COVID-10 and bail, the Criminal Defence Advocacy Society calls for courts to reopen, and a jury trial by Zoom in Texas


COVID-19 is a consideration when deciding if someone should remain in jail while waiting for their trial.

In one federal penitentiary, located in Mission BC, 133 inmates and staff contracted the coronavirus.

As a judge recently pointed out, however, the risk of COVID-19 is not a “get out of jail free card.”

The overriding considerations when determining if someone should be kept in jail include whether they will attend court when required and if their detention is necessary for the protection and safety of the community.

In the case discussed, the accused person had a very long criminal record, including 14 convictions for property offences, 22 convictions for fraud, personation, and similar offences, and 13 convictions for breaching court orders. Given this, despite the risk of COVID-19, the judge concluded that it was necessary to detain the accused man, prior to his trial, in order to protect the safety of the community.

Also discussed is a letter from the Criminal Defence Advocacy Society, calling for a limited reopening of the Provincial Court for in-person appearances.

The Provincial Court deals with the large majority of criminal cases and, as the letter from the CDAS points out, many of the people accused of crimes suffer from addiction issues, mental health challenges, homelessness, and have no access to technology. As a result, solutions like Zoom hearings, which are working in the Court of Appeal, don’t work for many accused people in Provincial Court.

With the majority of criminal cases in Provincial Court having been adjourned since March, many people are being left subjected to bail conditions, with no meaningful way to access the justice system.

In other legal news, Texas is the first jurisdiction to attempt a jury trial using Zoom. The experiment ran into some challenges as a result of things including a juror who walked away from their computer to answer a phone call. The judge was unable to call the juror back because they were not wearing the headset connected to their computer.


Legally Speaking with Michael Mulligan is live on CFAX 1070 Every Thursday at 10:30 am.


An automated transcript of the show:

Legally Speaking with Victoria Lawyer Michael Mulligan – May 21


Adam Stirling [00:00:00] All right. It’s time for, Legally Speaking, here at CFAX 1070, we’re joined by Michael Mulligan from Mulligan Defence Lawyers, looking over the latest news stories of the week to do with legal affairs. Always interesting, especially in this, the age of COVID-19. Good morning, Michael. How are you doing?


Michael T. Mulligan [00:00:14] I’m doing great. Thank you very much for having me.


Adam Stirling [00:00:16] What’s on the docket today?


Michael T. Mulligan [00:00:18] Well, I think the first thing is a case that came out dealing with the bail or judicial interim release in the context of COVID-19. There have been a number of cases that have addressed that, and sort of how the risk of people who are held in jail, waiting for their trial, ought to factor in to the decision about whether a person should be allowed to be out of jail waiting for their trial or whether they have to remain in jail waiting. And the starting point for those assessments is that a person has a constitutional right to reasonable bail and not to be detained without just cause. Ordinarily, the burden would be on the crown in most cases to show why it would be necessary to keep somebody in jail who’s presumed to be innocent, of course, before their trial. And there are three reasons that that can occur. The first, the primary ground would be if the crown could show that the person was not likely to turn up if you let them out. Right.


Adam Stirling [00:01:25] Yes.


Michael T. Mulligan [00:01:25] And so you might look at things like, you know, does the person have an address? Have they previously failed to show up in court? You know, how serious is the charge? Is that the sort of thing a person might flee the jurisdiction to try to avoid or not? Right.


Adam Stirling [00:01:38] Yes.


Michael T. Mulligan [00:01:39] The secondary ground would be a consideration as to whether it’s necessary in order to protect the public, to sort of keep somebody in custody. And often that’s an analysis of whether the person is likely to commit further offences if released. And so, for that, you would look at, you know, as a person of a history, for example, of repeatedly committing offences. Right.


Adam Stirling [00:02:02] Yes. Yes.


Michael T. Mulligan [00:02:03] And then if neither of those apply, there’s what’s called the tertiary ground, which would be a detention if it’s necessary to maintain confidence in the administration of justice. And so that might be, for example, let’s say you had a high profile person who was going nowhere and had no previous record, but where there is an overwhelming case to be made that they committed a serious offence and the public might say it is outrageous, you know, you’ve got, you know, the mayor of a city on video committing murder, I appreciate they’re going to show up and they have no other record. But, you know, we just can’t let that person out, there would be outrage. And that can be a reason as well. Now courts have been interpreting all of those things and also taking into account the increased danger posed by COVID-19 for people who are in custody. And there was a recent decision from the BC Provincial Court that went through that analysis in the case of a man who was, had a really unenviable record. He was somebody who had a long history of property offences, failing to comply with conditions, breaching court orders. I think he had 14 property offences, 22 convictions for fraud, impersonation 13 times. He was convicted of breaching conditions and nine times, taking off, flight from police. That kind of thing.


Adam Stirling [00:03:24] Mmhmm


Michael T. Mulligan [00:03:25] And he was charged with breaking in and stealing mail over on the mainland. And the judge in this case analyzed the sort of factors that I’ve talked about, but also went through some of the COVID-19 considerations. And there’s some interesting information in that. One of them was the BC Corrections provided information that it has decreased the number of people in custody since the outbreak of the pandemic from about 2,200 people in British Columbia down to about 1850 people. That’s in BC Corrections, provincial facilities. So, a decrease of about 350 people in custody. There have, however, been some problems, including a serious outbreak at the Mission Institution, which is a federal penitentiary, where 131 inmates and staff have contracted coronavirus. And the judge pointed out that prisons, much like care homes and other facilities, are at increased risk because everyone’s living in close quarters sharing meals and this sort of thing.


Adam Stirling [00:04:33] Did you say 133 persons in one institution?


Michael T. Mulligan [00:04:37] Correct.


Adam Stirling [00:04:37] That’s more than all of Vancouver Island in the entire pandemic. That’s remarkable.


Michael T. Mulligan [00:04:41] He said, I’m in no way diminishing the health risk here in the federal Mission Institution, 133 inmates and staff have contracted the coronavirus.


Adam Stirling [00:04:51] Wow.


Michael T. Mulligan [00:04:52] So obviously a very serious problem, at least in that institution. But in the case that I’m referring to, the judge did make clear that that doesn’t equally get out of jail free card. Right.


Adam Stirling [00:05:04] Yes.


Michael T. Mulligan [00:05:04] Although it’s a serious consideration and meet tip the scales in some cases. The judge pointed out that, you know, a person doesn’t become less of a risk because of COVID-19. And so, taking all of that into consideration and the things that I just talked about.


Adam Stirling [00:05:20] Yes.


Michael T. Mulligan [00:05:21] The case I’m referring to, the judge said, look, this man with these, you know, dozens of convictions fleeing from the police and in the very case, it was being considered the man apparently took off from the police, had climbed onto a tractor and tried to get away in that fashion before being tracked down by a police dog. The judge concluded, look, I appreciate this is a risk and I need to take into account COIVD-19, but given that horrific record, the judge concluded it was simply necessary to keep that man in custody despite the risk, because of the risk he would pose to the safety of the community if he was let out again. So COVID-19, certainly a consideration on bail, but the big considerations are those three that I mentioned.


[00:06:07] Yes.


[00:06:07] Are you going to turn up? Are you going to be a threat to the public? And do we need to keep you here to avoid a complete loss of confidence in the justice system with a, you know, overwhelmingly strong case for a serious charge? That kind of thing. Those are the principal things. COVID-19 is a factor but won’t determinant. And I must say, one of the things which was I think positive about all these decisions is it is a rational analysis of all of these things. Right.


Adam Stirling [00:06:34] Yes.


Michael T. Mulligan [00:06:34] You know, you actually see coming out in these decisions a risk assessment based on things like the actual statistical information about the number of people, the risk, the number of infections and a reasoned, rational decision. So, there you, not a get out of jail free card, but certainly a factor.


Adam Stirling [00:06:53] And I’m glad to see that proportionality is being used. Of course, we can’t balance interests unless we observe proportions of some degree. And you’re right, these fiscal number of people who are being infected as well as the overall infection rate would be material in some cases.


Michael T. Mulligan [00:07:07] That’s right. Wesley, that’s one of the things that I think is really positive about the justice system generally, unlike some other aspects of decision making in the public sphere. There is an emphasis on the rational and evidence-based decision making. Right.


Adam Stirling [00:07:24] Yes.


Michael T. Mulligan [00:07:24] Look at the numbers. Let’s look at the statistics. Let’s hear arguments from both sides and have an impartial person make a decision based on that and explain why they’ve done it, right.


Adam Stirling [00:07:34] Yes


Michael T. Mulligan [00:07:35] You would hope that would be a decision-making model for more things. But it’s certainly in this context. I think a really positive way to approach things.


Adam Stirling [00:07:46] Indeed. The Criminal Defence Advocacy Society, calling for a limited reopening of the provincial court and there is a May 20th letter. What’s the story here?


Michael T. Mulligan [00:07:56] Yes. Now this is an organization that represents lawyers who do criminal defence work and this was a letter they wrote yesterday to a whole host of people. All the senior administrative crown counsel, all of the administrative justice, judges across the province, calling on a reopening of the provincial court system to allow in-person appearances. And I think there are some really important things that the society has pointed out. As we’ve talked about previously, there have been various efforts to move things online. Right. The Court of Appeal is now going full, guns blazing, doing all of its hearings by Zoom.


Adam Stirling [00:08:42] Yes.


Michael T. Mulligan [00:08:43] And you’ll see in the Supreme Court, they’ve got, they’ve apparently reached their capacity for video and remote conferencing. And in provincial court, they’ve seen efforts to deal with things by telephone, doing sentencings by phone, using technology. They’re moving to MS teams. But one of the, I think, really important things that the Criminal Defence Advocacy Society pointed out here, is that many of the criminal clients who they act for, are people who suffer from things like mental health issues, addictions, homelessness, and they have essentially no access to technology. And the point that they’re making and calling for some limited reopening of physical courtrooms, is that individuals in those circumstances are effectively frozen out of the justice system because they have no capacity to participate in it. Telling somebody who’s living in a, you know, was living in a tent on Pandora Avenue that you should at, you know, 10:30, just hop on to MSF teams for your video court appearance is a pretty meaningless proposal to them.


Adam Stirling [00:09:57] Indeed.


Michael T. Mulligan [00:09:58] And the reality of what goes on, and people should… we have three courts in British Columbia. We have the Provincial court, BC Supreme Court, and the Court of Appeal. The Provincial Court deals with the overwhelming number of criminal cases, the Supreme Court deals with a smaller number of serious criminal matters, jury trials, murder trials, things that are quite serious. But there’s a really high volume of cases and people who are in the provincial court system. Something like 95% of criminal cases are dealt with there.


Adam Stirling [00:10:29] Interesting.


Michael T. Mulligan [00:10:30] And a very large percentage of those people are, as the society here is describing. Most many of them, a large percentage, are marginalized, mental health issues, drug addiction issues, homelessness. That is sort of what begets a high volume of cases. All of the sort of things like know people breaking into cars.


Adam Stirling [00:10:49] Yes.


Michael T. Mulligan [00:10:49] Or breaching their conditions or not showing up when required or being caught drinking when they weren’t allowed to all of these kind of things. And there’s a large volume of these things that have now just been put off for now, it’s going to be about three months. And the society points out that many of those people are subject to bail conditions that are restrictive, and they are just incapable of dealing with the system in a remote way. So the advocacy society is calling on the courts to take steps like plexiglass, social distancing and courts using standard appearances, whatever is necessary to allow those individuals to participate in the system, because technology just isn’t going to work for a very large percentage of people who are charged with criminal offences. And we can’t simply keep putting these things off month after month. There just needs to be a mechanism which they can actually use.


Adam Stirling [00:11:48] I want to take our break here, Legally Speaking, with Michael Mulligan for Mulligan Defence Lawyers continues in just a moment.


[00:11:54] COMMERCIAL.


Adam Stirling [00:11:54] We continue now with Legally Speaking, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers, giving us guidance through the latest news stories and legal affairs in the week. I see here the jurisdiction of Texas, Michael, experimenting with conducting trials by Zoom, also involving a jury.


Michael T. Mulligan [00:12:11] Yes. I thought this was great in terms of sort of a creative attempt at this, at least. In British Columbia, jury trials are conducted in the Supreme Court and all of those have been cancelled at least up till September the 7th on the basis that it just wouldn’t be safe. And there’s just no practical way to have twelve strangers forced to sit in things like a jury box right next to each other or sitting back in a jury room, having, you know, talking moistly to one another, for potentially days, trying to sort of case out, it just can’t work.


Adam Stirling [00:12:48] Yes


Michael T. Mulligan [00:12:49] I mean, there is sort of talk about things like, you know, could we put the jury in the gallery and have, you know, three seats between them? But it just seems extremely challenging to make that system work in the current context. So, Texas and I must say jury trials are more common in the US than in Canada. We have a fair number here, but they’re more common there. This was a case down there involving hail damage to a building back in 2017. Civil case and the company that owned the building got damaged by the hail. Who’s suing their insurance company claiming that they didn’t pay enough money for the hail damage. And so, in Texas, they have an interesting scheme for juries that we don’t have here. And one of the things that the allow for in Texas is this concept of a what, they call a summary jury trial. And the idea there is that you would select a jury, twelve people, and then the jury would hear evidence about the case and then the jury would render a verdict. But because in this form of a summary jury trial, the verdict is nonbinding. The jury would make a decision, but then the parties would be required to attend mediation. And the jury’s non-binding verdict would inform the resolution of the case through mediation based on what a jury would have concluded. So that’s the scheme they have there.


Adam Stirling [00:14:19] Huh, that seems almost backwards. Here it’s mediation and then trial.


Michael T. Mulligan [00:14:23] You’re exactly right. So, there are two different places.


Adam Stirling [00:14:25] Huh.


Michael T. Mulligan [00:14:26] But what do you…. what do you do in the age of COVID-19? Well, in Texas, the tried this is the first one I’m aware of, having the jury be selected and then attend by Zoom. And so, the sent-out jury notices to prospective jurors who were obliged to connect by Zoom. There’s a report indicates that some people that received these things were concerned whether they were real or not. But indeed, they were. And the judge informed all of these people that, look, you’re not at home during a jury duty. You’re at jury duty. You just happen to be at home. And so, they all got connected on Zoom. They’re pictures of this thing, it looks like. You know, those of us old enough to remember, it looks like The Brady Bunch opening on steroids with all of these pictures of various people.


Adam Stirling [00:15:20] Yes. Yes.


Michael T. Mulligan [00:15:22] And then sold a third ad at it doing initially jury selection right, picking, picking out who’s going to be on the jury. A minor hiccup arose during that process where apparently one of the prospective jurors just wandered away from the camera and took a telephone call. The judge was apparently telling the person to get back to where they were required to be but got no response since the computer audio was hooked up to headphones and he was not wearing. (laughter) So there is a problem. What do you do in your juror just wanders off?


Adam Stirling [00:15:57] I guess you send the bailiff to their house or what do you do?


Michael T. Mulligan [00:16:00] I guess so.


Adam Stirling [00:16:01] I don’t know.


Michael T. Mulligan [00:16:02] So they eventually got the jury selected and they’re, they’re going for it. The judge came up with a mechanism whereby if counsel needed to address something without the jury, there could be another sort of Zoom breakout room to get a ruling on something. And so there they are, probably a good, you know, sort of test case to deal with that, deal with this. You know, given that the verdict at the end of the day isn’t binding and it’s a civil case over money for hail damage, you might be pretty unhappy if you were sitting in prison for the rest of your life with the having been convicted of murder or something, wondering whether the juror was, you know, playing solitaire or wandering off to take phone calls rather than listening to the evidence. So certainly, you know, a good low risk fact pattern to try that out with. And I must say, good for them. It seems like a creative approach. I don’t know whether we could actually make that work or, you know, if this thing went on long enough, maybe you to have some modified version of it with even if it couldn’t be people at home with, you know, all those considerations like wandering off to the phone, maybe there could be some creative use of technology like that with people physically at the courthouse. Another concern that the judge was addressing there, he told the jurors in Texas, there may be times when you have to have other people leave the room, leave the room. Right. You couldn’t have or you wouldn’t want to have, for example, the jury deliberations going on by Zoom, you know, with somebodies partner sitting in the background, offering their commentary on or listening to what was being discussed.


Adam Stirling [00:17:46] Yeah Yeah.


Michael T. Mulligan [00:17:46] Right. That’s the problem. Right. But it wouldn’t be inconceivable to use this technology in a different way. Let’s say you had 12 private rooms at the courthouse. Right. Perhaps you could have the jurors listening to the proceedings by Zoom or some equivalent to, you know, video technology so they could hear the evidence. You can make sure that they weren’t talking to their spouse or answering the phone or just leaving. And maybe you could have some form of deliberations going on. So great to see the creativity in Texas. We’ll have to figure out how to stop people from wandering off to answer the phone or feed the dog or talk to their spouse and be actually within earshot of the judge. But there it is. The first jury trial by Zoom, thanks to Texas.


Adam Stirling [00:18:35] Oh, here we go. Now, as of June 8th, I’m reading here, BC Supreme Court planning to recommence criminal trials other than jury trials though, how does that work.


Michael T. Mulligan [00:18:44] Yes. So, the BC Supreme Court, as we talked about earlier, is one of the three levels of court in British Columbia. The categories of things that the BC Supreme Court deals with are different from what would be dealt with in the Provincial Court, for example. The Provincial Court would deal with things like most criminal trials, 95% of them criminal cases that would deal with small claims matters, traffic matters, some family cases. Supreme Court would deal with larger financial claims, larger lawsuits, serious criminal cases where somebody is going to Supreme Court. Those would include things like jury trials or serious indictable offences where somebody is chosen to have a trial in Supreme Court. And so, what Supreme Court looks like on a day to day basis is different from what the Provincial Court might look like if on any given day. You walked up to the courthouse in Victoria and walked into a criminal courtroom. It would be often a hive of activity. Right. You would some remand courts, you could see dozens of people waiting around for their, you know, sentencing to occur or a bail hearing to happen, this sort of thing. Whereas in Supreme Court, because of the nature of what they do, smaller volume of cases, more serious things, almost everyone there would have counsel, although, I guess, perhaps not these days in family cases, for example. They have concluded that is going to be possible for them to recommence conducting trials as of June the 8th. And, you know, they said this is going to be subject to review and assessment as to how it proceeds. But that’s, I think, good news. Rights are to set a deadline and give it a try. I was up at the courthouse looking at some of the physical layout, with an eye to these things last week.


Adam Stirling [00:20:43] Yes.


Michael T. Mulligan [00:20:43] And, you know, there are challenging things that have to be done right. There are concerns about things like making sure that there is sufficient distance between people. You know, where do you put the accused box? How do you position the lawyers so they’re not breathing down each other’s neck or, you know, where do you put the witness?


Adam Stirling [00:21:00] Yeah.


Michael T. Mulligan [00:21:00] You know, oftentimes the witness box would be sitting right next to where the court clerk has to sit, and then the court clerk is sitting awfully close to the judge. And so, you know, the discussions are things like, could we put the witness in the jury box, for example, and that would get them further away and doing other physical things like moving the accused box and separating counsel table, counsel tables. And so those efforts are underway. There are some challenges and limitations on things like the availability of plexiglass and other barriers. And there are concerns about having enough, you know, masks and gloves for sheriffs and others who have to potentially be closer to people to maintain security. So real challenges there. But the Supreme Court is going to try to recommence criminal trials in person other than jury trials. On June the 8th and there’s lots of work underway to make that happen in a safe fashion. There are other practical things like, you know, can you have more than one person on an elevator? You know, where can people use the bathroom? What do you do to clean the, you know, area that the witnesses testifying from? Should you have people handling the Bible? There is a good one.


Adam Stirling [00:22:20] That is a good one.


Michael T. Mulligan [00:22:21] The Bible suggestion is that people may be encouraged to affirm rather than swear or bring their own, if you wish to swear an oath on a Bible, rather being having everyone handle it. And then you have other considerations about things like documents.


Adam Stirling [00:22:36] Yeah.


Michael T. Mulligan [00:22:37] You know, do you want to have somebody handing an exhibit to the witness to look at and then having them handed to the clerk and handed up to the judge in passing the thing all around the courtroom? What do you do with that? So, all those left to be worked out. Right. Yeah. But, you know, the Supreme Court may be a good place to try to make some of those things happen because in criminal cases, you’re much more likely to have counsel. It’s going to be, it’s generally a lower volume thing. You know, you don’t have a courtroom where there are, you know, 50 people waiting to deal with something. Usually it’s going to be, you know, a serious case that sat for several days.


Adam Stirling [00:23:15] Yes.


Michael T. Mulligan [00:23:15] That’s what’s being concentrated on. And that would be easier to manage than, you know, a high volume of people all there for their initial appearance or something.


Adam Stirling [00:23:24] Michael Mulligan, we appreciate the benefit of your knowledge and insight is always out of time. Have to run. But thank you so much.


Michael T. Mulligan [00:23:29] Thank you very much for having me. Have a, stay safe and have a good week.


Adam Stirling [00:23:32] You too as well. We’ll talk to you next week. Legally speaking, during the second half of our second hour every Thursday on CFAX 1070.


Automatically Transcribed on May 21, 2020 – MULLIGAN DEFENCE LAWYERS