Here is my Newmarket OCJ update for April 23, 2020 

In Custody Remand And Scheduling Protocol  

The OCJ in Newmarket has endeavoured to attend to bail hearings in a timely fashion. The primary challenge during the public health crisis has been with the limited video and audio capacity at the Central East Detention Centre and associated scheduling issues.

I am being made aware that a significant issues is and continues to arise from counsel setting multi-hour hearings only to later ask for an adjournment for one reason or another. Each time slot wasted takes a potential timely release away from another detainee  

Counsel are again asked to be vigilant in ensuring a scheduled bail hearing is truly ready to go, including that interpreters have been ordered, that sureties are available,  that discussions on a consent release have been fully exhausted and resolution,where appropriate, is canvassed. 

There is universal appreciation and thanks for the clear efforts by most counsel to adapt to and support the unique situation currently faced in the criminal justice system.  For clarity I have re attached the scheduling protocol released by the Regional Senior Justice. 

Electronic Bail Variations Now Available 

A protocol for obtaining bail variations electronically has now been approved and available for Newmarket OCJ matters.  I have attached the variation form applicable to adult matters, adult with PARs, and youth matters, as well as the surety affidavit form.  These forms can also be found on the yorklaw.ca website under Court Info/Forms Criminal.

The procedure to obtain a bail variation electronically is as follows:

1.  Defence counsel complete the following forms electronically and submit to the assigned Crown. If there is no assigned Crown it will be sent to Sean Doyle at Sean.Doyle@ontario.ca and David Moull at David.Moull@ontario.ca. 

• Electronically signed Affidavit of Surety for the Purpose of a Consent Bail Variation
• Electronically signed Consent Bail Variation Form
• Copy of the current Release Order

2. Crown will review the variation and sign electronically. 

3. Crown will send the following documents to the Newmarket Criminal Administration Office via yorkcrim@ontario.ca.

• Electronically signed Affidavit of Surety for the Purpose of a Consent Bail Variation
• Electronically signed Consent Bail Variation Form
• Copy of the current Release Order

4. Newmarket Criminal Administration Office will log each variation and send the attachments to the OCJ Judicial Assistants via OCJNewmarketJudicialReview@ontario.ca. 

5. A Judicial Assistant will send the documents to the assigned judge for consideration.

6. If denied, the Judicial Official will advise the Judicial Assistant who will notify Crown and Defence Counsel. The Judicial Assistant will then notify the Newmarket Criminal Administration Office via yorkcrim@ontario.ca.

7. If approved, the Judicial Assistant will insert the Judicial Official’s electronic signature and provide electronic copy to Crown and Defence counsel as well as the Newmarket Criminal Administration Office via yorkcrim@ontario.ca.

8. Newmarket Criminal Administration Office will print the documents and attach to the information and save a copy in the P: drive P:COURT SERVICESE-OrdersCENTRAL EAST SCANNED RELEASE ORDERS and send to the bail distribution list. 

For the purpose of consent bail variations during the COVID-19 pandemic, electronic signatures will be used. Electronic signatures is defined as the identified stakeholder typing in their name into the document.  

Law Society Of Ontario 

Per the Law Society of Ontario: Virtual Commissioning 

 As a result of COVID-19, until further notice:

  (i)  The Law Society will interpret the requirement in section 9 of the Commissioners for Taking Affidavits Act that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” as not requiring the lawyer or paralegal to be in the physical presence of the client.o Rather, alternative means of commissioning such as commissioning via video conference will be permitted.

  (ii)  If lawyers and paralegals choose to use virtual commissioning, they should attempt to manage some of the risks associated with this practice as outlined below.

 (iii)  Managing the Risk of Virtual Commissioning:
If a lawyer or paralegal chooses to use virtual commissioning, the lawyer or paralegal should be alert to the risks of doing so, which may include the following issues:

• Fraud
• Identity theft
• Undue influence
• Duress
• Capacity
• Client left without copies of the documents executed remotely
• Client feels that they did not have an adequate opportunity to ask questions or request clarifying information about the documents they are executing.

To manage some of the risks:

• Consider whether there are red flags of fraud in the matter. To review these red flags, see the Federation of Law Societies’ Risk Advisories for the Legal Profession resource.*
• Assess whether there is a risk that the client may be subject to undue influence or duress. If there is such a risk, consider if you are able to assist the client at this time without meeting in person.
• Determine how to provide the client with copies of the document executed remotely.
• Confirm your client’s understanding about the documents they are executing and provide adequate opportunity for them to ask questions during the video conference.
• Be alert to the fact that persons may attempt to use the current circumstances and resulting confusion as an opportunity to commit fraud or other illegal acts. Where lawyers and paralegals choose to use virtual commissioning, they must be particularly alert to these red flags in order to ensure that they are not assisting, or being reckless in respect of any illegal activity.

Sincerely, Norman Panzica, York Director, Criminal Lawyers Association