More provinces suspend jury trials, delay legal processes amid coronavirus outbreak
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.
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.
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The Globe & Mail
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'Treated as a criminal': Walmart receipt and bag checks anger customers. Your rights explained
An apparent step-up of receipt and shopping bag checks at Walmart has sparked customer complaints, raising concerns about shoppers' rights.
"It was not a request, it was a demand," said Penny Rintoul of Vaughan, Ont., about a recent receipt check just before she exited Walmart with her purchases. She said her local Walmart increased its checks in the spring.
"It's very angering and demeaning."
The Canadian Civil Liberties Association (CCLA) said it's investigating the practice of retailers doing routine security checks at the exit, concerned that the way they're conducted may jeopardize customers' rights.
Michael Bryant, CCLA's executive director and general counsel, said retailers should get consent before checking receipts or bags. And if no consent is provided, he said, customers are under no obligation to comply.
"Their right is to say, 'Thanks, but no thanks,' and walk away," said Bryant.
"Some people feel strongly about their privacy and, in fact, the way our laws work, that privacy and liberty is protected."
In a 2016 ruling on a case involving a suspected shoplifter, an Ontario Superior Court judge wrote that a retailer can detain a suspect if there are reasonable grounds, but — even then — it would have to get consent to do a search.
Walmart didn't directly address questions from CBC News about customers' rights including what happens if shoppers refuse receipt checks. The retail giant also didn't say if it has stepped up its security checks.
"To assist in our efforts to manage costs and offer everyday low prices, customers may be asked to show their receipts as they exit our store to ensure the checkout process went smoothly," said Walmart Canada spokesperson Adam Grachnik in an email.
CBC News interviewed several customers who said they weren't "asked," and instead felt pressured to comply.
Paula Fletcher of Renfrew County, Ont., said that in August, a Walmart employee watched as she scanned her groceries at self-checkout, and then insisted on inspecting her receipt and shopping bag.
"She did not make it an option," said Fletcher.
"I don't like being treated as a criminal," she said. "If they don't trust us, they shouldn't have self-checkout."
Walmart's recent addition of self-checkout machines appears to be a driving force behind receipt checks. In response to customer complaints on social media, the retailer has replied repeatedly that it's doing the checks to ensure the self-checkout process "went smoothly" and that all items have been scanned.
Studies suggest that stores adding self-checkouts can experience more theft because thieves believe the risk of getting caught not scanning items is low.
Amy Fraser of Sydney Mines, N.S., said she has experienced frequent receipt and occasional shopping bag inspections in the past five months at Walmart, both after using self-checkout and checking out with a cashier.
She said she reached her limit last month when a Walmart employee demanded to check her receipt, just as she prepared to feed her baby before exiting.
"He's like pouncing, 'You have your receipt?'" said Fraser. "I just [felt] like walking out and being like, 'No, no, call the cops on me.'"
So what happens if a retailer calls the cops? Toronto security consultant James Reese said a retailer needs to have evidence of theft for police to take action.
"If they did not see you take something, they cannot come after you just for refusing to show your bags or receipt," he said.
In the 2016 case involving the suspected shoplifter, the judge also wrote that "if a store owner is mistaken and no theft has occurred, their detention of a customer makes them liable for … false imprisonment."
However, shoppers rejecting receipt checks do risk being banned from the store, said Reese.
"That's within the merchant's prerogative."
What about Costco?
Retail giant Costco also checks customers' receipts.
However, Costco customers are required to sign up for a membership, which means they may have provided consent — depending on how clearly the rules are laid out, said CCLA's Bryant.
"They need to tell people about it."
Costco didn't reply to requests for comment, but CBC News found its policy on its website in the "membership conditions" section. It says customers are required to show receipts to ensure that "you have been properly charged for your purchases" and to maintain accurate inventory control.
At Walmart, there's no membership requirement and customers interviewed said they saw no in-store warnings that they'd be checked.
Last week, CBC News did discover signs at several Toronto-area Walmarts which stated, "Please have Receipt ready for Proof of Purchase." But a Toronto criminal lawyer argues that's not good enough.
"Just because there's a sign doesn't mean that someone's read it or understood it," said Anthony Moustacalis.
"Consent does need to be fully informed," he said. "That generally means that you need to know that you have a right to refuse."
There's no question that shoplifting is a problem for retailers, especially when it comes to self-checkout. But retailers still need to play by the rules, even when tackling emerging technologies, said Bryant.
"New technology should never mean giving up your rights."
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CBC News
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https://www.cbc.ca/news/business/walmart-receipt-check-costco-1.5355527
Ontario to hire more judges, prosecutors to tackle trial delays
Ontario has announced the biggest expansion of its criminal-justice system in more than two decades, two weeks after a judge scrapped a first-degree-murder charge because the accused had spent four years in jail waiting for his trial to be completed.
The expansion is an attempt to meet new Supreme Court deadlines for timely trials. Ontario Attorney-General Yasir Naqvi said on Thursday the province's criminal courts are "bottle-necked" and there is no "sugar-coating" the challenge facing them.
The government will add 13 judges, 32 prosecutors, 16 duty counsel serving accused people and 26 court staff. It also announced several measures aimed at improving its bail system and ensuring low-risk people do not languish behind bars until their trial is completed. The price for the expansion and bail changes is $25-million a year.
The last time additional prosecutors were hired for courtroom work was for a guns and gangs unit in 2007; a few new prosecutors were also brought in for regional projects such as one for combatting sexual violence, said Kate Matthews, president of the Ontario Crown Attorneys Association. Apart from those examples, "we have not had a single extra trial Crown in Ontario for more than 15 years. Last year, we were concerned about how we would stave off lay-offs. There was a palpable feeling of despair amongst prosecutors."
The previous major infusion of prosecutors was in 1990, after a Supreme Court ruling in a case known as R. v Askov caused thousands of criminal charges to be thrown out for unreasonable delay, she said. The court set timelines, but then made them flexible and delays grew again.
Last month, an Ottawa judge stayed a murder charge against Adam Picard in the shooting death of 28-year-old construction worker Fouad Nayel. Proceedings had lasted nearly four years and the judge said the delay violated the defendant's right to timely justice.
A month earlier, an Alberta judge threw out a charge of first-degree murder over a five-year delay. Alberta has not added new judges or prosecutors since that ruling, although it created 10 new spots for judges on its superior courts – which the federal government has to fill. Ottawa has not yet done so.
Alberta's prosecution service has begun a "triage" process to give priority to cases of serious violence. The province has also expanded legal-aid funding.
In July, the Supreme Court of Canada, in a case called R v. Jordan, set time limits of 18 months in provincial court and 30 months in superior court, from charge to completion, except in exceptional circumstances. While they do not directly apply to cases already in the system, they have rung alarm bells throughout the country; in jurisdictions such as Nova Scotia, homicide cases routinely take longer than 30 months. The Supreme Court's majority said its previous flexible guidelines led to a "culture of complacency."
Rick Woodburn, president of the Canadian Association of Crown Counsel, said he hopes other provinces will follow Ontario's lead. Newfoundland and Labrador has added three prosecutors, he said. "Hopefully, it will catch on across the country," the Halifax-based prosecutor said in an interview.
The Ontario government said it will expand its bail verification and supervision program to the entire province. The program aims at supporting low-risk individuals who may not have anyone in the community to supervise them. Currently, it operates in about half of the province.
Anthony Moustacalis, president of the Criminal Lawyers Association, praised the bail changes as a "very helpful step in moving on what has been a three- or four-year project to reduce the number of people in pretrial custody."
The government also said it will set up a supervised housing program for low-risk individuals in five Ontario communities, make duty counsel available for bail hearings at six correctional facilities and create special supports for indigenous people in the bail and remand process. Mr. Naqvi also appointed former chief justice Brian Lennox, former deputy attorney-general Murray Segal and deputy Crown attorney Lori Montague to advise him on further bail improvements.
Across Canada, more people in provincial jails are waiting for trial than have been convicted.
The government will "embed" Crown attorneys at two police stations, including Toronto's downtown 51 division, beginning next month.
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The Globe & Mail
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Rules governing police records and background checks dangerously murky
Call 911 and report having been threatened by an ex-spouse, hated neighbour or jealous co-worker. Now, sit back and watch the ruination of a potential career or volunteer service. It’s as easy as that.
Or, for those of a less malevolent bent, mistakenly identifying someone in a police report is enough to put a permanent blot on his name and reputation.
Welcome to the murky world of police records and background checks, where baseless allegations stick forever and the presumption of innocence is an empty vessel.
The problem is not new — civil libertarians have been railing against it for years — but the ramifications grow steadily more destructive. With personal information proliferating in official files and requests for background checks billowing, a probing look into the insidious havoc being wreaked on personal reputations and career aspirations is long overdue.
As with many institutional excesses, the misuse of records arises from positive impulses — protecting institutions from troublemakers and vulnerable individuals from being preyed upon by crooks or sex offenders.
Not content with merely scanning criminal convictions, however, over-cautious bureaucrats and employment recruiters now pore over records of unproven allegations; incidental contacts with police officers; charges that were withdrawn by the Crown; and incidents relating to mental health.
While some police forces vet these records carefully before releasing those that are most pertinent, others transfer them indiscriminately. In the absence of centralized guidelines or firm regulations, these decisions are up to individual forces.
Thus, an upstanding citizen who was briefly investigated for marijuana possession in his teens may be unwittingly branded for life. A loving parent who had false accusations filed by a bitter ex-spouse may well be precluded from adopting should she remarry.
As Published in:
The Star
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