HER MAJESTY THE QUEEN – v. –, 2017 ONSC 939

CITATION : R. v. Borutski, 2017 ONSC 939 COURT FILE NO.: 15-1065 DATE: 20170207 ONTARIO SUPERIOR COURT OF JUSTICE PUBLICATION BAN IN EFFECT UNDER S. 645(5) and 648(1) OF THE CRIMINAL CODE OF CANADA BETWEEN: HER MAJESTY THE QUEEN – and – BASIL BORUTSKI ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Jeffrey Richardson, for the Crown Self-Represented Defendant James Foord, for Amicus Curiae Patrick McCann,

Section 486.3(3) Counsel HEARD: PEMBROKE, February 2, 2017 MCnamara R.S.j. DECISION OVERVIEW [ 1 ] The accused, Basil Borutski is charged with three counts of first degree murder. It is alleged in the indictment that on the 22 nd day of September, 2015 he murdered Anastasia Kuzyk at the Township of Killaloe-Hagarty Richards in the County of Renfrew; Natalie Warmerdam of the Township of Bonnechere Valley in the County of Renfrew; and Carol Culleton of the Township of Hastings Highlands in the County of Hastings.

Although the offences are alleged to have occurred in two different counties, all three counties are located within the East Region of the Superior Court of Justice, one of the eight judicial regions that form the territorial divisions of the Superior Court in the Province of Ontario. [ 2 ] The indictment was preferred at the Superior Court in Pembroke and will be tried by judge and jury.

Two of the deceased are alleged to be victims of past domestic violence involving the accused, and the third is alleged to have had a professional relationship with him. [ 3 ] The accused is self-represented and has chosen to remain silent since shortly after his arrest. [ 4 ] Pre-trial motions in the case are scheduled for five weeks commencing in April of 2017. The trial is scheduled to start in September of this year and it is anticipated it will take four to five months.

[ 5 ] Shortly after this matter was moved to the Superior Court, the Crown requested that a Case Management Judge be appointed. Justice Lynn Ratushny was appointed by me for that purpose.

In the context of that function, Justice Ratushny invited the parties to make submissions, in the unique circumstances of this case, as to the most appropriate venue for trial; the authority of the Court to move a trial from one court location to another within the same region for administrative purposes; and if that authority exists, the factors to be taken into account in exercising that authority. [ 6 ] Justice Ratushny, again in her capacity as the case management judge, appointed Mr. James Foord as Amicus Curiae and Mr. Patrick McCann as Counsel pursuant to

section 486.3(3) of the Criminal Code , R.S.C. 1985, c. C-46. POSITIONS OF COUNSEL [ 7 ] It is the position of the amicus , supported by Mr. McCann, that the Court has the power to determine the appropriate location of a trial within a particular judicial region and that that location can be different from the County where the offences are alleged to have taken place.

They argue that the authority rests with the Regional Senior Justice or his or her delegate, and should be exercised where, as here, there exist the factors that make it in the best interests of the administration of justice and trial fairness that the case be moved. [ 8 ] They submit further that on a balanced examination of the relevant factors in this case, Ottawa not Pembroke is the more appropriate place of trial. [ 9 ] Based on the jurisprudence that has evolved in recent times, and subsequent to the organization of the court structure in Ontario from counties to judicial regions, The Crown argues that the court does have the administrative power to transfer a trial from one location to another within the same region.

They submit, however, that the threshold on such an application should be a high one, and ought to be akin to the test required under a Change of Venue Application pursuant to

Section 599 of the Criminal Code . They submit that similar factors and principles to those considered in a

Section 599 application ought to be the ones taken into account on an application for an administrative transfer before the venue of a case is changed from the location where the offences are alleged to have taken place. [ 10 ] The Crown further submits that looking at all the facts in this case, they do not rise to the level required to order a change and the City of Pembroke remains the proper venue for this trial. [ 11 ] Mr. Borutski, although invited to provide his views and comments on a couple of occasions, remained mute.

ANALYSIS [ 12 ] There is no issue that historically, at common law, the venue of a criminal trial was the county or district where an offence or offences were alleged to have occurred. Venue, of course, refers to where the trial is to be held.

Venue has been held to be procedural in nature. [1] That begs the question, then, as to who has the authority to select the venue of a trial. [2] Significantly, in terms of the analysis of this issue, the division of Ontario into judicial regions was done for administrative reasons related to the administration of justice. [3] Justice Gauthier explains the effect of this in R v. Jeffries at paragraph 44 where she states as follows: [44]

Section 79.1 and its accompanying regulation clearly broaden the territorial jurisdiction of the courts by no longer confining their authority to hear and try cases in counties or districts, but in judicial regions. The effect of this is that an offence committed in one “district” may be tried in another “district,” provided that both are in the same region. Accordingly, the venue of trial no longer is confined to the district in which the offence allegedly took place, but the region in which the district is located. And then at paragraph 50: [50] With respect, I take a different view.

Whatever rights the Crown may have enjoyed at common law regarding the right to select the venue of trial, subject to the “local venue” rule, have been supplanted by legislative intervention.

As a result of that intervention, the authority to select the venue of trial is an administrative matter, and lies with the courts, in the person of the Regional Senior Justice. [ 13 ] Against that backdrop, there is no real issue between the parties that the Court has a power to determine the venue of a trial within a judicial region where, as here, all three offences are alleged to have taken place in the East Region, albeit in two different counties. [ 14 ] They also agree that the authority to make the decision lies with the Chief Justice of the Superior Court or her statutory designate the Regional Senior Justice or his or her designate. [ 15 ] Where the parties differ is on the criteria or factors that are relevant when the court is considering a request to administratively change the venue of a trial from the location where the indictment was preferred and that has the closest physical proximity to the alleged offences. [ 16 ] In Jeffries , Gauthier J., while concluding that the court had the requisite power to determine the appropriate venue of a trial, provided little guidance regarding what factors should guide the decision. [ 17 ] Following Jeffries was the decision of Maranger J. of this court in R v.

Lane . [4] [ 18 ] On this issue, Maranger J. offered the view that while the power to transfer a trial within a region existed, it was not an unfettered right. The norm, in his view, was that the trial be held in the place where the crime is said to have occurred, but in exceptional circumstances and in an exceptional case, the location of the trial could be moved from the local community. He put the test to be applied at paragraph 22 of the decision as follows: [22] The test I apply here is that a transfer should only take place in exceptional circumstances that relate to serving the best interests of

the administration of justice, and/or on account of articulable systemic reasons. [ 19 ] The amicus submits that looking at Jeffries , the Court effectively left it open-ended in terms of the factors that would justify a transfer while Maranger J. in Lane suggests a stricter or higher test. In counsel’s submission that leaves the court with a lot of latitude and it is submitted that the test that ought to be applied is that a transfer may be available as long as there is a “good reason” to move the case. [ 20 ] The Crown, as indicated earlier, suggests a test on an administrative transfer akin to that required under

section 599 of the Criminal Code . [ 21 ] In terms of these competing arguments, I am not persuaded that the test suggested by the amicus is the proper one. It seems to me to depart from the norm as the venue of a trial requires more than just a “good reason,” which is too subjective. I am also not persuaded that the proper test is one akin to the

section 599 test. Simply put, the difficulty with that submission is that this is not an application under

section 599 of the Code . The amicus and

section 486.3 Counsel concede in this case, as was the case in R v. Lane , the strict test called for on a

section 599 application would likely not be met on the facts of this case. This is an application for an administrative transfer which, in my view, should have its own criteria. [ 22 ] I agree for the most part with the criteria as described by Maranger J. I might differ only with his suggestion that the norm should only be displaced in exceptional cases with exceptional circumstances.

It seems to me that there may be cases where the case itself is not exceptional, but the circumstances are sufficient to justify an administrative transfer of the trial. [ 23 ] The test I apply is that a transfer should only take place in exceptional circumstances that relate to serving the best interests of the administration of justice and on account of articulable systemic reasons. Applying that criteria to the evidence before me on this application, I have concluded that the best interests of the administration of justice and for articulable systemic reasons justify moving this trial from Pembroke to Ottawa.

This transfer is not only justified by any standard, but also appropriate. Some of those major factors are as follows: • Mr. Borutski is in custody in Ottawa and in consequence will need to be transported to and from Pembroke on every day of the pre- trial motions and trial. This involves an individual in his late 50’s being shackled in a transport vehicle for a minimum of 4 hours per day, and dependent on traffic and weather conditions the travel time could be much more extended. I accept the submission that this travel

schedule could create a hindrance to the rights of a self-represented accused to make full answer and defense and to a fair trial when facing the most serious charges under the Criminal Code . • Publicity could impact trial fairness. There has been a significant amount of media coverage of the events surrounding this case. The evidence presented at the hearing suggests there have been in excess of 300 media reports, 75 of which were by local Renfrew County media outlets. Additionally, quite properly, there are yearly vigil services for the deceased in the Ottawa Valley.

Against that backdrop of intense media coverage, the population of Renfrew County is relatively small. The accused and deceased are residents of the Ottawa Valley as are many of the witnesses. While there is no suggestion that as a result of the publicity the accused would not have a fair trial in Pembroke, the publicity is a factor in examining overall trial fairness. • Irrespective of the publicity this trial has attracted, jury selection has the potential to be very problematic in Pembroke. Renfrew County is the largest county in the province of Ontario by area.

It is composed of 17 municipalities and has a population of just over 107,000 people spread over 7,441 Sq. Km. The jury pool is relatively small, approximately one-ninth that of the pool available in Ottawa. It is anticipated that many of the potential jurors, if the case were held in Pembroke, would seek to be excused because of the anticipated length of the trial and the significant distance they would have to travel to and from their home each day. It is further anticipated that a large jury pool would need to be summoned and there is no jury assembly room in the Courthouse in Pembroke.

There are also issues vis-à-vis staffing capabilities. All of these problems would be much less in Ottawa. • The Pembroke Courthouse has 6 courtrooms shared by the Superior Court of Justice and the Ontario Court of Justice. Only Courtrooms no. 3 and no. 5 have Jury boxes. Courtroom no. 3 is the only courtroom with closed circuit television capability. That equipment is not portable and that courtroom is used frequently by both courts to assist vulnerable witnesses. It could not possibly be in continuous use for the same trial for 4 to 5 months.

That leaves only courtroom no. 5 for the trial, leaving only courtroom no. 3 available for other jury trials. In this post- Regina v. Jordan 2016 SCC 27 era, with its emphasis on timely criminal trials, it would be a significant scheduling impediment to have only one courtroom that is sporadically available for other jury cases for 4 or 5 months. The Ottawa Courthouse is a large venue with 7 jury courtrooms and it is adequately set up to accommodate a lengthy high-profile murder trial.

It has perimeter entrance security and a large jury assembly room. • It is also a consideration that 2 of the 3 counsel who are engaged in this trial are from Ottawa. Furthermore, there is no issue that this case is extraordinary, with many unique issues which will require a trial judge with significant experience and expertise in handling complicated criminal trials. Justice Robert Maranger, the Trial Judge, meets that criteria on all counts and is also based in Ottawa.

CONCLUSION [ 24 ] The Court is very mindful and sympathetic to the fact that moving the trial from Pembroke to Ottawa will create problems for some of the witnesses and significant problems for family members. Nevertheless, balancing the factors that the Court must take into account when deciding whether to administratively transfer this trial, those factors, in my view, lead to the conclusion that the case must be transferred to serve the best interest of the administration of justice, including trial fairness and for clear articulable systemic reasons.

The venue of this trial will be in Ottawa for the reasons outlined above.

Mr. Justice James E. McNamara Date: February 7, 2017 CITATION : R. v. Borutski, 2017 ONSC 939 COURT FILE NO.: 15-1065 DATE: 20170207 ONTARIO SUPERIOR COURT OF JUSTICE PUBLICATION BAN IN EFFECT UNDER S. 645(5) and 648(1) OF THE CRIMINAL CODE OF CANADA HER MAJESTY THE QUEEN – and – BASIL BORUTSKI DECISION MCNAMARA R.S.J. Released: February 7, 2017