Criminal Law

“Are matters involving individuals who are not in custody proceeding?”

Accused who not in custody and have a criminal court appearance at the OCJ scheduled between March 16, 2020 and July 3, 2020 should not attend court. The OCJ will adjourn these matters, in the absence of the accused person, to a date approximately 10 weeks from the original date. Note the updated list of adjournment dates on the Court’s website: https://www.ontariocourts.ca/ocj/covid-19/criminal-list-adjournment/ .

However, the Court expects that the parties will take steps to move cases forward in ways that do not require a court appearance. Such steps include making arrangements for disclosure, and scheduling Crown pre-trials and judicial pre-trials. See this Notice, Section 4.3, for more details.

“What changes to impaired drives cases are included in the recent Notice?”

Sections 4.3(b) and 7.1 – Stream A impaired driving cases have been removed as an example of an urgent plea, because Ontario Regulation O. Reg. 46/20: Temporary Rules Governing Conduct Review Programs, made May 14, 2020, has temporarily extended the deadline for pleas to be entered to be eligible for the Stream A and Stream D ignition interlock programs.

What provisions are there for using e-signatures in SCJ criminal matters?

The Superior Court of Justice notice to the profession of April 2, 2020 regarding criminal operations allows for electronic signatures in criminal matters, and states that an electronic signature consists of “electronic information that identifies the signatory and the date and place of signing”, although this is not in reference to Affidavits. The SCJ is examining whether an e-signature can be placed on an Affidavit of Service, and encourages the bar to satisfy themselves of the requirements under the Commissioner for Taking Affidavits Act.

“What provisions are in place for inmates to make calls to counsel, to avoid inability to make collect calls to mobile phones?”

The Ministry of the Solicitor General has worked with its vendor to enhance the current Offender Management Telephone System (OTMS) to allow inmates to access both collect calls and “debit” calling:

• The old system only allowed for collect calling, which does not allow for calls to cell phones.
• Under the enhanced system, debit calling is enabled and funded by the ministry. Debit calling allows for calls to cell phones (live as of April 10).

The ministry will begin by providing inmates with $20 of calls and will monitor to determine whether this is adequate. Inmates will be able to use their funds as they see fit. This funding will allow for:

• 50 local calls (no maximum length, however, the ministry’s policy currently limits phone calls at 20 minutes);
• A 52-minute long-distance call; or
• A combination of the above.

Please note the phone system currently allows for organizations to register with the ministry to by-pass security features, such as three-way calling, call transfers and the use of the keypad. This exemption is provided for the purpose of facilitating the transfer of offender calls from a receptionist or automated telephone attendant system to the intended call recipient. To enable this feature, the ministry requires a form to be filled out and sent to: MCS.TCS.OTMS@ontario.ca.

“Given significant concerns about COVID-19, what steps are being taken to ensure that courthouses are a safe environment for counsel and clients to attend?”

The Chief Justice has issued a directive regarding court operations for criminal and family matters, which are to go into effect in courthouses by 7 pm Friday, March 27. You can read the directive here.