It goes without saying that the judicial system has been hit hard by COVID-19. This isn’t wildly surprising – there was no solidemergency response strategyin place for a situation like this, and as a result, a significant amount of time and resources have been expended to create a sense of control amongst the chaos.
It was acknowledged early on that certain individuals in the justice system would be disproportionately effected – accused persons in custody awaiting trial or sentencing, residents of remote communities that operate under a court circuit, and, of course, the victims in cases where there is uncertainty of if or when the case proceeds at all.
Since the World Health Organization declared a pandemic in response to COVID-19, law enforcement has tried to adapt where required. One of the most profound changes relates to the processing of newly accused individuals – and it may provide context into why intimate partner violence has surged during the pandemic. Between April 6 and May 6, 2020, 8 tragic incidents of domestic violence against women across Canada resulted in fatalities. There is, of course, no doubt about the fact that violence in relationships occurred before COVID-19, and will continue long after the pandemic is declared over – but there are aspects to a surge in intimate partner violence that are directly linked to the virus and to the policies that have been implemented when trying to process, manage, and supervise offenders.
Hundreds of accused persons awaiting trial in custody have been released, with chargeable offences ranging from assault, fraud, drug trafficking and beyond. Again, not surprising – as we’ve discussed previously on the blog, the correctional system serves as the perfect breeding ground for the virus, and it would be beyond cruel and unusual to take no action at all to protect those that are considered to be among the most vulnerable.
It’s the way that law enforcement has chosen to operate on a “catch and release” scheme in cases that would, under normal circumstances,require a bail hearing– and probably a highly contested one at that – that has likely contributed to domestic violence rates during COVID-19. Due to concerns about the nature of the virus and its ability to spread quickly, bail hearings have occurred less frequently, even with video-conferencing and telephone conferencing put into effect to streamline the process and protect the health of all parties involved. Instead of a bail hearing, an accused is more likely to be released on an Undertaking. The Undertaking may require that the accused check in with a bail supervisor weekly – something that is generally done on an in-person basis, where the most value lies in a face-to-face meeting – by telephone instead.
Aside from that, the “stay at home” order has, unintentionally, resulted in many victims of violence becoming prisoners in their homes. Public services like shelters and safe houses are stretched beyond capacity, and for some (especially people with underlying health conditions and people with children) entering into such an environment during a virus pandemic might seem even less tolerable than continuing to cohabitate with their abuser.
As with the other aspects of our lives – returning to work and school, chatting with our neighbors, planning vacations – the judicial system will, in one way or another, return to full operational capacity. But for those who have suffered the effects of intimate partner violence during the pandemic, there may be no return to the way things once were.
On March 18, 2020, the BC court system responded to the coronavirus pandemic swiftly and without hesitation, reducing operations by the likes of which criminal counsel simply hasn’t seen before. Once it was confirmed how rapidly COVID19 spreads, the crowded confines of publicly accessed courtrooms were immediately deemed inappropriate – dangerous even. Since courtrooms often yield a congregation of some of society’s most vulnerable people, it made perfect sense to act defensively. These decisions, and many others effecting the justice system, were made only one week after the World Health Organization declared a global pandemic on March 11, 2020.
Unfortunately, there was a noticeable absence of urgency when it came time to protect the vulnerable inmate population overcrowded and totally confined within the walls of Mission Institution.
“In the worst-case scenario, CSC will need to order more body bags and find cold storage to stack up the bodies of those whose lives will be lost that could have been saved” – Justin Piche, criminologist, Criminalization and Punishment Project at the University of Ottawa
On March 31, 2020, federalPublic Safety Minister Bill Blair recommendedthat the Correctional Service of Canada (“CSC”) immediately consider the release of non-violent inmates to mitigate the unavoidable reality that the virus could, and would, devastate the wellbeing of prison populations. His recommendation came on the heels of the CSC announcing the first two positive COVID-19 cases in federal institutions in Quebec.
On April 4, 2020, the CSC announced 4 confirmed cases at Mission Institution, leading to a lockdown of the facility.
By April 8, 2020, there were 11 confirmed cases, all inmates. Nearly one month had passed since the WHO declared a global pandemic.
By April 18, 60 inmates and 10 staff tested positive, and the CSC marked its first coronavirus related inmate death, exactly one month after the courts effectively shut down.
By April 25, 2020, 106 inmates and 12 correctional officers were confirmed to be infected, representing the largest outbreak in the Canadian Correctional System. On this date, the CSC advised that all inmates at Mission Medium Institution had been tested, but in any event, new cases were continuing to be discovered.
While disturbing, none of these developments are surprising. The largest incidence of outbreaks has been at long-term care homes – combining close quarters, limited mobility, and care-workers employed at more than one facility is a recipe for disaster when it comes to COVID-19, a pathogen that spreads and infects without discrimination. The same vulnerabilities exist within the correctional system, where they are intensified. Inmates and corrections staff are simply unable to practice crucial social distancing. Personal protective equipment for inmates has not been prioritized as it has in other sectors, despite these individuals being at a much higher risk of getting sick.
The CSC responded to COVID-19 by prohibiting visits to inmates, temporary absences, work releases, and inmate transfers between correctional facilities. While these steps likely helped to curb the spread of the virus, as a whole, they are grossly inadequate. Without a vaccine, social distancing remains our greatest defence against the virus. For the inmates at Mission Institution and those incarcerated at facilities across Canada, proper protective equipment is hard to come by, but hope is even harder.
High on the list of things that have changed due to COVID-19 is our perception of what truly qualifies as an essential service – the transportation of goods by freight haulers, grocery stores and pharmacies, waste management and sanitation, and the list goes on. Service providers in these sectors are now being recognized for their significant contributions to our communities. In recent weeks, safety measures have been formulated and established, such as the installation of acrylic screens to act as a barrier between cashiers and customers, temporarily suspending the use of cash, and constantly monitoring supply stocks and evaluating the best methods to ensure that protective personal equipment is available to those working in healthcare.
But what about the justice system?
On March 18, 2020, court operations were abruptly suspended in BC. Mass adjournments of almost all trials, for those detained and those awaiting trial free in the community, has created uncertainty for accused persons and for their counsel. It has also highlighted systemic flaws that have been dismissed for far too long.
The Court of Appeal of BC was thefirst to announcethat, beginning May 4, 2020, appeals (all appeals, not just those deemed urgent) would be heard using the platform “Zoom”. A notice from the Chief Justice of British Columbia elaborated further and noted that the courts would use Zoom only until the government supplied a “permanent, enterprise videoconferencing solution”, lending likelihood to the idea that some of the interventions relied upon during the COVID-19 pandemic could become permanent adaptations.
COVID-19 emphasized the court systems’ vulnerability to interruption. At some point along the line, preference to proceed with business as usual was prioritized over adjusting to function optimally in a society that is increasingly reliant on digital mechanisms.
Currently, much of the paperwork involved in criminal proceedings is processed manually by court services staff (with the exception of some electronic documents) at the registry. Rules for fax filing vary by registry, which often creates confusion for counsel.
Here are some examples of what modernization could look like:
Online court schedule for all levels of court
Counsel can manage their court schedule with more flexibility and can coordinate appearances in various jurisdictions with other counsel to maximize efficiency
Video-conferencing from correctional facilities to the office of counsel and to the court
Clients have more personal interactions with their counsel. Visits to the correctional centre can be limited (not replaced completely). If those in custody can appear exclusively by video, it reduces the number of inmates being transported via vehicle, saving time, money, and sheriffs’ resources
Enhanced online filing for court documents
Fewer issues with errors relating to form. Court services staff spend less time on data entry manual processing.
Digital court files
Court services staff can access all materials in one system and forward materials as needed to judicial staff. Storage of materials digitally saves an enormous amount of space. Archived files can be easily obtained rather than being stored “offsite”. Enhanced security for all files. Counsel could access court documents, such as a Record of Proceedings, online instead of having to make requests to court services staff
Digital disclosure transfer
All disclosure would be digitized, allowing law enforcement, crown counsel, court staff, and defence counsel to exchange documents without delay. Significant reduction in paper usage and courier/postage costs.
While other sectors prioritize adopting innovation, the court system has all-but ignored important opportunities for tech reform. Budgetary limitations are a frequent excuse. And of course, cost is an important factor – but it should not override value. The technology exists and has the potential to be extremely advantageous in the courtroom, and is often utilized more frequently in more remote jurisdictions such as Prince George, BC and throughout the Yukon Territory. Due to the logistical difficulties associated with residing in a remote location, video-conferencing is often used at trial for out-of-town witnesses.
Before the era of social distancing and COVID-19, there seemed little reason to forge ahead towards modernization with any sense of urgency – the old adage “if it ain’t broke, don’t fix it” comes to mind – but now, we simply don’t have a choice.
It has been over one month since the Courts of British Columbia significantly curtailed operations in an attempt to combat COVID-19.
For many of those who work in the legal field, it was this development that made it all real. It quickly became clear that the novel coronavirus had the potential to spread quickly, and the confined space of a courtroom serves as ideal grounds for transmission.
Despite the coronavirus acting as a proverbial wrench in the gears of justice, the judicial system continues to putter along. This is largely due to increased utilization of technological tools like video/conferencing for court appearances and swearing of affidavits, and relaxing restrictions when it comes to fax/electronic filing of court documents.
Video conferencing isn’t new to the BC court system. As early as 2002, Judges across the province agreed that the technology improved procedural efficiency by facilitating witness testimony from distant locations and allowing interim appearances by video involving counsel from other jurisdictions. Judges also noted the value of video- conferencing for inmates at correctional centres – defeating the purpose of transferring multiple inmates from various correctional centres to various courthouses. The bottom line is that modernizing certain aspects of the criminal justice system makes sense financially and systemically – and events like COVID-19 demonstrate how it can have occupational benefits too.
At present, there is enormous value in modernizing certain judicial processes for two reasons – one, to limit face-to-face interactions between judicial staff, defence counsel and an Accused person, and two, to mitigate the consequences of what can only be described as colossal delay.
In reducing operations, the majority of criminal trials scheduled between March 18, 2020 and June 1, 2020, have been adjourned generally to dates in June and July, 2020. Cases that are deemed to be of an urgent nature will be able to proceed, although in a procedural sense, things will look different – for example, witnesses who would ordinarily appear before the Court to give evidence may be authorized to testify via video. For the most part, however, trials will proceed at a date that is likely much later than originally anticipated.
The situation is more grim for accused persons in custody awaiting their trial. Inmates are, of course, among the most vulnerable to contracting the novl coronavirus – a concern that was a topic of discussion before the courts closed – but didn’t really become part of the actual narrativeuntil it was too lateTrials for accused persons in custody have also been adjourned (for trials scheduled between March 23 and May 16, 2020). Sentencing hearings and bail hearings for accused persons will proceed. This could be positive – for some, it might result in their immediate release from the correctional system. For others, further incarceration for as little as an additional 90 days in custody will be devastating, a potential death sentence.
It is far too early to gauge how overwhelmed the court system will be at the return to business as usual – but when you consider that there was ahugebacklogbefore COVID-19 shut it all down, it seems only reasonable that extreme measures – such as implementing night/weekend court, and permanently authorizing certain modernization measures – will need to be taken to truly return to normal.
“No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong”
He was a student and Captain of Mount Royal University’s hockey team – but that changed on January 13, 2018, after taking a large dose of magic mushrooms.
Shortly after ingesting 4 grams of mushrooms at a house party, Matthew Brown took off all of his clothing and disappeared into the freezing night. Eventually, he came upon the home of a Mount Royal University professor that he had never met before. He broke into her home and beat her with a broken broom handle, leaving her with severe injuries. After leaving her residence, he broke into another home where he was eventually apprehended by the police.
On March 2, 2020, he was acquitted after mounting a successful defence of “non-insane automatism” resulting from severe self-intoxication.
Mr. Brown was acquitted and walked out of court a free man. His actions were found to be involuntary – but not by reason of mental disorder. His defence of non-insane automatism resulting from severe self-intoxication was only available after a pre-trial ruling in which a judge found that Section 33.1 of the Criminal Code, prohibiting self-intoxication as a defence, was unconstitutional.
Non-insane automatism and insane automatism both involve an Accused person that was unaware of the consequences of their actions at the time of the offence, and therefore could not form intent required to prosecute the offence.
In Mr. Brown’s case, his automatism ended when the effects of the drugs wore off, and he was left with no memory of the event. Since his actions were not attributed to a disease that would have recurring symptoms, a Not Criminally Responsible according to Mental Disorder (NCRMD) finding would have been inappropriate.
A finding of NCRMD relates to automatism as a consequence of a mental disorder. Unlike automatism resulting from intoxication, it does not result in an acquittal. NCRMD is most commonly seen in cases where an Accused suffers from severe mental illness, such as schizophrenia. Across Canada, the number of Accused deemed NCRMD is small, however, media attention on these particular cases often results in public outrage.
After a judge has determined that an Accused is NCRMD, the case is usually handed over to theReview Board(governed byProvince/Territory) where there are three possible outcomes:
Detention in a hospital
While most cases do end up under the authority of the Review Board, the Court of hearing has the discretion to proceed to disposition if it feels appropriate in the circumstances. If the Court orders an Absolute Discharge (the only available option when the Accused has been found not to pose a significant risk to the public), the matter is concluded. If the Court orders a conditional discharge, or detention in a hospital, the Review Board must review the matter again with 90 days. In any circumstance, the Court or Review Board must impose whichever sentence is the least onerous and least restrictive on the Accused, all while balancing protection of the public and the interests, liberty and dignity of the Accused. There have beensuccess stories,(which may again cause unnecessary alarm to the public) that demonstrate how effective rehabilitation of mentally ill offenders is far from hopeless. It is also important to note that thestatistics surrounding NCRMD casesshow that the prevalence of an NCRMD finding in relation to violent offences are low.
Bill C-75 received Royal Assent on June 21, 2019. The Act amends the Criminal Code, the Youth Criminal Justice Act (“YCJA”), the Victim Surcharge Bill (C-28), the Exploitation and Trafficking in Persons Bill (Bill C-38), and the Unconstitutional provisions Bill (Bill C-39).
Lacking a comprehensive amendment since 1972, the bail provisions of the Criminal Code have been revised to address concerns that have been mounting for several decades. The Act seeks to simplify the judicial interim release process by expanding the conditions on which the police can release an Accused person, thereby making an appearance before a Justice unnecessary. The Act will also seek to reduce judicial delay by ensuring that release conditions are not redundant, unrealistic or overly complex, and that sureties are not overburdened.
If successful, the amendments relating to bail will result in fewer Administration of Justice Offences (“AOJO”) being brought before the Canadian courts. In any event, the Act has laid new framework by which these offences will be dealt with. Offences of this nature are offences that are “committed against the integrity of the justice system”, including but not limited to: failing to comply with bail conditions (no contact, no-go, abstinence alcohol/drugs to name a few), failure to appear in court, and breach of probation. Amendments to the Act provide that these offences will be directed to a judicial referral hearing when appropriate, as opposed to immediately laying a breach charge. At a judicial referring hearing, rather than focus on the guilt or innocence of the accused, the Judge will review the conditions imposed, and will decide how to proceed. Judicial referral hearings will not appear on a person’s criminal record – however, if a person does not appear for their hearing, the investigating police officer may use their discretion to either drop or proceed with the charge. Since Administration of Justice Offences account for about 4 out of every 10 incidents reported by police, removing these matters from the traditional court process will likely have a substantial impact on managing judicial delay.
The Act amends several portions of the YCJA. Firstly, it limits the conditions that can be placed on a young person upon their release from custody, in hopes of avoiding breaches that occur only due to unnecessarily rigid conditions. The intended result will be lower frequencies of Administration of Justice Offences. Additionally, prosecutors will no longer be obligated to consider an adult sentence for youth charged with serious violent offences, and are no longer obligated to bring that decision to the attention of the Court. The Crown will also not be obligated to consider an adult sentence for a youth convicted of a serious, violent offence.
In the interests of addressing delay, the Act has also removed certain elements of the judicial process, many of which could likely hinder an Accused person’s ability to make full answer and defence to the charges against them. Firstly, the Act restricts the availability of Preliminary Inquiries to offences that carry a maximum punishment of 14 years or more in prison (previously, any indictable offence could attract a Preliminary Hearing). Preliminary Hearings are an excellent opportunity for the Crown, Defence and Judge to assess the strength of the prosecution’s case. It assists with judicial case management, providing insight into the length of time required for witnesses to give their evidence, issues requiring a Voir Dire, and the number of days required for trial. In certain instances, it may also provide an opportunity for the defence to consider a resolution proposal, in circumstances where the evidence presented guides such a decision. Additionally, the Act permits Judges to limit the issues explored during a Prelim, and which witnesses may be called. It goes without saying that indictable matters aside from first degree murder and aggravated sexual assault are deserving of a Preliminary Hearing.
The Act also modifies the procedure for jury selection. Peremptory challenges, which allowed counsel to reject a potential juror without requiring a reason, have been abolished. There were serious concerns surrounding the misuse of peremptory challenges to ensure the jury was of a particular composition – one that would be adverse to the interests of the Accused.
The objective of the Act, broadly, is to reduce judicial delay by targeting and eliminating systemic flaws that impede the wheels of justice from turning as they should – but constitutional challenges are still to be expected.
If you’ve been charged with a criminal offence, it is crucial that you contact an experienced criminal lawyer without delay. We are conveniently located in Richmond, B.C., only a few steps away from Brighouse Station on the Canada Line, which brings you from various locations in Metro Vancouver in 20 minutes. We service all areas of the lower mainland (including but not limited to Surrey, New Westminster, Port Coquitlam, North Vancouver, and Abbotsford) the interior of B.C. (including but not limited to Cranbrook, Kelowna, Kamloops, and Salmon Arm), Northern B.C. (including but not limited to Prince George, Prince Rupert, and Quesnel) and in the Yukon Territory where we offer services in Whitehorse, Dawson City, Faro, Mayo, and Old Crow. Contact our office today to speak to a criminal defence lawyer without delay.