COVID-19 has delayed criminal trials across Canada. Is the justice system doing enough to address the problem?
RCMP in Sask. opposed rapid testing as option to avoid 6-month trial delay
It was an emergency decision announced late on a Friday — three days before a murder trial was set to begin.
A judge postponed the trial of Greg Fertuck, who is charged with first-degree murder over the alleged killing of his estranged wife, Sheree Fertuck.
It was scheduled to begin in Saskatoon on March 29, 2021. Because of safety concerns over an outbreak of COVID-19 in nearby Regina, the judge delayed the court date by six months.
It was a big blow to both families.
"It was like a big sinking feeling in my stomach, right, because it's ... here we go again, it's another delay," said Teaka White, Sheree Fertuck's sister.
"[I was] just hoping to get this moving forward and to get some answers and I guess to start getting some closure, but now we don't get that, right. The judge didn't give us that." White said it's "very, very unfair to the victim" and "everybody that's involved with Sheree."
Meanwhile, Greg Fertuck's brother Reg called the delay "the worst thing [for] me, my mom and family."
Reg is upset that his brother has had to remain behind bars for so long although he is yet to be convicted of a crime.
Fertuck, who has been on remand for two years, denies killing Sheree. Her body has never been found, and her disappearance is the focus of the CBC investigative podcast The Pit.
The Fertuck trial is one of many across Canada that have been delayed due to COVID-19.
Now, judges are being asked to consider the question of whether or not the delays were entirely unavoidable, and if enough was done to reduce the impact to the families of the victims and people accused of serious crimes, who are innocent unless proven guilty.
Timely trial is Charter right
The right to go to trial 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, known as the Jordan rule, put limits on the amount of time an accused person should have to wait to fight their charges in court. For crimes considered by the provincial court, the limit is 18 months, while more serious cases considered by higher courts have a time limit of 30 months.
People who wait longer, many of them on remand, can apply to have their case dismissed. Once the application is made, it is up to Crown prosecutors to convince the judge that the delay was reasonable or unavoidable, or that it can be justified by "exceptional circumstances."
When hold-ups from COVID-19 pushed many cases past the 18- and 30-month Jordan deadlines, questions were raised about whether there would be a flood of cases thrown out because of pandemic delays.
It's eliminating the scrutiny that the courts, in my view, should be applying to themselves.- Graham Johnson, Edmonton defence lawyer
Now that pandemic-related Jordan applications are starting to make their way through the courts, judges are making precedent-setting decisions about how to handle them.
In multiple decisions across Canada, judges have ruled that a global pandemic qualifies as "exceptional circumstances," so in those cases, the COVID-19 delays won't be counted toward the 18- or 30-month Jordan deadlines.
Decisions on whether the pandemic delays should in fact count are made on a case-by-case basis, but each decision sets a legal precedent that will guide future cases.
Jordan applications that cite COVID-19 delays as a reason for exceeding the deadlines — made in an effort to have the cases thrown out — have been unsuccessful in Alberta, Saskatchewan, Ontario and B.C.
In the case of R v. Pinkowski, for example, an Ontario Court of Justice questioned just how much of the delay could be attributed to COVID-19.
"In particular, did Crown counsel, the court and the trial co-ordinator's office reasonably mitigate the delay occasioned by COVID-19?" asked the judge in the written decision on the case, which included domestic violence charges.
That application was ultimately dismissed.
Edmonton lawyer Graham Johnson is concerned that too many decisions about COVID-19 hold-ups are not critical enough of the justice system's own role in avoiding delays.
"Most of the cases are excusing the entire period from the adjournment to whenever the new trial date is, however long that may be," said Johnson.
"In my view, the problematic part of that approach is that it essentially gives the bureaucracy a blank cheque, to allow these matters to take however long the bureaucracy will let them take to get back on.
"It's eliminating the scrutiny that the courts, in my view, should be applying to themselves as to whether they're doing enough to get these cases on fast enough," said Johnson.
RCMP opposed rapid testing to help Sask. trial proceed
When the last-minute hearing was held to decide if the Fertuck trial should be delayed, Justice Richard Danyliuk suggested RCMP witnesses could get rapid testing before leaving the hotspot of Regina to travel to Saskatoon.
But a lawyer for the RCMP said the officers did not want to do that. Danyliuk did not make an order to force the officers to take the testing, but said he was "nonplussed" by the RCMP response.
The trial was ultimately delayed because he concluded it would be unsafe for the Regina witnesses to attend in person, and the defence argued it would be unfair for them to testify by video link.
Greg Fertuck's lawyer, Morris Bodnar, told CBC in April he thinks the trial would have gone ahead within weeks, not months, if the police had agreed to the testing.
He said the defence did not want the trial to proceed in March if the officers were not testifying in person because it is a "Mr. Big" case, in which undercover police pose as criminals to befriend the suspect and obtain a confession.
"We want the police present in court so the judge can observe them, because this is not a simple case of Mr. Big," said Bodnar. "This is one where the judge is going to have to make some decision as to police behaviour."
The RCMP declined to comment on why the officers did not want to do the testing, citing the ongoing court case as the reason.
Inmates at possible risk
Adding another layer to the issue of COVID-19 delays is that inmates whose cases were delayed were sometimes in jail facilities where outbreaks were occurring.
A CBC analysis shows that on average, 268 out of every 1,000 inmates at provincial jails in Canada tested positive for COVID-19 between March 2020 and June 2021, compared to 37 per 1,000 in the general population. In federal prisons, there were about 126 infected for every 1,000.
Bodnar said the March delay put his 67-year-old client at increased risk because of his age and COVID-19 outbreaks at the Saskatoon Correctional Centre. He said Greg Fertuck had not been vaccinated at the time of that interview in April.
Fertuck, who denies killing his estranged wife, also expressed concerns about his well-being at the hearing on March 26.
"If I'm going to be [in jail] till September, I'll be dead, so, like, it don't matter," he told the judge and lawyers, according to a transcript of the hearing from the Saskatchewan Law Courts Transcript Services.
If the Fertuck trial proceeds as scheduled for Sept. 7, it will finish about one month before the 30-month deadline stipulated by R v. Jordan.
On the day of the March hearing, Fertuck's lawyers advised him to "waive" the six month-delay, which means it cannot be counted toward his total time in custody under the Jordan rule.
Pandemic will lead to long-term systemic change: lawyer
Vancouver criminal defence lawyer Matthew Nathanson does not expect a flood of mistrials for the cases that exceed the timeline due to COVID-19 delays.
"On the other hand, the pendulum shouldn't swing so far that the right to trial within a reasonable time becomes meaningless, because, well, all delays are just attributed to COVID," he said.
Nathanson said he thinks the justice system in British Columbia, for example, has moved quickly to get trials back on track as soon as possible.
He has worked on trials that relied heavily on video link and said that the technology has been mostly successful.
Even so, he said it is crucial for some witnesses to appear in person, such as in cases where the judge needs to assess a person's credibility.
"Sometimes, seeing facial expressions and non-verbal cues are very important to a cross examiner and to a trier of fact, a judge and jury, in assessing that witness's credibility," said Nathanson.
Nathanson said some changes, such as moving to video link for minor matters to avoid non-essential movement of people in and out of courthouses, could help streamline the judicial process in the long term.
But he thinks a "paradigm shift" to a system where everything is done using computers and nothing is done in person would be detrimental.
"I think the quality of justice would suffer if the pendulum swung too far in terms of just video and electronic appearances and hearings."