COVID-19 is a global pandemic, and the Government of Canada is working around the clock to prevent its spread and ensure the health, safety and wellbeing of its citizens. From barring the entry of foreign nationals (except Americans) to strengthening health screening measures at airports, the Government is taking every step necessary to prevent COVID-19 transmission.
The Government’s Take on COVID-19
All criminal trials have been suspended in Canada in view of growing concerns around the pandemic. Courts across the nation have announced the adjournment of non-urgent matters.
While limitations vary by province, in the GTA, most cases have been brought to a standstill. The Ontario Court of Justice, which handles most of the province’s criminal cases, announced that all trials and preliminary investigations will be suspended until July at the earliest. Judicial officers will be available to work on urgent matters only.
However, they will also handle some regular matters like bail, remands, judicial pre-trials and pleas for the accused in custody. While restricting court proceedings is a positive move towards controlling the spread of COVID-19, it may have a harsh effect on the Charter rights of those awaiting trial.
Potential Effects on the Judicial System
Clearly states that those charged with an offence have the right to go to trial within a specific time. (This is also known as an accused’s right to a “speedy trial.”) The objective is to protect the constitutional rights of the accused as well as maintaining public confidence in the judicial system through timely court proceedings. In the wake of the R v Jordan decision in 2016, the Supreme Court of Canada sets out deadlines by which an accused must be tried. These are 18 months for Provincial Court trials and 30 months for Superior Court trials.
Ottawa-based criminal defence lawyer Michael Spratt said in a recent interview with Canadian Lawyer Magazine that although courts are being closed and trials postponed, he doubts that defendants will receive stays due to the COVID-19 shutdown. Spratt adds that the epidemic will cause “cascading delays,” since future trials will have to be delayed further to allot cases being adjourned now. Improper planning and preparation will open the door to criminal defence lawyers arguing against unreasonable delays. It’s the responsibility of the courts and Crown to put in place plans and ensure that trials keep moving instead of coming to a halt.
Another criminal defence lawyer, Jeinis Patel from Southern Alberta, said in the same story that one of the objectives of s. 11(b) is to reduce the psychological burden that awaiting trial has on an accused. This is the case even though they have yet to be proven guilty. With an initial adjournment of 10 weeks (which may very well be extended), those awaiting trial during this period have already been waiting a long time for a date. When the COVID-19 pandemic subsides and the courts recalibrate their schedules, it will take some time to get the judicial system running, he says.
Patel adds that the courts reopening will see a lot of people who will want their trials expedited, and resources will be limited, in terms of judges, courtrooms and court staff. On a positive note, there could be sentence reductions or early release from the abnormally harsh conditions being experienced by those in pre-sentence custody.
Toronto criminal defence lawyer Lisa Jørgensen added: “It is a very difficult time for those currently in Ontario’s jails.” This includes substantially restricted phone access to family and counsel. They are also not allowed to visit the canteen or avail themselves of basic resources.
Scary Situation for Inmates
Jorgenson adds that it’s a scary situation for inmates, along with those in pre-sentence custody. As they’re stuck in a place that restricts physical movement and communication with the outside world, it can be an emotionally difficult time for those in jail.
Says Patel: “Due to a fear of a COVID-19 infection, the courts are being liberal with bail terms.”
Ray of Hope
In the meantime, COVID-19 has become a subject of argument for accused inmates seeking release from custody to await their trials. And there have been confirmed coronavirus cases in Canadian prisons. Concerns about the pandemic and its possible effects on prisoner health are changing the way the criminal courts work. Judges are being asked to take the COVID-19 outbreak into consideration before making any decisions about detention.