COVID-19 has postponed criminal trials across Canada. Has the judicial system taken sufficient measures to avoid it?
This is an urgent decision announced late Friday-three days before the murder trial begins.
A judge postponed the trial of Greg Futucker, who was charged with Classified as first-degree murder for allegedly killing his separated wife Sheree Fertuck.
It was originally scheduled to start in Saskatoon on March 29, 2021. Due to safety concerns about the COVID-19 outbreak in nearby Regina, the judge postponed the court date for six months.
This is a huge blow to both families.
Sheree Fertuck’s sister Teaka White said: “It’s like a big sinking sensation in my stomach, yes, because of it… we’re here again, another delay.”
“[I was] I just hope to promote this progress and get some answers. I want to start to get some end, but now we don’t get it, right. The judge did not give us these. “White said it was “very, very unfair to the victims” and “everyone involved with Shirley.”
At the same time, Greg Fertuck’s brother Reg called the delay the “worst thing” [for] Me, my mother and family. “
Reg is upset that his brother had to be held for so long, even though he has not yet been convicted.
Fertuck, who has been remanded for two years, denies killing Sheree.Her body has not been found, her disappearance is the focus CBC Survey Podcast pit.
The Fertuck trial is one of many trials that have been postponed due to COVID-19 across Canada.
Now judges are asked to consider whether the delay is completely inevitable and whether adequate measures have been taken to reduce the impact on the families of victims and those accused of serious crimes, who are innocent unless proven guilty.
Timely trial is a charter right
The right to be tried within a reasonable time is a provision of the Canadian Charter of Rights and Freedoms.
A ruling made by the Supreme Court of Canada in 2016, the Jordanian Rules, restricts the time that defendants should wait to defend their charges in court. The time limit for crimes heard by the provincial court is 18 months, and the time limit for more serious cases heard by higher courts is 30 months.
Those who have waited longer, many of whom are remanded in custody, can apply to dismiss their case. Once an application is filed, the Crown Prosecutor has the responsibility to convince the judge that the delay is reasonable or unavoidable, or that the delay can be justified through “special circumstances”.
When the obstruction of COVID-19 caused many cases to exceed the 18-month and 30-month deadlines in Jordan, some questioned whether a large number of cases would be thrown out due to the delay of the pandemic.
In my opinion, it eliminates the review that the court should apply to itself.-Graham Johnson, Edmonton Defense Attorney
Now, Jordanian applications related to the pandemic are beginning to go through the courts, and judges are making precedent decisions on how to handle these applications.
In multiple rulings across Canada, judges ruled that the global pandemic is a “special situation”, so in these cases, the delay of COVID-19 will not count towards the 18-month or 30-month deadline in Jordan.
Decisions about whether pandemic delays should actually be counted are made on a case-by-case basis, but each decision sets a legal precedent that will guide future cases.
The “problematic” approach
Jordan’s application cited the COVID-19 delay as the reason for exceeding the deadline-efforts to keep the case out-were unsuccessful in Alberta, Saskatchewan, Ontario and British Columbia
For example, in R v. Pinkowski, the Ontario court questioned how many delays could be attributed to COVID-19.
“In particular, did the prosecutor, court, and trial coordinator’s office reasonably mitigate the delay caused by COVID-19?” The judge was asked in a written ruling on the case, which included allegations of domestic violence.
The application was eventually rejected.
Edmonton lawyer Graham Johnson is concerned that too many decisions about COVID-19 delays are not important enough for the judicial system itself to avoid delays.
Johnson said: “Most cases are justifying the entire period from the adjournment to the new trial date, no matter how long.”
“In my opinion, the problematic part of this approach is that it essentially gives the bureaucracy a blank check, allowing the bureaucracy to allow them how long it takes to start over.
Johnson said: “In my opinion, this eliminates the need for the courts to examine themselves whether they are doing fast enough to try these cases fast enough.”
The RCMP opposed rapid testing to help Sask.Trial proceeded
When a last-minute hearing was held to determine whether Fertuck’s trial should be postponed, Judge Richard Danyliuk suggested that RCMP witnesses could conduct a quick test before leaving the Regina hotspot for Saskatoon.
But a lawyer for the RCMP said the officer did not want to do this. Danyliuk did not order the police to be forced to conduct the test, but said he was “at a loss” over the RCMP’s response.
The trial was eventually postponed because he concluded that it was unsafe for Regina witnesses to attend in person, and the defense argued that it was unfair for them to testify through video links.
Morris Bodnar, a lawyer for Greg Fertuck, told CBC in April that if the police agreed to conduct the test, he believed the trial would take place in weeks rather than months.
He said that if the police officer did not testify in person, the defense did not want the trial to take place in March because it was “Mr. Big” case, Where the undercover police pretended to be criminals and made friends with the suspect and obtained confessions.
“We want the police to show up in court so that the judge can observe them because this is not a simple case for Mr. Big,” Bodnar said. “In this case, the judge will have to make some decisions about the behavior of the police.”
The RCMP declined to comment on why the police did not want to conduct the test, citing an ongoing court case.
Prisoners who may be at risk
Adding another level to the problem of COVID-19 delays is that prisoners whose cases have been delayed are sometimes in prison facilities where the outbreak has occurred.
An analysis by CBC showed that between March 2020 and June 2021, an average of 268 out of 1,000 inmates in Canadian provincial prisons tested positive for COVID-19, compared to an average of 268 out of 1,000 in the general population. 37 people tested positive for COVID-19. In federal prisons, approximately 126 out of 1,000 people are infected.
Bodnar said that due to his age and the COVID-19 outbreak at the Saskatoon Correctional Center, the delay in March put his 67-year-old client at greater risk. He said that in an interview in April, Greg Fertuck had not yet been vaccinated.
Futuk denied killing his separated wife, and he also expressed concerns about his health at the hearing on March 26.
“If I want [in jail] According to the hearing record of the Saskatchewan Court Transcription Service, he told the judge and lawyer that I will die until September, so it doesn’t matter.
If the Fertuck trial is scheduled to proceed on September 7, it will be completed approximately one month before the 30-month deadline set by R v. Jordan.
On the day of the hearing in March, Futucker’s lawyer advised him to “give up” the six-month delay, which means that under Jordanian rules, this cannot be counted towards his total detention time.
The pandemic will lead to long-term systemic changes: lawyers
Vancouver criminal defense attorney Matthew Nathanson predicts that due to the delay of COVID-19, there will not be a large number of mistrials in cases that exceed the timetable.
“On the other hand, the pendulum should not swing too far so that the right to a trial within a reasonable time becomes meaningless, because, well, all delays are due to COVID,” he said.
Nathanson said, for example, he believes that the judicial system in British Columbia has acted quickly to get the trial back on track as soon as possible.
He has participated in experiments that rely heavily on video links and said that the technology is generally successful.
Even so, he said that it is vital for some witnesses to appear in court, for example, in situations where a judge needs to assess a person’s credibility.
“Sometimes, when assessing the credibility of witnesses, seeing facial expressions and nonverbal cues is very important for cross-examiners and fact judges, judges and juries,” Nathanson said.
Nathanson said that some changes, such as turning trivial matters into video links, to avoid unnecessary people entering and leaving the court, will help simplify the judicial process in the long run.
But he believes that the “paradigm shift” to a system where everything is done using a computer without having to do anything personally will be harmful.
“I think if the pendulum swings too far in terms of video and electronic appearance and hearings, the quality of justice will suffer.”