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In Quebec, a court recently decided not to postpone a criminal trial, despite the prosecution’s request due to the Covid-19 pandemic. The court found that the trial qualified as an urgent matter. Ontario directives relating to criminal trials during the pandemic are set out below.

What Happened?

The accused had been charged with aggravated assault and breach of recognizance. The accused had been detained since February 21, 2020, pending his trial.

The criminal trial had been scheduled for March 31, 2020. However, due to the Covid-19 pandemic, the prosecution made a request for postponement on March 20, 2020.

During the conference call held on March 20, 2020, the judge decided to hold the trial but with various health instructions, which included hearing testimony from one witness and the accused through videoconference, limiting the number of people in the courtroom, following distancing measures and reducing staff at the court.

However, on March 24, the prosecution submitted a new request for postponement, stating that there was no urgency to proceed. The prosecution claimed that the fact that the accused was in detention was not a sufficient reason to justify holding the trial and the issue of time limitations set out in the Myers Supreme Court of Canada decision should not influence the court’s decision. The prosecution claimed that it was the defence’s burden to prove the urgency of the case. Finally, the prosecution argued that the protection of the public, witnesses, prosecutors, court staff and judges should take precedence in the face of the Covid-19 pandemic.

In response, the defence argued that the Myers decision requires the holding of a trial of an accused as quickly as possible, the maximum time being 90 days, and asked that the trial proceed as planned. The defence argued that the health measures established by the judge ensured the safety of all involved. 

Decision

The court explained that s. 11(b) of the Canadian Charter of Rights and Freedoms provides that every accused person has the right to be tried within a reasonable time. The court also cited the importance of a speedy trial for individuals who are in pre-trial detention in light of the Myers decision.

The court then noted that no person, including the judge, lawyers, court staff and witnesses, had reported symptoms of COVID-19.

Finally, the court stated that the prosecution’s proposal would merely postpone the problem and create a risk of bottleneck due to numerous postponements.

As a result, the court dismissed the prosecution’s request for postponement and declared the accused’s trial to be an urgent matter. The court ordered the trial to proceed in accordance with the previously set out health measures.

Ontario Directives Regarding Criminal Trials

On April 2, 2020, the Ontario Superior Court of Justice issued a notice, stating: 

“To address the safety of all who use and work in the Ontario Superior Court of Justice (SCJ), the Court suspended its regular operations and implemented processes to have ONLY urgent matters heard in all areas of its work as set out in the Notices to the Profession issued by the Superior Court of Justice on March 15, 2020, which came into effect on March 17, 2020.”

Additionally, the notice states:

“As the COVID 19 pandemic continues, the Court recognizes it has a constitutional responsibility to ensure access to justice remains available. To promote access to justice, to minimize growing caseloads, and to maintain the effective administration of justice in Ontario, the Court is expanding its operations beyond the most urgent matters. All matters will be heard remotely by way of telephone or video conference.

For the Court’s processes to be successful, judges of the Court will require lawyers to act co-operatively and to be flexible to achieve a timely, just and fair hearing. Counsel, accused persons and all court participants can anticipate that the judiciary will, in turn, make every effort to respond with flexibility and creativity, where feasible and appropriate.”

Finally, the notice explains:

“The emergency created by COVID-19 may, in some instances, render strict compliance with the procedural rules set out in the Criminal Proceedings Rules impossible or impractical. The rules were drafted without contemplation of how virtual court hearings would be conducted in a pandemic. These functional gaps cannot be an impediment to the timely, fair and just adjudication of matters heard by the Court.”

Get Advice

During this time of social distancing, at Campbell Bader, we have moved our full business online and we continue to meet all our clients’ legal needs by using online technology. Please email us at info@campbellbader.com for assistance. In most cases, we will send a single link to clients, allowing them to join a meeting with just a click. 

Being criminally convicted can have a significant impact on your life, leading to a permanent record, significant fines, and/or jail time. This can seriously impact your reputation, your employment opportunities, and even your ability to travel outside of Canada. If you have been charged with a criminal offence, it is imperative to consult with a knowledgeable criminal defence lawyer as soon as possible to learn about your options and to protect yourself.

At Campbell Bader LLP, we can help. Our team of exceptional Mississauga criminal defence lawyers has been representing clients charged with criminal offences since 1999. We are highly skilled litigators and have conducted trials in the Superior Court and Ontario Court of Justice. We have the knowledge, experience, and skill-set to effectively defend clients charged with even the most serious of offences. We will listen, consider, and provide you with practical options. Contact us online or at 905-828-2247.