Jury trials have proven to be the most challenging parts of the justice system in the age of COVID-19.
The Court of Appeal has been conducting appeals using Zoom. The Provincial Court has been conducting sentencing and judicial release hearings by telephone conference. Both the Provincial Court, and the Supreme Court, have been utilizing video connections for witnesses, and relatively simple modifications to courtrooms have permitted safe in-person trials to resume.
The challenge for jury trials starts with the process of selecting juries.
Prior to COVID-19, hundreds of potential jurors would attend the courthouse and several juries would be selected from this jury pool. Such a process would no longer be safe.
The process contemplated by a recent practice directive will divide the jury selection process into two parts. On one day the names of potential jurors will be drawn at random. On a second day, contemplated to be a Saturday so as to minimize the number of people at the courthouse, the potential juror whose names were drawn will be required to attend in small groups, at staggered times.
Juries will be selected from the smaller groups and once all of the jury spots have been filled, prospective jurors in later groups will be advised they do not need to attend the courthouse.
The next issue to be solved is safety during the course of a trial. This will involve either modification to courtrooms, by way of physical separation or plexiglass barriers. Where this cannot be achieved, given the physical limitations of courtrooms, other facilities such as theatres, hotel meeting rooms, or university lecture facilities will be utilized. Many of these facilities are not otherwise in use due to COVID-19 restrictions.
The final physical requirement for the resumption of jury trials is the need for a sufficiently large room for jury deliberations. Ideally, this would include private bathroom facilities. Juries need to be able to deliberate privately while ensuring sufficient separation for all of the members of the jury.
The direction from the British Columbia Supreme Court is that jury trials will recommence as of September 8th. This mandate is requiring an assessment of what physical modifications will be possible in existing courtrooms so as to determine whether jury trials will need to move into alternative venues.
Also discussed on the show is a recent case dealing with the time period police are permitted to keep evidence, without a charge be approved.
Finally, a court case involving an application for a cannabis sales licence is discussed. While the licence needs to be issued by a provincial government agency, that process cannot proceed unless the municipality in which the store would be located submits a report. In the case of an application for a licence in Sidney, the municipality did not file the required report at all. The lack of a report from the municipality stopped the licence application altogether. On a review in court, Sidney was ordered to submit the required report, so that the licence application could proceed.
An automated transcript of the episode:
Legally Speaking July 23, 2020
Adam Stirling [00:00:00] Time for our regular discussion with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Legally Speaking, on CFAX 1070. Good morning, Michael. How are you?
Michael T. Mulligan [00:00:09] I’m doing great. How about yourself?
Adam Stirling [00:00:10] Oh, you know, just another day in COVID-19, I’m trying to climatize myself to the feeling of wearing a mask over my face; I find it a profoundly uncomfortable state of affairs. Nevertheless, it’s certainly not a large sacrifice any person has to make. And I know we’re wearing masks some more so around here at work as well as elsewhere. And I know that the justice system is trying to figure out how to best accommodate the requirements for physical distancing. Are we doing jury trials yet? What’s the status of that?
Michael T. Mulligan [00:00:39] Well, that’s a great question. The justice system has been making all kinds of accommodations to get everything possible back up and running. The Court of Appeal has been functioning with the Zoom hearings virtually from the beginning of the pandemic. The provincial court has been dealing with the sentencings by telephone and conferences using MS Teams and in the B.C. Supreme Court, at least for trials not involving juries. So, things have been back up and functioning, not at perhaps full capacity, but trials are going on and accommodations are being made with things like having witnesses testify by video. They’ve modified courtrooms putting up Plexiglas barriers between counsel and for the court clerk and so on.
Adam Stirling [00:01:29] Yes.
Michael T. Mulligan [00:01:30] And so many of the court functions are now able to proceed, if in in a modified way. The most challenging aspect so far, I think, for the justice system has been dealing with the issue of jury trials, and they present a number of really special challenges. In some cases, criminal cases are required to have a jury trial unless both the accused and the crown agree to only have a judge. For example, a murder trial must have a jury unless both sides agreed to do otherwise. And for a variety of reasons, one or other or both of them might say, no, I wish to have a jury. And so that’s what has to occur. And there are a number of challenges with that. And one of those I should say, it starts with the process of how we select a jury, which I think many people may have only been on the receiving end of in their life. And the way that works is that in British Columbia, we have a sheriff’s service which is responsible for a number of things, including the security of the courthouse and managing juries. Those are two of their core functions. And what would happen is that the sheriffs service would send out jury notices to people, you may have gotten lost in the mail, advising you that you’re required to attend to be on a panel to potentially serve on a jury. But what ordinarily would happen is they would send out hundreds of these notices to collect up a sufficient jury pool from which one or more juries could actually be selected.
Adam Stirling [00:03:12] Yes.
Michael T. Mulligan [00:03:13] It wouldn’t work if you just sent out 12 notices and you 12 must show up. All kinds of things happen. Right? Turns out the, you know, the accused person knows the jury or a juror or the juror, you can’t serve for some reason. And so, you need a larger pool to get down to the twelve. But it pretty obviously isn’t going to be satisfactory to have 300 people all march into the courthouse and sit shoulder to shoulder in the hallway, which is what would ordinarily happen. So, what do we do with that? And the notice that was released yesterday from the Associate Chief Justice of the BC Supreme Court, which is where jury trials run in the Supreme Court here, has settled a new process whereby jury trials are going to resume on September the 8th and it is set on how we’re going to try to do that. And they’re for jury selection is going to try to do this. They’re going to try to send out those notices and then have counsel and the accused and someone show up and the court clerk would draw numbers, jury numbers randomly out of a box, which is what would ordinarily happen with all these people sitting in the hallway. But they would do that before the big group of people would show up and then they would form smaller sort of pods or groups of maybe 15 or so people who would be asked to come at different times. And the plan is to do it on Saturdays when there be fewer people in the courthouse. And the idea would be you would have one of these smaller groupings that’s been randomly selected coming on a Saturday, and then you would start going through those people to get jurors for each of the trials that’s set to go. And the idea is, if you didn’t get enough out of the first group of 15 or so, the next group would show up, you know, half an hour later. Something and you just keep going until you got to the required number. So that’s the first complexity you’re dealing with. How do you get the jury selected? Now, once you’ve got them selected, there are a number of other logistical challenges that immediately arise. I just spent this morning up with a mask on, walking around, looking at various courtrooms, dealing with feedback on how courtrooms can be modified to make them safe for jurors.
Adam Stirling [00:05:28] Yes.
Michael T. Mulligan [00:05:29] And at the moment, of course, you’ve got these tiny little jury boxes where everyone would be squished in shoulder to shoulder and that just can’t work. And you can do some things, like you could put up some plexiglass barriers. But, you know, it’s going to be pretty hard to turn that into 12 tiny pods. That’s probably unworkable. Juries need to be able to hear the witness speak. So, you have a problem if you have multiple layers of Plexiglass between them. They need to be able to see the witnesses testify. The judge needs to be able to see and hear people testify. And so there’s much work on the moment trying to figure out can we reconfigure the courtroom using maybe the gallery or some additional space in some way that we could keep everyone either two meters apart or behind plexiglass so that they’re not in danger? And what the Associate Chief Justice of the B.C. Supreme Court has decided is that if it is not possible in some locations to come up with a safe physical reconfiguration so everyone can be distanced or protected, it may be necessary to conduct jury trials in a location other than a courthouse, which is perfectly permitted. And so, she has suggested that in communities where the courthouse can’t be modified to keep everyone safe, that it may be that we wind up using community centers, hotels or other locations apart from courthouses so that everyone could be spread out. And I think what would be envisioned, there would be something like a large conference room or perhaps a lecture theatre or, you know, I think many years ago it was I think the Royal Theatre was used for a mass trial, the Kawakawa Sound Trial. Think that was the Royal Theatre if I am not mistaken.
Adam Stirling [00:07:16] Interesting. I’ve forgotten about that. I do have a faint memory.
Michael T. Mulligan [00:07:19] So that, you know, maybe some facility like that which isn’t going to be running ordinary plays anytime soon, could be used for that purpose. And just have the jurors all sit, you know, 10 seats apart from each other. Everyone would have a good view of the witness. Have them up on the stage or in some configuration like that. And so, there’s going to be some, I think, real creativity used to try to keep everyone safe, but allow these really important things to get going again. And I think everyone involved in this process trying to get this off the ground again, jury trials is aware as well that we have to come up with something that is going to make the jurors comfortable such that they are prepared to serve. Right. If you tell somebody, you know, you’re sitting in this little plexiglass capsule with a face shield on, I suspect you’re going to a lot of people saying, I don’t feel safe,.
Adam Stirling [00:08:14] No.
Michael T. Mulligan [00:08:15] Doing that. And, you know, it already is a large imposition for people asking them to serve on a jury. And so, I think we need to come to an arrangement wherever it might be physically, whereby people are going to not only be safe, but feel safe doing it, right.
Adam Stirling [00:08:32] Yes.
Michael T. Mulligan [00:08:33] And so I think you need to make sure that people are safe and comfortable. And then the other element to it is that once the trial is finished and the jury’s heard all of the evidence and instructions from the judge, they need to go in deliberate. And the current deliberation rooms are far too small for that to happen. And so, you need a large private space where they can have deliberations and then other things that you might not immediately think of need to exist like bathroom facilities.
Adam Stirling [00:09:02] Yes.
Michael T. Mulligan [00:09:02] Right. You don’t want to have the jurors are wandering down the hallway chatting with somebody else about the case. You want to have a place where they can be together, privately and have those basic facilities to be a place to go to the bathroom and some water to drink and so on. And so, when we look for places or modified places, we need to make sure that those needs are taking care of as well. So, I think we’re in for some interesting times. But it’s clear that the court is determined to find a way to make this work, as we must. You know, if we’re somehow able to make bars function, surely on the hierarchy of social need, the requirement to have jury trials function properly for people so that serious criminal matters can be properly tried, surely got to take some priority over making sure everyone’s got a, you know, fun place to have a drink on the weekend. So, if we can make one go, I think we’ve got to make the other go. And I think everyone involved is determined to come up with a way that we can do that, that works, is safe, and is going to make everyone in the process feel that way so that they can comfortably participate.
Adam Stirling [00:10:11] Interesting questions arise as to where the threshold may exist, to where discomfort a juror deals with while discharging his or her duties may compromise their judgement. Of course, their judgement is the reason that we have them there in the first place. What do you think?
Adam Stirling [00:10:26] I think you’re right. Right. You just can’t have somebody who’s sitting there thinking, oh, my goodness, am I going to get infected and die?
Adam Stirling [00:10:32] Yes.
Michael T. Mulligan [00:10:32] Right. They need to be concentrating on listening to the evidence so they can make a proper decision. And then just other basic things have to happen. Like they have to be able to clearly hear the person, the witness testifying. Right.
Adam Stirling [00:10:45] Yes.
Michael T. Mulligan [00:10:45] So, you know, you can’t have them sitting behind three layers of Plexiglass, you know, 100 feet away or something. They just won’t be able to hear what’s going on. And so, we have to meet those requirements. So somebody feels safe, will be prepared to participate as a juror, and then is able to do so effectively hear the evidence and not be constantly distracted by, you know, being asked to put on a face shield and mask and be in some little capsule or something. You know, it’s already a challenging thing for people to do, and it requires a good deal of concentration for people to pay attention to all the evidence so they can make a correct decision. And so, we, I think, just need to spend the money to have facilities where that can happen. And if we can’t do it at the courthouse, it does seem to me that we have a number of large unused facilities around town that we should take advantage of so that these cases can get back on track. Like we’ve been able to get other cases back on track.
Adam Stirling [00:11:46] A great public confidence in the dispensation of justice must be upheld. Whatever it takes. Let’s take a quick break. We’ll be back in just a moment. As, Legally Speaking, continues on CFAX, 1070.
Adam Stirling [00:11:55] Back to Legally Speaking on CFAX 1070. Michael Mulligan from Mulligan Defence Lawyers as we continue to explore the latest news of the week in the justice system. Another interesting case here, Michael. Or would we like to touch upon anything else with COVID-19 first?
Michael T. Mulligan [00:12:11] Well, this one actually has some flavour of that to it, interestingly. All right. And so one of the other cases, which was just recently released by the B.C. Supreme Court deals with a topic that comes up with some frequency and practice, which is the issue of whether, you know, when the police seize something from you. How long can they hold on to it? Right.
Adam Stirling [00:12:31] Yes.
Michael T. Mulligan [00:12:31] That doesn’t arise infrequently. If somebody saying, hey, the police seized such and such and nothing’s happened. How long can they keep it for? Well, there is a scheme for that in the criminal code. And the way it works is this: if the police sees something as possible evidence of an offence, like, for example, they get a search warrant and they go and conduct a search and find something that they think might be evidence of a criminal offence, they are, first of all, required to file a report with a justice of the court registry of what they seized. Right. Police in Canada can’t just come and take things in and secret them away. They’ve got a report upon it.
Adam Stirling [00:13:10] Right. Good. Yes, and rightly so.
Michael T. Mulligan [00:13:11] Hey, here’s what you took out.
Adam Stirling [00:13:14] Right.
Michael T. Mulligan [00:13:14] And then they are permitted to keep the things. But if they want to keep them for more than 90 days and no charge has been laid. Right. Nothing’s happened yet.
Adam Stirling [00:13:22] Yes.
Michael T. Mulligan [00:13:22] They would need to go back and ask a justice of the court registry for permission to keep them longer than 90 days. And they can go back and keep doing that several times. Right. I need any more time, we’re still investigating it, but we haven’t charged the person. The Criminal Code allows the police to go back to a justice and the court registry on multiple occasions, always asking for up to 90 more days. You know, hey, we’re still investigating this. We need more time. But there’s a limit and the limit is one year. And once you get to one year, if you still haven’t charged somebody and you’ve taken things from them, the police would have to apply to a Supreme Court Judge and explain why any more time should be given to them. And here’s why that can be important. A person has a right to a trial within a reasonable period of time, a constitutional right in Canada. And the Supreme Court of Canada has said that that reasonable time would ordinarily be either 18 or 30 months, depending on the type of case and where it’s being tried. But that time limit doesn’t start running until a person is actually charged with an offence. And so, for example, the police came and, I don’t know, seize your car and all of your money and various things of yours and they were sort of contemplating charging you, but hadn’t done anything yet. You hadn’t been charged. They just taken your things. That time limit for a trial within a reasonable time wouldn’t even start running. And so, we just can’t have it go on forever where, you know, things that may be very important or necessary for you were just kind of secreted away. Right. So, the decision which just came out was one of those cases where the police had gone back again and again, asking for more time from a justice when they were investigating a case involving producing marijuana, contrary to the Cannabis Act. Right. They’ve seized a bunch of things as part of an investigation of that sort last summer. And they still hadn’t charged the person. And they’d gone back time and time again, asking for more and more time from a justice. And eventually this thing wound up in Supreme Court where they were asking for even more time.
Adam Stirling [00:15:31] Is there an expectation that Crown will know at the outset how much additional time it will need? Or does it look unfavourable when they come back and ask for extension after extension after extension?
Michael T. Mulligan [00:15:43] Well, the original asking for the 90 days from the justice of the peace is going to be a virtually administrative process. So, if they’re kind of stringing it along 90 days at a time for up to that first year, that’s going to be almost certainly going to get it. They’re showing up saying, oh, we’re still working on this investigation. We need more time.
Adam Stirling [00:16:04] Okay.
Michael T. Mulligan [00:16:04] That’s going to go. But once you get to a what, the one-year mark? It turns into a sort of the Criminal Code presumption seems to be this is a very long time. You better get yourself in front of a Supreme Court Judge and explain why you need even more time before even charging a person, because once somebody is charged, that’s not the same kind of issue. Like if somebody is charged with robbing the bank, they can hang on to the alleged gun and mask right.
Adam Stirling [00:16:30] Yes
Michael T. Mulligan [00:16:30] Until the trials all finished, and the appeals finish and anything else. That’s not an issue. This is an issue, though, where you’ve seized something, and you just haven’t charged the person at all. And so, there’s this scheme in place designed to both require clear public reporting of what you’ve taken. And there is a judicial oversight of those things, which becomes more stringent after a year to get the process moving. And you if you don’t want to have somebody who’s potentially things that can be very important to them, large sums of money or computer equipment like this case involved a bunch of marijuana, but also computers and various other things that were seized. And so you can easily imagine how somebody would be, you know, having a difficult time earning a living or doing other things, if all of their equipment and so on, had been taken by the police and they hadn’t even been charged with anything. Such that you have the ability to go to court and defend yourself or whatever you plan to do.
Adam Stirling [00:17:27] Fascinating. We’ve got time for one more. About five minutes left on the clock.
Michael T. Mulligan [00:17:32] Sure.
Adam Stirling [00:17:32] The Happy Buddha Cannabis. I had the pleasure of interviewing the two owners of this establishment earlier this week, so I’m aware of their views on it. But I’m very interested to hear your legal analysis.
Michael T. Mulligan [00:17:42] Yeah. This was a good case. In addition to the Happy Buddha Cannabis proposed name and for people who didn’t listen to them earlier this week. This is a proposed cannabis store in Sidney and the Sidney City Council has taken what appears to be, according to the judgement, a rather schizophrenic view of whether they’re going to permit a marijuana store to be opened up in Sidney. They originally had legislation that said no marijuana stores and then they changed it to allow marijuana stores at least from a zoning perspective. But then what they did in that sort of a phase, I can fully imagine how if you were the proposed proprietor of Happy Buddha Cannabis, you might be pretty unhappy because the licencing scheme is principally operated by the province. You have to get a licence from the province to be able to sell marijuana. And the legislation dealing with that requires the provincial licencing authority to consider submissions from a municipality. And the municipality is supposed to go out and canvass people that could be affected by that. You know neighbours and so on.
Adam Stirling [00:18:51] Yes.
Michael T. Mulligan [00:18:52] And then provide information to the provincial licencing authority so we can decide whether to issue a licence or not. Here, the town of Sidney just didn’t do that. They just didn’t gather the information as they were required to do from people who might be affected by it and submit that to the provincial licencing authority. And then the way the provincial licencing authority operates is if they don’t receive that information from the municipality, they just won’t do anything. They won’t issue the licence. And so, by inaction, it amounts inaction on the part of the Sidney. It meant that the proposed proprietors were unable to proceed with their licence application because the licencing authority didn’t have the information required from the municipality, which was a pretty frustrating, bureaucratic state of affairs. When somebody who doesn’t want you’d open the thing just as well, we just won’t give them any information at all. And that’s the end of it. And so ultimately, in this case, the judge directed that is a requirement, that’s not optional and found that the municipalities decision not to gather the views of residents in the area was unlawful. They were required to do that, and the judge directed that the municipality shall conduct the required public consultation and fulfil its obligations to provide information to the provincial licencing authority so they can actually make a decision one way or the other. Right. It’s just not fair to say, look by providing no information, we’re going to absolutely stop any possibility of a licence being issued to you. So the town of Sidney’s had its knuckles rapped for doing that, and presumably now they will do what they are required to do so that the provincial licencing authority can determine whether Happy Buddha Cannabis should get licences asking for and for the sake of the proprietors. I hope that they are successful because they’ve decided to, according to the judgement, go out a five-year lease on retail space without having the required licence. So as the judge pointed out, they’ve taken the rather substantial risk by doing that. But at least now following this decision, it’ll be possible for there to be a real decision made by the Liquor and Cannabis Regulatory Branch about whether to issue a licence rather than having that process just halted completely by the decision parts of the Town of Sidney, not to do what they are required to do pursuant to the legislation.
Adam Stirling [00:21:29] Fifty-five seconds left in our segment today, Michael.
Michael T. Mulligan [00:21:33] Well, the I must say, the entire process in terms of the licencing for this proposed cannabis store, I think reveals the just the degree of bureaucracy that we’ve layered on top of the sale of cannabis in the province. And ultimately, I think we need to bear in mind the purpose of legalizing marijuana was to discourage from underground criminal activity. And if you make it too difficult or too expensive to do it, we’re not going to succeed in getting that activity properly regulated, taxed and so on. You’re just going to continue to have people growing the stuff in their basement. And I don’t think that’s really what any of us would desire.
Adam Stirling [00:22:13] Indeed, Michael Mulligan. Thank you for your knowledge and insight, as always. Greatly appreciate it.
Michael T. Mulligan [00:22:17] Thank you. Always a pleasure. Stay safe.
Adam Stirling [00:22:20] Thank you so much.
Automatically Transcribed on July 23, 2020 – MULLIGAN DEFENCE LAWYERS