B.C.’s attorney general says he’s doing everything he can to get criminal jury trials up and running during the COVID-19 pandemic.
“The decision about criminal jury trials is entirely in the hands of the chief justice of the Supreme Court and the judiciary,” David Eby said. “On our end, the sheriffs and court services branch are working very closely with the judiciary to support the courts in getting jury trials up and running as soon as we can.”
The court is expected to make an announcement on criminal jury trials this week.
The pandemic has created a significant backlog in court cases, Eby said. Four thousand cases were adjourned when in-person hearings were restricted in B.C. Supreme Court. The provincial court has adjourned more than 10,000 cases, including traffic tickets, family matters, minor prosecutions and small claims.
To help deal with the backlog, Eby has proposed a one-year restriction on civil jury trials.
But people accused of a criminal offence have a constitutional right to a jury trial. It’s considered the key to a fair and just system. To choose a jury, whether civil or criminal, requires the assembling of a significant number of people, Eby said.
“Potential solutions include larger venues for jury selection and doing tiered selection, where you bring in one group of people, and then another group of people, as opposed to typically bringing in around 200 people and selecting from the pool,” he said.
The order of the provincial health officer limiting all public gatherings to 50 people makes it a challenge, he said.
At the Victoria courthouse, defence lawyers have been setting criminal jury trial dates for the fall, even though they believe it’s unlikely their trials will go ahead.
Criminal defence lawyer Jordan Watt said it’s difficult to conceptualize getting 12 people together, approximately one foot apart from each other, to listen to the evidence throughout a trial which could last one week or up to three or four months.
“Then to get them to deliberate together without there being some type of massive construction to the current courtroom setup that we have right now, it’s just not going to happen,” Watt said.
“Even if you go a step further, I think you’re going to have problems getting people to come to court in order to be selected as jurors.”
All the provinces are struggling with the issue, said Eby, who is part of a national committee co-chaired by Chief Justice Richard Wagner and federal Justice Minister and Attorney General David Lametti.
The committee offers national guidance to chief justices, judges and court administration officials on the gradual resumption of court operations across Canada. The action committee is dealing with the challenges of jury trials and hearings in small court rooms, circuit and remote courts. It has released a document around best practices for jury trials and how to try and conduct jury trials in the COVID-19 era.
Eby has repeatedly asked Lametti to give increased discretion to judges under the Criminal Code around jury trials to address the realities of COVID-19.
“He’s indicated that he’s willing to look at those things, but the earliest they could be in the legislature is in the fall, so we’ve got quite a period of time before that happens,” Eby said.
The provincial attorneys general have also been asking the federal government for guidance on the timelines of the Jordan decision during COVID-19, Eby said.
In July 2016, in R. v. Jordan, the Supreme Court of Canada created new limits of 18 months from the time a charge is laid until the trial is completed in provincial courts and 30 months in superior court. Anything longer violates the accused’s right to be tried within a reasonable time, unless the prosecution can show exceptional circumstances.
“It’s clear that in exceptional circumstances you can go beyond the Jordan timelines,” Eby said. “The question for everybody is how long is the exceptional circumstance in relation to COVID.”
He hopes the federal government can give the provinces a legislated COVID-19 period that is deemed to be an exceptional circumstance “so we don’t end up with different exceptional circumstances across Canada and different standards of access to justice for the accused.”
Eby is calling for mandatory arbitration of ICBC claims to deal with the backlog.
“There were already a significant number of people waiting a long period of time for their trials,” he said. “Now we’re looking at allowing plaintiffs to require ICBC to enter into a binding arbitration process so they can have their matter heard sooner and relieve pressure on the court.”
Another strategy would allow people to appear virtually in both traffic and family matters. This would free the court from restrictions on how many courtrooms and how much spacing is needed, he said.