North·In Depth

Huge backlog of jury trials in N.W.T. due to COVID-19

There is a record backlog of jury trials in the Northwest Territories due to COVID-19 restrictions. If that backlog can't be cleared fast enough, there is a chance the courts will start dismissing charges due to the delay in bringing accused to trial.

If not cleared fast enough, charges could be dismissed due to delays in bringing accused to trial

Courts in the Northwest Territories are facing an unprecedented backlog of jury trials due to COVID-19 restrictions. (Walter Strong/CBC)

There is a record backlog of jury trials in the Northwest Territories due to COVID-19 restrictions.

During one of the N.W.T. Supreme Court's regular sessions to set dates for trials, Chief Justice Louise Charbonneau told the lawyers gathered that there were 66 pending jury trials.

The trials involve accused facing a variety of serious charges including first-degree murder, sexual assault and drug trafficking.

At that March 5 scheduling session, Charbonneau urged the lawyers to have early discussions about plea deals or switching jury trials to judge alone before asking for a date to be set for jury trials.

Neither Charbonneau nor anyone in the territorial Justice department was available to do an interview about the backlog and the possibility that charges may be dismissed as a result of the delay.

People facing criminal charges have a constitutional right to be tried within a reasonable amount of time after they have been charged. According to a 2016 Supreme Court of Canada decision, that time frame is within 18 months in provincial courts and 30 months in superior courts. The latter limit is extended by each day of delay caused by the defendant (such as by switching lawyers) or by other "exceptional circumstances" out of the prosecutor's control.

All jury trials in the N.W.T. are held in the territory's Supreme Court. 

Not enough space in courtrooms

The few courtrooms in the N.W.T. set up to host jury trials do not have enough space to allow the minimum two-metre physical distancing required by the Chief Public Health Officer.

Charbonneau cancelled all jury trials due to COVID-19 restrictions in March 2020. In an emailed response, the Justice department's director of court services says the courts are hoping to resume scheduling jury trials in courtrooms in Yellowknife, Hay River, Fort Smith and Inuvik when physical distancing requirements are relaxed.

"In the meantime, the Court has attempted to maximize the use of the few facilities where jury trials can be held under the current restrictions," said Jeff Round, according to the email. "Some were scheduled over the past several months and have not proceeded for various reasons. There are currently 12 jury trials scheduled before the end of April 2022."

The Justice Department was unable to provide any specifics about where it had hoped to hold jury trials, when it had scheduled them or how many are now awaiting court dates.

COVID-19 taken into account for a limited time

A defence lawyer says that rulings this year in other jurisdictions indicate the courts are treating COVID-19 delays as an "exceptional circumstance" that will not count against the time limits for trials to begin.

"With few exceptions, the courts have been prepared to say COVID is an exceptional event and delay that's a result of COVID is not in and of itself something that needs to be counted or should be counted toward the 30 months or 18 months the court needs to look at to determine if the delay has been unreasonable," said Yellowknife defence lawyer Peter Harte.

Harte said holding jury trials under current social distancing requirements calls for more than just minor changes. Not only must jurors be separated as they listen to evidence during trials, that separation must be maintained during jury selection and deliberations.

Harte said it is not safe to assume that some of the pending jury trials will be cancelled because defendants will reach plea deals with the prosecutor or change to judge alone trials. He said accused typically ask for a date for jury trials after exhausting hope of reaching a plea deal and after carefully considering the mode of trial they want.

Harte said the allowance the courts are making for delays due to COVID-19 is not going to be unlimited.

"Obviously this is not something that has ever happened before. I don't know how the court is going to factor COVID into the issue of backlog and at what point the court is going to be able to say, 'We should be caught up by now but we're not, and so now we're going to start kicking these older cases out.'"

The Justice Department says it plans to engage its out-of-territory deputy judges to help deal with the backlog once physical distancing restrictions are lifted. But it acknowledged that those judges will likely be in big demand in their home jurisdictions.

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