The Closure Of Ontario Courts And The Right To Be Tried Within A Reasonable Time

April 29, 2020

Accused, now more than ever must be proactive in asserting their right to be tried within a reasonable period of time as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms. Failing to act, may take away a potential defence to your charges - having your charges stayed for unreasonable delay - and signal to the court that you are content with the anticipated backlog about to tie up Ontario’s court system.

In this article, we discuss what the implications are to the court system amid COVID-19, how delays are handled in court cases, and what someone accused of a crime can do today to receive the best possible outcome in their criminal case. 

What’s happening in Ontario courts as a result of COVID-19?

As a result of the onset of COVID-19, the Ontario Government has ordered the closure of courthouses across Ontario. Virtually all trials, pre-trial applications, guilty pleas, and sentencing hearings, previously scheduled between March 16 and June 1, 2020, will need to be rescheduled. All matters scheduled in the Ontario Court of Justice between March 16, 2020, and May 27, 2020, are being adjourned. Similarly, all matters scheduled in the Ontario Superior Court of Justice between March 17, 2020, and June 1, 2020, are being adjourned.  To find out what date a matter is being adjourned to, see list of adjournment dates

What will happen when the courts reopen?

Once the Ontario courts startup again, delays in bringing accused to trial are anticipated to be significant and lengthy. Presumably, accused’s with previously scheduled trials will be given priority over all of those individuals in the system who have not yet set trial or have recently been arrested. Thus, a backlog and substantial delay will likely be the reality for those who have yet to even set an initial date for trial. It is likely thousands of cases currently in the system will exceed the eighteen-month presumptive ceiling for reasonable delay as set by the Supreme Court of Canada in R. v. Jordan, 2016.

Accused presumed innocent of the crimes they are charged with will be in a state of limbo with literally no end in sight to the stress and anxieties associated with having criminal charges hanging over their head.

What can an accused person do today?

While courts are not conducting business as usual, there are still many things that an accused person can do to assert and protect their right to be tried within a reasonable time. Accused persons should be:

  • Retaining counsel as soon as possible
  • Not waiting until the courts resume normal operations or for their first appearance, which may be months away. 

Retaining counsel at an early stage in the process is crucial now, more than ever, in the wake of the current pandemic which has closed down Ontario’s court system.

Criminal Defence Lawyers and COVID-19

Criminal defence lawyers have been declared as emergency service providers and at Pyzer Criminal Lawyers, we have continued to defend our client’s interests in the face of the global pandemic. 

We have continued to meet with clients by telephone, zoom video conferences and in-office meetings (conducted at a safe distance). We have been able to request, receive and review disclosure, schedule, and conduct crown and judicial pre-trials. 

Despite the closure of the courts, we have continued to move our client’s matters forward, asserting our client’s rights to a trial within a reasonable time. It is essential to signal to the Crown and the courts that our clients are ready and anxious to proceed. As soon as we have been retained, we are formally going on record as counsel and requesting initial disclosure. 

Steps We Can Take During the COVID Pandemic

We have been able to receive disclosure on behalf of our client’s from most courthouses and all Crown offices have been available to conduct Crown Pre-Trials. 

Finally, we have been requesting and conducting Judicial Pre-Trials where required and available. Simply put, we have been assisting our clients by acting swiftly, doing everything possible to get their matter to the point that a trial date is ready to be set but we are told that we cannot move forward. 

Courts are not currently setting any future trial dates, so any resultant delay cannot be said to be that of the accused. Should delay eventually become an issue, we have left every possible defence available to our clients, including a potential stay application if our client's right to be tried within a reasonable time are infringed upon.

How COVID-19 Delays May Be Treated

The issue that will be litigated is whether the closure of the courts as a result of COVID-10 is an exceptional circumstance that should not be included in the calculus of delay. While no doubt, some delay to your case may reasonably be classified as an exceptional circumstance, we firmly believe there are constitutional limits on this argument. An accused’s Charter rights cannot be suspended ad infinitum. Delay caused by exceptional circumstances such as the COVID-19 pandemic should only be deducted to the extent the delay could not be reasonably mitigated by the Crown and the Justice system as per the Supreme Court of Canada in R. v. Jordan, 2016.

The Treatment of Trial Delays: R v. Jordan

In R. v. Jordan, the Supreme Court of Canada considered the right to be tried within a reasonable time as guaranteed by section 11(b) of the Charter. The Court reaffirmed the importance of the right to be tried within a reasonable time and confirmed that timely justice is one of the hallmarks of a free and democratic society. The court stated that “justice delayed is justice denied.” 

The court emphasized that Canadians expect our criminal justice system to bring accused persons to trial expeditiously. The court noted that as the months following a criminal charge become years, all players in the judicial system suffer. Accused persons remain in a state of uncertainty, often in pre-trial detention, with charges hanging over their heads. Victims and their families are unable to move forward with their lives. And the public, whose interest is served by promptly bringing accused persons to trial, is frustrated as years pass between charge and trial. 

In declaring that an efficient criminal justice system is of the utmost importance, the Supreme Court developed a new framework for applying the protection provided by section 11(b) of the Charter. 

At the core of the new framework is a presumptive ceiling on how long it should take to bring an accused person to trial:

  • Eighteen months for cases going to trial in the Provincial court, and 
  • Thirty-months for cases going to trial in the Superior Court. 

The framework provided by the Supreme Court includes case-specific factors both above and below the presumptive ceiling.

What Efforts Are Crown Offices Taking Amidst the Coronavirus Pandemic?

While the Crown offices and courts are making substantial efforts since the onset of the virus, there can be no denying our court system was not prepared to deal with a pandemic, some experts predicted years ago. Even when word of the COVID-19 virus began to spread in December 2019, the Ontario government was slow to act in putting sufficient protocols in place for our criminal justice system. The criminal justice system in Ontario has been neglected for years and was not technologically equipped to deal with the new realities of a pandemic.

Furthermore, the strategy of dealing with the pandemic, by essentially closing down our communities, was put in place because Ontario hospitals had also been neglected for years. Ontario was not sufficiently prepared to deal with the COVID-19 virus, having only approximately 1700 Intensive care unit beds across the entire Province. So while there is no denying that the COVID-19 is an exceptional circumstance, there is also no denying that the closure of Ontario Courts and the subsequent delay of thousands and thousands of accused person's trials, was as a result of an unprepared and ill-equipped government. 

While adjourning existing trial dates for approximately ten weeks may be justified as an exceptional circumstance, scheduling first appearances three and four months following an arrest, refusing to set new trial dates or resetting previously scheduled dates in order to keep matters moving forward may not be seen as exceptional or reasonable in the circumstances. 

Another factor in the analysis will likely be the inability of some jurisdictions to adapt to the new realities while other jurisdictions have been able to do so. In some courthouses, disclosure is being provided to counsel for accused by way of a provincial electronic delivery system. However, some jurisdictions have refused or been unable to make use of this readily available technology. Some courthouses have been unable or unwilling to conduct Judicial Pre-Trials while others have been. These notable idiosyncrasies in different regions throughout the Province call into question why some regions are capable of moving matters forward and others have not. Is it reasonable that thousands and thousands of accused who are presumed innocent and in some cases have been waiting months or even years for their trial simply have had their matters canceled with no return date in sight?

How May Trials After COVID-19 Be Conducted?

One only needs to look to the not so distant past for some direction as to how unreasonable delay caused by COVID-19 may be handled by Ontario Courts. In the seminal 1990 case of R. v. Askov, three accused were charged with a number of charges including conspiracy to commit extortion. The three were charged in November of 1983 and the matter was scheduled for a Preliminary Inquiry for July 1984, however, the Preliminary Inquiry was not completed until September of that year. 

The trial was scheduled to begin in October 1985, but the trial could not proceed as scheduled as the court could not accommodate the matter during the scheduled session as a result of overbooking their docket. The trial was delayed until September 1986, almost two years following the completion of their Preliminary Inquiry. The three accused successfully applied to the court for a stay of proceedings arguing that their right to be tried within a reasonable period of time had been breached. Ultimately, the matter was appealed to the Supreme Court of Canada and the court upheld the trial judge’s finding and re-entered a judicial stay of proceedings effectively dismissing the case against the accused. 

In this case, the Supreme Court set out the importance of the right to be tried within a reasonable time.  As a result of this decision, literally thousands of cases across Canada were stayed on similar grounds. In Ontario, forty-seven thousand charges were stayed as a result of the institutional delay and backlog identified by the Supreme Court of Canada in our court system.

What An Accused Should Do Today

Even if you are looking to resolve your charges and not set a trial date, now is the time to act. The court’s and Crown Attorney Offices are also anticipating significant delays in the system moving forward. Crown Attorney’s have been attempting to resolve as many cases as possible and have been offering generous positions such as peace bonds and withdrawals when they were not previously available with the hopes of clearing as many marginal cases out of the system as possible.

The backlog in our system, not seen since 1990, is about to become a serious issue in the Ontario Courts as a result of the onset of COVID-19. Accused who wish to leave every possible defence available to them, including their right to be tried within a reasonable time, will be proactive by retaining counsel and doing everything possible to move their matters forward. Furthermore, accused who act quickly and decisively may be able to take advantage of favourable Crown resolution positions, including having their charges withdrawn.

Contact Pyzer Criminal Lawyers today to learn more about how we can help you receive the best possible outcome in your criminal charges 

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