Shock-jock juror’s conduct leads appeal court to order new trial
The Ontario Court of Appeal has quashed a sexual-assault conviction after it found the trial jury foreman undermined the perceived fairness of the justice system when he made homophobic jokes about the case on a shock-jock radio show.
In ordering a new trial, the court said the conduct of jury foreman Derek Welsman, then a producer and on-air personality for the now-defunct Dean Blundell Show, gave the “apprehension of bias.”
The court also found he flouted the trial judge’s instructions not to discuss the case in public.
“He participated in public jokes that targeted gay men,” Justice Mary Lou Benotto wrote in a decision signed by two of the three presiding judges. The third judge on the panel concurred there should be a new trial but for a different reason.
“Such comments have no place in a fair and impartial justice system,” Justice Benotto wrote. “The reasonable observer would expect that a person who comes before the courts would be treated with dignity and respect, and not be publicly ridiculed by the person judging him.”
In January 2014, Joshua Dowholis, an HIV-positive man, was sentenced to six years in prison for sexually assaulting three men he met in a Toronto bathhouse.
After serving the bulk of his sentence — he was credited for serving two years pretrial custody — Dowholis is now on parole, his lawyer said. The Crown declined to say if it plans to retry his case.
Jill Presser, a lawyer for Dowholis, said the decision was an important precedent concerning “pernicious” and “deeply ingrained” bias against gay people.
“They’re saying homophobia is just as unacceptable as racism in the justice system, and that is a huge step forward,” lawyer Presser said.
Before the trial, Welsman swore on aBible that he had no bias toward gay people.
As jury foreman, Welsman was in charge of directing the jury’s discussions and acting as the spokesperson for the group.
On air, he and the other 102.1 The Edge personalities chortled as they mocked gay men who visit bathhouses and the intelligence of the sex assault victims. They snickered as they imagined the perpetrator’s excitement for prison showers.
“If anyone wants to get into the backdoor business, I can give you some tips,” said Welsman, prompting more laughter from his on-air colleagues.
The show’s hosts repeatedly joked about the trial on air before the verdict and after.
Welsman did not respond to requests for comment regarding the appeal court’s decision.
In an April 2016 interview on the Toronto Mike podcast, Welsman said he should have never discussed his experience as a juror in the first place.
“It’s a station that wants to be entertaining and edgy and stuff like that. So I thought, ‘I wonder if I can just skirt around and just say without saying,’ ” he said. “I had no intention of going in and telling gay jokes at all.”
After the Sept. 27 verdict, Welsman talked on-air about what jurors had to decide before making their guilty finding.
It is against the law for jurors to disclose details of their deliberations. There is no indication Welsman has been charged.
After the Star first wrote about Welsman’s conduct in December 2013, scandal soon engulfed the Dean Blundell Show. The host apologized for the show’s “rude, homophobic and inappropriate remarks, which were offensive and unacceptable.”
A few weeks later, the show was cancelled. Blundell said he was not a homophobe.
Blundell now hosts a sports talk radio show on SN 590. When contacted Monday, he had no comment.
In order to maintain public confidence in the justice system, the mere appearance of impartiality by judges and jurors is just as important as actual fairness, Justice Benotto explained in her decision.
The judge said she did not need to address whether the verdict was in fact tainted by Welsman’s conduct because his behaviour gave “the apprehension of bias.”
“The impression created by the juror’s conduct goes beyond a bias against gay men. A reasonable observer would have the impression that the juror lacked respect for the justice system. This goes directly to the perception of fairness,” Benotto said in her decision.
A third appeal court judge, David Doherty, did not think Welsman’s on-air comments were grounds to have the convictions tossed. Rather, Justice Doherty said they should be quashed because the trial judge “failed to adequately caution the jury” against using evidence from one of the four complainants for determining guilt in other cases.
Regarding the juror’s comments, Justice Doherty said it’s important to contextualize them as ones made on a radio show “that attempted to entertain by ridiculing everything and everybody.”
“I do not mean to assert that humour predicated on stereotyping or ridiculing identifiable groups is harmless or acceptable,” Justice Doherty said.
“The court must decide whether the reasonable observer would take the comments as indicative of (Welsman’s) actual beliefs about homosexuals. I do not think the appellant clears that hurdle.”