COVID-19 is now responsible for major disruptions in the criminal justice system. With all levels of Ontario courts now open only to “urgent matters,” most court cases are being automatically adjourned into the summer of 2020. Examples of matters the court deems “urgent” are bail hearings and situations where someone has been in pretrial custody longer than their anticipated sentence. If you are a litigant in the Criminal Justice System in Ontario and you have a non-urgent court appearance of any kind between March 28th and May 31st, 2020, your matter will be adjourned 10 weeks in your absence as you are encouraged not to attend court.
Many have heard of the landmark decision in R. v. Jordan, 2016 1 S.C.R. 631 where the Supreme Court of Canada placed firm time limits on prosecutions. The Court determined that all provincial matters must be concluded less than 18 months from the time the information (or charging document) was sworn. For Superior Courts, the prosecution has a time-limit of 30 months.
These recent “auto-adjournments” have many asking “how does COVID-19 affect my case?” Unfortunately, while one can easily speculate about foreseeable advantages to the defence caused by COVID-19, there are no clear answers. In order for delays in a given court case to be attributed to the Crown, the delay must be caused by the Crown. Clear examples of Crown delay are adjournments for outstanding disclosure and lengthy trial adjournments based on limited courtroom availability. Sometimes delays are attributed to the defence. For instance, a delay that occurs because a defence lawyer was unable to accept an earlier trial date due to scheduling issues would be clear defence delay. In Jordan, the court defines a “neutral” category of delay—i.e. one attributed to neither the defence nor the Crown. This type of delay is known as “a discrete event”. These types of delays caused by events beyond anyone’s control will not be attributed to the Crown. COVID-19 is a perfect example of a “discrete event”. This means that if your case was supposed to be heard in mid-April and it was adjourned into late June, that time period will not be counted towards the 18-month limit. However, if the courts are up and running by June the Jordan clock should start ticking again the next time your matter is adjourned.
While COVID-19 delays may not directly result in “Crown delay,” the reality is that the Criminal Justice System will inevitably be face with a significant backlog of cases as each and every trial that was supposed to be heard from March 28th, 2020 onwards will have to be reset in the summer or possibly even later. This influx of “COVID trials” is likely to put an unprecedented strain on the Justice System, making scheduling trials within the 18-month window extremely challenging. This means that if your case has been delayed by COVID-19, while not directly attributable to the Crown, the adjournment may still give you more negotiating power when trying to resolve your case or a better chance at a stay of proceedings for delay if the matter is set for trial.