Le­gal ex­perts warn­ing COVID-19 pan­demic will have last­ing ef­fects on Cana­dian jus­tice sys­tem //

Huge back­log of cases ex­pected when things get back to nor­mal

The Standard (St. Catharines) - - Front Page - BILL GRAV­E­LAND

le­gal ex­perts are warn­ing that the COVID-19 pan­demic will have last­ing ef­fects on the Cana­dian jus­tice sys­tem.

Among some court changes across the coun­try, Al­berta’s Court of Queen’s Bench is ad­journ­ing all sched­uled tri­als for at least 10 weeks and will limit hear­ings to ur­gent mat­ters.

On­tario has also in­tro­duced short-term mea­sures aimed at re­duc­ing risks re­lated to the novel coro­n­avirus, in­clud­ing putting all new jury tri­als on hold.

Lisa Sil­ver, a law pro­fes­sor at the Univer­sity of Cal­gary, said jus­tice of­fi­cials need to de­cide what to do when the out­break is over.

“They have to have a plan on how are we are go­ing to deal with mat­ters once we get back to it,” Sil­ver said. Courts will be hit with a flood of cases to deal with, she said, and it could take some time be­fore ev­ery­thing is back to nor­mal.

“The fact that the courts across Canada are just now de­cid­ing what to do is a lit­tle bit wor­ri­some. I would hope now they’re talk­ing about what hap­pens in 10 weeks and they don’t wait un­til week eight to make that de­ci­sion.”

The pres­i­dent of the Cal­gary Crim­i­nal De­fence Lawyers’ As­so­ci­a­tion said de­lays are likely to dou­ble the amount of time an ac­cused will have to spend in the sys­tem.

“At a min­i­mum, ev­ery­thing is be­ing pushed back in the neigh­bour­hood of 10 weeks right now ... prob­a­bly more,” Ian Sav­age said.

“A per­son who would or­di­nar­ily wait six months for an im­paired driv­ing trial or up­wards of a year for a do­mes­tic vi­o­lence trial will see that time dou­ble.”

De­fence lawyer Bal­four Der said the move is nec­es­sary, but he’s con­cerned about what will hap­pen to sus­pects in cus­tody.

“This is a fur­ther de­lay for them and there’s noth­ing they can do but sit in jail and wait, which is what we’ve al­ways tried to avoid,” Der said. “This is cer­tainly trou­ble­some. An­other worry per­tains to the back­logs that al­ready ex­ist. This will add to that.”

Toronto-based lawyer Diana Isaac is wor­ried that On­tario courts will only be hear­ing mat­ters that are con­sid­ered ur­gent or an emer­gency when it comes to fam­ily law.

She said that def­i­ni­tion can be very nar­row.

“Some of the ex­am­ples that they’ve ... de­fined as ur­gent would be the safety of a child or a par­ent, so if there’s a re­strain­ing or­der that will have to take place, the courts will ob­vi­ously lis­ten to that,” Isaac said.

But there are cases in which an es­tranged cou­ple has no choice but to re­main un­der the same roof un­til divi­sion of as­sets and child ar­range­ments can be worked out, she noted. That prob­a­bly won’t be con­sid­ered ur­gent.

“We would pre­fer to ... ac­tu­ally have peo­ple phys­i­cally sep­a­rate, be­cause liv­ing un­der the same roof is high conflict. It’s def­i­nitely not in the chil­dren’s best in­ter­est and it makes for a very un­healthy en­vi­ron­ment.”

Isaac said she has fam­ily law tri­als com­ing up in the next month, but there’s no guarantee that will hap­pen.

“Does this mean that ev­ery­thing is go­ing to be shifted to fur­ther months, if not a year, down the line? We don’t know.”

Sil­ver said all prov­inces are likely to shut down their courts un­til the dan­ger has passed.

“They have to. The fact is we can’t al­low the virus to spread. We’ve got high-risk peo­ple com­ing to court.”

The lawyers said they aren’t con­cerned that the coro­n­avirus de­lays will cre­ate more Jor­dan ap­pli­ca­tions.

In 2016, a Supreme Court rul­ing of­ten called the Jor­dan de­ci­sion im­posed time lim­its on how long it can take for a crim­i­nal case to go to trial be­fore it is deemed un­rea­son­able. The rul­ing said peo­ple charged with an of­fence have the right to have their cases tried within 18 months in pro­vin­cial courts and 30 months in su­pe­rior courts.

“In Jor­dan, the Supreme Court of Canada talks about de­lays caused by spe­cial cir­cum­stances,” Sav­age said.

“And we sus­pect that most judges will con­clude it is an ex­cep­tional cir­cum­stance, which there­fore does not get counted in the over­all de­lay.”

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