5 Ways That COVID-19 Will Affect Your Case

Will COVID-19 affect my criminal case in Ontario?

Yes; the closure of the courts in Ontario since mid-March continues to impact the criminal justice system. See below for more details about 5 ways that your case may be affected. There are short-term impacts to be aware of, as well as long-term consequences.

How will COVID-19 affect my case?

We will discuss here the 5 main ways that COVID-19 will impact your case:

• Court are only dealing with emergencies at the moment;
• The impact on DUI cases
• Use of technology
• Impact of delay on Charter rights
• Impact of COVID-19 on sentencing

These issues affect primarily the Ontario Court of Justice, where most criminal cases are heard. Matters in the Superior Court have also been suspended, although emergency matters and a few trials are set to resume soon.

The lockdown has also delayed the first court appearance in many cases where the client is released by police. Instead of the usual 4-6 weeks, the police are picking dates 3 or 4 months into the future. This can cause serious hardships to clients who wish to deal with their cases sooner, or are suffering under strict release conditions such as a curfew, or a No Contact order.

What cases are the courts dealing with during the COVID-19 lockdown?

The criminal courts have only been dealing with emergency matters during the lockdown, such as:

• Bail hearings;
• In custody cases (i.e. client is in jail), including some motions;
• Some guilty pleas, including DUI cases.

Status hearings in the Ontario Court of Justice are suspended. Jury trials in the Superior Court of Justice are suspended.

However, many of the steps in a criminal case, short of a preliminary hearing or trial, are still going ahead, mostly by telephone or conference call. For example, in most instances the Crown is still providing disclosure; lawyers can review and analyze disclosure and conduct negotiations with the Crown; and judges are still conducting judicial pre-trial conferences with the Crown and defence by telephone.

What is a status hearing, and why are they suspended?

As part of the criminal process steps of Analysis, Negotiation, and Trial, the court insists on a monthly status hearing. At that hearing, the Crown and defence update the court as to the progress of the case and what the next steps are.

The reason for these status hearings is that there are deadlines for how long a case is permitted to take before it is dismissed for delay under the Charter of Rights. Most cases have an 18 month time limit from the first court appearance until the end of the case (dismissal or sentencing). More serious cases that proceed in the Superior Court have a 30 month time limit.These time limits were set out by the Supreme Court of Canada in a case called Jordan.

Because the court houses are closed to the public due to COVID-19, these status hearings are not taking place at the moment. Instead, every case is having its status hearing postponed for 10 weeks at a time until the courts re-open.

The impact of the Coronavirus lockdown on delay will be discussed further down.

How does COVID-19 affect Stream A in DUI cases?

All of the provincial time limits set out in legislation, such as the 90-day deadline to resolve a DUI case and qualify for the “Back on Track” and Interlock programs, have been suspended until at least September. That means that you do not have to decide whether to plead guilty until the government issues further notice. Once the time limits are reinstated, you will have 90 days to decide what to do.

Can I still qualify for the Back on Track or Interlock program during the COVID-19 lockdown?

Yes. If you wish to plead guilty and get your licence back as soon as possible through the Back on Track program and Interlock device, your lawyer can arrange to do that for you. Even though the time limits have been suspended, most courts consider a guilty plea in a DUI case to be an emergency, and are permitting those cases to proceed. The Ministry of Transportation (MTO) is still processing Back on Track applications.

For more information, go to www.remedial.net or www.mto.gov.on.ca

How are the courts using technology during the COVID-19 pandemic?

Courts are making much better use of technology during the pandemic. The justice system has always been slow to adapt to new and more convenient ways of doing things. It is still very much a paper-based system as it has been for centuries. But the COVID-19 lockdown has forced the courts to adapt.

The main ways that technology is being used is in conducting hearings by telephone and video-conferencing. In addition, more details about cases are being posted online, at websites such as www.ontariocourts.ca . Materials for motions and trials are being more readily accepted through email. And certain procedures, such as bail variations, have been simplified to preclude the need to attend court in person.

Will COVID-19 affect my right to be tried within a reasonable time?

There is no question that the Coronavirus lockdown is delaying the time it will take to finish your case.But is that time being counted towards the time limits set out by the Supreme Court in the Jordan case?

The lockdown of the courts for so many months, and the resulting delay in getting to a trial date, will cause many cases to surpass the delay threshold of 18 or 30 months. But that might not cause the case to be dismissed for delay. The reason for that is that a judge is required to examine the reasons for the delay. Delay that is due to“exceptionalcircumstances”is not counted towards the Jordan time limits.

Will the COVID-19 delay be consideredan“exceptionalcircumstance”for delay purposes?

An “exceptional circumstance” is one which is unforeseeable or one which was not within the control of the Crown or the court. Examples include:

• A medical emergency involving the Crown, judge, or a witness;
• An “Act of God”such as a flood or fire that shuts down the courthouse.

It is expected that the COVID-19 pandemic which closed the courts will be seen as such an“Act of God”or“exceptional circumstance”.

But that is not the end of the matter, because once the courts re-open there will be a huge backlog of cases for the Crown and the court to contend with, and how that backlog is handled will likely be quite relevant to the issue of delay.

There is a shared responsibility on all participants in the criminal justice system, including crowns, to prevent unnecessary delay.Crown attorneys are expectedto ensure proper planning and preparation to adequately address and/ or minimize these delays. The onus ultimately rests on the Crown to ensure that they are doing absolutely everything necessary to move matters along as fast as possible. A delay argument could be successfully argued if the Crown does not develop a plan or strategy to address the delay caused by COVID-19, and minimize the subsequent delay.

A strategy of taking more reasonable negotiating positions to try to reduce the case backlog could end up being considered an important step in mitigating the impact of delay.

Similarly, the courts will have to be creative and flexible in accommodating the backlog, through a combination of safe re-opening; better use of technology and virtual proceedings; and case management.

Defence lawyers will be alert to instances of complacency and foot-dragging to ensure the prompt and timely completion of criminal cases despite the lockdown.

Can the impact of COVID-19 reduce my sentence?

It might. A creative defence lawyer may be able to raise the argument that the delays due to the lockdown have had a material impact on your well-being, or caused you prejudice. While perhaps not enough to overcome the “exceptional circumstances” exception to the Charter, it might result in a reduction of your sentence.

Similarly, if you are being sentenced to a period of time in jail, the increased risks of contracting the Coronavirus in an enclosed and crowded facility, might persuade the judge that a lesser sentence could have the same deterrent impact as a longer sentence without those concerns. It remains to be seen if the risks of Coronavirus result in certain mandatory minimum sentences being struck down because they do not afford an alternative to jail for the judge to consider.

When are the courts going to re-open?

The courts have been actively working and preparing for a safe re-opening. At the moment, the Ontario Court of Justice will re-open for trials and preliminary hearings starting July 6. The plan is to gradually open the courts to additional proceedings as the public health situation warrants.

How can I find out more?

To learn more about the current lockdown and the plans for re-opening, consult your lawyer or go to www.ontariocourts.ca

If you or a loved one are facing criminal charges, and need the advice of an experienced and skilled lawyer to help you through the legal process, call The Defence Group for a free consultation at 877-295-2830.

CassandraBeaulacis criminal lawyer and a graduate of the University of Windsor Law School

Arun S. Maini is a criminal lawyer and former prosecutor with 25 years of experience.