Dean Blundell was hired because he drew large audiences of young men on Toronto rock station 102.1 The Edge before he was fired in January, 2014.Peter Power/The Globe and Mail
The workings of criminal-trial juries will be in the spotlight when the Ontario Court of Appeal hears the case of a gay man charged with sexual assault, who later discovered that the jury foreman was a radio producer who then went on air to banter mockingly about what he heard at the trial.
"The homophobic comments of the jury foreperson in a public forum were so egregious as to require a new trial," the defence says in its factum before the appellate court. The case was initially scheduled to be heard on Thursday but it has now been postponed to an unspecified later date.
While acknowledging that the jury foreman's behaviour was juvenile and offensive, the Crown says there is no evidence that he didn't set aside his bias when he did his court duty.
The controversial remarks were made by Derek Welsman, a producer for the now defunct show hosted by veteran shock jock Dean Blundell on 102.1 The Edge.
"If anybody wants to get into the backdoor business, I can give you some tips," he quipped after convicting the accused.
Identified in court documents as Juror 12, Mr. Welsman took part in the trial of Joshua Dowholis, an HIV-positive man charged with four counts of aggravated sexual assault and two counts of forcible confinement.
Mr. Dowholis had met the four complainants during three separate occasions in the fall of 2011 and brought them to his home.
He says he had consensual sex with two of the men and denied he had intercourse with the other two. He also said he had tied up two of the male complainants but said that it was part of play acting and that he released them "as soon as they asked."
The case, which looked into the lives of gay men who used methamphetamine and hooked up at bathhouses, was apparently both fascinating and repellent to Mr. Welsman.
Mr. Welsman first made his remarks on Sept. 20, 2013, while the trial was still hearing evidence, during an on-air sequence where he mostly gave brief answers to teasing questions from Mr. Blundell and fellow broadcaster Billie Holiday.
On Sept. 30, three days after the jury convicted Mr. Dowholis, the jury foreman made more substantial comments.
Chatting on air with Mr. Blundell, he talked about the colour of bodily fluids, speculated about whether two of the complainants "were porking" each other, and added that "these people are not the·smartest individuals in the world."
They also spoke about the jail term that Mr. Dowholis received. The two made prison-rape allusions, with Mr. Blundell calling the sentence "five years of nothing but love" and Mr. Welsman agreeing by saying "I sentence you to five years of awesome."
The defence factum said the trial was "permeated with … pervasive societal prejudices relating to the Appellant's lifestyle and HIV status."
In its written submission to the appellate court, the Crown conceded the "puerile" tone of Mr. Welsman's comments but insisted there was no indication that Mr. Welsman – who had been asked during jury selection whether he had a bias – didn't act properly.
"Although he engaged in insensitive and offensive banter in which homosexual sex was belittled, he gave every indication that he took his oath and jury duty seriously, and intended to comply with the law," the Crown filing said.
As proof, the Crown noted that Mr. Dowholis was only convicted on five of six criminal counts, a sign that the jurors had looked at the evidence presented in court and realized that one allegation of sexual assault could not be corroborated.
Furthermore, the Crown argued that Mr. Welsman's remarks about gay men being promiscuous might even have helped Mr. Dowholis.
"That belief, in this case, would only tend to help the appellant by leading juror 12 to believe that the complainants consented, not that the appellant forced them," the prosecution factum said.
As with other sexual-assault cases, the credibility of the complainants was an issue, with the defence noting that two of the complainants had been in touch via text messaging and Facebook, and even stayed in the same hotel room before the court appearance of one of them.
After the controversy, Mr. Blundell apologized on air. However, he later told The Globe and Mail that the company had made him read a statement and that "I don't find the comments homophobic."
The show was suspended, then cancelled in January of 2014.
Tu Thanh Ha