Chief justice suggests jury trials may resume soon, new court guidelines coming

In his annual press conference for journalists, Chief Justice of Canada Richard Wagner said that national guidelines would be released in the next few days on when jury trials and full court operations might resume, including how trials might be conducted during the ongoing coronavirus pandemic.

Wagner told journalists that he would be meeting with Justice Minister David Lametti on Friday, and that guidelines would be issued in the next few days. Those guidelines will be used by various courts and trial divisions across the country “to properly start the jury trials in a safe way, while upholding our fundamental rights in criminal matters; those are fundamental,” he said.

In May the chief justice and the federal justice minister and attorney general formed the  Action Committee on Court Operations in Response to COVID-19, to support the work of decisionmakers across provincial and territorial governments and in the judiciary, including court administrators, to safeguard the health and wellbeing of court users while continuing to provide access to justice.

Wagner added that he expected jury trials to resume soon, but first a solution must be found to hundreds of people congregating in the midst of the COVID-19 pandemic to be selected as jurors, and then having 12 people seated next to each other. In an earlier interview with Canadian Lawyer, the chief justice raised the possibility of using alternative and larger venues, such as hotels, to hold trials in in order to meet the physical distancing requirements of public health authorities.

Consideration may be given in jury trials to giving more discretion to the presiding judge, he said, where a courthouse cannot accommodate a jury trial because of its size; in this case a judge might decide to transfer the trial to another district, which would require the consent of the parties, as well as amendments to the Criminal Code by Parliament.

“It’s the right time to be proactive, … to try new things, and not simply to find immediate remedy to an existing crisis, but think also to the longer term.”

Recent news reports of the chief justice suggesting that amendments may be made to the Criminal Code in order to allow judges to hear cases in different regional jurisdictions, permit evidence to be introduced through video conferencing, and reduce the number of jurors required at trial have drawn some criticism, in particular from the criminal bar.

Asked whether amendments to the Criminal Code might face a Charter challenge, which the Supreme Court could end up adjudicating and may therefore place the chief justice in a conflict-of-interest position, the chief justice said it would not. In the end, he said, it is up to Parliament to adopt new legislation as need be.

“We’re all in the same boat, and I think we must ensure that the system will work immediately, and in the long run. So I see no harm in discussing potential solutions,” he said, adding that the ideas were not his alone.

“The justice system in Canada ... was deficient even before the pandemic crisis,” he said, referring to the high court’s decision in R. v. Jordan in 2016 to address the “extreme delays” in holding jury trials for accused. “The justice system was the parent pauvre of society for so any years,” he added; now, the courts want “to take this opportunity not only to remedy the problems of the justice system, but to modernize it for the future.”

Courts going paperless is “part of the solution,” he added.

Wagner declined to comment on whether he believed there was systemic racism in the justice system, but refuted the suggestion that he was reluctant to give an answer.

“I'm not reluctant,” he said. “I'm only acting according to my duty. And my duty as a judge and a chief justice is to decide cases upon the evidence that is brought to us.”

The Canadian judiciary is well-trained, Wagner said, including in recognizing bias and systemic discrimination via the National Judicial Institute’s educational programs. At the same time, “I think that the worst thing … is to think that those issues only concern other countries and not ours. I think that we have [seen] in our cases, in our jurisprudence, that our society has not lived up all the time to the standards of our Charter of Rights.”

Regarding more diversity on the bench, “that’s something that is welcome” to ensure that all individuals, regardless of origin, are able to recognize themselves in institutions – “and among the important institutions are the courts of law.”