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ARTICLE ● ‘Where is the professionalism here?’ Judge slams Toronto cops for messaging each other while testifying in domestic violence trial ● TORONTO STAR Jul 14, 2022

Where is the professionalism here?’ Judge slams Toronto cops for messaging each other while testifying in domestic violence trial
A recent trial was “irrevocably tainted” when two Toronto officers were apparently messaging each other while one was testifying, a judge has found.
By Alyshah Hasham Courts Reporter
Thu., July 14, 2022

 

As a Toronto police officer testified by Zoom in a domestic violence trial, Ontario Court Justice André Chamberlain heard the ping of what seemed to be a social media messaging app. Then he saw the officer and the officer in charge of the case, also on the Zoom call, both suppress laughter at the same time.

A few minutes later, it happened again.

In a scathing ruling released Friday, Chamberlain said that after reviewing notes and a special transcript he is convinced Const. Jade McMurray and Const. Sarah Chippior were in communication while Chippior was testifying — which, if true, would seriously undermine confidence in the justice system.

“How could a defendant, in an open court, whose liberty is at stake and who faces significant consequences if found guilty, feel as though he’s had a fair trial if the witness and the officer in charge are communicating surreptitiously while testifying?” the judge wrote.

Chamberlain said he did not know what the communication entailed — whether it was about the case or entirely unrelated — because no records were ever obtained by the Crown and disclosed to the defence. Chamberlain, a former federal Crown, criticized the prosecutors for not obtaining those records given that the content could call into question both the credibility of the witness and of the entire investigation.

“I was deeply troubled by the complete inaction of the Crown on this issue,” he wrote.

Defence lawyer Paula Rochman, who acted as a “friend of the court” for the self-represented accused man, Islamuddin Attayee, said it is outrageous that any witnesses — let alone the officer-in-charge of the case and the officer who arrested the accused — would be communicating while testifying.

“It’s astounding that they thought this was acceptable at so many different levels,” Rochman said.

Rochman said the failure to find out what the communication was about and whether there was a totally innocuous explanation makes the incident even worse.

“Where is the professionalism here?”

A spokesperson for the Ministry of the Attorney General said it would be “inappropriate” to comment on the ruling during the appeal period.

A spokesperson for the Toronto Police Service said that, when notified, a “negative judicial finding” is referred to Professional Standards, who will decide if an investigation is needed. “If misconduct is substantiated after an investigation, the Police Services Act provides for a number of disciplinary measures to be imposed from lost pay to dismissal,” the spokesperson said.

Chamberlain acquitted Attayee on charges of assaulting his wife and a bystander who intervened because he could not rely on the eyewitness identification of Attayee by three witnesses in court. Attayee’s wife did not participate in the trial.

The three witnesses testified they saw a man strike the face of a woman with a stroller and rushed over to stop him, according to the ruling. The man then punched one of the women who confronted him in the face.

The man fled the scene. Police later arrested Attayee at his wife’s home.

While all three witnesses identified Attayee in court as the man they saw that day, Chamberlain pointed out that one witness did so over Zoom where Attayee was identified as the “accused.” Attayee was also wearing a mask at the time due to COVID-19 restrictions in court, and that the trial was taking place two years after the alleged assaults.

Chamberlain said that in-court identification should be used with extreme caution and noted that no photo lineup or any other process to identify Attayee as the perpetrator was done during the investigation.

While the judge did not acquit Attayee over to the communication issue, Chamberlain noted that the incident caused tension between Attayee and his lawyer and that Attayee ended up having to represent himself. The court then appointed Rochman to assist in making sure Attayee had a fair trial.

“This trial was irrevocably tainted by the actions of this witness, the officer in charge and the Crown,” Chamberlain wrote, adding that he feels for the two complainants and the witnesses who stepped in to help a vulnerable woman and “now find the whole process undermined by the actions or inactions of some of the players.”

Rochman said this case highlights serious issues with Zoom trials that do not exist in physical courtrooms.

It is impossible to control what people are looking at when they are appearing on Zoom or to be sure they aren’t looking at another screen, or a phone, she said.

Zoom courts also lack the formality and solemnity of a physical courtroom, she said, though a police officer should know looking at messages and laughing in court is not appropriate.

She added that the decision should be automatically reported to police and the Crown’s office so that followup action can be looked into.

recent Torstar investigation by Rachel Mendleson and Steve Buist found that when judges find officers have violated the rights of the accused, those decisions often fly under the radar of police forces, and even the officers themselves.

 

ARTICLE ● Zoom is here to stay, but robes are back: Ontario Superior Court of Justice Guidelines ● Dale & Lessmann LLP Apr 7, 2022

Zoom is here to stay, but robes are back: Ontario Superior Court of Justice Guidelines 
Apr 7, 2022 by Rachel Frank Dale & Lessmann LLP

The COVID-19 pandemic forced the justice system to adapt and to embrace and facilitate virtual proceedings for hearing matters before the courts. As in-person events return, the Superior Court of Justice has released new guidelines setting out the presumptive method of appearance for different types of proceedings. While the Guidelines to Determine Mode of Proceeding set out the presumptive methods of attendance in various proceedings, these presumptions remain subject to the Court’s discretion and the over-arching principles outlined in the Guidelines.

The Guidelines and the companion Virtual Courtroom Etiquette will come into effect on April 19, 2022.

In general, virtual hearings will continue as the default mode of proceeding for many routine and administrative matters. Some regions, especially the Northwest, Northeast and regions with circuiting judges, will require greater flexibility to continue hearing more cases virtually. Virtual attendance will be the default method of appearance for the following proceedings, unless the Court specifies a different method of attendance:

  1. All case conferences;
  2. Pre-trial conferences involving only trial management and scheduling issues;
  3. Pre-trial conferences directed at settlement or both settlement and trial management;
  4. Trial and long motion scheduling court;
  5. Contested motions (both short and long) and applications, unless a party requests that it be held in person and the Court agrees or the Court directs that it be held in person;
  6. Assessment hearings.

In directing that a contested motion or application be heard in person, the Court will consider the positions of the parties, the complexity of the issues, whether the outcome of the motion or application is dispositive of a material issue in the case, such as in summary judgment motions, whether viva voce evidence will be heard, and any other factor bearing on the administration of justice.

For other proceedings, the default mode of proceeding will be in writing:

  1. Motions on consent of both parties, all motions without notice and all motions that are unopposed;
  2. Motions for costs;
  3. Motions for leave to appeal to the Divisional Court.

The default mode of appearance will be in person for more substantive matters:

  1. Examinations for discovery, unless the parties consent to proceeding virtually;
  2. Mandatory mediations, unless the parties consent to proceeding virtually;
  3. Judge-alone trials, unless all parties consent to virtual trial and the Court approves, with the option of a hybrid proceeding and witness testimony by videoconference at the request of either party;
  4. Jury trials, with the option of a hybrid proceeding;
  5. Appeals and applications for judicial review in Divisional Court, unless all parties consent to it being heard virtually and the Court agrees or the Court decides that the appeal or application should be conducted virtually.

While the guidelines set out the presumptive method of attendance, the Court retains the discretion to determine how to proceed in each instance. For civil matters, the Court will consider the following overarching principles:

  1. Discretion of the Court: taking into account the issues in the proceeding, the length of the hearing, the evidentiary record, the status of the parties (including self-represented litigants), and access to technology.
  2. Rule 1.08 of the Rules of Civil Procedure: sets out the procedure for the moving party to specify the proposed method of attendance.
  3. Access to justice: including the ability of litigants to access and use the necessary technology for virtual hearings.
  4. Self-represented litigants: the circumstances of self-represented litigants, including the need for access to technology and other supports, such as duty counsel and court staff, or the inability to adequately address issues in writing, may favour an in-person mode of proceeding.
  5. Importance of in-person hearings: in-person advocacy and interaction will remain essential for more substantive attendances.
  6. Hybrid options: where appropriate or necessary, some parts of a proceeding may be conducted virtually and other parts conducted in person.
  7. Impediments to a virtual hearing: statutory, security or other impediments in certain matters, particularly civil contempt hearings or matters that deal with sensitive information, as well as personal circumstances, such as disabilities or caregiver responsibilities, may make virtual hearings less suitable.

The Court also released a set of best practices on virtual courtroom etiquette. The same decorum is expected at virtual and in person hearings. Effective April 19, 2022, lawyers attending virtual hearings will be required to be gowned in all proceedings that, if conducted in person, would require gowning.

Chief Justice Morawetz noted that the Court is determined to embrace changes that assist in achieving the goal of accessible and timely justice. As the justice system faces a massive backlog in all areas, it is hoped that the adoption of virtual hearings as the default for routine matters can play a role in reducing avoidable delays while balancing the needs of all participants.

 

 

 

 

 

         

ARTICLE ● Lawyers increasingly concerned about interplay between virtual and in-person court operations ● LAW TIMES Mar 30, 2022

Lawyers increasingly concerned about interplay between virtual and in-person court operations
'Presuming that we keep using CaseLines for in-person arguments, how does that work?' asks litigator
BY Annabel Oromoni 30 Mar 2022

Lawyers increasingly concerned about interplay between virtual and in-person court operations
Eric Sherkin is a commercial litigator and partner at Miller Thomson LLP

 

As civil proceedings prepare to return to in-person hearings for discoveries, mandatory mediations, and trials, litigation lawyer Eric Sherkin says lawyers are wondering about the interplay of online and in-person arguments.

Certain hearings like pre-trials and case conferences will remain remote but how it works in practice beyond that is still unknown, Sherkin says.

All parties can agree to a virtual hearing, but “how often will all counsel say, ‘let’s agree to do this on Zoom,’ or will there be fights where five lawyers want to proceed on Zoom, and one insists on doing it in person?”

The modernization of the court system has been a long time coming, and Sherkin says the ability to file more documents online rather than sending a processor to stand in line in the courthouse with boxes of paper is a silver lining of the pandemic.

With legal materials uploaded to CaseLines, commercial motions and trials through Zoom have been the new normal. For example, in January, Sherkin says Justice Myers spoke about wanting counsel to present the materials on CaseLines and direct the court to the page number.

 

“If we’re going to argue a motion in person, does that mean that the judge has a laptop, and we bring a laptop, and I’m sitting at the table navigating through the case line page numbers? Surely, we’re not going back to filing paper documents again.”

 “Presuming that we will keep using CaseLines for the in-person argument of motions and trial, how does that work?” he asks.

 

He says many firms have converted board rooms into virtual courtrooms to simulate being in an actual court, especially for first and second-year associates called to the bar during the pandemic, so it will be interesting to see how things unravel.

Sherkin starts a trial in May and is curious to see how that will go because part of his preparation will depend on technical issues. “I don’t know how this is all going to work.”

Lawyers handling files in other jurisdictions will also need to commute far to represent clients for in-person hearings, and he says some clients do not want to go back to in-person because it costs them more money

He says clients must pay for a lawyer’s travel time and room rental fee if discoveries are in person, so they are happy to do it remotely.

Judges are also beginning to request lawyers be robed for virtual hearings, and Sherkin says the court is trying to balance the progress in doing things more efficiently while holding on to the past legacy of decorum and solemnity.

“That we are all dressed a certain way is meant to convey the solemnity and seriousness of what we are there to do as part of the justice system and make sure that no one is judged or no impression given to a judge by how somebody is dressed.”

Some people oppose the suggestion of gowning for virtual attendances, but he says others think it makes sense, referring to a tweet where a user asked if lawyers should stand up in front of their computer screen while making submissions.

“Some people said ‘yes, of course, I always do, that’s just common courtesy,’ and I’ve never done that in my minutes,” he says. “You’re supposed to stand up, but I have to look into the camera, and if the angle is weird, and I’ve got to manoeuvre the mouse and type documents into the screen, how will that work?”

Sherkin says the early stages of the new changes will be a trial-and-error situation – like the beginning of CaseLines when the legal community was learning how to use the program.

Scheduling hearings could be more effective and efficient remotely, but Sherkin says it is a much better system than before, and Justice Meyer’s decision suggests that lawyers should be proficient in using the program by now.

“It should have been incumbent upon all lawyers to learn how to use this program, and the excuse I don’t know how to use CaseLines, and it’s new, doesn’t fly anymore. This is a crucial tool.”

He says many court delays are because of a lack of people and a bottleneck in the system. “If you want to book a short motion in front of an associate judge in Toronto today, you’re getting booked in December or January because there aren’t enough judges available to handle the volume of cases.”

Court staff sometimes handle the filing volume but go on vacation in the summer, so he says that is an endemic problem more than specific challenges with electronic filing.

 

ARTICLE ● Access to justice still a problem as some Ontario family courts return to in-person hearings ● CBC NEWS Mar 29, 2022

Access to justice still a problem as some Ontario family courts return to in-person hearings
Pandemic delays have left family courts with a lingering backlog of unresolved cases
Colin Butler · CBC News · Posted: Mar 29, 2022 4:00 AM ET | Last Updated: March 29

 

Some Ontario courts, such as the London court seen here, have a lingering backlog of dozens of cases delayed by the COVID-19 pandemic. Lawyers say access to the justice system remains a problem even though in-person hearings are returning. (Colin Butler/CBC News)

Lawyers say access to justice remains a big problem in Ontario's  family court system following two years of delays and shutdowns in response to the COVID-19 pandemic. 

When the virus arrived in March 2020, it wreaked havoc on the justice system, closing courthouses, upending trials and creating a backlog of unresolved cases. 

However, the pandemic also forced Ontario's paper-based justice system into the 21st century overnight, by introducing virtual hearings and an online portal, where lawyers and clients can get information, schedule appearances and file documents. 

Starting April 4, the Ontario Court of Justice said it would resume most in-person proceedings for family law, but whether you see the judge at the courthouse or on a screen, will still depend largely on the vast and complex inner workings of the family court system. 

 

Access to justice now tied to digital divide

 

"In London, I don't believe we will be attending in person for quite some time," said Stephanie Ouellette, a family lawyer from London who works child protection cases through Ontario Legal Aid. 

 

While virtual hearings might be more efficient in some ways, access to justice issues in 'the new normal' is directly tied with income and the digital divide, experts say. (Jane Robertson/CBC)

She said that in London, there were 65 family matters on the trial list in March, but fewer than five were actually heard, pushing at least 60 cases into April, on top of the matters already scheduled for the month. 

"We're really, really far behind unfortunately." 

While virtual hearings might be more efficient in some ways, access to justice issues in "the new normal" are directly tied with income and the digital divide, Ouellette said. 

"Some of my clients, who are involved in child protection matters, don't even have a cellphone, let alone the data to use it."

"We have had people miss court appearances simply because they don't have the devices to log into their own court proceedings. 

"The local courts are trying to address that issue and accommodate as best we can, but it is a larger issue with justice issues and access to stable internet." 

 

Marginalized people can face internet issues 

 

Access to justice, much like the digital divide itself, often affects people on the margins of society, and the pandemic seems to have only made it more pronounced, according to Christina Ninham, a family lawyer from Oneida of the Thames who represents a number of Indigenous clients.

Before the pandemic, transportation to the courthouse in London, Ont., was a big issue for some Indigenous people, including those from Oneida Nation of the Thames, pictured here. Now, access to technology, such as broadband, is posing problems. (Colin Butler/CBC News) 

"We don't have high-speed internet like they do in town," said Christina Ninham, a family lawyer from Oneida Nation of the Thames, who represents a number of Indigenous clients. 

"Realistically not everyone has internet on reserve. When we have internet, we're trying to not drop our calls to the court, which I've done on a number of occasions.

"I maintain two different phones with two different carriers just so I can have internet." 

Others, however, may not have a phone or a computer of their own. Being dependent on a public computer terminal at a library or community centre can cause complications, especially when dealing with sensitive legal or personal matters. 

"For a reserve, they're not going to prioritize high-speed internet or broadband, especially when they won't even prioritize the human right of drinking water." 

Ninham said despite all the challenges, if courts ever went back to the way they operated before the pandemic, using exclusively in-person appearances, it would make things worse for Indigenous people rather than better. 

She said Indigenous people, who are by far the most overrepresented people in Canada's justice system, can now, through virtual technology, hire an Indigenous lawyer like her even if their local bar association doesn't have one. 

"I'm thinking that in the northern areas they're going to keep virtual because of those reasons," she said. 

 

Virtual court is cheaper, more efficient

 

There are other obstacles when it comes to access to virtual justice, with seniors less likely to adapt to new technologies than their younger counterparts, and domestic violence is easier to hide, according to Russell Alexander, a Toronto divorce lawyer whose firm has seven offices in the Greater Toronto Area.

While online court has its drawbacks, lawyers say it's more efficient than doing business in person and lowers billable hours while allowing counsel to serve more clients from further away. (Jenny Kane/The Associated Press)

"It's harder to screen [for domestic violence] when you're at home. Someone might be being intimidated or bullied, and when you're going to the courthouse, the judge can oversee the proceeding and keep an eye on things," said Alexander.

"People are falling through the cracks."

Still, Alexander argues that virtual court has improved access for many of his clients, who are seeking to end marriages or negotiate support payments from former spouses. 

The ministry is consulting with our health and safety advisers in the Chief Medical Officer of Health's Office and the Ministry of Labour, Training, and Skills Development, to determine the appropriate preventative measures for courthouses moving forward.- Brian Gray, Ontario Ministry of the Attorney General

The most positive thing he's seen in terms of virtual hearings is the fact it has lowered his billable hours.

What Alexander refers to as the "Zoom divorce" is far more efficient for lawyers and clients than appearing in court in person. He said an online appearance can whittle a five- or six-hour day down to just one, which can save clients thousands of dollars in lawyers' fees and allow them the flexibility to take on more clients. 

"We can take calls the same day, see people the same day, access to justice is improved with the technology."

In terms of the future of a post-pandemic court system, the Ontario Ministry of the Attorney General, which is responsible for provincial justice, told CBC News it's still consulting with health experts and weighing the best options for the court system moving forward.

"The ministry is consulting with our health and safety advisers in the Chief Medical Officer of Health's Office and the Ministry of Labour, Training, and Skills Development, to determine the appropriate preventative measures for courthouses moving forward," an email from spokesperson Brian Gray said. 

Whether someone appears in person or on screen will continue to depend on where they live, their circumstances and what's best for ensuring justice, Gray said, noting each court can determine its own particular protocols. 

ARTICLE ● Crown ‘handed its gown trying to reduce the consequences of Jordan,’ CLA president says of decision ● THE LAWYER'S DAILY Mar 28, 2022

Crown ‘handed its gown trying to reduce the consequences of Jordan,’ CLA president says of decision
Monday, March 28, 2022 @ 12:52 PM | By Amanda Jerome

In allowing a stay for a fraud conviction, the Ontario Court of Appeal has soundly dismissed the Crown’s suggestion that the court should “revisit the remedies” for s. 11(b) violations. While upholding the framework set out in R. v. Jordan, 2016 SCC 27, the court felt “compelled” to address the language in the Crown’s factum, calling its description of stays “extreme and inappropriate.”


Justice Michael Tulloch, writing for the Court of Appeal in R. v. Charity, 2022 ONCA 226, noted that the “role of the Crown in criminal proceedings has been long established: it must execute its duties ardently but fairly and in a balanced manner.”

“In the present case, the language of the Crown in some instances exceeded this responsibility in a pejorative manner,” he added, noting that in its factum the Crown described “the issuance of stays under Jordan as ‘automatic judicial guillotines, without any nuance or balance, giving the guilty a windfall and the innocent a brushoff and depriving society of the truth.’ ”

The Crown, the court noted, also criticized the remedy as “an abdication of justice.”

“In my view,” Justice Tulloch stressed, “these are not fair characterizations of Jordan and the remedy for unreasonable delay, and the language used by the Crown goes beyond a mere difference in opinion.”

In the decision, released March 21, the judge explained that a “stay of proceedings under Jordan does not issue as of right once the presumptive ceiling has been breached.”

“At that point, the onus shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances,” he added, noting this is “uncontroversial.”

“This approach,” he wrote, “allows for the nuance and balance which the Crown mistakenly argues is missing.”

Justice Tulloch explained that the Crown’s “description of stays in such instances as ‘automatic judicial guillotines’ ” was “extreme and inappropriate.”

The judge acknowledged that “a stay of proceedings precludes a case from being determined on its merits and that this may benefit an accused person while also harming the victims of a crime.” However, he noted “the Crown’s presentation is not fair in that it is one-sided” and “[N]either is it just to the accused (who is presumed innocent), the public, or to the victims to allow a case to continue past reasonable delay, with the tepid comfort of interim measures.

“The Jordan framework is cognizant of this tension,” he wrote, noting that it “accounts for a balanced approach in the assessment of unreasonable delay; however, once that delay becomes unreasonable, there must be finality to the proceedings through a stay.”

Justice Tulloch emphasized that the “spirit of a stay of proceedings for unreasonable delay is not to give innocent parties ‘the brushoff’ or unnecessarily deprive the public of the truth, but rather to uphold public confidence in the administration of justice through a careful and intentional framework.”

“I want to be clear: counsel should not be discouraged or deterred from bringing critical perspectives of the administration of justice before the courts,” he added, noting that “[C]ritical perspectives form part of a healthy justice system.”

“Those critiques, however, must be advanced in a manner that is fair and is not needlessly incendiary. In my view, the Crown’s factum in this matter failed to achieve this balance,” he decided, with Justices Katherine van Rensburg and Ian Nordheimer in agreement.

The Crown used similar wording to criticize Jordan recently in a factum before the Supreme Court of Canada in R. v. Ste-Marie, 2022 SCC 3. As previous coverage in The Lawyer’s Daily noted, Justice Russell Brown said he was “frankly shocked” and “disappointed” by the Crown’s “misguided” written submissions.

Addressing the Crown on Feb. 10, Justice Brown said he was persuaded “more than ever, that as soon as we take away the Damoclesian sword of a stay as a remedy for a breach of the right to a trial within a reasonable time that the culture of complacency will, at least in Ontario, settle right back in.”

In other decisions released the same day as Charity, the Ontario Court of Appeal drew attention to the fact that the Crown had advanced the same argument on remedies to consider other than a stay when it comes to s. 11(b) breaches. 

In R. v. Hanan, 2022 ONCA 229, Justice van Rensburg noted that “an argument made in this appeal as well as two other appeals heard the same week, R. v. Charity and R. v. Campbell, the Crown submits that, if this court concludes that there was a violation of the appellant’s s. 11(b) rights, a remedy other than a stay of proceedings should be considered.”

Although the majority dismissed the appeal in Hanan, Justice van Rensburg did note that if a s. 11(b) breach had been found she would have “ordered a stay of proceedings, for the reasons expressed in R. v. Charity ...”

 

 John Struthers, president of the Criminal Lawyers’ Association
John Struthers, president of the Criminal Lawyers’ Association

 

Commenting on the court’s decision in Charity, John Struthers, president of the Criminal Lawyers’ Association (CLA), boiled down the Crown’s argument to “a resources issue.”

“The SCC in Jordan actually gave them [the Crown] more time but made it a hard cap,” he said, noting that the “justice system has been seriously underfunded and over utilized for years.”

“If every social problem is going to be tossed into the criminal law hopper, then it would be a good idea to fund it so that matters can be dealt with inside these very generous timelines,” he explained, adding that the “attempt to water down the remedy is to eviscerate the entire point of Jordan.”

Struthers noted that the Supreme Court of Canada “repeatedly tells the provincial attorney generals the law” on Jordan and on bail and “they repeatedly ignore it.”

“The court seemingly has had enough as has the defence bar,” he stressed.

“If drug addiction, drinking and driving, domestic abuse, poverty and all social ills of any nature are all ‘criminal’ matters then defunding legal aid and the courts is going to cause huge problems which they simply don’t want to pay for,” he added.  

Struthers also noted that the “pandemic backlog is a tsunami” and the Attorney General has not “culled the cases” or “provided legal aid” and “resources to deal with it.”

“Instead of taking action they [the Crown] want to make Jordan go away,” he said.

“The Crown was handed its gown trying to reduce the consequences of Jordan and will be again,” he stressed.

“There is a line in the sand now. The Attorney General must act and spend money or reduce the system’s appetite,” Struthers added.

The final decision in Charity allowed the appeal from conviction and entered a stay. The appellant, Craig Charity, had been convicted of “defrauding a business partner of $378,491.60.”

According to court documents, the crime “arose out of fraudulent invoices and receipts he tendered as legitimate business expenses.”

Charity was arrested in March 2015, but due to delays, wasn’t convicted by the trial judge, Justice Graham Wakefield of the Ontario Court of Justice, until April 2018. The trial judge’s written reasons weren’t released until August 2018.

Charity appealed to the Ontario Court of Appeal, submitting that Justice Wakefield “erred in dismissing his s. 11(b) application” and also “erred in his analysis under the third branch of R. v. W.(D.),” by “using his disbelief of the appellant’s evidence to bolster the Crown’s proof of guilt.”

The court allowed the appeal “on the basis of a s. 11(b) violation.”

Counsel for the appellant and the Ministry of the Attorney General, on behalf of the Crown, declined to comment on the decision.

 

 

 

ARTICLE ● Hybrid Zoom Hearings ● OTTAWA CITIZEN Dec 28, 2021

“We still haven’t figured this out”:  Courts face technical challenges as Ontario accelerates modernization plan

December 28, 2021 | By Aedan Helmer
        

With COVID-19 creating a state of flux in Ontario courthouses, the provincial government is “accelerating” plans to outfit courtrooms with videoconferencing capabilities in the next phase of its modernization strategy.   The long-range plan, according to Ministry of the Attorney General spokesperson Brian Gray, will “break down barriers in the justice system and speed up access to services — remotely, in-person and online,” and will deliver “the most significant upgrade to justice services in Ontario history.”

But some critics say that change is happening too gradually, with in-person access still under restrictions at Ontario courthouses while remote access — by Zoom or other teleconferencing — has presented some technological challenges.

“The courts belong to the public, and the public ought to have full access, and nearly two years into the pandemic we still haven’t figured this out,” said Ottawa criminal defence lawyer Leo Russomanno on behalf of the Defence Counsel Association of Ottawa.  “We’re not only talking about members of the public who are observing, but also family members of parties that, for reasons beyond their control, cannot attend at the courthouse. People want to be responsible and limit their attendance in these indoor gatherings, or they may have a condition that prevents them from attending. But for whatever reason, if they can’t attend by Zoom because that access is being restricted, there is simply no excuse for that nearly two years into the pandemic. “There is an open court principle that ought to be adhered to, and it’s not in some of these cases.”

The ministry “remains committed to the open court principle and providing access to justice services for all participants,” Gray said.   “The judiciary have the exclusive authority to control the process of their courts, including deciding whether the court proceeding is held in-person or remotely.”   Some proceedings at the Superior Court of Justice can only be held virtually where the parties consent, and all judicial officials are “encouraged to be flexible and mindful of the position and circumstances of all participants … ” Gray said. “In instances where a matter will proceed virtually, the ministry will work with the victims and witnesses to ensure they are able to participate.”   Gray cited investments and recent “breakthroughs” in moving justice services online with remote hearings and other key changes to judicial procedures and the court process to improve access, including in rural, northern and Indigenous communities.

The ministry has provided courts with 635 new teleconference lines, a portal to access and recover recordings, and technology to enable remote hearings in 349 courtrooms since resuming operations in July 2020, Gray said.  Judicial officers and court staff have also been equipped to work remotely and securely.   The ministry is currently “accelerating investment” in videoconferencing equipment, Zoom licenses and bandwidth upgrades, with plans to retrofit another 70 courtrooms with videoconferencing capabilities.  The ministry took a phased approach to resuming in-person court operations and, as of early December, had resumed proceedings in 74 courthouse locations, with 721 courtrooms open across Ontario, 11 satellite court locations and four off-site jury locations.

Russomanno said the DCAO has long been calling for some of the changes the province implemented in its modernization strategy.  “The defence bar has been saying for a while now that we need to find efficiencies in the system in terms of filing documents electronically and finding a more efficient way to appear in court on administrative matters,” Russomanno said. “It took a global pandemic to sort of drag the justice system kicking and screaming into modernity.” There are still some glaring gaps in the government’s plan, Russomanno said.   “While I applaud the government for (its modernization efforts), it’s hard to give too much credit when we’re still having bail hearings where an accused person is on the phone at the jail, where there’s no video capability … We still don’t have the ability to have remote hearings from the jail, and almost two years into the pandemic that’s unacceptable.”

Several high-profile murder trials went ahead in Ottawa prior to the Dec. 19 announcement that all new jury selections would be halted.   Russomanno said there are still technical challenges with “hybrid” trials — involving an in-person jury with some witnesses testifying by Zoom — and lingering concerns over the integrity of the court process.

“Hybrid trials are a nightmare, setting up cameras and microphones, sometimes passing a single microphone between (Crown prosecutors and defence lawyers) so we have the ability to be heard by a witness testifying over Zoom,” Russomanno said.

There are also concerns with witnesses who could be observing anonymously via Zoom, which would violate an exclusion order.

The ministry said officials have worked with justice participants “to keep Ontarians safe and maintain the administration of justice, including the integrity of court proceedings, as determined by the presiding judicial official,” according to Gray.

“There are definitely challenges with hybrid proceedings and with Zoom, and these are all things we’re dealing with as we go,” Russomanno said. “So there is a bit of a gap between what the government says it’s doing and what is actually happening on the ground.”

 

ARTICLE ● Courts’ hiding their COVID-19 vaccination policies legally flawed, against public interest: experts ● THE LAWYER'S DAILY Sep 24, 2021

Courts’ hiding their COVID-19 vaccination policies legally flawed, against public interest: expert

Friday, September 24, 2021 @ 12:56 PM | By Cristin Schmitz and Terry Davidson

Experts are rejecting as legally flawed, and contrary to the public interest, an argument that a few Canadian chief justices are making to justify not revealing how many of their court’s judges are vaccinated for COVID-19 and what — if any — mandatory COVID-19 vaccination policies their courts have in place.

As a separate branch of government, the Canadian judiciary has institutional obligations of transparency and public accountability and is said not to be subject to federal or provincial vaccine mandates that might emerge in the workplace. Therefore The Lawyer’s Daily is contacting every chief justice and chief judge across the country to ask how many of their judges are vaccinated for COVID-19, and what mandatory vaccination policies the publicly funded courts have for their judges and staff.

 
Amy Salyzyn, University of Ottawa

"This is about more than just transparency for transparency's sake,” commented University of Ottawa law professor Amy Salyzyn, president of the Canadian Association for Legal Ethics. “The public should be given all available and material information about any health risks they may incur when attending a courthouse. This includes, in my view, information about the judiciary's vaccination status."

“As a practical matter, shouldn’t the public know the court’s policy if they must, or may wish to, attend court?” said Gavin MacKenzie of Toronto’s MacKenzie Barristers.

MacKenzie, an expert on professional ethics, endorsed “the policies adopted by the Supreme Court of Canada and other courts to protect people who attend court proceedings during a public health crisis.
“In my view, courts should announce their policies on the subject in the interest of  transparency and accountability.”

The Supreme Court of Canada and others, such as the Manitoba Court of Queen’s Bench, have been transparent.

The Supreme Court told The Lawyer’s Daily, for example, that its nine judges are fully vaccinated, and that Chief Justice of Canada Richard Wagner is requiring court staff be vaccinated before entering the courtroom in the fall session.

As another example, the country’s largest superior trial court, the Ontario Superior Court of Justice, has said the public can expect that any of its judges who conduct in-person courtroom proceedings will be fully vaccinated against COVID-19.

But a handful of courts are refusing to disclose anything around their judges’ or staffs’ COVID-19 vaccinations (or lack thereof), including whether any (and how many) of their judges are vaccinated for COVID-19; what mandatory COVID-19 vaccination policies their courts have — if any; how any vaccination policies are enforced; and what the judiciary is doing to ensure that court staff are vaccinated.

 
Emmett Macfarlane, University of Waterloo

University of Waterloo political science professor Emmett Macfarlane rejected those courts’ key argument that revealing a COVID-19 vaccine mandate for judges, or divulging judges’ vaccination status, would bring into question their impartiality.

“Frankly, I think it’s a bizarre argument,” he said. “Impartiality shouldn’t extend to taking basic, reasonable health and safety measures.” MacFarlane explained

“I don’t see why a judge would be expected to have a personal view based on policies of their courts. I don’t see why a judge’s impartiality would be impacted by their decision to have become vaccinated. Would we expect judges to recuse themselves, or see their impartiality [impacted] in a disability rights case if the judge used a wheelchair, or was themselves in some way disabled? I don’t understand it.”

Still, given the controversial nature of vaccine mandates, generally, Macfarlane sees how judges “have fallen into this trap of thinking that there [is] some sort of perception issue at play.”

“But there are all manner of issues that might come before courts that are implicated in the daily working lives of judges, or their own personal choices, but we would          never  call into question their impartiality on those bases, so this shouldn’t be treated any differently just because we’re in the middle of a pandemic,” he suggested.

On Sept. 21, all three levels of court in Nova Scotia became the latest to decline to disclose anything at all to The Lawyer’s Daily about their internal policies on COVID-19 vaccination, or the vaccination status of their judges — echoing the same argument made earlier by the Federal Court of Appeal and Manitoba Court of Appeal whose chief justices each declined to provide any information on the basis that telling the public about their courts’ COVID-19 vaccination policies (or lack thereof) risks undermining public confidence.

In a written response to The Lawyer’s Daily, communications director Jennifer Stairs, on behalf of Nova Scotia’s judiciary, underscored the “vital” importance of public confidence in the courts’ impartiality.

“It would be inappropriate for the judiciary or a specific court to disclose its views or institutional policies on vaccinations, regardless of what those are, given that it is an issue that may come before the courts for adjudication,” Stairs said. “With that in mind, there are no plans to publicly disclose the vaccination status of Nova Scotia judges, or the position of any court on mandatory vaccination for judges.”

Legal ethicians and professional conduct experts contacted by The Lawyer’s Daily were not persuaded that a court’s decision to hide whether it has a vaccination policy (or the nature of any policy) will preserve public confidence in its judges’ impartiality.


  “If there actually are impartiality concerns [around disclosure] — and I do not think there are — it is difficult to understand how the issue of impartiality would turn on the court being secretive as to whether there is a vaccination policy: either the policy exists or it does not,” said Salyzyn.

MacKenzie agreed.

 

 
Gavin MacKenzie, MacKenzie Barristers

          

 “I have difficulty with any suggestion that a court that adopts and announces a vaccination policy may somehow be compromising judicial impartiality,” he said. “Neither the adoption of such a policy, nor the announcement of it, raises any issue of judicial ethics.”

MacKenzie predicted that “an argument that the adoption and announcement of such a policy may give rise to a reasonable apprehension of bias would be doomed to fail.”


In his written response to queries from The Lawyer’s Daily about his judges’ vaccination status, and his court’s policies around COVID-19 vaccination, Federal Court of Appeal Chief Justice Marc Noël noted that issues related to mandatory COVID-19 vaccination are likely to come before his court.

 “To preserve the actual and apparent impartiality of the court on this issue and related issues — as the court must — the court will not disclose whether it has any     personal  views or institutional policies on this issue, one way or the other,”

 Chief Justice Noël said.

“The court’s paramount responsibility, especially on an issue as controversial and unprecedented as this, is to ensure that Canadians are confident in this court’s    capacity and commitment to decide cases on the facts and the law and nothing else — not even any personal views and institutional policies we may happen to have.        Thus,  in no way should this response be seen as a desire to conceal the vaccination status of the judges.”

Manitoba Court of Appeal Chief Justice Richard Chartier agreed, stating that “courts are called upon to provide an impartial forum to resolve these important issues. In my view, the answers to your questions may be interpreted in a way that will bring into question our court’s impartiality.”

But both Salyzyn and MacKenzie said a judicial bias argument would not fly in court.


"It is difficult to understand how a court merely confirming whether it has instituted a mandatory vaccination policy for its judges could be successfully used by litigants in individual cases as evidence of a judge’s lack of impartiality,” said Salyzyn. “The fact that a court, as an institution, has announced that it is, or is not, requiring its judges to be vaccinated doesn't rationally imply that any of its judges have personally prejudged whether such mandates are legal or indeed, are legal in entirely different    contexts.”

Nor are courts’ refusals to publicly disclose their COVID-19 vaccination policies consistent with their public orders implementing other health and safety measures in their courts.

“Courts have implemented and publicly announced a whole host of other safety measures in response to the pandemic, and the announcement of such measures   has not interfered in the courts’ hearing of cases about the legality of pandemic safety measures implemented by other actors in other contexts,” noted Salyzyn.

MacKenzie noted that judges are accorded a strong presumption of impartiality.

 “In my view [it] could not be displaced by an institutional policy designed to protect the public during a pandemic,” he said. “This is a time at which transparency and        accountability must prevail.”

MacKenzie also suggested that courts which choose to keep secret their COVID-19 vaccination policies, and the vaccination status of their members, could undermine public confidence in their judges’ impartiality rather than enhance it.

“If a court’s policy on public health measures during a pandemic were concealed for fear that their announcement may somehow compromise the appearance of judicial  impartiality, that would be more likely, rather than less, to raise concerns,” he said.

 
Stephen Pitel, Western University

Western University law professor Stephen Pitel, vice-president of the Canadian Association for Legal Ethics, agreed that arguments based on possible cases about vaccine mandates coming before the court “do not hold much water.”           

“I do wonder, if the court heard a challenge to a similar policy in a different workplace, whether at minimum the chief justice would have to not hear the case,” Pitel said. “Having established such a policy for the court workplace seems to suggest he or she personally considers it to be legal, which seems close to expressing a view of the issue, even in a different workplace context. But that does not preclude disclosure of the policy,” Pitel advised. “If at all, only the administrative judge, the chief justice or associate chief justice responsible for imposing the policy, might have to recuse. No other judge of the court would.”

Pitel added that while the bias argument is not “very solid,” a court might have other unspecified reasons not to disclose its COVID-19 vaccination policy. “My sense is that best practice calls for disclosure of both having a policy, and its contents,” he said. “The policy aims to protect users of the court and to reassure them as to their safety. That is best achieved through transparency. But that is nonetheless an argument, rather than a ‘rule’ which would mandate disclosure.”

Inquiries by The Lawyer’s Daily about COVID-19 vaccination polices for the thousands of judges and court staff who work across Canada have revealed that judicial leaders are taking very different approaches to disclosing their internal policies on mandatory COVID-19 vaccination for judges and staff, and the vaccination status of their judges.

Both the Federal Court and the Supreme Court of Canada have disclosed that all their judges are fully vaccinated.

Similarly, the New Brunswick Court of Appeal and New Brunswick Court of Queen’s Bench informed The Lawyer’s Daily that they do not have a mandatory COVID-19 vaccination policy — but that all eight appeal judges and all 33 superior court trial judges have received their full round of shots.

As well, Saskatchewan’s provincial court, Queen’s Bench, and Court of Appeal have all disclosed that they have “no formal protocols with respect to the vaccination of judges.” Newfoundland and Labrador’s Supreme Court told The Lawyer’s Daily it is not requiring its judges or staff to be vaccinated against COVID-19, but is urging them to get their shots.

Taking a less transparent approach, British Columbia’s courts have declined to disclose their judges’ COVID-19 vaccination status — although the courts said this might be revisited as the COVID-19 situation in the province evolves, and as the latest public health guidance changes. The B.C. courts were transparent, however, in disclosing that their chief justices are not requiring that their nearly 300 judges, or court staff, be vaccinated for COVID-19 before entering courthouses:

The Ontario Court of Appeal and the Ontario Court of Justice, Canada’s busiest and largest trial court with 383 members (including part-time judges), have said they are working on COVID-19 vaccination policies for their members,

None of Alberta’s courts have yet answered written questions from The Lawyer’s Daily.

 

ARTICLE ● Ceremonial Opening of the Court Conducted Via YouTube ● THE LAWYER'S DAILY Sep 15, 2021

CEREMONIAL OPENING OF THE COURT
CONDUCTED VIA YOUTUBE
Ontario’s chief justices address backlogs, stress need for accessibility as courts modernize
Wednesday, September 15, 2021 @ 3:34 PM | By Amanda Jerome

 

The quick modernization of the justice system in the wake of a global pandemic and the “historic backlog” of cases that COVID-19 has created were consistent themes throughout Ontario’s opening of the courts ceremony, held virtually on Sept. 14. One thing was made clear: technology is needed to keep justice moving, but ensuring the courts remain accessible to the most vulnerable is an important priority.

“Our modernization has been rapid. In the coming months and years we will need to evaluate what we have done and continue to invest in technology to ensure that we have the best tools and support to provide efficient and effective access to justice. We will also need to ensure our courts remain accessible to everyone, not just those equipped with laptops, cellphones, and high-speed Internet, but also the most vulnerable amongst us who may lack those tools or the abilities to use them,” stressed Chief Justice of Ontario, George Strathy in his remarks.

 

George Strathy, Chief Justice of Ontario

Chief Justice Strathy noted that “prior to the arrival of the coronavirus, our courts had functioned in ways unchanged for generations” and during his 50 years as “an observer of the law,” it often struck him that “the law was changing much faster than the way in which lawyers practised, judges judged and courts functioned.”

“In the course of 18 months, our courts have successfully catapulted themselves out of a dusty and fusty 19th or 20th century existence into a world of remote appearances, digital records and electronic filing,” he added, noting that this change was “driven by the pandemic, but realized through unprecedented collaborative efforts of the bench, the bar, and the Ministry of the Attorney General.”

Chief Justice Strathy stressed that “public trust is also fragile” and will “be eroded if those responsible for the administration of justice fail to understand and respect all those we must serve.”

“Public trust in the judicial branch as an institution, and public confidence in the administration of justice, are undermined when some of the most vulnerable members of society believe in their hearts that the system is beyond their reach, doesn’t understand or appreciate their concerns, takes too long, or it is too expensive and cumbersome to serve their needs,” he explained, noting that COVID-19 “shone a bright and critical light on the vulnerabilities of our society, magnifying pre-existing inequalities.”

 

Geoffrey Morawetz, Chief Justice of the Superior Court of Justice

Chief Justice of the Superior Court of Justice, Geoffrey Morawetz, recalled that when he began his role two years ago his “long-term vision was to bring the court into the 20th century.”

“Then the pandemic happened, which, in a surprising turn of events, pushed us rather quickly into the 21st century instead,” he added.

Chief Justice Morawetz noted that this “new environment has shown us the need to implement a new technological foundation to deliver more accessible justice at this moment and into the future.”

However, he made clear that this approach “comes with its challenges, and we are assessing the situation as we seek to improve.”

“Remote work has had its consequences on mental health, and technology poses a challenge for people who work within the justice system as they adapt to these new processes. The pandemic also exposed issues that we need to fix and improve, namely access to justice and the backlog,” he added.

Highlighted as a success, Chief Justice Morawetz noted the “over 180,000 virtual or hybrid hearings” the Superior Court has held “since the beginning of the pandemic, most commonly in family and civil.”

“This pandemic has bluntly reminded us not only of the need for our software and services to modernize, but for our workforce’s skills to modernize as well. We must equip our staff with the skills necessary to utilize new technology to effectively serve the public in the digital age,” he explained.

Chief Justice Morawetz said a “prime example of technological advancements in the courts is CaseLines, a document sharing platform that allows us to access documents for hearings anytime and anywhere.”

“We began implementing CaseLines August of 2020, and it was quickly adopted across the province. It is an important part of our strategy for tackling the backlog of cases. Last summer, the Ministry of the Attorney General procured CaseLines for our court. CaseLines can change how we do business, allowing us to access files from across the province and beyond. Its ability to make the justice system work will be integral to our services moving forward,” he added.

Chief Justice Morawetz also noted that the Superior Court’s “family law work has been incredibly busy” and throughout the pandemic it has “conducted over 96,000 virtual or hybrid hearings in family alone, including an unprecedented number of urgent requests.”

“Since the start of the pandemic, family cases have been a high priority to ensure the safety and well-being of children and families who have turned to the court for assistance,” he explained, noting that “despite these efforts, many challenges remain.”

“COVID-19 has caused delays that have aggravated the already significant difficulties of making post-separation arrangements, whether relating to children or financial support,” he said, adding that the court is trying to address delays by implementing improvements, such as the “new province-wide Notice to the Profession specific to family law cases and the introduction of the court’s Binding Judicial Dispute Resolution pilot.”

He stressed that the court is “working collaboratively with the bar and working groups to determine how virtual hearings can continue to be utilized once physical attendances can resume.”

“This remains a priority for the court moving into the future,” he added.

With regards to the criminal courts, Chief Justice Morawetz said the Superior Court has “heard over 34,000 proceedings over the course of the last 18 months.

He stressed that this “is in no small measure attributable to the input and dedication of the prosecutors and criminal defence lawyers to the criminal justice system and ensuring that it kept moving.”

“This required technological solutions and rules of practice to allow for appearances by accused persons and witnesses virtually,” he added, noting that with “the health and safety protocols in place in our courthouses, we have been able to resume and continue to expand our capacity for in-person hearings including jury trials.”

Chief Justice Morawetz explained that “as with civil and family,” moving forward the Superior Court has taken “temporary measures and made them a permanent feature of criminal practice: including e-filing, virtual proceedings and document sharing during proceedings.”

“We will also be developing a set of guidelines for the determination of which proceedings should be virtual and which in person in criminal which will be mindful of the particular access to justice issues involved,” he added, recognizing the “unique constitutional obligations and other issues that delay in criminal cases raise.”

He stressed that the “delay in conducting jury trials has compounded this concern.”

“I have identified addressing the backlog in criminal as a priority for our court,” he said.

Chief Justice Morawetz noted that “brick and mortar courtrooms” are needed for family and criminal cases, so the pandemic “necessitated an exponential increase in virtual hearings” for civil matters.

“Since the beginning of the pandemic, we have conducted over 50,000 civil hearings virtually,” he said, highlighting the civil court as a “prime example of the power of the CaseLines software” as the platform has been “embraced by judges and the bar.”

Chief Justice Morawetz stressed that virtual hearings “will be extremely helpful in the shorter term to help address the court’s pandemic backlog, and are here to stay in the longer term for routine appearances in each court system where appropriate.”

 

Lise Maisonneuve, Chief Justice of the Ontario Court of Justice

Lise Maisonneuve, the chief justice of the Ontario Court of Justice, said that though “justice participants can feel proud of many accomplishments during the past 18 months, some challenges remain.”

“One challenge we cannot ignore is the backlog of cases in our courts. This past year has seen an extra 60,000 criminal cases added to our backlog. There is also a backlog in provincial offences court. While the number of family matters in case management court has been reduced, there remains a concerning backlog in family trial matters,” she noted.

She stressed that the Court of Justice is “working to address pandemic-related trial backlogs in criminal, family and provincial offences act court” and a “number of initiatives have already been identified to reduce the criminal case backlog.”

“These initiatives include judge-led case management courts; an increase in availability of judicial pretrials to get these matters ready for trial or resolution; and additional plea and trial courts,” she said.

Elizabeth Dowdeswell, lieutenant governor of Ontario, noted in her address that there are “lessons we must continue to heed.”

“One of those is that we really understand and accommodate our interdependents(sic). For climate change is the next existential crisis that we’re facing, and technology and geopolitics will surely intensify global instability and forced migration. We are ultimately and mutually vulnerable on this earth and the challenge of how to protect and support the vulnerable will only deepen and be magnified,” she stressed.

She noted that a “return to normalcy” is “an opportunity to design something better.”

“This pandemic has laid bare for all of us the reality of inequity in our society. We need to have a place for genuine respectful conversations about who and what is essential, who and what matters. We need to break down silos between social and economic sectors. We need to think and act in a holistic and systemic way if we’re going to build resilience in this era of profound and fast-paced change. And we need to listen, really listen, to those who ask questions about justice,” she said.