Further Adjourning Criminal Matters

Notice to the Profession, Litigants, Accused Persons and the Media Regarding the Continued Suspension of in-court matters to July 6, 2020

From the Ministry of the Attorney General, Court Services Division:

Notice to the Public and Legal Profession Ontario Small Claims Court Counter Service Suspension

The Ontario Court of Justice will not be returning to full operations on May 29, 2020.  No trials or preliminary inquiries will be conducted until July 6, 2020 at the earliest, unless a judge seized with a continuing matter orders otherwise. This applies to criminal, family and Provincial Offences Act matters. The Court will soon provide a detailed notice to the profession and to the public about all proceedings in the Ontario of Justice.  The Court is also working closely with its justice partners, including the Ministry of the Attorney General, to adopt technology that will increase participants’ ability to access the Court’s services using remote means, such as by the electronic filing of court material, remote scheduling processes, and remote hearings. OCJ updates can be found here: OCJ COVIC-19

Over 10 hours of free CPD programs on legal practice and the courts during COVID-19 have been added to the Members Only page. If you forgot your password or have never had one, simply provide your usual email and follow the instructions to reset or create a password.

Sent on behalf of the Federation of Ontario Law Associations (FOLA)

Attached is an Order in Council dated April 22 permitting that wills and POA’s be signed virtually and in counterpart.  It is intended that the order will remain in place until the end of the declared state of emergency.  You can learn more and access the link to the legislation here.

Katie W. Robinette, Executive Director, FOLA.ca

Need answers to COVID-19 issues regarding the practice of law?  CLICK HERE.

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

Justice Adapting - The Ontario Courts

Apr 23, 2020 11:00 AM

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Here is my Newmarket OCJ Update for April 22, 2020 

Teleconference JPT's available for ALL Criminal Matters

Local Administrative Justice Ghosh has advised that Counsel may set teleconference judicial pre-trials in Newmarket for any criminal matter, including:

1. Any “non-urgent” out-of-custody matter,
   
2. “Second look” judicial pre-trials for matters previously set for trial or preliminary hearing, or for matters that have been previously pre-tried before the public health crisis – this may proceed before a new judge, and
   
3. Case conferences for bail hearings (which may include resolution discussions).
   

Ideally a recent Crown pre-trial will have been conducted before a judicial pre-trial is pursued. To arrange a judicial pre-trial, counsel can email the trial coordinator at coordinator at:

Newmarket.OCJ.Criminal.TrialCoordinator@ontario.ca  

Counsel are advised to contact the assigned crown, or if no one assigned, then the resolution crown or David Moull prior to scheduling the available judicial pretrials.

Surety Approvals E -submission/Unsworn

I sent out previously suggested protocol being adopted by several Newmarket jurists with respect to the receipt of unsworn surety materials which has the approval of the provincial crowns. I can now confirm that the federal crowns as well, concur with this process. 

In addition,  some matters are currently being addressed without the delivery of any surety forms, sworn or unsworn, often for matters conducted by duty counsel.  In those circumstances, proposed sureties simply provide their info by viva voce testimony on the record.  In either scenario the signatures of any surety is not being required in surety forms.

I reproduce the suggested protocol below for ease of reference:

1. Defence counsel completes with the proposed surety over the phone the following unsworn/unsigned documents: surety information / identification form; and the surety “affidavit” (not to be sworn)
   
2. These and other relevant bail proposal documents (deeds, banking records, etc.) are electronically transmitted to the Bail Vetting Crown and then to the court prior to the hearing; 
   
3. During the hearing itself (consent or contested), the proposed surety adopts the contents of the unsigned/unsworn documents under oath or affirmation (as an alternative to sworn/signed documentation).
   
4. The hearing is determined.
   

In short the question of whether a sworn surety affidavit is required to conduct a show cause hearing comes down to the position of the particular jurist.  This protocol dispensing with surety signatures is a suggestion for jurists supported by both the provincial and federal crowns, as well as the Local Administrative Justice.  However it does not bind anyone.

I will update if a universal position on the surety signature requirement is adopted. 

Sincerely, Norman Panzica, York Director, Criminal Lawyers Association 

Below please find a link to a Notice from the Chief Justice of the Ontario Superior Court of Justice that states in part that the Superior Court of Justice will not recommence criminal or civil jury selection or jury trials until September 2020 at the earliest.

https://www.ontariocourts.ca/scj/notice-suspension-criminal-and-civil-jury-trials/