Joshua Dowholis

Case Summary

Photo Credit: The Toronto Star/Jesse McLean

In 2013, Joshua Dowholis was convicted by a Toronto jury, after two days’ deliberation, on three counts of aggravated sexual assault and two counts of forcible confinement.1 Dowholis, an HIV-positive gay man with an undetectable viral load, was sentenced to six years’ imprisonment. His sentence included the two years he had served while denied bail before trial.2

Dowholis had maintained his innocence throughout the proceedings. At his trial, the jurors heard that he had smoked crystal meth with the four male complainants at a Toronto bathhouse, after which they returned to his home.3 Dowholis testified that he engaged in consensual sex acts with two of the complainants and tied up the other two (in the context of bondage play), whom he released upon request.4 He said that he had informed the men of his HIV-positive status, while two of the complainants denied that this disclosure occurred, and a third testified that Dowholis did inform him but also sexually assaulted him.5 Dowholis’ account was that he invariably told partners that he was HIV-positive: “I always disclose my HIV status. I acquired HIV through someone who didn’t disclose to me.”6

Before the jury was selected for Dowholis’ trial, prospective jurors were screened for potential bias against gay people.7 Defence counsel asked each prospective juror the following:

[I]n deciding whether or not the prosecution has proven the charges against an accused, a juror must judge the evidence without bias, prejudice or partiality. Sometimes people have a bias against a certain group such that they’re unable to fulfill this duty of a juror. The purpose of my question is to determine whether you are able to serve as a juror in this case. Do you have a bias against homosexuals?8

Juror 12 replied “no” to the question and was sworn in. He was then selected as the jury foreperson.9

During Dowholis’ trial and after his conviction, Juror 12 appeared on the Dean Blundell Show, a radio program for which he was the producer.10 On these occasions, Juror 12 “made derogatory comments about sexual activity between men” and “mocked the juror’s oath” to render a true verdict based on the evidence.11 Three days after the guilty verdict, Juror 12 joked, “I sentence you to five years of awesome,” mocking Dowholis’ sexual orientation while making light of the reality of prison sexual assault.12 He also addressed the jury’s deliberations, stating that: “We had to decide whether [the complainants] were credible witnesses at all because they were boneheads. . . . We kind of determined that though these people are not the smartest individuals in the world . . . they probably couldn't hold up a fake story.”13

The following day, a police detective and prosecutor met with Juror 12 to warn him that disclosing the contents of jury deliberations is a criminal offence. Juror 12 was, however, never charged.14

The Crown did not inform Dowholis of this meeting. Rather, he learned of Juror 12’s comments from another prisoner who happened to hear the radio program while in transit.15

Dowholis then requested that the trial judge, Justice McWatt, order an inquiry into Juror 12’s conduct and compel the Crown to disclose details of its response. Dowholis’ lawyer stated that the radio show comments “made a mockery” of the proceedings and tainted the jury’s guilty verdict.16  

Justice McWatt rejected these requests, finding that this conduct did not taint the verdict. She stated that: “The Crown’s [only] contact with the juror was post-verdict and restricted to warning [him] . . . about his liability under the Criminal Code not to disclose the content of any of the [jury] deliberations.”17 Justice McWatt also found that she had no legal authority to overturn the verdict once it had been delivered.18

Dowholis appealed his conviction, arguing that “[t]he homophobic comments of the jury foreperson in a public forum were so egregious as to require a new trial.”19 He was denied bail pending appeal.20

A majority of the Ontario Court of Appeal found that Juror 12’s comments “created a reasonable apprehension of bias” (that is, “a reasonable observer would conclude that the juror’s conduct made it more likely than not that [he] . . . would not decide fairly”), resulting in a miscarriage of justice.21 It therefore quashed the conviction and ordered a new trial.22

Justice Mary Lou Benotto, with the concurrence of Justice Michael Tulloch, stated that: “The tone and content of the [radio] conversations reveal[ed] prejudicial attitudes towards the lifestyles of some gay men. The issue of prejudice against gay men was a concern from the outset of trial.”23 Justice Benotto and Justice Tulloch observed that “[t]he Crown admit[ed] . . . as much” during the appeal, “noting . . . that the comments ‘can reasonably be construed as expressing negative and stereotypical views regarding homosexual men.’”24 They found that “[s]uch comments have no place in a fair and impartial justice system.”25

Justice David Doherty, the third member of the panel, dissented: he, too, would have quashed Dowholis’ conviction and ordered a new trial, but not on the basis of what Juror 12 said on the radio shows.26 Justice Doherty held that the broadcasted comments could not be considered by the court as evidence of how the jury actually deliberated, because to do so would violate the common law rule that jury deliberations must remain secret.27 He would instead have ordered a new trial on the basis that the trial judge did not clearly warn the jury against the dangers of using one complainant’s testimony against Dowholis in connection with other charges not involving that complainant.28

In January 2017, the prosecutor chose to stay the proceedings against Dowholis (meaning that there would be no retrial and Dowholis would no longer have a criminal record). She stated that a second trial would be “inappropriate” given that Dowholis was already on parole after spending over five years in prison.29

Dowholis’ lawyer told reporters that “the decision not to reprosecute really operates as a recognition of how serious these homophobic comments were and how negatively they did impact on the integrity of the justice system.”30 She added: “The case is significant for Joshua Dowholis because it is about his experience with the justice system. But this case is about more than that — it’s about the LGBT community’s engagement with the justice system and the kind of justice they can expect.”31

Dowholis, then 36 years old, stated that: “I’m pleased with the outcome today but at the same time, I was a little disappointed I didn’t get an opportunity for a fair trial.”32


[1] R. v. Dowholis, 2016 ONCA 801 at paras. 1, 9 [Dowholis].
[2] Ibid. at para. 3; David Bruser and Jesse McLean, “Gay man who was mocked by juror on radio has charges stayed”, Toronto Star (6 January 2017), online: <https://www.thestar.com/news/crime/2017/01/06/gay-man-who-was-mocked-by-juror-on-radio-has-charges-stayed.html> [Bruser & McLean, “Charges stayed”]; Jesse McLean and David Bruser, “Prison term for man mocked by radio show host”, Toronto Star (8 January 2014) GT3 [McLean & Bruser, “Prison term”].
[3] Dowholis, supra note 1 at para. 3; Bruser & McLean, “Charges stayed”, supra note 2.
[4] Dowholis, supra note 1 at para. 3.
[5] Tu Thanh Ha, “Court orders new trial for gay man over juror’s homophobic comments”, The Globe and Mail (31 October 2016) [Ha, “Court orders new trial”]; McLean & Bruser, “Prison term”, supra note 2.
[6] Jesse McLean and David Bruser, “Jury foreman’s joke sparked call for judicial review”, Toronto Star (8 December 2013) A1 [McLean & Bruser, “Jury foreman’s joke”].
[7] Dowholis, supra note 1 at para. 5.
[8] Ibid.
[9] Ibid. at paras. 6, 8, 10-11.
[10] Ibid. at para. 11; Bruser & McLean, “Charges stayed,” supra note 2.
[11] Dowholis, supra note 1 at paras. 6, 11.
[12] Christie Blatchford, “Trial fodder for foreman”, National Post (11 December 2013) A6. See also: Jesse McLean and David Bruser, “Judge dismisses call for inquiry into juror’s homophobic jokes on Dean Blundell Show”, Toronto Star (10 December 2013), online: <https://www.thestar.com/news/crime/2013/12/10/judge_dismisses_call_for_inquiry_into_jurors_homophobic_jokes_on_dean_blundell_show.html> [McLean & Bruser, “Judge dismisses call for inquiry”]; Ha, “Court orders new trial”, supra note 5; Tu Thanh Ha, “Appeal to be heard involving shock jock Dean Blundell’s producer’s on-air comments”, The Globe and Mail (20 April 2016), online: <https://www.theglobeandmail.com/amp/news/national/appeal-to-be-heard-involving-shock-jock-dean-blundells-producers-on-air-comments/article29699213/> [Ha, “Appeal to be heard”].
[13] McLean & Bruser, “Jury foreman’s joke”, supra note 6.
[14] Dowholis, supra note 1 at para. 12; Tu Thanh Ha, “Toronto man challenging sex-assault conviction over jury foreman’s on-air jokes”, The Globe and Mail (10 December 2013), online: <https://www.theglobeandmail.com/amp/news/toronto/toronto-man-challenging-sex-assault-conviction-over-jury-foremans-on-air-jokes/article15858608/>; Bruser & McLean, “Charges stayed,” supra note 2.
[15] McLean & Bruser, “Judge dismisses call for inquiry,” supra note 12.
[16] Ibid.
[17] Ibid.
[18] Jesse McLean & David Bruser, “Inquiry into on-air jokes by jurors rejected”, Toronto Star (11 December 2013) GT1.
[19] Ha, “Appeal to be heard”, supra note 12.
[20] Ha, “Court orders new trial”, supra note 5.
[21] Dowholis, supra note 1 at paras. 1-2, 17.
[22] Ibid. at para. 50.
[23] Ibid. at para. 29.
[24] Ibid.
[25] Ibid. at para. 46.
[26] Ibid. at para. 51.
[27] Ibid. at paras. 74-76.
[28] Ibid. at para. 130.
[29] Bruser & McLean, “Charges stayed,” supra note 2.
[30] Ibid.
[31] Ibid.
[32] Ibid.

 

Case Details

  • Full name:

    Joshua Dowholis

  • Gender identity:

    Male

  • Race/ethnicity:

    Unknown

  • Age - at the time of conviction:

    32

  • Charges - specific offences:

    Aggravated sexual assault; Forcible confinement

  • Date of conviction:

    2013-09-27

  • Date wrongful conviction was overturned:

    2016-10-31

  • Sentence - total time served:

    Unknown

  • Legal mechanism by which wrongful conviction was overturned:

    New evidence on first appeal

  • Status of alleged crime:

    No Crime Occurred

  • Compensation Received?

    No

  • Guilty plea?

    No

  • Cause(s) of wrongful conviction:

    Dowholis, a gay man, was convicted of sexual offences that allegedly occurred in connection with his attendance at a bathhouse. The convictions were overturned when it emerged that during and after his trial, the jury foreperson appeared on a radio show where he made homophobic remarks that graphically disparaged both Dowholis and the complainants.