arguments. Theeffectiveness of this safeguard against public bias against certain types of offences was commented upon by the Supreme Court ofCanada in R. v. Find, 2001 SCC 32 , [2001] 1 S.C.R. 863. Chief Justice McLachlan said: [40] If widespread bias is shown, a second question arises: may some jurors be unable to set aside their bias despite the cleansing effectof the judge's instructions and the trial process? This is the behavioural component of the test.

The law accepts that jurors may enter thetrial with biases. But the law presumes that jurors' views and biases will be cleansed by the trial process. It therefore does not permit aparty to challenge their right to sit on the jury because of the existence of widespread bias alone. [41] Trial procedure has evolved over the centuries to counter biases. The jurors swear to discharge their functions impartially. Theopening addresses of the judge and the lawyers impress upon jurors the gravity of their task, and enjoin them to be objective.

The rulesof 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. Atthe end of the day, the jurors are objectively instructed on the facts and the law by the judge, and sent out to deliberate in accordancewith those instructions. They are asked not to decide on the basis of their personal, individual views of the evidence and law, but to listento each other's views and evaluate their own inclinations in light of those views and the trial judge's instructions.

Finally, they are toldthat they must not convict unless they are satisfied of the accused's guilt beyond a reasonable doubt and that they must be unanimous. [42] It is difficult to conceive stronger antidotes than these to emotion, preconception and prejudice.

It is against the backdrop of thesesafeguards that the law presumes that the trial process will cleanse the biases jurors may bring with them, and allows challenges forcause only where a realistic potential exists that some jurors may not be able to function impartially, despite the rigours of the trialprocess. [29] Counsel stated that pre-trial publicity alone is not enough to meet the threshold for a change of venue. [30] The time that has elapsed is a factor that can be considered. When the trial is scheduled to commence, two and half years willhave passed since the alleged offences occurred.

There has been nothing in the media in a long time noting the dates of the articlesreferenced by the Applicant in the Affidavits. Counsel pointed out there has been a long gap. Counsel noted that the Ontario Court ofAppeal stated at paragraph 36 in R. v. Suzack that “publicity from a year prior no longer has the potentially prejudicial effect it otherwisemight have”. [31] Counsel concluded that the Crown did not agree with the application being granted.

If the Court was considering a change ofvenue, the logical place was the town of Wabush which is in the same judicial centre as Happy Valley-Goose Bay. analysis [32] The Applicant is facing very serious charges arising from events that occurred on or about July 24, 2016 in Happy Valley-Goose Bay, NL. [33] The Applicant is entitled to a fair trial.

Section 11(

d) of the Charter states that “Any person charged with an offence has theright . . . (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartialtribunal.” [34] The Applicant argues that he cannot receive a fair and impartial trial in Happy Valley-Goose Bay because of the following: a. There is a fair and reasonable probability of prejudice within the community of Happy Valley-Goose Bay; b. The status of the victim within the community taints the juror pool and prejudices him; c. The nature and extent of the pre-trial publicity creates a significant prejudice to him; d. The partiality and prejudice in Happy Valley-Goose Bay cannot be remedied with the typical jury safeguards; and e. His personal circumstances.

[ 35 ] The Crown asserts that the Applicant can receive a fair trial. The application should not be granted but if the Court is considering a change of venue, the trial should be set for the town of Wabush. [ 36 ] I have reviewed the Affidavits of the Applicant and his counsel and the accompanying documents.

These include the media articles between July 25, 2016 and October 16, 2017 referencing the death of the victim and her extensive involvement in the community of Happy Valley-Goose Bay as well as those referencing the Applicant being charged with her death and being ordered to stand trial. [ 37 ] I have also reviewed the detailed Briefs and authorities provided to the Court by counsel for the Applicant and the Crown as well as their oral submissions. [ 38 ] The decision to grant an applicant’s request for a change of venue is an exercise of judicial discretion.

The Court must look at the evidence presented and the law. Each matter must be examined on its own unique facts to determine whether a court can reasonably conclude that a change of venue “appears expedient to the ends of justice”. The court must also consider whether there is a real likelihood that the applicant will not receive a fair trial in the judicial centre in which the offences were alleged to have been committed. [ 39 ] I am concerned about the pre-trial publicity regarding the victim (which was very sympathetic coverage) and how this could impact the Applicant’s right to a fair trial.

The extent of the publicity is much greater than if a less well-known individual was the victim of the alleged murder. I am not satisfied that the Applicant can receive a fair trial in the judicial centre of Happy Valley-Goose Bay because of the pre-trial publicity. [ 40 ] I note the Crown suggested that the trial be moved to Wabush if the Court was considering a change of venue.

While the alleged murder did not occur in the Wabush area and the extent of the publicity may be less, I am still concerned that the pre-trial publicity noted in the media articles flowed from sources that have a Labrador wide coverage and not from ones restricted to Happy Valley-Goose Bay. [ 41 ] After considering the documents presented to the Court and the law, I am satisfied that the Applicant has met the onus on a balance of probabilities of demonstrating that a change of venue is necessary in order to ensure that he receives a fair trial with an impartial jury. [ 42 ] The application is granted.

I order pursuant to

section 599 of the Criminal Code that the Accused’s trial be held at the judicial centre of St. John’s, NL. _____________________________ Brian F. Furey Justice