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What a Difference a Year Makes

Guest Author: Lisa Silver, Associate Professor, University of Calgary Faculty of Law

Last year, I wrote a blog article (see Adding Zora to the 1L Crime Syllabus) outlining the many ways in which the Supreme Court of Canada decision in R v Zora, 2020 SCC 14, matters to the criminal justice system. Justice Sheilah Martin wrote eloquently and passionately in that decision for a more humane bail regime, which would break the cycle of incarceration prompted by fail to comply convictions. Such a bail regime would align better with Criminal Code requirements, be more mindful of how bail conditions can adversely and disproportionately impact vulnerable and marginalized groups and be more responsive to societal needs and concerns.

In short, the Zora decision seems like a game changer but is it really? This is the question I will be exploring in the LESA Criminal Law Hot Topics webinar on June 18. As part of my review, I look not only at how Zora impacts bail decisions but also how Zora impacts other areas of the justice system such as sentencing, probation orders, and even compelling an appearance for trial. I will also “reveal,” which province has surprisingly taken Zora to heart by citing the decision more often than other more populous jurisdictions.

Conversely, there is little uptake in the new provisions for judicial referral hearings under s 523.1. These provisions, part of the recent amendments to the Criminal Code, are designed to alleviate the problems of overincarceration by providing an alternate pathway for fail to comply with release order offences, where the fail to comply does not result in victim harm, property damage or economic loss. Although touted as a much needed alternative to criminal charges, for this diversionary option to be effective, its use needs to be consistent.

The other two hot topics I will be presenting on June 18, revolve around the immense changes in our legal system this year as a result of the COVID-19 crisis. The practice of law and, I would suggest, even legal principles have changed irrevocably as a result.

For instance, applications to permit witnesses to testify by video or audio conferencing under s 714.1 are burgeoning. Based on a WestLaw case search, from March 13, 2020, when Canadian authorities first shut down many of our courts due to the pandemic, until June 3, 2021, 81 decisions cite s 714.1. This number is startling considering only 16 decisions cite the section from January 1, 2019 to January 1, 2020. True, this may change in the coming months as restrictions ease but the case law and principles surrounding these applications will remain.

Remote hearings of witness evidence engage still other issues such as remote appearance of the prosecutor or counsel under s 650.02 and the interpretation of s 650 (1) proscribing that accused “shall” be present at trial. This raises the concern of whether an accused participating in a Zoom trial is “present in court” pursuant to that section. Additionally, if the accused is not “present,” under what conditions pursuant to s 650(2)(b) can the court allow the accused to be “out of court” during the trial. These and other questions raised by the interplay of these sections will be on the “web” table on June 18.

Finally, I will review the pandemic’s impact on sentencing, particularly the issue of enhanced credit for pre-trial custody. Even before the pandemic, credit for pre-trial custody was capped at 1.5 days credit for every 1 day in pre-trial custody by s 719(3.1) but only “if circumstances justify it.” Case law in Ontario, namely the Ontario Court of Appeal decision in R v Duncan, 2016 ONCA 791 at para 6, found that “particularly harsh” pretrial custody can “provide mitigation apart from and beyond the 1.5 credit in s 719(3.1).” This finding resonates with many courts during the pandemic as those detained in custody awaiting trial are often subject to quarantines and lock downs. Some individuals are at even further risk due to their own particular health concerns.

Although most (but not all!) sentencing courts take notice of the effects of the pandemic in the prison population and hardships of such incarceration, courts are not consistent on where such “mitigation” resides within sentencing principles. Is it found, as Duncan suggests, in an enhanced pre-trial credit beyond the capping provisions in s 719(3.1)? Or is it a mitigating factor on sentence? Does the mitigation reduce an already fit sentence or is it merely one of the many considerations in determining a fit sentence? In the alternative, is the pandemic a collateral consequence? These questions and many more will be important considerations as we move through the pandemic and, in my view, will impact the way we look at sentencing principles at large in the future.

What a difference a year makes! Join me and the other panelists as we grapple with these pressing issues and many more on June 18.