416-363-2656 office@amalaw.ca

Prospective jurors are being told to ignore their summonses in several provinces, and people charged with crimes and waiting in custody for trials face a slower-than-usual legal process while Canadian courts struggle to remain open without contributing to the spread of the novel coronavirus.

Measures to reduce the number of people who might spread the pandemic through courthouses and prisons include postponing trials, banning the public from some courts and preventing lawyers from visiting clients in prison.

Criminal-defence lawyers are calling for creative approaches: release some kinds of offenders; drop less serious charges; and use video and other technology more often to replace in-person hearings.

“Given government neglect of our jails, the hellish conditions … it’s going to result in death in our jails,” said Ottawa lawyer Michael Spratt, who urged the release of non-violent provincial offenders, plus all those who are serving their sentences on weekends.

Trying to find a balance between preserving public health and business as usual, the Supreme Court of Canada is banning visitors to its hearings; only those directly involved may attend. (Hearings will be webcast as usual, and journalists can attend.) The parties may ask for a delay, or appear on teleconference or video link. The court’s registry remains open for filing documents, with staff wearing medical gloves, said Ottawa lawyer Eugene Meehan, who specializes in the Supreme Court.

The Tax Court of Canada has cancelled sittings for the next two weeks, and the National Judicial Institute has cancelled training sessions for judges until further notice.

Gatherings of prospective jurors have been postponed in Alberta, Manitoba, British Columbia, Ontario and Nova Scotia. Jury trials scheduled in Manitoba but not under way are cancelled, and the accused may opt for a trial by a judge alone or wait for a jury. The public (but not the media) is being told to stay away from all Manitoba courts unless necessary to the proceedings. Newfoundland and Labrador Supreme Court Chief Justice Raymond Whalen decided on Friday to delay four jury trials until May 31.

The Ottawa-Carleton Detention Centre has told lawyers not to visit clients.

Other legal bodies are taking precautions, too. The Law Society of Ontario has postponed solicitor exams set for March 17, while exams set for June are still on. And it is delaying all in-person disciplinary hearings until April 30. Lawyers heading to the Centre for Addiction and Mental Health for hearings of Ontario’s Consent and Capacity Board face screening protocols.

John Struthers, president of the Criminal Lawyers’ Association, said the courts should largely close, but leave the possibility of bail hearings. (A hearing within 24 hours of being charged and detained is a constitutional right.)

But Dan Chivers, past president of the Alberta Criminal Trial Lawyers’ Association, said access to the courts is essential.

“What about these guys in custody five months waiting for their trials?” the Edmonton lawyer said in an interview.

Others say the criminal-justice system, already overburdened, should reduce the numbers facing trial or already in jails, where inmates, some of whom may be in poor health, would be unable to escape the spread of the disease.

Criminal defence lawyer Anthony Moustacalis of Toronto said prosecutors should “just drop charges that aren’t as important,” and encourage the courts to make more use of technology, setting dates or hearing legal motions and even some evidence by video, for instance.

He said judges are worried about sending vulnerable people to jail where they may become ill. “I’ve spoken to some of my judge friends and they’re concerned about sending people to detention because of this.”

He also said that, for a period on Thursday, correctional officers at Toronto South Detention Centre refused to take new inmates because they felt plans to deal with the spread of the illness were inadequate.

A spokeswoman for the Ontario Solicitor-General’s Ministry, which oversees the jails, confirmed the incident. She added that if an outbreak is suspected, officials take immediate containment measures, including notifying the local medical officer of health, and provincial health professionals.

The Correctional Service of Canada said in an e-mail it will screen all visitors, and all individuals with symptoms will be tested and, if necessary, treated.