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Vivene Salmon

Jury trials nixed over COVID-19; SCC closed to public; courts offer remote hearings, adjournments

Friday, March 13, 2020 @ 10:59 AM | By Cristin Schmitz and Amanda Jerome

Last Updated: Friday, March 13, 2020 @ 5:09 PM


As concerns mount over the health risks from COVID-19, the Ontario Superior Court of Justice has suspended upcoming jury trials, while both the Supreme Court of Canada and the Ontario Court of Appeal say they will hear scheduled appeals for the time being, but are advising parties to contact the courts should they wish to appear by video or teleconference, or ask for an adjournment of their cases.

On March 12, one day after the novel coronavirus was upgraded to a global pandemic by the World Health Organization, Canadian courts, justice officials, legal organizations and law schools contacted by The Lawyer’s Daily were closely monitoring fast-breaking developments on COVID-19 as they scrambled to roll out plans for dealing with its risks and fallout.

Toronto defence counsel John Struthers, president of the Criminal Lawyers’ Association of Ontario, called for temporary closure of all courthouses in that province to help contain the spread of the virus. “You’re playing with peoples’ lives, shut it down,” John Struthers told the Toronto Star he advised Ontario judicial leaders and provincial and federal justice officials during a March 12 conference call held among key legal players to discuss what to do about the pandemic.

Struthers told The Lawyer’s Daily he perceived that federal and provincial government officials “were not as concerned as I believed need be.”

“We can’t wait and see on this one,” he urged. “We need to prepare and act now.”

Struthers said trials for in-custody accused are a major issue. “If someone has bail, then it should be evaluated,” he advised. “Any reasonable request for adjournment should be considered for all participants. But I see in a matter of weeks, [the courts] may just be shut down. The balance of the time should be spent preparing for that, with a plan for remands, and rebooking,” he suggested. “Everyone is on a new raft here, and we are all trying to make sense of it together. ... Let’s be smart.”

The Ontario Superior Court of Justice, the country’s largest superior trial court, announced that Chief Justice Geoffrey Morawetz has suspended jury panels for all upcoming civil and criminal jury trials at all court locations “until further notice.” Summoned jurors will be told not to attend court.

“Jury trials currently in progress will continue, unless the trial judge orders otherwise,” the court advised The Lawyer’s Daily. A notice to the public, profession and media was to be posted on the court’s website March 13 providing information and direction to litigants, accused, lawyers, the public and the media regarding the court and COVID-19.

The Superior Court said it is working on contingency planning with the Ontario Ministry of the Attorney General in the event that court operations are disrupted. “The safety of all who use and rely upon the court is essential,” the court said in its statement. “Equally important is continued access to the Ontario Superior Court of Justice should COVID-19 disrupt court operations.”

Brian Gray, a spokesperson for the Ontario Ministry of the Attorney General (MAG), said the government “takes the health and safety of our staff and court users very seriously. MAG officials are actively engaged in preparedness planning with our partners in the justice system.”

He said each Ontario courthouse plans for the continuity of operations in the event a courthouse is faced with an emergency that could disrupt normal court operations. “These plans are developed and implemented for situations in which the courthouse, court-related facilities, or court operations are disrupted, inaccessible, or operationally compromised, for example as a result of a natural or manmade disaster, or pandemic/health-related situation,” he explained. “The Ministry is actively working with our justice partners to monitor the situation and to be ready to activate these plans locally should the need arise.”

Gray said the Ministry is following protocols to help protect the health of staff, and all who use courthouses, by keeping staff and other users informed of hygiene protocols and the public health guidance related to travel from COVID-19 impacted areas.

Early on March 13, Nova Scotia’s judiciary announced that, as a preventative measure, the province’s Supreme Court is immediately suspending all upcoming jury trials for a period of 60 days, at which time the situation will be re-evaluated.

The order, issued by Nova Scotia Supreme Court Justice Deborah Smith, is applicable to all jury trials that have not yet commenced.

While there are no confirmed cases of COVID-19 in Nova Scotia, the court felt a need for precaution.

“Earlier today, the province’s chief medical officer of health encouraged all individuals, employers and community organizations to limit gatherings to no more than 150 people to help prevent the spread of the coronavirus in Nova Scotia,” said Chief Justice Smith. “The Supreme Court is following suit and out of an abundance of caution, is suspending jury trials, as the selection process often requires hundreds of potential jurors to attend court at the same time.”

Nova Scotians who have received a jury summons appear at court within 60 days from March 13 — and who are not currently involved in a case — are now released from the summons, according to a judiciary press release, which went on to state that the courts are “putting plans in place to prepare for the likelihood that we’ll see confirmed cases in this province in the future.”

In a similar move, the courts of Newfoundland and Labrador have postponed four upcoming jury trials scheduled between now and May 31, according to a spokesperson with the province’s Department of Justice and Public Safety.

Residents who have received a jury summons need not need appear, they said, adding that new summonses will be issued when the trials are rescheduled.

The Law Society of Newfoundland and Labrador recently sent a message to its members, warning that COVID-19 “is very likely to incapacitate some employees and result in other employees being quarantined,” which could result in a “major disruption.”

“Now might be a prudent time for law firms to review and update their business continuity plans to assure operational resiliency,” it states, going on to recommend that lawyers consider COVID-19 when making deadlines, train staff appropriately and to consider a replacement should a lawyer have a “personal emergency.”

The law society’s impending Continuing Legal Education seminars can be offered via videoconferencing, said a spokesperson, adding that, to date, the law society is “not aware of any confirmed cases in Newfoundland and Labrador … of any members who have been particularly impacted,” they said.

Prospective jurors already summoned are being contacted and told they need not attend.

Following recommendations from health officials, New Brunswick’s Court of Queen’s Bench has decided to immediately adjourn all scheduled jury trials until May 12.

“The chief justice has made this decision in the interest of public health following consultations with the province’s chief medical officer of health,” said New Brunswick Justice Minister and Attorney General Andrea Anderson-Mason. “The government supports this decision as we believe this step supports the goal of slowing or preventing the spread of COVID-19.”

Meanwhile, Saskatchewan’s provincial court is taking its own set of precautions and has issued a statement “discouraging all unnecessary visits to the court” in the name of “social distancing.”

Also, visits “by classes and other groups have been cancelled effective immediately,” states a news release.

“In consultation with Court Services, the court is encouraging the use of video and audio appearances for individuals in custody. Lawyers are asked to obtain designations of counsel in indictable matters so that the accused person is not required to appear at the docket stage. As well, counsel is asked to obtain instructions from their clients at the docket stage to reduce unnecessary appearances in summary conviction matters by accused.”

However, preliminary inquiries and trials will proceed as scheduled, the court states, adding that “all parties are asked to notify the court in advance if they are exhibiting COVID-19 symptoms.”

Out of concern for the health and safety of its visitors and employees, the Supreme Court of Canada decided March 12 to close its building to the public and cancel all currently scheduled public events and guided tours, although members of the public can still enter the courthouse to file documents with the Supreme Court’s registry.

Renée Thériault, Supreme Court executive legal officer

The court intends to go ahead with scheduled hearings in March and in the spring session, while permitting parties to seek adjournments or appear via teleconference or video link, Supreme Court executive legal officer Renée Thériault confirmed.

“The chief justice and senior court officials are personally and actively monitoring the situation,” she told The Lawyer’s Daily. “We are following the protocols and advice from public health authorities. It is an evolving situation, and other potential measures are currently being considered to address the situation, as the need arises.”

Amélie Lavictoire, executive director and general counsel to the Federal Court of Appeal and to the Court Martial Appeal Court (CMAC) told The Lawyer’s Daily those courts’ operations are not currently affected.

The CMAC has no hearings scheduled in the next few weeks, she said. And “for the time being,” Federal Court of Appeal hearings are still going ahead in Montreal and Calgary next week and, the week after that, the court is still scheduled to sit in Toronto, Lavictoire said. “We have not received requests to adjourn, or to modify how the hearings will be conducted, she said. “If such requests were received, the court would, of course, consider them.”

Lavictoire noted that “given the frequency of hearings and the possibility that the situation could evolve rapidly, the Federal Court of Appeal will re-evaluate the situation as it evolves and will make the adjustments necessary, if and when required.”

Sophie Matte, executive legal counsel to the chief justice of the Tax Court, told The Lawyer’s Daily the Tax Court has cancelled all its sittings scheduled for the weeks of March 16 and March 23. “The court will reassess whether additional sittings need to be cancelled on March 25th,” she explained. “Our offices remain otherwise open.”

Law schools, where students are busy finishing assignments and preparing for final exams, were also contemplating or making adjustments to deal with the health risks from COVID-19.

Western University announced March 12 that while its libraries and other buildings and facilities will remain open, it is cancelling classes, effective March 13 up to and including March 17, 2020, in order to provide instructors and academic support staff time to prepare to deliver course content in alternative ways.

Western said any exams scheduled during this period will be rescheduled. Moreover, the university is working on contingency planning for final exams.

Starting March 18, and for the remainder of the term, Western said it will move its classes online. “We don’t have experience in transitioning at such a scale, and so we will all need to be patient with each other as we do so,” Alan Shepard, the president of the university said in a March 12 statement. “We know these decisions will cause some disruption, and we apologize for that,” he continued. “Over its 140-plus years, Western has faced several moments of adversity, but we have not experienced anything quite like this before. We’re in uncharted territory. The steps above are being taken out of an abundance of caution and in an effort to reduce risk.”

In separate March 12 statements, the administrations at the University of Toronto and York University indicated that classes were continuing for now, and the universities were actively planning for the possibility that their operations might be disrupted. “We hope to be able to complete the term without disruption,” said the University of Toronto. “We are continuing to carefully assess the global situation, consider the advice of public health authorities and the interests of our community. Our preparations are focused on the need to ensure the health of our community, and the continuity of our academic and business activities.”

York University spokesperson Yanni Dagonas said “we have already implemented a number of health and safety measuresandremain ready to adjust or change our approach as the situation changes, including the possibility of moving to online instruction.”

As of March 13, the Law Society of Ontario (LSO) decided to cancel the March 17 solicitor licensing exam. The regulator announced on Twitter that “Having regard to the public interest and the safety of all candidates, employees and the public, the March 17 solicitor licensing exam will be cancelled. The law society understands the impact that this decision has on licensing candidates and has not made the decision lightly.”

“As it has been doing over the past several weeks, the law society will continue to explore options available to minimize the impact on candidates. At this time, candidates may continue to register for the June licensing examinations. For candidates who have questions, contact Licensing and Accreditation through your online account during regular business hours. Support is available through the Member Assistance Program,” the LSO added.

“As the situation evolves and the advice of medical authorities changes, the law society will review business operations and proactively inform all employees, licensees, candidates and others,” Ontario’s legal regulator said in a March 12 statement. “We have enhanced hygiene and cleaning protocols at all law society offices and locations where off-site events such as examinations are to take place.”

Vivene Salmon, CBA president

Vivene Salmon, president of the Canadian Bar Association, referred lawyers to the organization’s website where there is a podcast and other material providing advice — and protocols for clients dealing with pandemics in the workplace — “which I think is an important useful tool for our members.” 

COVID-19 is “of great concern to everyone internally in the CBA with respect to our members,” Salmon said. “We’ve been quite early out of the gate on this in terms of making sure our members are prepared.”

The CBA’s much-anticipated national immigration law conference, scheduled to be held in Montreal in early April, has been postponed to an as-yet-undetermined date, in response to the risks presented by COVID-19, the association confirmed.

The Canadian Corporate Council Association confirmed that its April conference in Montreal has been postponed to fall 2020.

A spokesperson for the Ontario Bar Association said “we are in the process of outlining a suite of services to support Ontario lawyers and our partners. For example, we will make our remote meeting and learning capacity available to our member firms and partners. We have extensive distance learning infrastructure already used by thousands of clients each year. Until more is known, we will provide lawyers and our partners with professional development that is entirely remote — neither speakers nor participants need to gather in person.”

The OBA said in its prepared statement that it is also closely following Health Canada’s recommendations on enhanced cleaning and distancing protocols, and employing them in the maintenance and setup of its conference centre. “We will continue to follow the most current information and recommendations in order to provide the services our members expect in a safe and responsible way.”

In a March 12 statement, the Toronto Lawyers Association said that, based on current advice it received from public health officials, it plans to continue with upcoming education and social programs. Should circumstances change, it will make the educational programs available by web replays. The association said the courthouse library at 361 University Ave. in Toronto remains open.

The Advocates’ Society announced on March 13 that it’s making amendments to its program calendar.

“All collegial events, meetings or gatherings scheduled to take place in the next 30 days (before April 12) will be postponed or cancelled,” the statement from the society’s CEO, Vicki White, said. “With respect to education programs, for the next 30 days (until April 12), wherever webcasting is possible programs will proceed by webcast only. We are assessing options for our small group learn-by-doing programs. We will be in touch with registrants, faculty and sponsors of all education programs regarding arrangements for their programs.”

“We will continue to monitor the situation and will provide further updates, including decisions for future programs, in the coming days,” White added.

Pro Bono Ontario (PBO) announced March 12 that “until further notice” it is temporarily closing its court-based Law Help Centres at 393 University Ave. and 47 Sheppard Ave. E. in Toronto, while boosting its provision of summary legal advice and legal drafting assistance though the free legal advice hotline at 1-855-255-7256.

“PBO’s service priority during this time will be to maintain the operation of the hotline and to increase its capacity to the extent possible to meet the anticipated surge in demand,” the organization said in a statement. “PBO has asked all volunteers currently scheduled for either the court-based centres or the hotline to take calls on the hotline remotely from their homes or offices.”

A spokesperson for the Alberta Ministry of Justice and Solicitor General said provincial correction and remand staff take their direction from Alberta Health Services (AHS) with regards to health matters within facilities.

“Decisions regarding the business continuity of government, including correctional and remand centres,or court operations during a pandemic are informed by Alberta’s public health officials,” the spokesperson said. “There are business continuity plans for court, corrections and remand operations, and the plans continue to be reviewed in light of recent events and any direction from Alberta’s public health officials.”

If and when daily operations are impacted, court officials or correctional/remand officials will make the needed arrangements as appropriate, the spokesperson said.

“Speculation on what these arrangements could include is inappropriate, as the decisions made would be based on the specific circumstances at the time,” the spokesperson said. “Similarly, safety and security precautions limit the details that can be shared as well.”

The Law Society of Alberta has postponed all in-person events “and will continue to evaluate this decision on a monthly basis.”

“In the meantime, we will use conferencing and webinars as alternatives to continue sharing valuable resources and information,” the law society said in a release.

The B.C. Court of Appeal and Supreme Court said in a release that all courthouses and courthouse proceedings will remain open to the public until further notice but is recommending people follow public health recommendations and avoid visiting the court if they feel ill.

“Counsel are encouraged to touch base with their clients and any witnesses scheduled to come to court to ensure that they are healthy enough to attend,” the courts said. “If there are any concerns, arrangements may need to be made and this should be addressed before the presiding judge or master in consultation with the other parties. Counsel or litigants who are ill, in self-isolation or in quarantine may be able to attend a court hearing by telephone.”

The courts added jury selections and jury trials are proceeding as scheduled.

“Members of the public who have received a jury summons must attend as required on the selection date identified in the summons. Jurors must attend trial as required. However, anyone who is ill, in self-isolation or in quarantine, should not attend, but should contact Sheriff Services by telephone or e-mail for instructions,” the courts said. “If the situation reaches the point where a reduction of court operations or other measures are necessary, the courts will post information on this website as soon as possible.”

With files from Terry Davidson and Ian Burns.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Cristin Schmitz at Cristin.Schmitz@lexisnexis.ca or at 613-820-2794 or Amanda Jerome at Amanda.Jerome@lexisnexis.ca or call 416-524-2152.