Case backlog in the thousands
Jury trials will proceed in September at the Beothuk Building in St. John’s
In a year, provincial courts around Newfoundland and Labrador deal with a vast numbers of cases: 28,000 charges, according to the chief judge, and 5,000 scheduled trials on the dockets. One year will see about 3,800 arrests, 1,750 small claims trials, 1,400 applications for judicial authorizations and 1,110 appearances for summary offence tickets and contraventions. Apart from that, there are about 100 other appearances daily, either bail hearings or pre-trial conferences or settlement conferences.
What happens when all of a sudden the court has to close its doors for three months?
A significant challenge, to say the least.
“I’m sure you can imagine the backlog is huge,” Provincial Court Chief Judge Pamela Goulding told members of the Law Society of Newfoundland and Labrador in a webinar last week. “We have 7,000 appearances lost, 9,000 hours of sitting time lost, so we’re going to double-book or triple book.”
The initial challenges came with the closure of the court due to the COVID-19 pandemic in the middle of March, Goulding explained. Though the facilities closed they didn’t shut down, with bail hearings, in-custody trials and emergency cases taking place by teleconference, and later, videoconference through a Memorial University platform. The court has worked its way through three months of obstacles since then — including some disagreement on whether or not certain cases could legally be heard electronically and a hesitation by lawyers and accused persons to go forward by virtual means — and is now set to reopen June 29.
In downtown St. John's, Atlantic Place — where the Provincial Court is housed — has already started preparing, with floor stickers marking out sixfoot social distancing measurements in certain areas, posters with hygiene reminders in light of the COVID-19 virus at various locations, and signs on every elevator, telling potential occupants, “Maximum number of people in elevator: 1. Use this opportunity to get some exercise — take the stairs or wait for the next elevator.”
Once the court opens it will operate at 90 per cent of its usual level. Goulding said the focus will be on matters including criminal trials, family cases and peace bonds; traffic, small claims and contraventions cases will remain postponed for now, likely until the fall. Bail hearings, arraignments and sentencings will still be conducted virtually unless otherwise directed by a judge, while trials, preliminary inquiries and other matters will proceed in person unless otherwise ruled.
Drug treatment court, mental health court and family violence intervention court will all be fully reinstated.
Due to social distancing rules, access to the court will be restricted to participants in the proceedings, including the lawyers, parties, witnesses, support workers, probation officers, victims services workers, parents of young offenders, journalists and others who have been given advance permission by a judge.
Everyone attending Provincial Court must wear a nonmedical face mask and one will be provided to anyone who doesn't have one. Courtroom surfaces will be disinfected between appearances.
In places like Happy Valleygoose Bay, where courtroom space is tight, the court is looking to secure a larger location to hold proceedings on busy days. The same is true in St. John's for Courtroom No. 5, which is set to call 60 people on July 2 alone.
“Obviously we need another location in order for there to be physical distancing and because while we want to get the work done, we want to get it done as safely as possible for all justice system participants,” Goulding said. “Reducing the number of people in our courtrooms is really, really going to be the challenge.”
It's a similar situation at the Supreme Court of Newfoundland and Labrador, which began hearing in-person cases last week for the first time since March. Since court operations were restricted three months ago by COVID-19, 1,000 appearances have been missed, said Chief Justice Raymond Whalen.
The superior court saw the same challenges as summary court when it came to technology and the uptake among lawyers and their clients of virtual proceedings, and Whalen encouraged law society members to remain flexible in regard to scheduling appearances in the coming months.
Essential matters will be heard as quickly as possible, he said. He expects it could take up to a year to get all the judgealone criminal trials and civil trials back on track. Civil applications should all be recovered by this coming November.
Jury trials are the “tough nut to crack,” Whalen said, given they can't proceed virtually and require hundreds of people to be summoned for jury selection. Whalen said in April the court was looking for alternate locations in which to hold jury trials.
“No one has the answer in Canada but I think we have the best plan, from what I've heard,” Whalen said, crediting the Department of Justice. The court now has an agreement to use the Beothuk Building on Crosbie Place in St. John's — the same location where the Muskrat Falls inquiry took place — for jury trials, allowing compliance with social distancing guidelines.
The premises are already being renovated for the purpose, Whalen said, and arrangements are being made for alternate jury trial venues in other areas of the province as well.
“The physical space of handling and conducting the jury trial itself will be accommodated by that facility with proper social distancing,” the chief justice explained.
As for jury selection, the court is attempting to arrange use of a school like the College of the North Atlantic combined with video technology to allow for that process to happen.
“It will be logistically difficult but it's the only solution that's available to us and we're aggressively pursuing that,” Whalen said.
By the time the next scheduled jury trial happens in September, arrangements will be in place.
In the meantime, attendance at Supreme Court proceedings is also limited, with the gallery benches already marked with signs at six-foot intervals. While face masks are optional, hand sanitization upon entry is not, and visitors must answer a series of questions related to their potential risk of transmitting the COVID-19 virus before entering the courthouse.
The province's Court of Appeal, which includes one small courtroom with limited capacity, has also been proceeding by virtual means, and will move to in-person hearings early next month. Attendance will be restricted to those involved in the matter, said Chief Justice Deborah Fry, and the court is prepared to default to a virtual proceeding if the number of participants is likely to violate public health guidelines.