Ontario court in Windsor delaying some cases up to 10 weeks, says justice

As the COVID-19 pandemic continues to get in the way of business as usual, courts across the county have been forced to take steps to accommodate.

Ontario Court Justice Llyod Dean spoke recently joined Windsor Morning host Tony Doucette over the phone to discuss how courts in the province are finding new ways to try cases.

How slow are things in our courts right now?

Well if you just consider that on a normal day we have at least four criminal courts running and two or if not three Justice of the Peace Courts running and three family courts running. So right now we’re down to three Justice of the Peace Courts running at most and one criminal court running. 

Things have dramatically slowed down. We are only dealing with primarily bail hearings and in custody guilty pleas.

And what sort of cases are being delayed?

Well any trials that basically were scheduled since March 16, up until now. And that will continue at least until May 29. 

All of those trials that were scheduled during that time period are being adjourned.

So everything’s been pushed back at least 10 weeks?

At least 10 weeks. For example yesterday when I was conducting some matters, things were being adjourned until June 24, was the 10-week period.

Our schools have adopted a virtual learning model while their buildings are closed. Why couldn’t something like that happen in our courts?

I think the challenge — and I’m sure it’s with the school system as well, although they might have been a little bit ahead of the curve — is that things happened so dramatically that we just weren’t ready at the time as a provincial court system to move to a virtual courtroom. 

We have had the ability to have people appear by audio for quite a while now. But in order to run a court system effectively, you need every participant to be able to do that. So we’re talking about witnesses being able to somehow have technology — whether that’s in their own homes or going to a place other than a courtroom — to be able to put themselves into a courtroom virtually.

And you have the lawyers and you have police officers, you have judges, you have court staff. 

So it’s a real challenge for everyone to have that technology, just because of the sheer cost of it and also the security of maintaining the system properly.

The Canadian Charter of Rights and Freedoms says that “Any person charged with an offence has the right to be tried within a reasonable amount of time.” Are people facing charges now being denied that right, or could it even get to that point?

That’s an interesting question and it’s going to be a challenge that we will likely have to deal with once this passes.

Of course, there are circumstances that arise that would not be held against the court system, in terms of a person’s Charter rights of having the trial within a reasonable time. 

Quite often we refer to them as exceptional circumstances, or another way we refer to them are discrete events.

Things that really could not be avoided, such as a judge being sick or a lawyer or accused person being sick. Those are some examples. So I would expect, and of course every circumstance has to be looked at individually, but I would expect anything that has been pushed back because of the pandemic, I would assume that any court making a decision on this issue would have to not apply this time period to that.

Now there may be some argument that certain things that are not being heard right now ought to have been heard.

So we’ll have to see once this is all over how really the lawyers and I’m speaking primarily of defense counsel who represent the accused. 

I should say that it’s not just the accused that has a right to be trial within a reasonable time. Complainants, alleged victims, they have a right to have their matters heard as well. 

The court system is interested in matters being heard as quickly as possible because witnesses memories fade over time. That’s just human nature. So there’s not just the accused’s interest, there’s an interest within the entire justice system for matters to be heard as quickly as possible.

So we have the best case scenario here. Having cases pushed back 10 weeks. Best case. It could turn out to be longer than that. What effect would that have on the system overall?

This is going to be the challenge. When we say we’re putting cases over 10 weeks — if a trial is scheduled today, it’s not that in 10 weeks the trial is scheduled. 

It’s that in 10 weeks, the matter will be spoken to and a new day will be set. Our system is such that we have to keep matters already scheduled into August, September, November and so on. So we’re pushing these cases that are presently up onto dockets that are already full 10 weeks from now. 

So it’s not that the trial that was adjourned today is going to be heard ten weeks from now. They’re going to have to set a new date. Now behind the scenes, there are things that are being done by the participants in the justice system to set the plan as to how we’re going to deal with all of these. backlogs that are going to happen. 

There are things being done that we’re going to have to find ways to deal with these things. Whether that is finding more resources or dealing with matters in a different way than we’re dealing with them now.

How has all of this affected your day to day responsibilities?

It’s strange. Because we only have really one criminal court running when typically we have at least four and there are five criminal judges here in Windsor, we have one judge that will be in court, another judge that will be out of court handling judicial pre trials.

Now that’s for great now. Moving forward we’re probably going to change that model a little bit. Let’s say the other three criminal judges, what it has allowed me personally to do is get caught up on a lot of office work. And so it’s a strange feeling to have that amount of time during the day, because a lot of times that kind of work is being done after hours or on the weekend.

Answers have been edited for length and clarity. Listen to the full interview below:

Canada’s Charter of Rights and Freedoms promises those accused of crimes a hearing in a reasonable amount of time. But during a viral pandemic, what is reasonable? Tony asks Justice Lloyd Dean about that. 7:18

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