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Notice to the Public and to the Profession – Interim Guidelines re Mode of Appearance for Ontario Court of Justice Criminal Proceedings

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Published March 18, 2022

The Office of the Chief Medical Officer of Health recently announced the easing of COVID-19 public health measures, including lifting capacity limits in public spaces such as courthouses.  This has increased the Ontario Court of Justice’s capacity to return to in person proceedings.

The Court remains committed to using technology to better serve court users and improve access to justice, including the use of remote technology (video or telephone) in appropriate cases.  Moving forward, OCJ criminal proceedings will be heard in-person, by remote technology (video or telephone) or a combination of in-person and remote technology.  The Court will be engaging in consultations with its justice partners to determine how best to implement this vision in the long term. In the meantime, the Court has established interim guidelines for modes of appearance in criminal proceedings, which will come into effect April 4, 2022.

The chart below sets out the mode of appearance that will apply in OCJ criminal proceedings as of April 4, 2022.  The mode of appearance identified below is always subject to a judicial officer directing otherwise. This will allow RSJs and RSJPs or their designate(s), to account for local circumstances. It will also allow the judicial officer presiding over a particular proceeding to address circumstances specific to that proceeding.

If the guideline set out in the chart conflicts with the content of any COVID-19 notice or directive previously issued by the Court, the guideline in the chart will prevail, unless a judicial officer directs otherwise.

OCJ Criminal Proceedings – Interim Mode of Appearances* as of April 4, 2022

*Note:  The mode of appearance is subject to direction by the presiding judicial officer and/or RSJ or RSJP or designate.

Before scheduling a matter to proceed by video, participants should confirm that the technology is available to accommodate the video appearance.

Proceeding Mode of Appearance (as of April 4, 2022)
Bail  
First appearances (from station; also WASH court) Accused will appear by video or audio unless otherwise directed.
Bail hearings For contested bail hearings:  Accused will appear by video unless otherwise directed.

Note:  If video is not available in the institution to accommodate the hearing, the accused must be brought in person, unless alternative arrangements for a video appearance can be made, e.g. bringing the accused to the courthouse to appear by video from a video suite within the courthouse.

For consent releases and remands: Accused may attend by video or audio unless otherwise directed

Sureties may attend by video or audio unless otherwise directed

Special bail hearings The mode of appearance will be directed by the judicial officer  presiding at the special bail hearing conference following discussion of the issue.
Special bail conference Video unless otherwise directed

Note:  RSJ, RSJP or designate can authorize audio conferences as can the presiding judicial officer

JPTs Video, unless otherwise directed (for both counsel JPTs and self-rep JPTs)

Note:  RSJ or designate can authorize audio or in-person JPTs, as can the presiding judge

Plea Court Accused will attend in person unless judge orders otherwise

Exceptions for videos pleas on consent: subject to a judge ordering otherwise, video pleas do not require prior approval of a judge in the following circumstances:

In-custody accused – if the accused consents to attend by video

Out of custody accused – if (i) both the Crown and accused consent to the accused attending by video and (ii) neither party is seeking a custodial sentence

Trials / Prelims In person for all participants (witness, counsel, accused), unless a judge has ordered otherwise

Note:  Matters that have already been pre-tried and scheduled (on consent) as virtual (or hybrid) hearings will continue in the mode scheduled, unless otherwise directed

For matters scheduled after April 4, 2022, if all parties consent to some or all of a hearing being conducted on video (or as a hybrid hearing), the parties may presume the matter will proceed in the agreed-upon mode, subject to the presiding judge directing otherwise.

Case management No immediate changes.
Set date (case mgmt.) – in custody No immediate changes
Set date (case mgmt.) – out of custody No immediate changes – Appearances by accused persons and counsel will remain primarily by video unless otherwise directed.

Note:  Courthouses will continue local accommodations for in-person appearances by accused persons who are unable to attend by video or audio.

Judge-led Case Mgmt Courts (JICMCs) No immediate changes,
Trial Readiness No immediate changes:
Specialized courts (e.g. drug treatment court) No immediate changes:
Intake Court Applicants and Informants may attend in person; remote processes introduced during pandemic will remain as an alternative option (for consent bail variations, private prosecutions, private s. 810 applications)

For peace officers, Eprojects (i.e. eIntake, eHub, eTelewarrant and eReports to Justice) will continue where applicable.