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From Jordan timelines to online trials to niqabs: 2020 in review

Tuesday, January 05, 2021 @ 8:38 AM | By Nathan Baker


Nathan Baker %>
Nathan Baker
As with most areas of law, the major impacting factor last year was COVID-19. At least for the foreseeable future, the pandemic will continue to impact matters. The move to virtual courtrooms has been nothing short of amazing. Stakeholders in the criminal justice system have endeavoured to adapt to the shifting footing that seems to change each day.

As a result of the slowdown of courts during the early stages of the pandemic, and the gradual ramping return to function, the number of cases being carried in the Ontario Court of Justice has swollen. While courts have begun to clear matters as quickly as they can, the backlog created by cases continuing to enter the system but not completing over the months of courts closure will continue to impact court operations for some time to come. This impact will mean that a firm assessment of each case before the court will be integral to make sure that court time is being used in the most efficient manner. Increased use of alternate measures by Crowns is one opportunity to deal with issues while still holding offenders responsible.

Creativity in sentencing will be another. The Ontario Court of Appeal’s decision in R. v. Sharma 2020 ONCA 478, which allows for conditional sentences in a wider range of cases means that prosecutors may consider this as a tool for determining alternate modes of sentence. The exhortation in R. v. Priest [1996] O.J. No. 3369 to consider every remedy other than a jail sentence for first time offenders continues to ring true.

Sentencing considerations have changed during the pandemic. The conditions in remand facilities have changed. Most facilities have cleared out a significant number of cases. However, the danger of catching COVID-19 in such close quarters as a jail is a significant worry. As well, the need to quarantine means that individuals in custody may have a harder time obtaining services such as making phone calls or having visitors while the pandemic is ongoing.

It is worth noting the number of matters for which judicial interim release was granted in such a quick fashion at the outset of the pandemic. It highlights that many people were in custody during remand needlessly. As we come out of the pandemic, we must ensure that individuals who need not be held in pretrial custody are released.

The assessment of the delay caused by the pandemic and how it relates to the Jordan timelines will continue for some time (R. v. Jordan 2016 SCC 27). The suspension of all trial proceedings by the chief justices of each court will undoubtedly be classified as an exceptional circumstance as set out in Jordan. This issue has been dealt with in a handful of trial court decisions but as yet has not been the subject of any authoritative appeal. While the suspension of trial proceedings will likely be excluded from Jordan assessments, for what period of time this applies may vary from case to case.

The choices made by Crown or defence to proceed virtually or in person may need to be assessed in determining the appropriateness of delay. Matters were essentially paused over the summer awaiting the reopening of the courts. However, with the reopening of most provincial courts in Ontario beginning in September, the assessment of delay post-opening will be a key determination to be made. A person has a right to a jury trial in certain matters. Most jury trials remain under suspension. How then is a court to assess this delay? Juries continue in some jurisdictions. If an accused offers to have their matter transferred to one of those jurisdictions in order to obtain a faster trial date, what can a court make of such an offer?

If an accused insists on a trial in person and this leads to delay, what then? The number of permutations seems endless. The particular facts of each case will be essential in determining whether the matter has taken longer than is required under the Jordan timelines. Jury trials will remain unavailable for the foreseeable future.

Provincial Offences Act (POA) matters are where the greatest number of people come in contact with the courts. At a time when other provincial courts were reopening, the Ontario Court of Appeal released R. v. Nguyen 2020 ONCA 609 which adopted the Jordan timelines for POA matters. However, as of the writing of this article in December, the POA courts in Ontario remain shuttered with no plans to reopen until sometime in 2021. For individuals who wish to see their matters through to completion, the closure represents a significant intrusion on their lives.

The stresses of facing a POA offence can be significant. Determining the impact of the decision to leave the POA courts closed on the assessment of an individual’s right to a trial within a reasonable time will undoubtedly form a significant portion of POA litigation upon the court’s reopening.

The move to virtual hearings has created opportunities for lawyers everywhere. No longer are counsel required to find agents or travel to far-flung jurisdictions should they be retained. Court appearances, meetings with Crowns, judicial pretrials and even some trials can be accommodated virtually. The ability to retain expert witnesses and limit travel means that defendants should be able to access expertise at trials more readily.

Courts are able to back each other up in ways they were previously unable to. When a court in one jurisdiction concludes early, they can help in other ways including hearing bails or pleas from the same location or another, if needed. An evaluation of justice resources being provided by judges outside the jurisdiction will need to be undertaken at some point. While there are definite advantages to the efficiencies this could create, there are strong reasons why a judge with links to the jurisdiction may be in the best place to deal with matters.

However, the move to virtual hearings is not all good. There certainly are some cases which work best in person. While these need to be limited with the pandemic, a person’s right to be heard in person must not be abrogated. The example in Woods v. Ontario 2020 ONSC 6899 where the Ontario Review Board proceeded virtually over the objection of Joanne Woods exceeded its mandate which only allows for videoconference with the consent of the party pursuant to s. 672.5 of the Criminal Code. Assessments of when matters can proceed virtually and when they must proceed virtually will continue to shift.

The availability of a vaccine, the resources the court can muster and personal protective equipment may all impact the reasonableness of an in-person hearing. In many sexual offence matters, witnesses already testify out of court. The expansion of the number of cases where this becomes customary is likely. The Supreme Court in R. v. N.S. 2012 SCC 72 considered a witness’s desire to wear a niqab while testifying. The court concluded that where a person has a sincerely held belief, that a court balance the competing rights of a person’s religious freedoms with the truth-seeking function of the trial and whether seeing the person’s face is required to properly assess credibility.

With the advent of COVID, there are more people wishing to wear a face covering in court. A witness may have a sincerely held health reason for wearing a mask. Courts will have to assess whether there is a balancing which can allow a person to remain safe through other means such as appearing by video or from behind a screen or some other form of PPE. Similarly, an accused may wish to remain masked during their trial. The availability of an order to have the accused remove a mask for identification purposes certainly exists, but the value of this will need to be assessed by a court. In-dock identification has become of less persuasive value as time goes on.

There are certainly changes which have made the court process better and some which are less than optimal but necessary during the pandemic. The courts have moved with a speed which would have been unbelievable only a year ago. Keeping the beneficial processes which we have gained while shedding those that do not work as well will be essential work for courts, government and local courts management committees over the coming months.

The issues of open courts has been at the fore in recent weeks. With courts having gone virtual, it is not as simple as just showing up at a courthouse to watch a trial. However, with the move to virtual hearings, this actually opens an opportunity to make the courts more open. In cases with a significant public interest, judges have made links to proceedings available to ensure that the open court principle is applied.

New strategies to ensure that rules of the court such as prohibition on recording will be needed but these sorts of issues have been developing for some time now. Most phones have cameras and an Internet connection, meaning that anyone could broadcast court proceedings merely by attending. While open links increase this risk, with proper controls this mischief can be managed in many cases.

This is part one of a two-part series. 

Nathan Baker is a criminal defence lawyer in Peterborough, Ont., and is a sole practitioner at Nathan Baker Law. He takes special interest in impaired driving cases, especially those involving drug impaired driving and impaired boating. E-mail him at nathanbakerlaw@gmail.com.

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