Supreme Court chief justice suggests Criminal Code changes to cut into court backlogs

The federal government should consider Criminal Code amendments on how jury trials function to deal with the massive caseload backlog caused by COVID-19 disruptions, Canada's top judge told CBC News.

Reducing the number of jurors, introducing evidence through videoconferencing are on the table

Supreme Court of Canada Chief Justice Richard Wagner is preparing to release national recommendations on how courts can resume full operations after COVID-19. (Justin Tang/The Canadian Press)

The federal government should consider Criminal Code amendments on how jury trials function to deal with the massive caseload backlog caused by COVID-19 disruptions, according to Canada's top judge.

Supreme Court of Canada Chief Justice Richard Wagner co-chairs a COVID-19 court response committee with Attorney General and Justice Minister David Lametti, which is getting ready to release national guidelines in approximately two weeks about how to resume court operations across the country.

"We also are asking and suggesting that amendments to the Criminal Code be done in order to facilitate the adducing of evidence before the courts," Wagner said in an interview with CBC News.

While each province and territory governs how its individual courts run, Wagner said the Criminal Code is the main avenue for the federal government to make changes because it regulates how in-court jury trials are conducted, including how juries are selected, the number of jurors and the rules of conduct. 

Wagner said amendments could range from serious changes, such as reducing the number of required jurors, to easier shifts, such as allowing judges to hear cases in different regional jurisdictions and introducing evidence through video conferencing. 

Minister of Justice and Attorney General of Canada David Lametti co-chairs the Action Committee on Court Operations in Response to COVID-19 with Supreme Court of Canada Chief Justice Richard Wagner. (Adrian Wyld/The Canadian Press)

"It's probably one of the only positive aspects to this terrible crisis," Wagner said.

"To use technology to change the way the justice system works ... not only [as] a remedy for the immediate circumstances — but it should be a new way of rendering justice in the future."

COVID-19 court restrictions leave victims in limbo

The proposals could help cut into a massive pileup of cases across the country, which have been postponed due to COVID-19. 

In Ontario alone, roughly 30,000 cases have been put off, according to the Criminal Lawyers Association.

The gears of justice have slowed throughout the system and delays are being acutely felt in criminal cases, where victims are being forced to wait to see justice done. 

WATCH | Pandemic court delays adds pain to victims of Toronto van attack:

Pandemic court delays adds pain to victims of Toronto van attack

2 years ago
Duration 2:00
After courts closed during the COVID-19 pandemic, the trial for the man accused of killing 10 people on a busy Toronto sidewalk with a van that was supposed to start this spring has been pushed to November.

Catherine Riddell spent the past two years recovering from injuries and surgeries from the Toronto van attack in 2018. 

The trial for the man accused of killing 10 people and injuring 16 others — some critically — on a busy sidewalk was supposed to start this spring, but the pandemic caused it to be rescheduled for November, which means Riddell has six more months before she said she can begin healing. 

"I still have that weight on my shoulders," she said.

"Until the trial happens and I can start to put things behind me, I'm not going to be feeling too good … Then you start to wonder what it's going to be like, and whether it's going to be postponed again and are we ever even going to get a trial? You don't know."

Catherine Riddell is one of 16 survivors of the 2018 Toronto van attack. (Mark Bochsler/CBC)

Defendants are also waiting for their day before a judge.

"[The] focus has to be put on the people in custody because they're the ones that of course are waiting in a cage," said John Struthers, president of the Criminal Lawyers Association.

Courts are planning to sit throughout the summer to try to get back on track.

Pandemic forcing justice system to 'work smarter'

Some of the proposals Wagner is making need further debate because they could impact how justice is delivered, according to some in the legal community. 

"I'm not sure that I would personally be in favour of reducing the number of jurors, which is an important protection of the rights of the accused and of the prosecution," Ontario Chief Justice George Strathy said.

"But I do think that COVID is going to require us to take a look at the justice system from top to bottom, and to figure out can we work smarter."

Prior to COVID-19, Strathy said the legal system was complacent about shuffling cases without great concern and using mounds of paper. 

Now it's being challenged to find creative ways to use technology to eliminate costly and time consuming appearances, manage workloads more effectively and reduce its reliance on mounds of paper.

Ontario Chief Justice George Strathy is not certain reducing the number of jurors is a good idea. (CBC)

As courthouses begin to resume regular operations, Wagner said there is an opportunity for elected officials to re-invest in the justice system.

"There's a big need," Wagner said.

"Governments did not invest that much in the justice system prior to … Jordan [a Supreme Court of Canada decision that set limits on the amount of time that can pass between issuing charges and starting a trial], and I think that now we have a chance to focus on the real need of Canadians to have access to justice in an efficient way  — and the way to do it is by using technology." 

Reducing costs

Nova Scotia Court of Appeal Chief Justice Michael Wood suggests money could be saved by creating a national electronic registry for court documents, instead of having each province pay for their own.

"In the areas of technology and protocols, having national standards I think will be very beneficial," Wood said. 

Michael Wood, chief justice of the Nova Scotia Court of Appeal, said savings could be found through a national electronic court registry. (Nova Scotia Judiciary)

Chief Justice David Jenkins of the Prince Edward Island Court of Appeal said investments in technology could help the courts save money in the long run.

"We're in the customer service business and the big component of customer service is access, meaningful access to justice and one big factor within that is cost," Jenkins said.

"The cost and the time can really be reduced a lot … Litigants can get their service somewhat faster, but especially at a more reasonable price."

Chief Justice David Jenkins of the Prince Edward Island Court of Appeal sees benefits to using more technology in the courtroom to reduce time and money spent on cases. (Prince Edward Island Court of Appeal)

Among the proposed changes, one is clear: virtual hearings are here to stay, even as people start heading back in the courtroom. 

"I don't personally see it as replacing in-person hearings, but I see it as a very viable alternative that will improve access to justice for all British Columbians," said B.C. Chief Justice Robert Bauman, who also serves as chief justice of the Court of Appeal for the Yukon.

"I'm very excited about that aspect of the matter. It's a silver lining to the pandemic."

But for some victims, the pain deepens with each passing day. 

"The best thing for me is to try and put it out of my mind," Riddell said. 

"Keep working on my victim impact statement and just try to find other distractions. But it's hard with everything being shut down."


Olivia Stefanovich

Senior reporter

Olivia Stefanovich is a senior reporter for CBC's Parliamentary Bureau based in Ottawa. She previously worked in Toronto, Saskatchewan and northern Ontario. Connect with her on Twitter at @CBCOlivia. Story tips welcome: olivia.stefanovich@cbc.ca.

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