R. v. Enns, 2021 NSSC 203

SUPREME COURT OF Nova Scotia Citation: R. v. Enns , 2021 NSSC 203 Date: 20210806 Docket: 482274 Registry: Halifax Between: Her Majesty the Queen v. Christopher Enns VUKELICH APPLICATION: DEFENCE CHARTER APPLICATION REGARDING THE MELLOR COURTHOUSE AND COVID RESTRICTIONS * Please note: This decision was provided to the parties in 2021, prior to the release of R. v. Haevischer , 2023 SCC 11 .

Judge: The Honourable Justice Joshua Arnold Heard: June 1, 2021, in Halifax, Nova Scotia Counsel: Len MacKay and Scott Millar, for the Federal Crown Gordon Allen and Jack Lloyd, for Christopher Enns By the Court: Overview [ 1 ] Christopher Enns’s trial was scheduled to start June 7, 2021, at a new courthouse recently constructed on Mellor Avenue in Burnside (Dartmouth) for the specific purpose of allowing for jury trials to be safely held during the COVID pandemic. [ 2 ] On May 7, 2021, Mr. Enns brought a Charter application asking for a change of venue, among other Charter relief. Mr.

Enns says that he cannot have a representative jury, that any jury will be biased, and that he will not be able to have a fair trial at the Mellor Courthouse because of its proximity to a Halifax Regional Police (“HRP”) Detachment and to a large sign advertising the HRP location. [ 3 ] Mr.

Enns also says that because of the COVID-19 pandemic and the public health restrictions (lockdown) that were in place at the beginning of May 2021 in HRM, the jury will not be representative of the community, there will be juror bias, and the pandemic and public health restrictions will prevent him from having a fair trial. [ 4 ] Mr. Enns proposes calling two experts to provide evidence on these issues. [ 5 ] On May 21, 2021, the trial was adjourned and on May 27, 2021, new trial dates were set for September 6 - 26, 2022.

[6] The Crown has now brought a Vukelich application, requesting the court summarily dismiss Mr. Enns’s Charter application,request for a change in venue, or other Charter relief, on the ground that it has no chance of success. Procedural History [7] The procedural history of Mr. Enns’s matter is noteworthy. On November 8, 2017, Mr. Enns was charged as follows: 1. he did unlawfully have in his possession, for the purpose of trafficking, not in excess of three kilograms, Cannabis (Marihuana), asubstance included in

Schedule II of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and did thereby commit an offencecontrary to Section 5(2) of the said Act; 2. AND FURTHER that he at the same time and place aforesaid, did unlawfully have in his possession for the purpose of trafficking,not in excess of three kilograms, Cannabis (Resin), a substance included in

Schedule II of the Controlled Drugs and Substances Act,S.C. 1996, c. 19, and did thereby commit an offence contrary to Section 5(2) of the said Act; 3. AND FURTHER that he at the same time and place aforesaid, did have in his possession Canadian currency of a value exceeding fivethousand dollars knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictmentcontrary to Section 354(1)(

a) of the Criminal Code. [8] On June 19, 2018, Mr. Enns was deemed to have elected trial in superior court by judge and jury; on November 6, 2018,following a two-day preliminary inquiry, he was committed to trial; and on December 13, 2018, trial dates were set for November 22 -December 12, 2019; [9] An organizational pre-trial conference was held on January 22, 2019, following which dates were set for pre-trial motions. Mr.Enns requested a three-week hearing to bring a s. 7 Charter challenge to the Access to Cannabis for Medical Purposes Regulations(ACMPR).

Other motions consisting of a Vukelich application, an expert witness qualification, and an application pursuant to Sections 8,9, 10, and 24 of the Charter, were scheduled for May 13-17, 2019. [10] On March 15, 2019, Mr. Enns filed a Notice of Application under ss. 8, 9, 10(a), 10(b), and 24(2) of the Charter. Thatapplication was dismissed on July 11, 2019. [11] On July 29, 2019, Mr.

Enns brought an application to have the ACMPR declared unconstitutional in accordance with s. 7 of theCharter. [12] The Crown brought a Vukelich application in relation to the s. 7 Charter application, which was denied on July 11, 2019.Following a two-week hearing, Mr. Enns’s s. 7 Charter application was dismissed on October 29, 2019. [13] On November 14, 2019, one week before the originally scheduled trial date, Mr. Enns brought an application under ss. 7,11(d), and 11(

f) of the Charter, challenging the retrospective application of Bill C-75 or, in the alternative, seeking a declaration that theprovisions created therein were of no force and effect. Mr. Enns waived any delay that would result from the late filing of the applicationand, as a result, the trial was adjourned to May 13 - June 5, 2020, and the December 2019 trial dates were used for the Charter motion.The hearing proceeded on December 4 and 5, 2019. Following the release of the preliminary bottom-line decision in R. v. Chouhan bythe Supreme Court of Canada (the full decision now reported as R. v.

Chouhan, 2021 SCC 26), Mr. Enns abandoned his application. [14] In March 2020, the global COVID-19 pandemic caused a province-wide disruption of all services, including the administrationof justice, and on March 13, 2020, the Nova Scotia Supreme Court issued a directive suspending all jury trials for 60 days. On May 11,2020, jury trials were further suspended until September 8, 2020, because of COVID.

As a result, the May-June 2020 trial had to beadjourned. [15] On October 1, 2020, the Provincial Government announced that it was leasing a 22,000 square foot property on Mellor Avenuein Dartmouth, for the purpose of conducting jury trials safely during the pandemic. On December 17, 2020, the Court set the dates forMr. Enns’s trial at the Mellor Courthouse as June 7-25, 2021. [16] The first jury trials began at the Mellor Courthouse on March 31, 2021. The Mellor Courthouse can accommodate two jurytrials at a time.

As of March 31, according to the Province of Nova Scotia, there was a backlog of 44 jury trials in the Halifax region. Atthe time of this hearing, two jury trials have been conducted at the Mellor Courthouse. In the case of R. v. Gregory Purvis, on April 23,2021, the jury returned a verdict of guilty of second-degree murder. In the case of R. v. Markel Downey, on April 30, 2021, the juryreturned a verdict of not guilty to one count of first-degree murder and two counts of attempted murder. [17] The Court arranged for five pre-trial conferences in the instant case after Mr.

Enns’s last scheduled trial date of May 13 - June5, 2020, during the pandemic delay, and Mr. Enns did not identify any outstanding pre-trial issues. Yet, on May 7, 2021, less than onemonth prior to his scheduled trial date, Mr. Enns gave notice of the Charter application now before the Court. The Notice was amendedon May 18, and now states: THE APPLICANT RELIES ON THE FOLLOWING LEGAL GROUNDS:

Section 11(

d) of the Canadian Charter of Rights and Freedoms “to be presumed innocent until proven guilty according to law in a fairand public hearing by an independent and impartial tribunal”;

Section 7 of the Canadian Charter of Rights and Freedoms life, liberty and security of the person – “everyone has the right to life,liberty and security of the person not be deprived thereof except in accordance with the fundamental principles of justice”; 3. Where there is a probability of impartiality or prejudice in the locality where a jury is located and where a courtroom is located, it isappropriate that the venue be changed – R. v. Izzard (1971), (NS SC), 14 CRNS 249 NSTD, Regina.

4. A basic tenant of our legal system as protected by

section 7 and is specifically enumerated in 11(

d) is impartiality regarding theadministration of justice trier of fact and presumption of innocence, and a fair proceeding. Courts have consistently determined thatcircumstances whereby court officials, including police which are part of the administration of justice, would be in a position wherebythere is and could be contact with the jury, due to the location of the courthouse or venue is something that affects the appearance offairness can be sufficient to quash a conviction – R. v. Cameron (1991) 64 CCC 3(d) 96 (Ont CA); R. V. Masuda (1953) (BC CA), 106 CCC 122 BCCA; R. v. Nash

(1949) Carswell NB 7; 5. The setting of the courtroom and location of the courtroom and proceeding in this location where this jury trial is set creates areasonable apprehension of bias in the eyes of the accused and looks to the extent that it violates a basic tenant of our legal system andthus is captured by

section 7 of the Charter as well as it may impact the presumption of innocence and it could affect the impartiality ofthe jurors and how the accused is perceived. R. v. Moneyas 1995 Carswell ALTA 2995. State v. Jaime Supreme Court of Washington,En Banc, May 27, 2010. R. v. Afghanzada, (2001) 149 CCC 3(d) 349 (Ont CA). 6.

An impression of bias affecting fairness of the trial and the public perception of the accused and indeed possibility of interactionbetween police and jurors and other court officials creating a sufficient objective and impression of bias affecting fairness – R. v.Mayhew (ON CA), 1975 Carswell Ont 11. 7.The proximity of the court location to a Halifax Police office at 7 Mellor Avenue could act as a barrier and or deterrent to some fromattending and could impact the jury pool R. v. Francis, 2007 NSSC 108. 8.

Public Health measures and restrictions and the provincial declaration of emergency during Covid-19, and the pandemic could limitthe jury pool in a way that contributes to bias and affects the fairness of the trial in violation of

section 7 and 11(

d) of the Charter. R. v.Francis, 2007 NSSC 108. 9.

The Public Health restrictions and Declaration of the State of Emergency and issues of acting as a juror during the pandemic, affectsthe jurors ability to properly discharge their duties and fully perform their function leading to bias and also affecting fairness of trial andimpacting on the impartiality of the juror and the accused’s presumption of innocence, thus impacting the applicant’s right to a fair trialas guaranteed by the Charter 11(d). [18] He asks for the following remedy: A stay of proceedings under section 24(1) of the Charter or in the alternative, pursuant to section 24(1) of the Charter, a Declaration thatthe trial can not proceed until the Covid 19 State of Emergency has ended and this Honourable Court move the trial of to anothercourthouse not located in the same complex. [19] At a pre-trial conference on May 13, 2021, counsel for Mr.

Enns stated an intention to call viva voce evidence on theapplication, including two expert witnesses. At that time he indicated that at least one of his proposed expert reports would not becompleted until May 30, 2021, which was one week before the scheduled commencement of trial. [20] The Crown filed this Vukelich application on May 20, 2021. [21] On May 21, 2021, Mr. Enns requested to have his Charter application heard during the trial dates scheduled in June 2021 andwaived any associated delay. Coincident with that concession, HRM was in a pandemic-related lockdown due to a third-wave spike inCOVID cases.

It was determined that for those reasons the jury trial should be adjourned. As noted, it has since been re-scheduled forSeptember 6 – 26, 2022. [22] The Province announced a further loosening of the lockdown restrictions on May 28, 2021, and a five-phase plan to loosenrestrictions as vaccinations rates increase and infection rates decrease. Vukelich Application [23] This Vukelich application was heard virtually on June 1, 2021. [24] Due to a health issue with one of Mr.

Enns’ counsel, his Charter application was scheduled to commence not on June 7, 2021,the first day scheduled for trial, but instead on June 15, 2021. [25] Because of the compressed timelines caused by Mr. Enns’s late filing of the Charter motion and the resulting Vukelichapplication, I gave a bottom-line decision regarding the Vukelich application on June 4, 2021, with reasons to follow, ruling that Mr.Enns’ request for relief due to the COVID pandemic was summarily dismissed as being moot.

His application for a change of venue andCharter relief regarding the proximity of the HRP Detachment and signage to the Mellor Courthouse met the low threshold in Vukelich,and was allowed to proceed. [26] This is my full decision on the Vukelich application. Proposed Evidence [27] Mr. Enns proposes to call two expert witnesses to testify at his Charter application: Dr. Veronica Stinson and Dr. NikolayKovalev. [28] Dr. Stinson is a psychology professor at Saint Mary’s University. Mr. Enns filed her affidavit on this application as a previewto her report.

The majority of her twenty-one paragraph affidavit discusses the psychological impact the COVID pandemic has had onthe Nova Scotia population. She also opines in one paragraph about the impact the proximity of the HRP Detachment to the MellorCourthouse might have on African-Nova Scotian jurors. Dr. Stinson had not filed a report in time for the Vukelich application.

[29] Dr. Kovalev is criminology professor at Wilfred Laurier University and had not prepared an affidavit or report as of theVukelich application. Counsel for Mr. Enns said that he is expected to present a similar position as Dr. Stinson. [30] The Crown does not propose to call any evidence on this application. In its pre-hearing brief, the Crown says variously: 48. When the Supreme Court in Cody says that trial judges should not hesitate to summarily dismiss illegitimate applications, thisapplication is what they are referring to.

We say this for several reasons: • It has been brought virtually on the eve of trial, following numerous delays due to unsuccessful defence applications and theeffects of the global pandemic; • Trial is currently scheduled to conclude approximately 46 months after charges were laid. Mr. Enns seeks a full evidentiaryhearing with viva voce evidence, including two expert witnesses. Notice deadlines were missed.

The very hearing of this application willalmost certainly further delay the trial, in the midst of an ongoing global pandemic where trial dates are very difficult to come by; • The application offers no cogent evidence of any prejudice to Mr. Enns.

It is based entirely on speculation that: o The logic, common sense, and decision-making of jurors will be overborn by the mere presence of signage and a nearby policestation; o Jurors might come into contact with other justice participants, and those other justice participants might at that time be discussingevidence or other issues relevant to the case, and the jurors might overhear them; o The ongoing COVID-19 pandemic might result in a smaller jury pool and bias against the accused, despite the fact that this has notbeen shown to be the case to date in Nova Scotia or anywhere else in Canada. • The application seeks drastic remedies and has no reasonable prospect of success.

The Law [31] The Supreme Court of Canada in both R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and R. v. Cody, 2017 SCC 31 [2017] 1S.C.R. 659, gave trial judges clear direction to be more proactive in reducing wasted court time caused by frivolous applications. InCody, the majority stated: (

b) Preventing Delay [36] To effect real change, it is necessary to do more than engage in a retrospective accounting of delay. It is not enoughto “pick up the pieces once the delay has transpired” (Jordan, at para. 35). A proactive approach is required that prevents unnecessarydelay by targeting its root causes. All participants in the criminal justice system share this responsibility (Jordan, at para. 137). … [38] In addition, trial judges should use their case management powers to minimize delay.

For example, beforepermitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This mayentail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that

summary revealsno basis upon which the application could succeed, dismissing the application summarily … And, even where an application ispermitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss “applications andrequests the moment it becomes apparent they are frivolous” (Jordan, at para. 63). This screening function applies equally to Crownapplications and requests.

As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trialjudges to exercise such discretion. [Emphasis added] [32] In Cody, the court refers to several decisions that discuss the process for summarily dismissing a frivolous application,including R. v. Vukelich (1996), (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.). The standard for conducting a Vukelichapplication was set out in R. v. Orr, 2021 BCCA 42, where DeWitt-Van Oosten J.A. said, for the court (some citations omitted): [46] Third, there is no automatic entitlement to an evidentiary voir dire in a Charter claim.

As a result, where there is no reasonablelikelihood that a voir dire can assist in determining the issues before the court, or no reasonable prospect of success in proving aninfringement or obtaining the sought-after relief, a trial judge has clear jurisdiction to decline an evidentiary voir dire and to summarilyconsider and dismiss the application… [47] Fourth, a trial judge is entitled to revisit a Charter ruling made during the trial.

However, that power is limited and to beexercised only when necessary because of a material change of circumstances or other development that renders a re-opening in theinterests of justice, and not if it results in an unfair proceeding… [48] Fifth, a decision to decline an evidentiary voir dire, or to re-visit that ruling, will attract significant deference on appeal… … [53] The standard of appellate review governing the

summary dismissal of a Charter claim was set out this way by Bennett J.A.in Vickerson: [61] The discretion to decline to hold a voir dire is founded in the need for trial judges to control the course of proceedings and to notembark upon enquiries that will not assist the real issues in the trial: M.B.at para. 45. These case management powers are a critical toolthat trial judges should use to minimize delay: R. v. Cody, 2017 SCC 31at para. 38, citing Vukelich with approval on this point.

[62] Absent an argument on appeal demonstrating that the trial judge’s discretion in declining to hold a voir dire was not exercised judicially, this Court cannot and should not disturb such rulings. [Emphasis added.] [54] The importance of the deferential standard cannot be overstated.

As explained by Charron J. in Pires, Lising , without deference to the discretionary exercise of case management powers, judges are “likely to embark upon many unnecessary hearings rather than risk vitiating an entire trial,” and the trial court’s “power to control the proceedings then becomes more illusory than real” (at para. 47).

Such a result would be antithetical to the increased jurisprudential calls to avoid unnecessary delay in criminal proceedings and the “special role” judges play in heeding that call… [ 33 ] There is no question that it is incumbent on a trial judge, in an effort to use court time efficiently, to screen Charter voir dires that are doomed to failure. However, the screening process is meant to be expeditious and the burden on an accused wishing to embark on a Charter voir dire is low. In R. v.

Chapman and Honeyman , 2016 BCPC 275 , Hewson J. described the various considerations for the trial judge and the burdens on the parties: [7] The law is clear that trial judges have the authority to declare a voir dire in which the accused can challenge the admissibility of evidence to be used against him or her, or to decline to embark upon an evidentiary enquiry when the accused is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court. The decision is made following what in British Columbia is known as a “Vukelich Hearing”.

The hearing is so named for the leading case in the area, R. v. Vukelich

(1998) C.C.C. (3d) 383 (B.C.C.A.). [8] The rigour with which the law in R. v. Vukelich is applied and the way in which a trial judge exercises his or her discretion in relation to an application for a voir dire is case-specific and highly contextual.

At least three factors will shape the exercise of the trial judge’s discretion: 1. the extent to which the anticipated evidence underlying the alleged Charter breach is legitimately in dispute; 2. the state and clarity of the law on the issue sought to be litigated, and 3. the infinite number of practical considerations that will arise in any particular case. [9] An accused person is not entitled as of right to a voir dire to challenge the admissibility of evidence on constitutional grounds. However, the threshold for embarking on a voir dire is low.

The Vukelich hearing itself was never intended as a mechanism to prevent investigation of alleged Charter breaches where a sufficient foundation for the alleged breach could be demonstrated, nor was the Vukelich hearing itself intended to be a protracted examination of the precise details of the accused’s proposed Charter application. [10] What underlies the Vukelich enquiry is the need to balance the accused’s fair trial interests against the public interest in the efficient management of criminal trials by avoiding lengthy and unnecessary pretrial applications in circumstances where the remedy sought could not reasonably be granted. [11] A review of rulings following Vukelich hearings suggests that the following procedural steps should be observed: 1.

The Vukelich application must be made before or at the time when the evidence is tendered. Counsel may provide a copy of the Information to Obtain in question to the trial judge, in advance of the application. 2. The procedure should be flexible and should be adapted to the circumstances of the case. 3. The onus is on the accused applying to have a voir dire declared. 4. The application should be determined upon the statements of counsel, if possible. 5. Counsel for the accused should summarize the facts that the accused is relying on in support of his or her submission that there has been a Charter breach. 6.

The Court should assume for the purposes of the Vukelich application that the facts as alleged by counsel are true. 7. If the trial judge declines to declare a voir dire on the basis of the statements of counsel, counsel for the accused must either choose to go further, or to accept the Court’s ruling, subject to his or her eventual right of appeal. 8. When counsel for the accused chooses to go further, a more formal approach will be required. That may include the filing of affidavits or an undertaking to adduce evidence.

In essence, there must be some factual basis supporting the application before the trial judge can declare a voir dire . 9. The accused is not required to file an affidavit, as it may expose him or her to cross-examination. 10. Ultimately, if the statement of counsel or the evidence adduced on the Vukelich application do not disclose a basis on which the court could reasonably make the order sought , the application to declare a voir dire should be dismissed. [ 34 ] I have relied on the above-noted framework and principles to determine this Vukelich application. COVID Pandemic Issues [ 35 ] The timing of Mr.

Enns’s continued motion on this issue is of significance. Because of the late filing of his Charter application, and because of the lockdown in the HRM due to the pandemic, Mr. Enns’s jury trial was adjourned to September 6 – 26,

2022. [36] The Crown says that whether COVID, and the resulting public health restrictions, will still be a factor in the conduct of jurytrials in September 2022 is unknown, and, as a result, Mr. Enns’s application is now moot. [37] Mr. Enns says that despite the fact that his trial has been adjourned to 2022, I should hear this application, including viva voce evidence, and make a ruling on this issue, essentially for three reasons: 1) in order to determine whether his argument on this point wasfrivolous so as to guide him in relation to a possible future s.11(

b) of the Charter delay argument; 2) to provide guidance to otherlitigants who might have an interest in this issue for their own jury trials in the future, if COVID restrictions still exist; 3) in case thereare lockdown restrictions in place in September 2022, similar to those leading up to his June 7, 2021 trial. Mootness [38] The issue of mootness was considered in Borowski v.

Canada (AG), (SCC), [1989] 1 SCR 342, whereSopinka J. stated for the unanimous court at p. 353: Mootness The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely ahypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving somecontroversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights,the court will decline to decide the case.

This essential ingredient must be present not only when the action or proceeding is commencedbut at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding,events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties,the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to departfrom its policy or practice.

The relevant factors relating to the exercise of the court's discretion are discussed hereinafter. The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concretedispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessaryto decide if the court should exercise its discretion to hear the case.

The cases do not always make it clear whether the term “moot”applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines tohear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless electto address a moot issue if the circumstances warrant. [39] In the instant case, the lockdown restrictions that were in place when Mr.

Enns raised this issue have been loosened in theHRM and are expected to be loosened further through the summer of 2021 as vaccine numbers increase and the number of COVID casesdecrease. There is absolutely no roadmap as to what, if any, restrictions might be in place in September 2022. Therefore, in relation tohis own trial, Mr. Enns’s complaint has become hypothetical.

There is no present live controversy. [40] Justice Sopinka went on in Borowski to discuss the courts’ discretion to render a decision if a case fails to meet the “livecontroversy” test at pp. 358-359: The first rationale for the policy and practice referred to above is that a court's competence to resolve legal disputes is rooted in theadversary system. The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issuesare well and fully argued by parties who have a stake in the outcome.

It is apparent that this requirement may be satisfied if, despite thecessation of a live controversy, the necessary adversarial relationships will nevertheless prevail. For example, although the litigantbringing the proceeding may no longer have a direct interest in the outcome, there may be collateral consequences of the outcome thatwill provide the necessary adversarial context. This was one of the factors which played a role in the exercise of this Court's discretionin Vic Restaurant Inc. v. City of Montreal, supra.

The restaurant, for which a renewal of permits to sell liquor and operate a restaurantwas sought, had been sold and therefore no mandamus for a licence could be given. Nevertheless, there were prosecutions outstandingagainst the appellant for violation of the municipal by-law which was the subject of the legal challenge. Determination of the validity ofthis by-law was a collateral consequence which provided the appellant with a necessary interest which otherwise would have beenlacking. [41] Mr. Enns seeks a ruling on this issue in order to determine whether or not he had raised a valid Charter issue.

If so, this couldimpact on a future delay motion he may or may not chose to bring. As well, he says that it may assist other litigants if they choose tobring such a motion and will assist him if the COVID lockdown restrictions are still in place for his trial in 2022.

The second rationaleon which the mootness doctrine is based, concern for judicial economy, was described by Sopinka J. at pp. 360-361: The second broad rationale on which the mootness doctrine is based is the concern for judicial economy. … It is an unfortunate realitythat there is a need to ration scarce judicial resources among competing claimants. The fact that in this Court the number of livecontroversies in respect of which leave is granted is a small percentage of those that are refused is sufficient to highlight thisobservation.

The concern for judicial economy as a factor in the decision not to hear moot cases will be answered if the specialcircumstances of the case make it worthwhile to apply scarce judicial resources to resolve it.

The concern for conserving judicial resources is partially answered in cases that have become moot if the court's decision will havesome practical effect on the rights of the parties notwithstanding that it will not have the effect of determining the controversy whichgave rise to the action. … Similarly an expenditure of judicial resources is considered warranted in cases which although moot are of a recurring nature but briefduration. In order to ensure that an important question which might independently evade review be heard by the court, themootness doctrine is not applied strictly.

This was the situation in International Brotherhood of Electrical Workers, Local Union 2085 v.Winnipeg Builders' Exchange, supra. The issue was the validity of an interlocutory injunction prohibiting certain strike action. By thetime the case reached this Court the strike had been settled. This is the usual result of the operation of a temporary injunction in labour

cases. If the point was ever to be tested, it almost had to be in a case that was moot. Accordingly, this Court exercised its discretion to hear the case. … The mere fact, however, that a case raising the same point is likely to recur even frequently should not by itself be a reason for hearing an appeal which is moot. It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved.

There also exists a rather ill-defined basis for justifying the deployment of judicial resources in cases which raise an issue of public importance of which a resolution is in the public interest. The economics of judicial involvement are weighed against the social cost of continued uncertainty in the law. … [ 42 ] Mr. Enns says that there should be no concern for judicial resources in this case because all parties are available to use what would have been his jury trial dates to conduct the Charter application.

That ignores the fact that court staff, sheriffs, counsel, a judge and the courtroom facilities are all required, and could otherwise all be tasked with other matters. While COVID is now an illness that we will all have to live with, in Nova Scotia vaccination numbers are increasing, infection rates are decreasing, government-imposed restrictions are changing regularly and currently being lessened, and therefore the facts in this situation are not of a recurring nature, but of a brief duration.

A hearing on this point is not required in order to ensure that an important question which might independently evade review be heard by the court, such that the mootness doctrine should not be strictly applied. Despite the myriad of jury trials heard across Canada since the COVID pandemic struck in March 2020, according to all counsel involved in this case, Mr. Enns’s Charter motion on this issue regarding juror representation and fair trial due to the lockdown restrictions is novel.

With increased vaccination rates, the restrictions will hopefully be abolished or significantly reduced by 2022. [ 43 ] The third underlying rationale for the mootness doctrine, the need for the court to demonstrate a measure of awareness of its proper lawmaking function, was described by Sopinka J. in Borowski at pp. 362-363: The third underlying rationale of the mootness doctrine is the need for the Court to demonstrate a measure of awareness of its proper law-making function. The Court must be sensitive to its role as the adjudicative branch in our political framework.

Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch. This need to maintain some flexibility in this regard has been more clearly identified in the United States where mootness is one aspect of a larger concept of justiciability. … In my opinion, it is also one of the three basic purposes of the mootness doctrine in Canada and a most important factor in this case. I generally agree with the following statement in P. Macklem and E. Gertner: "Re Skapinker and Mootness Doctrine" (1984), 6 Sup. Ct. L.

Rev. 369, at p. 373: The latter function of the mootness doctrine -- political flexibility -- can be understood as the added degree of flexibility, in an allegedly moot dispute, in the law-making function of the Court. The mootness doctrine permits the Court not to hear a case on the ground that there no longer exists a dispute between the parties, notwithstanding the fact that it is of the opinion that it is a matter of public importance.

Though related to the factor of judicial economy, insofar as it implies a determination of whether deciding the case will lead to unnecessary precedent, political flexibility enables the Court to be sensitive to its role within the Canadian constitutional framework, and at the same time reflects the degree to which the Court can control the development of the law. [ 44 ] Justice Sopinka went on to say, at p. 363: I prefer, however, not to use the term "political flexibility" in order to avoid confusion with the political questions doctrine.

In considering the exercise of its discretion to hear a moot case, the Court should be sensitive to the extent that it may be departing from its traditional role. In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa. [ 45 ] Mr.

Enns was deemed to have elected a jury trial. He has not chosen to re-elect his mode of trial.

Section 11(

f) of the Charter constitutionally guarantees a jury trial in specific situations and states: Any person charged with an offence has the right: except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; [ 46 ] A factual situation that an accused says could impact on their constitutionally protected rights is not something that should be taken lightly. Nonetheless, in the absence of a live controversy, the issue raised by Mr. Enns is moot.

The COVID pandemic took the world by surprise. Whether or not there will be any COVID restrictions in 2022 is impossible to predict. The very restrictions that Mr. Enns said would prevent him from having a fair jury trial when he filed his motion have been loosened significantly over the short number of days between the time he filed to the time of the hearing and again to the time of the release of this decision.

It would be wrong for me to attempt to provide guidance on this issue on the grounds of public importance when change regarding COVID is so dynamic, especially as vaccination numbers in this province are climbing. [ 47 ] As to Mr. Enns requesting an advance ruling regarding blame attribution for any delays occasioned by the adjournment of his trial, this is not an appropriate use of judicial resources. Should Mr. Enns choose to bring a Jordan application regarding delay, the issues will be canvassed at that time.

There is no reasonable likelihood that a hearing on the pandemic issue will assist in any way. [ 48 ] As noted by the Supreme Court of Canada in Cody and Jordan , all justice participants, including Crown, defence, and the courts, have a duty to use court resources efficiently. Because the trial dates have been adjourned to 2022, keeping in mind the current loosening of the lockdown restrictions, the issue of representative and unbiased jurors during a pandemic when strict lockdown

restrictions are in place is moot. In keeping with the Vukelich principles, I am dismissing Mr. Enns’ application on this issue. Mellor Courthouse proximity to HRP Detachment [ 49 ] The issue regarding the proximity of the HRP Detachment to the Mellor Courthouse presents different considerations. Mr. Enns’s trial in 2022 is scheduled to take place at the Mellor Courthouse. Therefore, the issue is live. That brings us to the Vukelich aspect of the case, whether Mr. Enns’ application should be summarily dismissed as being devoid of merit. [ 50 ] At this early stage, this is a close call. Dr.

Stinson’s affidavit is comprised of 21 paragraphs. The sole paragraph specifically addressing the Mellor Courthouse states: 19. Another issue is the concern with systemic racism within the justice system and distrust among some members of our Indigenous and African Nova Scotian communities (Cao, 2014; Bundy, 2019). Diminished trust can affect participation in our justice system (i.e., willingness to serve on a jury). The Halifax Nova Scotia Street Checks Report (Wortley, 2019) reports on community consultations and survey of the African Nova Scotians’ experiences and views of police.

The Wortley report indicates that, compares to Whites, African Nova Scotians are more likely to believe that police abuse their power, report being treated disrespectfully, and believe that police treat them unfairly. I note that the Burnside courthouse where I understand this trial is to be held, is adjacent to the Halifax Regional Police office. I believe the proximity of the HRP office to the Law Courts means it will increase the likelihood that African Nova Scotians or Indigenous people who are summoned for jury duty, would come into contact with police officers.

Given the distrust that many African Nova Scotians and Indigenous people harbour regarding police, I think the close proximity of the court and police headquarters would make it difficult for those who prefer to avoid being in close proximity to police to do so. [ 51 ] Dr. Kovalev had yet to provide a written opinion, but counsel for Mr. Enns advise that he is expected to provide an opinion similar to Dr. Stinson on this issue. [ 52 ] Mr.

Enns says that when it comes to the courthouse location, form may be as important as substance and the phrase: “Justice must not only be done, but must be seen to be done” applies directly. Mr. Enns’s counsel say that they know of no other venue in Canada where there is a large sign for a police department, and an office of the police department itself, adjacent to a courthouse where jury trials take place. However, at this early stage no evidence has yet been presented to support or refute that position. [ 53 ] Mr.

Enns relies on several cases where the physical venue for a jury trial has been the subject of judicial consideration. In State v. Jaime, Supreme Court of Washington, En Banc, May 27, 2010, 168 Wash. 2d 857 , 233 P.3d 554 , the accused was convicted by a jury who heard the case in a jailhouse courtroom. The Supreme Court for the State of Washington reversed the conviction and ordered a new trial on the basis that Mr. Jaime’s presumption of innocence was violated because of his trial venue.

Doing so, the court considered whether having a trial in a venue other than a traditional courthouse, in this case a jail, infringed on the accused’s presumption of innocence.

In determining that having the jury trial in a jail did infringe the accused’s presumption of innocence in that specific case, Stephens J. stated variously for the majority, starting on page 3: In order to preserve a defendant's presumption of innocence before a jury, the defendant is "entitled to the physical indicia of innocence which includes the right of the defendant to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man." Id.

"Measures which single out a defendant as a particularly dangerous or guilty person threaten his or her constitutional right to a fair trial." Id. at 845. Such measures threaten a defendant's right to a fair trial because they erode his presumption of innocence; these types of courtroom practices are inherently prejudicial. See, e.g., id. at 844-45. Thus, the first question we must answer is whether a jailhouse setting is inherently prejudicial and thereby offends due process.

We begin with the recognition that "the courtroom in Anglo-American jurisprudence is more than a location with seats for a judge, jury, witnesses, defendant, prosecutor, defense counsel and public observers; the setting that the courtroom provides is itself an important element in the constitutional conception of trial, contributing a dignity essential to `the integrity of the trial' process." Estes v. Texas, 381 U.S. 532, 561, 85 S.Ct. 1628 , 14 L.Ed.2d 543 (1965) (Warren, C.J., concurring) (quoting Craig v. Harney, 331 U.S. 367, 377, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947)).

Because the courtroom setting itself is essential to a trial's integrity, we should be wary of a setting that impermissibly influences a jury's decision-making process and jeopardizes the presumption of innocence. … In Holbrook, the Court considered whether the presence of security guards in the courtroom was inherently prejudicial. Id. at 568-69. Preliminarily, the Court did not focus its inquiry on the particular arrangement of the guards at Holbrook's trial. Id. Instead, it considered whether the presence of security guards in general was inherently prejudicial. Id.

In concluding it was not, the Court found it significant that "[o]ur society has become inured to the presence of armed guards in most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm." Id. at 569. Consistent with this analysis, the question here is whether the average juror would take for granted his or her presence in a jail, i.e., whether jurors are so inured to the experience of being in a jail building that it would have no effect on their perspective as jurors. The answer is self-evident.

"`[R]eason, principle, and common human experience'" tell us that the average juror does not take for granted a visit to a jail. Id. at 569 (quoting Estelle, 425 U.S. at 504). The average juror does not frequent the jailhouse for the very reason that a jailhouse is not meant to be a public space. Unlike a courthouse, in which the public is welcome to—and in some instances required to— conduct all manner of business, a jail serves a specific purpose not generally applicable to the public at large. The difference between jailhouses and courthouses is evident even in their architectural contrast.

Courthouses are often monuments of public life, adorned with architectural flourishes and historical exhibits that make them inviting to members of the public. Many of our county courthouses are on historical registries and are visited each year by school children, civic groups, and tourists. A jail, on the other hand, is singularly utilitarian. Its purpose is to isolate from the public a segment of the population whose actions have been judged grievous enough to warrant confinement. Jail buildings are typically austere in character, and entrance is subject to heightened security. …

Given the character of a jail, a juror would not take a visit to a jailhouse for granted, nor would he or she be inured to the experience. SeeHolbrook, 475 U.S. at 569. A juror's experience with jail is very likely limited to what our societal discourse tells us of jails: they arehigh-security places that house individuals who need to be in custody. That the average juror would draw a corresponding inference fromthat experience is reasonable to surmise. … In short, under the analysis of Holbrook, holding a trial in a jail courtroom is inherently prejudicial for two reasons.

First, the setting isnot in a courthouse, a public building whose purpose is to provide a neutral place to conduct the business of the law. Second, the settingthat replaces the courthouse has a purpose and function that is decidedly not neutral, routine, or commonplace. Holding a criminal trial ina jailhouse building involves such a probability of prejudice that we must conclude it is "`inherently lacking in dueprocess.'" Holbrook, 475 U.S. at 570 (quoting Estes, 381 U.S. at 542-43).

Our decision accords with that of a neighboring jurisdiction that has considered the propriety of a trial held outside a courthouse. In Statev. Cavan, 337 Or. 433, 98 P.3d 381 (2004), the Oregon Supreme Court considered a defendant's trial that was held in a state correctionalfacility. Cavan is not directly analogous to this case because it involved a trial held in a prison rather than a county jail, but we find thatmuch of the court's description of the prejudice inherent in holding a trial in a prison applies to a jail.

Both settings are places "that thepublic, as a general matter, is unlikely to visit," where the jury's safety and "to a large extent, the trial itself, are in the control of the[facility's] administrators and corrections personnel." Id. at 448. Most importantly, a jail, like a prison, "forcefully conveys to a jury theoverriding impression of a defendant's dangerousness and ... by extension, his or her guilt." Id. … We erect courthouses for a reason.

They are a stage for public discourse, a neutral forum for the resolution of civil and criminal matters.The unique setting that the courtroom provides "is itself an important element in the constitutional conception of trial, contributing adignity essential to `the integrity of the trial' process." Estes, 381 U.S. at 561 (Warren, C.J., concurring) (quoting Craig, 331 U.S. at 377).The use of a space other than a courthouse for a criminal trial, particularly when that space is a jailhouse, takes a step away from thosedignities.

We hold that the setting of Jaime's trial infringed upon his right to a fair and impartial trial, and we remand for proceedingsconsistent with this opinion. [54] As a member of the Nova Scotia Supreme Court judiciary, I am familiar with the Mellor Courthouse. Although no detailedevidence was presented at the Vukelich stage of the application as to the physical configuration of the facilities in question, I will takejudicial notice of that aspect of this motion. The Mellor Courthouse is located in a newer area of the Burnside Industrial Park.

Thecommercial building is two stories, the size of a large city block and is configured similarly to a strip mall, with various tenants sharingthe building and the large parking lot. The courthouse is well marked, as are the other adjacent tenants in the complex, including HRP. The Mellor Courthouse and the HRP Detachment are physically separated by other entities and have identifiably distinct entrances. So,unlike the Jaime case, Mr. Enns’s trial will not take place inside a jail (nor inside the HRP Detachment). [55] In R. v.

Francis, 2007 NSSC 108, Warner J. considered whether the older facilities at the Windsor Courthouse were suitablefor a jury trial or whether the trial should be moved to the more modern Kentville Courthouse. Both the Windsor and the Kentvillecourthouses are located in the same judicial district, but the Kentville Courthouse was further away from the location of the allegedcrime scene and required longer travel for the Crown witnesses.

The Windsor Courthouse is an older building and the courtroom islocated on the second floor, accessible only by one public stairway. [56] Three specific complaints were raised about the Windsor courthouse in Francis: 1) The courtroom was not wheelchairaccessible; 2) The washroom facilities were inadequate; 3) Moving from the jury box to the jury room to and from the entrance of thecourthouse would require the jurors to regularly have close contact with the public. [57] Justice Warner considered the general issues surrounding aging courthouses in rural judicial districts and stated: [9] The problems with the use of the Windsor courtroom facility for a homicide or any criminal jury trial are not unique to it.

The Chief Justice of Alberta, in R. v. Koruz, 1992 ABCA 144 , 1992 CarswellAlta 583 (AltaCA), wrote, at paragraph 67, inrespect of delay in a trial caused by the trial judge’s decision to move a trial, because of inadequate facilities: . . . The government is under no obligation to provide elaborate courtroom facilities in every rural location in this province anticipatingthat someone there may decide one day to commit a complex crime requiring extensive use of courtroom facilities.

To hold otherwisewould mean the expenditure of public funds to cover the possibility, no matter how remote, that at some time in the future, facilities outof the everyday norm might be required. For the court to impose this obligation would be neither reasonable nor responsible. Indeed, itmight very well encourage the elimination of the system of judicial districts, a result which would be counterproductive for thoseaccused living in rural Alberta. Further, this is not a case where some makeshift courtroom facility could have been set up on atemporary basis for either this case or the regular court sittings.

A secure facility was required for this case. [58] In considering the specific issue regarding the jury having close contact with the public when travelling in and out of the jurybox, Warner J. said: [42] It is a significant concern, in respect of jury trials, that the jury be protected from close contact with the participants and thepublic. One concern is the protection of the jury from incidental, accidental, inadvertent or intentional contact, communication ormessaging from members of the public, witnesses, or others who may have an interest in the proceedings.

A second concern is that theindependence of the jury not be compromised. [43] At Windsor, the jury box is at the south-east corner of the courtroom to the left of the judge’s podium and witness box. Thejury room is at the north-west corner of the courtroom. Its entrance is off a corridor on the west side of the public gallery. The normaland most direct route for a jury, each time it moves between the jury box and the jury room, is to pass through the public gallery. Thiswill occur several times daily - at each scheduled or unscheduled break. This situation creates the unnecessary, but significant, risk of the

jury being exposed to contacts and communications that could (1) compromise their independence, and (2) expand their knowledgebeyond evidence given under oath. This risk is elevated in this case. [44] The Crown has suggested that the jury could exit the courtroom by other convoluted routes. It would slow down an alreadyslow process. During a telephone conference call, Crown suggested that possibly the public gallery could be emptied before the jury wasrequired to leave the jury box; such would be no less convoluted nor more expeditious.

In addition, it is not a lawful, or appropriate if itwas lawful, to close the courtroom while the jury is present. [59] Justice Warner determined that the jury should be moved from Windsor to Kentville, and stated: [51] The fact that witnesses may be on the highway for thirty minutes longer, is an inconvenience, but it does not overcome (1) thestatutory right to a jury selected from all persons on the jury panel, including persons with disabilities, and (2) a courthouse that canafford a much better chance of protecting the jurors from improper contact and communication with the participants. [60] Prior to the Vukelich hearing, I provided counsel with R. v.

Pangman, (MBQB), a change of venue casewhere the accused also claimed a violation of his right to a fair trial contrary to s. 7 of the Charter. In Pangman, 35 accused werecharged with various criminal offences. A special courthouse was constructed to accommodate such a large number of co-accused. Justice Krindle described the circumstances leading to the creation of the courthouse that was the subject of Mr. Pangman’s complaint: [6] There was, at the time of arrest, within the court space in the City of Winnipeg, no space large enough to provide for alengthy jury trial of 35 accused.

A trial of that magnitude involves not only seating for the accused, but for the security staff necessary todeal with 35 individuals who are being detained on gang and weapons related charges. In addition to providing for the accused and theirneeds, the courtroom would have to provide reasonable space for all the counsel involved in such a trial. It would have to provide thetechnology necessary for the computers and videos that are part of this trial.

And it would have to make reasonable provision, bothwithin the courtroom and reasonably adjacent to the courtroom, for a jury that would be sitting for what is estimated to be between sixmonths and a year. [7] Particularly because the accused had been detained, it was necessary for the Crown speedily to provide a facility for thetrial. Had the facility not been ready for occupancy quickly, the accused would have been entitled to a judicial stay of the proceedingsbecause their Charter rights to a speedy trial would have been breached. The spectre of Askov applications was at all times a real one.

Two accused entered into arrangements with the Crown in April of 1999 and one had charges against him stayed in July of 1999. Theremaining accused commenced their trial. [8] The province obtained a building at 1501 Chevrier Ave. in an industrial area of Winnipeg, extensively renovated the interiorof the building, and the trial of the accused actually commenced at that location in September of 1999. At the commencement of thetrial, 32 accused remained charged on the indictment. Since the commencement of the trial, the numbers have fallen considerably. Asof the date of this motion, 15 accused remain indicted.

The others have disposed of the charges against them. The trial of the 15proceeds, although not yet before a jury. It is significant, in terms of the timing of the survey undertaken by the defence, to which later reference will be made, that the bulk of the accused disposed of the charges against them between September 10th and October 19th of1999. [61] Justice Krindle detailed some of the issues that prompted defence counsel to make a motion for a change of venue and allegeviolations of s. 7 and s. 11(

d) of the Charter. She stated: [9] The organization in which the accused are charged with participating is an organization called the Manitoba Warriors. TheManitoba Warriors is alleged to be a predominantly aboriginal street gang. The accused are largely, although by no means exclusively,aboriginal. I do not offer this information gratuitously. The race of the accused has become a factor in this motion. [10] The arrest of these accused, the prosecution of these accused, and the renovations to the facility at 1501 Chevrier generated ahigh degree of media attention.

The number of accused charged was itself a subject of attention. Whether a single trial of more accusedhad ever taken place anywhere generated speculation. The case was discussed as being a “test case” for the newly enacted criminalorganization legislation. The wisdom of the legislation and the speed of its enactment was the subject of comment. There was localmedia discussion alleging racist motivation behind the decision to test the legislation on a predominantly aboriginal street gang ratherthan on other criminal organizations.

The political and social wisdom of spending millions of dollars on the renovations to the buildingat 1501 Chevrier was a major focus of attention. The fact that the province was heading into an election no doubt contributed to theextent, if not the focus, of the attention. There were allegations that the investigation and prosecution were motivated by racism. TheCBC National Magazine ran a program called “Indian Courthouse” in which the building at 1501 Chevrier was called the “IndianCourthouse” by an aboriginal Member of the Legislature.

Part of the visual interest in the building was no doubt sustained by the factthat 1501 Chevrier is an old mustard-seed cleaning plant, the exterior of which remains unchanged from its previous incarnation,notwithstanding the interior renovations. It is, from the outside, unlike any courthouse that I have ever seen and it is truly ugly. Thephotograph of the seed-elevator portion of the building, taken through the fencing surrounding the property, lends itself to repeateddisplay. [11] Since the pre-trial motions have commenced, media attention has eased somewhat but still occurs sporadically.

The guiltypleas and sentencings have been covered. The failures of the applications for judicial interim release have been discussed. Those pleas,sentencings and applications for release were dealt with at the Law Courts Building before judges other than the trial judge. From timeto time, public expressions of concern were heard in the media about the length of time that the accused have been in custody. As thenumber of accused has decreased, there has been sporadic questioning of the wisdom of the initial expenditure on the courtroom at 1501Chevrier.

The media package filed before me shows a fair emphasis on that aspect of the public discussion and discussion of the pleabargains in or about the period immediately prior to the survey’s commencing. [12] The media package shows that 1501 Chevrier was repeatedly characterized as being a “special courthouse”. The terms “high-tec” and/or “high-security” were frequently used in conjunction with the term “special”.

[ 62 ] The Crown in Pangman conceded that, theoretically, a courtroom could be configured so as to violate an accused’s Charter rights, but denied such a situation existed in that case: [4] The Crown accepts that there could be a courtroom or courthouse so configured that it infringes or denies the s. 11 (

d) Charter rights of an accused. The Crown accepts that if such Charter breach can be shown, the court has the authority to order a remedy that is just and appropriate in the circumstances. The Crown says that conducting the trial of the accused at 1501 Chevrier does not infringe the s. 11 (

d) Charter rights of the accused, but, if it does, the remedy is not to order that the location of the trial be changed but rather to order such alterations to the building at 1501 Chevrier as may be necessary to cure the infringements. [ 63 ] In noting the inability to move the trial due to the number of participants, Krindle J. stated: [13] Whether this is to be a trial of 35 individuals or a trial of 15 individuals, there is still no existing courtroom at the Law Courts Building to which this trial could simply be moved.

There exists no Queen’s Bench courtroom in which a jury trial involving more than four in-custody accused has ever taken place and there is no existing Queen’s Bench courtroom which is equipped to handle a jury trial of this magnitude.

There are Provincial Court docket courtrooms which, perhaps, are large enough that two of the largest could be merged and renovated to accommodate the number of accused, counsel and the jury in this case, although, as I pointed out to the defence who suggested that idea, I expect that the Chief Provincial Court Judge has other plans for her large docket courtrooms and might have something to say about giving up those courtrooms for a year or so.

The only Queen’s Bench courtroom which the defence suggested might suffice would certainly require extensive renovations. [14] As I mentioned earlier, frequently trial judges, in consultation with their Chief Justices and on a completely informal basis, can and do decide to move a trial from one courtroom to another, more suited courtroom, within the judicial centre. On occasion the Chief Provincial Judge has agreed, without formalities, to the use of one of her courtrooms for a particular Queen’s Bench trial of reasonably short duration.

Those informal options do not exist in this case because there is no courtroom in existence, in either the Queen’s Bench courthouse or the Provincial Court courthouse, to which this trial can be moved. Any move of the trial to another location within the City of Winnipeg would necessarily involve my ordering the government to undertake a substantial expenditure. [ 64 ] Justice Krindle went on to explain that a lack of appropriate alternate facilities does not impact on the possibility that the venue would violate an accused’s Charter rights.

She then set out the inquiry to be conducted: [15] The fact that there exists no present facility to which this trial can be moved, formally or informally, does not end the analysis, by any means. The fact that any move would necessitate a substantial financial commitment by the state does not end the analysis. If a trial at 1501 Chevrier is shown, on a balance of probabilities, to violate the Charter rights of the accused, then the matter of a remedy will have to be considered.

And if the remedy can be shown, on a balance of probabilities, to require the moving of the trial elsewhere, then that move must be undertaken, regardless of the fact that it will not be simple or inexpensive to do so. [16] Therefore, the first question to be resolved is a purely legal one: does conducting the trial of these accused at the location at 1501 Chevrier Ave. violate the ss. 7 , 10(

b) and 11(

d) Charter rights of the accused? If it does, the next question will involve determining the issue of the appropriate and just remedy. [ 65 ] In discussing defence complaints regarding the exterior of the facility, Krindle J. said: [27] A physical aspect of 1501 Chevrier relating to security that is different from that at the Law Courts Building and that may convey an impression of “dangerousness” is the fence and gatehouse. There is a chain link fence around the perimeter of the property at 1501 Chevrier with a gatehouse at the front.

All persons – judge, counsel, media, witnesses, public, court staff - entering the property through the public entrance are required to obtain a pass from the attendant at the gatehouse, which pass alerts the guards inside to the specific area of the building to which the individual is permitted access. All persons entering sign for the pass and turn it in when they leave. No identification is required to be produced by anyone.

Jurors being driven by the sheriff to 1501 Chevrier would not have to sign in and obtain a pass, but would most certainly see the perimeter fencing and would see the gatehouse. [28] Another aspect of 1501 Chevrier that is different from the Law Courts Building is that nothing on the exterior identifies the building as being a court building or even a building owned by the province. [29] I have already noted the general ugliness of the exterior of 1501 Chevrier.

The Law Courts Building is an architecturally beautiful structure. [30] Reasonably informed jurors from in and around Winnipeg would know that 1501 Chevrier is not the place within Winnipeg where persons are routinely tried for the commission of crimes, that it is a “special courthouse”, even in the absence of the media calling it a “special courthouse”. [ 66 ] Justice Krindle acknowledged some imperfections in the design of the exterior of the court house, but dismissed the overall complaint, and stated: [ 38 ] As to the question whether the court facility itself impedes the right of an accused to a fair trial by an impartial tribunal, in many respects the building at 1501 Chevrier is preferable to any courtroom at the Law Courts Building.

The few respects where the mode of construction may be less favourable – I am considering here particularly the fence and gatehouse - are not within the courtroom itself. I certainly cannot say that I am satisfied on a balance of probabilities that the design of the building at 1501 Chevrier denies or infringes the right of the accused to a fair trial, a public trial or a trial by an impartial tribunal. [ 67 ] Considering the comments in Jaime, Francis, and Pangman, on the basis of Mr.

Enns’s proposed evidence and argument during this expeditious process, regarding the issue of the HRP Detachment and signage in proximity to the Mellor Courthouse, he has met the low standard set out in Vukelich . His application provides a reasonably possible basis on which the court could make the order he is seeking. Mr. Enns is permitted to proceed to his Charter voir dire on this issue.

Conclusion [ 68 ] The Crown’s Vukelich application is partly successful. [ 69 ] Mr. Enns will not be permitted to call evidence on the impact of the COVID pandemic and public health restrictions on his ability to have a representative jury and fair trial, for his trial scheduled in September 2022, because that issue is moot. [ 70 ] Mr. Enns will be permitted to proceed with his claim that the proximity of the HRP Detachment and signage to the Mellor Courthouse affects the representativeness and potential bias of his jury, and therefore infringes his right to a fair trial in accordance with ss. 7 and 11(

d) of the Charter . Arnold, J.