A Victoria defence lawyer is worried about the potential effect COVID-10-related closures in the provincial court could have on the rights of the accused to safe confinement and a fair trial.
B.C. Supreme and provincial courts have suspended all regular operations effective immediately until further notice, though adjustments will be made to accommodate the hearing of urgent matters.
In-custody criminal trials, bail hearings, urgent out of custody criminal trials, and other urgent trials or hearings as ordered by a judge will only be heard at one of six hub locations, unless otherwise ordered.
Donald J. McKay says despite the fact the courts are being careful to identify these adjournments as a response to the COVID-19 pandemic, he says decisions will have to be made judicially as to whether this counts as an exception to a person’s right to a speedy trial. He also suspects there could be an uptick in appeals due to the pause in service.
McKay’s biggest concern for his clients is the potential for lost evidence and people who are unable to testify due to the illness.
“The concerns of the courts are legitimate,” he says. “It’s not just the accused people, it’s court staff, witnesses, crown and defence lawyers and judges — everyone’s impacted by this and a courtroom is a tight space … you can’t conduct a trial over the phone.”
Currently, McKay can only speak to clients over the phone which makes the lengthy conversations he needs to have with clients about upcoming hearings difficult. While the adjournments ease some of that worry, he is still concerned for his clients who are in custody.
“Having this many people crowded into this space, in terms of the way jails operate, is going to make it for people who are in custody at a higher risk becoming infected and it will spread immediately,” he says.
McKay says he will be speaking with Crown to see if he can get people released on bail who were not candidates prior to the pandemic, although there’s not much that can be done for people who are serving a sentence.
“There are parole provisions that can be implemented that would allow for early release,” he says. “The ultimate objective
[should be] trying to reduce the overall prison population to limit the spread.”
McKay also worries for himself and other lawyers, specifically defence lawyers who rely on private clients for income.
“I think it’s important to know that lawyers are being impacted, perhaps more so than other populations and less than others still,” he says, adding steps are being taken to identify alternative ways to deliver legal services right now.
A look at upcoming court cases in B.C.
Several high-profile cases across the province have been affected by court closures.
In the Okanagan, two murder cases making way through Kelowna Law Courts will be postponed.
Kevin Costin is facing trial for second-degree murder in relation to his wife’s 2015 death in a blaze at their West Kelowna home. Tejwant Danjou, a Surrey man accused of killing his common-law wife in West Kelowna in 2018, is in the midst of his second-degree murder trial.
In the Lower Mainland, Jamie Bacon’s upcoming trial has been delayed into April. Other trials impacted include the case against five relatives accused in the death of 19-year-old Bhavkiran Dhesi, whose body was found inside a torched SUV in 2017. A planned inquest into Corey Scherbey’s death has also been postponed.
Trial time limits from Jordan ruling don’t apply to deliberation: Supreme Court
The Supreme Court of Canada says the length of time a judge takes to deliberate and issue a verdict in a criminal trial is not included in the time limits the high court set to protect an accused from unreasonable delays in having a case heard.
The judges are unanimous in their finding that the right to be tried in a reasonable time includes a judge’s deliberation period.
However they also all agree that the judge’s time wrestling with a decision is not part of the time periods set for trials to be heard in a landmark 2016 ruling known as the Jordan decision.
The Jordan decision says the time from charges being laid until the end of a trial should rarely be more than 18 months for cases heard in provincial courts and 30 months for cases heard in superior courts.
– with files from The Canadian Press