How does the COVID-19 criminal trials shutdown affect Charter rights of those awaiting trial?

Courts across Canada have announced the adjournment of all non-urgent matters

How does the COVID-19 criminal trials shutdown affect Charter rights of those awaiting trial?
Michael Spratt

As the COVID-19 pandemic leads to the adjournment of criminal trials across Canada, criminal-defence lawyers say courts must act to effectively ameliorate the resulting delays and conditions of those in custody.

Over the past two weeks, courts across Canada have announced the adjournment of all non-urgent matters. Restrictions vary from province to province, but generally only proceedings involving an accused in custody – for bail hearings, preliminary inquiries, and youth criminal sentence reviews – are moving ahead.

Section 11(b) of the Charter affords those accused with a crime the right to be tried within a reasonable time. The purpose of the section is to protect the rights of the accused as well as societal interests in maintaining public confidence in the administration of justice, through seeing it carried out in a timely manner. The Supreme Court of Canada decision in R v. Jordan, set out a framework for analysing s. 11(b), establishing deadlines by which those accused of crimes needed to be tried: 18 months for Provincial Court trials and 30 months for Superior Court trials. In the wake of Jordan, hundreds of criminal charges have been stayed for unreasonable delay.

Despite the fact courts are being shut down and trials cancelled, Ottawa criminal-defence lawyer Michael Spratt says he doubts that defendants will receive stays for unreasonable delays as the result of the COVID-19 court closures.

“This is exactly the type of situation that would accurately be described as a discrete event or an exceptional circumstance. We can’t get more exceptional than a global pandemic,” says Spratt.

But he adds that COVID-19 will create “cascading delays,” as trials set for the fall will need to be moved to make room for those being postponed right now. If there isn’t proper planning and preparation to deal with the delays, Spratt says defence lawyers will have room to argue for an unreasonable delay. The onus is on courts and Crowns ensure they do everything necessary to move files forward.

“If, ultimately, the administration of justice doesn't develop a plan going forward for how to deal with these exceptional circumstances and how to minimize the delay flowing from the COVID-19 situation, that very well may be a Jordan issue,” he says.

Part of the multi-faceted approach of s. 11(b) of the Charter is lessening the psychological toll awaiting trial has on accused, even if they’re awaiting the trial outside of prison, says Jeinis Patel of Kay Patel Mahoney – Criminal Defence Lawyers. Criminal trials will be adjourned for at least 10 weeks but those who had their trials scheduled for that period, had already been waiting around eight months to get a trial date. Once the courts recalibrate, the Crown will have to subpoena witnesses, and accommodating witness availability takes around three to four months, says Patel, who used to work as a Crown prosecutor. Once the COVID-19 pandemic subsides, it will take some time to get the system running, he says.

“Once the justice system opens its doors again, there's going to be a backlog of a number of people that are going to want to get their trials heard sooner than later. And there's only so much that the court can actually accommodate in terms of their resources,” he says.

“There's only so many judges. There's only so many courtrooms. There's only so many court staff.”

Spratt adds that there could also be COVID-19-related “in-court ramifications” from current jail conditions. There could be sentence reductions from the unusually harsh environment being experienced by those in pre-sentence custody.

“We know that conditions at jails are horrendous at the best of times,” he says. “And we're hearing reports of a continued lack of cleanliness and increased lock downs and other restrictive measures in our jails that make that pre-sentence custody harsher and perhaps deserving of enhanced credit.”

Lisa Jørgensen practises at Ruby Shiller Enenajor DiGiuseppe, Barristers in Toronto and says it is “a very difficult time” for those currently in Ontario’s jails. Jørgensen’s clients tell her that many institutions are on lockdown most of the time. Visitation has also been suspended.

“Which means access to phone calls to family members and council are substantially constrained. People aren't able to access the canteen and other basic things that they do to keep themselves occupied,” she says.

“It's also a time that's scary for a lot of them because they're being told there's this virus going around and it can be very dangerous and they're stuck in a place with no access to movement, no ability to speak to their loved ones in many cases, and it can be a very emotionally difficult time for a lot of people in the jails. Not to mention the significant physical and emotional toll of being locked down in a cell for most of the day for a prolonged period of time.”

Because of a fear of a COVID-19 outbreak, Patel says the courts are being liberal with bail.

“There's a general push towards being a bit more ‘liberal’ with judicial interim release practices,” he says. “But generally speaking that would mean is that they're advocating a very healthy degree of suspicion towards keeping people in custody, in light of a potential outbreak because you have people that are going into custody.”

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