ST. JOHN'S, N.L. — There’s a limited list of very specific reasons why a person summoned for jury duty in Newfoundland and Labrador might be excused. Those who care for children, an elderly person or anyone ill, for example. Those who aren’t Canadian citizens or whose religious beliefs conflict with serving as a juror. Those who are over 75, physically or mentally incapacitated or have some connection to the court case at hand.
As the province makes plans to slowly get back to some kind of normal without a COVID-19 vaccine, does the coronavirus offer another legitimate reason for exemption?
It depends, says the province’s chief justice of the Newfoundland and Labrador Supreme Court.
“I think it will be one of those reasons that people will put forward if they are picked and asked to serve,” Newfoundland and Labrador Chief Justice Raymond Whalen told participants in a webinar with judges from the other Atlantic provinces earlier this month. “It’s going to be decided whether it’s a valid enough reason at that point in time. If it was now, I think people would raise it and I think it would be a pretty legitimate excuse. Would it be in five months or six months or three months from now? I don’t know.”
As part of a Lexis Nexis webinar series called “Justice Adapting,” the video panel saw the judges take questions from lawyers and others involved in the justice system related to the COVID-19 pandemic and the change in court operations.
Jury trials in this and most provinces have been postponed since March. Operations at Supreme Court were severely restricted soon after that, with courthouses closed to the public, and only urgent matters and cases involving people in custody taking place via audio or video calls. As the province slowly relaxes its public health rules, the court is gently expanding its services again, though jury trials will likely be the last on that list.
Whalen said the superior court in Ontario has indicated it won’t hold jury trials until the fall, and he doesn’t think it’s likely Newfoundland and Labrador will see any rescheduled before then, either. The court has been trying to determine how and when the trials might be possible.
“The same question is being asked of every superior court across the country. No one has the answer,” Whalen said.
He has written to Chief Medical Officer of Health Dr. Janice Fitzgerald to ask for advice and a potential feasible timeline, he explained, and has been working with Occupational Health and Safety to determine if there’s a socially distant way for jury matters to proceed.
“Certainly it’s being worked on every single day.”
As of May 19, Supreme Court is increasing the types of cases it will hear by phone and video to include certain criminal applications and management conferences, as well as settlement conferences and applications in civil matters and in family court. The court moved from an inevitable “unacceptable state of affairs” it found itself in at the start of the pandemic to a relatively smooth teleconferencing process, Whalen said.
“I think the experience has been pretty good in that sense,” Whalen said.
Through a collaboration with Memorial University as a video conference platform, matters proceeded most times with a judge in the courtroom and everyone else at home. The court now even has portable recording capabilities, he said.
The legal community has been exceptionally co-operative, understanding the court was operating on uncharted ground, the chief justice explained. Like the judges in the Maritimes, Whalen noted the possibility of the court using technology more often in the future as a convenience.
Fairness concerns
Some accused criminals with postponed court cases aren’t seeing the technology as a convenience at all, explained St. John’s defence lawyer Erin Breen. While proceeding with a non-jury trial virtually might be possible, it poses challenges when it comes to balancing people’s rights.
“A person charged with a criminal offence has so much at stake and they want to make sure that their trial is fair and is done as well as can be,” Breen said. “Any time you’re using new technology it’s certainly daunting for the person who may feel, ‘You know what? I don’t think that’s going to be fair to me.’ It’s a common reaction and you can’t really blame a person for that. Then again, you also have the accused person’s right to have a trial within a reasonable amount of time.”
Earlier this week, provincial court Judge Wayne Gorman acquitted 40-year-old Sheldon Mitchell of assault with a weapon, assault and breaching a court order after hearing the case remotely, saying the matter could have been resolved much sooner.
“The trial of this matter illustrates why the pandemic is no longer a reason for the hearing of trials to be delayed,” Gorman wrote in his decision.
Two witnesses were able to testify from their home, two from a police detachment and one from Manitoba, all via videoconferencing, he said.
Gorman presided over the trial from Corner Brook, while the court clerk was in Grand Bank.
“The sound and picture quality was excellent,” Gorman said. “As a result, this trial was conducted in the same fashion as it would have been if the parties were personally present in the courtroom.”
The delay in the case was particularly concerning because Mitchell was in custody, Gorman said, though the same day he sentenced Mitchell to a jail term of 180 days for assaulting his ex-partner and breaking a court order not to have contact with her or her family.
“Victims of intimate violence are often very vulnerable and the pandemic has increased their vulnerability. Cases involving domestic violence should not be placed on hold when the court has the technology and has expressed a willingness to hear additional matters.”
In an unrelated sentencing decision last week, Gorman said the uptake on the court’s offer to expand the type of matters it hears virtually hasn’t been great.
Cases limited
Lloyd Strickland, the province’s director of public prosecutions, doesn’t necessarily agree with that view, but pointed out that until this week, virtual hearings were only available in a limited type of cases, like sentencings.
“Perhaps it’s not surprising that offenders weren’t streaming forward to get sentenced as soon as they could,” he said.
Strickland said his office is pleased with the provincial court’s ability to conduct virtual trials and is eager to proceed with them. It’s something judges haven’t always been willing to do, even in cases where the alleged victim in a case had moved out of Newfoundland and Labrador and wanted to testify by video, he said.
That’s not to say there aren’t challenges from the Crown’s perspective. For instance, provincial court doesn’t provide a place from where witnesses can give video testimony; it’s up to prosecutors to assume the risk and responsibility involved in finding a suitable location, asking for help from police or Victims Services, Strickland said.
Technology also has its limits, he pointed out, and not every witness has access to it at home.
Provincial court is expected to reschedule matters that have been postponed due to the COVID-19 pandemic, beginning June 29, meaning there will be a 15-week backlog. That’s concerning to the court, to the Crown and to defence lawyers like Breen.
“I do have people who are very, very anxious to get things moving,” she said. “Obviously there are people who are wanting to have their matters moved quickly and at least there’s an ability to do that now.”
@tara_bradbury
Pandemic won’t put an end to cases
Will court delays due to the COVID-19 pandemic result in cases being thrown out?
In general, no.
A Supreme Court of Canada ruling in 2016, often called the Jordan decision, set time deadlines for criminal cases making their way through the courts. In provincial court cases, the time limit is 18 months, while in superior courts across the country, the limit is 30 months.
The COVID-19 pandemic has caused some serious delays in this province: provincial court is expecting a 15-week backlog when it resumes hearing cases at the end of June, while there’s no foreseeable date set for the rescheduling of jury trials in Newfoundland and Labrador Supreme Court.
(Certain matters — like bail hearings, sentencings for offenders in custody and urgent cases have not been postponed, and the courts will increase next week the types of matters it deals with.)
After the set deadline has passed, an accused can make an application to have the matter thrown out, but only if the delay is proven to be unreasonable. Delays caused by the accused don’t count toward the time limit.
There’s an exception to the Jordan decision for exceptional circumstances like illness or other unforeseen events. The state of emergency issued by the City of St. John’s last January during “Snowmaggedon,” which led to court closures, was an example of an exceptional circumstance. The COVID-19 pandemic will almost definitely fall in the same category.
“Whether or not an accused person will make that application … I think they might run up against an uphill battle right now making that argument with respect to COVID-19,” said St. John’s defence lawyer Erin Breen.
Lloyd Strickland, the province’s director of public prosecutions, agrees, saying the pandemic’s unforeseen nature would factor into any Jordan application made.
“To be clear, backlogs and delays are something the Crown wants to avoid in any case, since memories may wane and witnesses may become difficult to locate,” he said. “We will take any reasonable measure to address the backlogs and delays.”