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.
“Not only is this a concern with the possibility of misidentifying someone and leading to wrongful convictions, it can also be very damaging to our society by being abused by law enforcement for things like constant surveillance of the public”
– Nicole Martin, Forbes contributor
Star Trek. Back to the Future. District 9. I, Robot. These are only a few examples of films that have relied on biometrics – more commonly referred to as Facial Recognition – as a theme for entertainment. All are fiction based and while you may have thought of biometrics as a tool used by elusive government agencies like the FBI and CIA, that isn’t the case at all. Advancements in biometric technology have been seized upon by various law enforcement and government agencies across Canada – creating serious concerns from privacy and civil liberty advocates, and of course, criminal defence counsel.
TheCalgary Police Service began using Facial Recognition technology in 2014. The system they use, known as NeoFace Reveal, works by analyzing an uploaded image and translating it into a mathematical pattern known as an algorithm. The image is then logged in a database and used for comparison against other uploaded images.
The Toronto Police Service hopped on board too. They reported uploading 800,000 images into their Repository for Integrated Criminalistic Imaging, orRICIby 2018. Their use of biometrics began with a trial in 2014, and in 2018,the Service purchaseda system at a cost of about $450,000. Between March and December of 2018, the Toronto Police Service ran 1,516 searches, with about 910 of those searches (or 60%) resulting in a potential match. Of those potential matches, approximately 728 people were identified (about 80%). There were no statistics provided in relation to ethnicity, age, or gender, however,research has raised concernsabout disproportionate effects of biometrics as it relates to people of color.
Manitoba Police do not currently use biometric technology as an investigative tool, although the idea wasfloatedaround in 2019 after the commission of a report concerning growing crime rates in Winnipeg’s downtown core. The Provincial government in Manitoba went so far as to suggest that this technology could be used to identify violent behavior – which sounds a lot like active surveillance, an unethical use of biometrics, which demonstrates one of the most profound concerns surrounding use of this technology. And while it is only a matter of time until the Manitoba Police do use this technology,many retailers in the province are already using it.
At home here in British Columbia, the Vancouver Police Department denies using Facial Recognition technology as a mechanism to investigate crime – in fact, back in 2011,they turned down ICBC’s offerto assist in identifying suspects involved in the Vancouver Stanley Cup Riots with the aid of their software. The office of the BC Privacy Commissioner confirmed that any use of ICBC’s facial recognition data by the VPD would amount to a breach of privacy for its customers.The office of the Privacy Commissioner of Canada has been keeping track since at least 2013 –yet, there is little regulation of the use of biometrics in public and private sectors.
The same cannot be said for the RCMP in British Columbia, who, as recently as two weeks agorefused to confirm or deny use of biometrics as an investigative tool,but questions have been raised as to whether or not the RCMP is a client ofClearview AI, a facial recognition startup pioneered by US citizen Hoan Ton-That. Clearview’s work has not gone unnoticed – Facebook and Twitter have issued cease and desist letters, making it very clear that they do not support Clearview’s objectives. Google issued a cease and desist letter as well – however, their position on biometrics is fuzzy – especially since they are trying to make advancements in this area as well. So far, though, they have come under fire for their tactics and the results that have been generated.
The Canadian Government’s position on the use of biometrics is established on their website.When you submit your biometric information at Service Canada (for example), your information isn’t actually stored there, rather, it is sent to the Canadian Immigration Biometric Identification System, where it will remain for a period of 10 years. Further, your biometrics information will be shared with the United States, Australia, New Zealand and the United Kingdom. And yes – you can refuse to provide this information – but it will likely put a kink in your travel plans.
One important factor to consider about all of these agencies and their use of biometric technology is that this tool was never intended for use as active surveillance, or a method to intervene in incidents of crime in real-time. Whether it is a violent assault, sexual assault, theft under or over $5,000, murder or kidnapping, biometrics is an “after the fact” investigative mechanism. If used ethically and within parameters that preserve the privacy of all citizens 100% of the time, perhaps there would be no need for alarm – but that is incredibly unlikely. As more agencies begin to use this technology, the lack of regulatory oversight is bound to create an enormous pervasion of your privacy – and you may never know about it.
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.