Under the leadership of the OBA, FOLA joined with Legal Aid Ontario (LAO), The Advocates’ Society (TAS) in an effort to assist the Court in identifying which matters ought to be prioritized as remote operations continue to be expanded.
Here is a copy of our letter (dated June 23, 2020) to The Honourable Lise Maisonneuve Chief Justice of the OCJ outlining our recommendations.
OCJ Notice to the Profession and the Public: Re: the Scheduling of Criminal Trials and Preliminary Inquiries (August 12, 2020)
OCJ Practice Direction: RE: Waiver of Personal Attendance and Request for Adjournment / Remand by Accused Persons in Custody (August 12, 2020)
SCJ has replaced Provincial Practice Direction Regarding Criminal Proceedings with the Provincial Practice Direction / Amendment to the Criminal Proceedings Rules Regarding Criminal Proceedings.
OCJ criminal Notices and a Practice Direction (Aug 6):
Trials and Preliminary Hearings in the OCJ resume August 17, 2020 at College Park, Kenora, Timmins and Peterborough. They will resume August 24, 2020 in Burlington. For more information see Notice to the Profession and the Public re: Resumption of Criminal Trials and Preliminary Hearings in the Ontario Court of Justice at College Park, Kenora, Timmins, Peterborough and Burlington
In response to the COVID-19 pandemic, and in order to limit the number of people who are required to attend court, the Court has issued a Practice Direction Authorizing Alternate Form of Appearance where an Enhanced Designation of Counsel has been Filed.
Accused persons who are represented by counsel and who have filed an Enhanced Designation of Counsel may have their matters adjourned, without the accused personally appearing, in accordance with the procedure set out in the Practice Direction.
A Notice providing details about the Virtual Criminal Case Management Courts Pilot launching in Kitchener and Ottawa, including information about how counsel and accused persons may connect to the court by videoconference or audioconference, is now available: see Notice to the Profession and the Public: Virtual Criminal Case Management Appearances in Kitchener and Ottawa Beginning August 10, 2020
Please find the new notices at: https://www.ontariocourts.ca/ocj/covid-19/
OCJ Notice re: criminal case management appearances, including the virtual case management court pilot (July 29)
OCJ NOTICE - Resumption of Criminal Trials and Preliminary Hearings as of July 6, 2020
OCJ NOTICE - Provincial Offences Act Matters (July 2, 2020)
OCJ NOTICE - Criminal Case Management Appearances and Setting Trial and Preliminary Inquiry Dates (Published July 2, 2020)
Criminal Case Adjournment Dates – Out-of-Custody Accused (updated July 2, 2020) * Note: The criminal case adjournment dates are subject to change. Please check this website regularly for any updates.
OCJ UPDATE: Notice to Counsel/Paralegals and the Public re: Provincial Offences Act Matters - May 19 2020
On May 9, 2020, the OCJ announced that, on Monday May 11, the Court will expand its operations to accommodate resolutions of criminal charges involving persons who are out of custody, where the Regional Senior Judge is satisfied that the necessary courthouse resources are in place.
In addition, as further described in the Notice, the Court is making judicial pre-trials mandatory for all criminal proceedings (including YCJA proceedings):
i) that were scheduled for a trial or preliminary inquiry between March 16, 2020 and July 3, 2020 that was, or will be, adjourned due to the COVID-19 pandemic; and
ii) that are scheduled for a trial or preliminary inquiry between July 6, 2020 and October 30, 2020.
READ THE NOTICE AND PROTOCOLS
** Detailed Procedure for Judiciary/Court Services/Counsel ** COVID-19: CONSENT VARIATION PROCEDURES FOR RELEASE ORDERS AND POLICE UNDERTAKINGS IN THE OCJ
The Ministry of the Solicitor General (ministry) is committed to keeping communities across Ontario safe, supported and protected. An important pillar of this mandate is the safe care, custody and supervision for those in remand, or for those who are serving a custodial or community sentence.
The Police Services Act outlines the responsibilities of police services, including the requirement for police services boards and the Commissioner of the Ontario Provincial Police, to provide court security in premises where court proceedings are conducted. In addition, police services also conduct prisoner transportation.
Under the Court Security and Prisoner Transportation (CSPT) Program, the ministry allocates funding to municipalities to offset costs associated with both court security and prisoner transportation services to and from courts. The ministry’s annual investment to help assist municipalities in offsetting their CSPT costs began in 2012 and has gradually grown to a maximum of $125 million annually since 2018.
As part of the ongoing work to build a more responsive and resilient justice system, the ministry will retain an independent consultant with expertise in public safety and security to review the Court Security and Prisoner Transportation Program. A Request for Services will be issued shortly.
This review will help strengthen best practices, as well as explore ways to improve the delivery of court security and prisoner transportation. This continuous improvement is part of the ministry’s ongoing work to reduce court delays, leverage technology, improve public safety and reform the adult correctional system.
It is important to note that there will be no changes to the 2020 CSPT Program as a result of the review. This review will engage ministry stakeholders – including municipalities, police services and other justice sector partners – to help assess and identify improvements to court security and inmate transportation as well as the design of the CSPT Program.
Throughout this process, the safety of Ontarians and frontline staff will remain the ministry’s top priority.
The Ministry of the Solicitor General has worked with its vendor to enhance the current Offender Management Telephone System (OTMS) to allow inmates to access both collect calls and “debit” calling.
Whereas the old system only allowed for collect calling (which does not allow for calls to cell phones), under the enhanced system, debit calling is enabled and funded by the ministry. Debit calling allows for calls to cell phones.
The ministry will begin by providing inmates with $20 of calls and will monitor to determine whether this is adequate. Inmates will be able to use their funds as they see fit. This funding will allow for:
The phone system currently allows for organizations to register with the ministry to by-pass security features, such as three-way calling, call transfers and the use of the keypad. This exemption is provided for the purpose of facilitating the transfer of offender calls from a receptionist or automated telephone attendant system to the intended call recipient.
The Ministry of the Solicitor General has prepared the attached information to outline the different ways that inmates can access a Temporary Absence Permit (TAP), including the proactive early release reviews that the ministry has initiated. Recall that LAO has recently introduced as a COVID 19 response a modest increase in certificate coverage to allow lawyers to seek early release remedies at both federal and provincial institutions.
**UPDATE REGARDING C-75**
The Law Society Benchers, at the September 2019 Convocation, passed a motion that to preserve (as closely as possible) the range of services currently provided by regulated agents, in response to the enactment of Bill C-75:
a) with respect to paralegal scope of activities, the following two-stage approach:
i. amending By-Law 4, in principle, to establish a scope for criminal matters
comprised of the following:
1) all offences that were punishable by a maximum penalty of six months’ imprisonment when proceeding by summary conviction at the time that Bill C-75 was enacted; and
2) four offences that had been within agent scope since the onset of regulation but were amended by Bill C-46, and as a result of which were no longer within scope as of December 17, 2018: specifically, sections 320.13(1), 320.16(1), 320.17, 320.18(1) of the Criminal Code; and
ii. continue to review and develop the scope of activities for paralegals in criminal law matters, taking into account education and training standards and competency development in this field before Bill C-75 comes into force.
These were the recommendations as laid out in the Paralegal Standing Committee Report for September 11, 2019 Convocation
On September 19, 2019, Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, came into force. The resulting amendments to the Criminal Code have altered the landscape for legal advocates in the area of criminal law. Among other changes, the default maximum penalty for summary conviction offences has been raised from six months’ imprisonment to two years less a day. An overview of Bill C-75 can be found here.
FOLA's Concerns with C-75
Nonwithstanding some improvements, FOLA shared the concerns of the Criminal Bar Association and focused our submission on three key areas:
1. Restricting Preliminary Inquiries;
2. Eliminating jury peremptory challenges; and
3. Allowing routine evidence to be admitted by affidavit
FOLA believes that access to justice in the criminal sphere includes access to both procedural fairness and a strong presumption of innocence. While work needs to be done to modernize the system and allow for alternative methods of discovering witnesses and minimizing the adversarial process in certain types of cases, engagement of the practicing bar will be key in ensuring the greatest gains are made in reforming the system.
Our submission can be found here.