A Toronto gay man is seeking to overturn his conviction for sexual assault because the Crown didn't disclose that during and right after the trial, the jury foreman, a shock-radio producer, had been on air to talk about the case and make crude jokes about the sexual orientation of the accused and complainants.
Juror no. 12, Derek Welsman, is a producer and host on the Dean Blundell Show, on 102.1 The Edge. On Sept. 20, while the trial was ongoing, and on three separate days after the verdict, Mr. Welsman bantered with his co-hosts in mocking ways about the case, which involved men who had met in the gay village.
On Sept. 30, three days after the guilty verdict, a transcript of the show filed in court shows that Mr. Blundell and Mr. Welsman talked about two of the complainants, who were living together in a hotel.
"I don't believe they were porking, but they were doing drugs," Mr. Welsman said.
The case involved Joshua Dowholis, who was charged with four counts of aggravated sexual assault and two counts of forcible confinement. He is alleged to have met his victims at Spa Excess, a bathhouse on Carlton Street.
Mr. Dowholis says he is innocent, insisting that the sex was consensual and that he did tell the complainants that he is HIV positive.
His lawyer, Kathryn Wells, said she will take the case to the Ontario Court of Appeal to ask for a new trial.
"It clearly has a bearing on an accused's right to a fair trial," she said outside of court Tuesday.
The defence is not only arguing that Mr. Welsman was a biased juror but is also complaining about the prosecution's failure to disclose what they knew about his conduct.
A day after the Sept. 30 broadcast, Crown attorney Meghan Scott and the police officer in charge of the case, Detective-Constable Kim Percival, contacted Mr. Welsman and reminded him it was a criminal offence to disclose information about jury deliberations.
The defence wasn't notified, however, and only learned about Mr. Welsman's behaviour a month later, from an inmate who heard the show while being driven from court.
"If that's normal Crown practice, that's pretty scary," Ms. Wells said.
Her case suffered a setback on Tuesday when Ontario Superior Court Justice Faye McWatt dismissed her bid to order an inquiry into Mr. Welsman's conduct and to get more disclosure about how the Crown heard about his on-air comments.
"The Crown's contact with the juror was post-verdict … there is no evidence that anything the Crown did in this regard may have tainted the verdict," Justice McWatt wrote in her ruling.
The judge said it would be up to the Court of Appeal to look at transcripts of Mr. Welsman's show and decide whether the verdict had been tainted.
Crown attorney John Pearson told reporters that the ruling showed the judge had "found no evidence of prosecutorial misconduct."
He didn't want to comment further but acknowledged that he would speak with his "superiors" about the incident. "If they think any action is necessary, we will follow up," he said.
Justice McWatt's ruling noted that when Mr. Welsman was picked as a juror, he "testified he had no bias towards homosexuals."
In his on-air comments, however, he spoke disapprovingly of those who think that "You know, I should go to a gay bathhouse and have sex with 600 other people."
He speculated that Mr. Dowholis would get a five-year jail term, describing it as "five years of awesome."
He also boasted about his new insight into the gay world. "If anybody wants to get into the backdoor business, I can give you some tips."
The Blundell show has repeatedly been in trouble with the Canadian Broadcast Standards Council.
In the council's most recent decision involving Mr. Blundell and Mr. Welsman, the show was found to have violated the Canadian Association of Broadcasters' Code of Ethics and Equitable Portrayal Code.
The decision followed a January, 2013, segment where news of a man who had died after being stuck in a rolled-up wrestling mat became a starting point for jokes about wrestling being a "gay" sport.
Justice McWatt set Jan. 6 as the date for Mr. Dowholis's sentencing.
Mr. Wells said she would apply for bail for her client while the defence seeks leave to appeal.