Notice to Profession – Central East Region – Criminal

IMPORTANT NOTICE

This notice has been superseded. Please refer to:  https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/#REGIONAL_NOTICES for current information.

PROTOCOL FOR CRIMINAL MATTERS IN THE SUPERIOR COURT OF JUSTICE

April 1, 2020

Introduction

This Protocol applies to criminal matters in the Superior Court of Justice in the Central East Region, until further notice.

The Protocol is subject to change from time to time as may be necessary.

Criminal Matters Adjourned

On March 15, 2020, all criminal proceedings in the Superior Court of Justice including pre-trial motions, trials and the delivery of judgment, and guilty plea and sentencing proceedings, that were scheduled to take place between March 16 and June 1, 2020, were adjourned by Order of Chief Justice Geoffrey Morawetz, to specified dates in the week of June 1, 2020.

The specified June dates for these matters are “to be spoken to” dates only.  It is anticipated that on those June dates, new proceed dates will be fixed by the presiding judge.

It is not possible for the Court to offer new proceed dates, even on a “target” basis, at this time.  Counsel are asked to refrain from contacting trial coordinators about new proceed dates.

Urgent Judicial Pre-Trials

In the case of any matter that was previously set for the hearing of pre-trial motions and/or trial or for guilty plea and sentencing in the period between March 16, 2020, and June 1, 2020, counsel may request a judicial pre-trial (JPT) to be held by teleconference (conference call) on any urgent issue other than re-scheduling that needs to be addressed before June 1, by contacting Ms. Llyshelle Barrett, Assistant Trial Coordinator, at Llyshelle.Barrett@ontario.ca .

Counsel should explain the reason for the request, which will be conveyed to the Regional Senior Judge for consideration.

Judicial Pre-Trials That Were Previously Scheduled

Commencing April 6, 2020, judicial pre-trials will be available on re-booked dates, to be held by teleconference (conference call), for those cases in which a JPT had already been scheduled in any Central East location as of March 16, 2020.

A JPT can be re-booked for a defendant charged with murder or manslaughter in any location in the Central East Region:

  • By contacting Ms. Llyshelle Barrett, Assistant Trial Coordinator, at Llyshelle.Barrett@ontario.ca . These JPTs will be held by teleconference at scheduled times on Mondays.

JPTs in other cases can be re-booked as follows:

  • Where the charges are outstanding in Barrie, by contacting Ms. Llyshelle Barrett, Assistant Trial Coordinator, at Llyshelle.Barrett@ontario.ca . These JPTs will be held by teleconference at scheduled times on Thursdays and Fridays.
  • Where the charges are outstanding in Bracebridge, by contacting Ms. Llyshelle Barrett, Assistant Trial Coordinator, at Llyshelle.Barrett@ontario.ca . These JPTs will be held by teleconference at scheduled times on Thursdays and Fridays.
  • Where the charges are outstanding in Newmarket, by contacting Ms. Llyshelle Barrett, Assistant Trial Coordinator, at Llyshelle.Barrett@ontario.ca . These JPTs will be held by teleconference at scheduled times on Tuesdays and Wednesdays.
  • Where the charges are outstanding in Oshawa, by contacting Mr. Stephen Colomvakos, Regional Scheduling Assistant, at Stephen.Colomvakos@ontario.ca . These JPTs will be held by teleconference at scheduled times on Thursdays and Fridays.
  • Where the charges are outstanding in a Tri-County site (Cobourg. Lindsay and Peterborough), by contacting Mr. Stephen Colomvakos, Regional Scheduling Assistant, at Stephen.Colomvakos@ontario.ca . These JPTs will be held by teleconference at scheduled times on Tuesdays and Wednesdays.

Counsel are expected to advise Ms. Barrett/Mr. Colomvakos of the originally scheduled date and location of the JPT.

Counsel will be provided with a specific date and time for the teleconference JPT, as well as conference call dial-in information.

These teleconference JPTs will be available only where:

  1. Defence counsel is retained, meaning defence counsel can be noted as counsel of record for the defendant.
  2. Counsel requesting the JPT consults other counsel involved and books a date and time that is available to all counsel.
  3. Crown and defence counsel cooperate to complete a fresh joint JPT form. (Any JPT forms filed previously are not accessible to the judiciary, who are working remotely.)
  4. Crown counsel emails the joint form, a synopsis and a copy of the Indictment to Ms. Llyshelle Barrett at Llyshelle.Barrett@ontario.ca or to Mr. Stephen Colomvakos at Stephen.Colomvakos@ontario.ca, respectively.
  5. All materials must be emailed to Ms. Barrett/Mr. Colomvakos no later than 12 noon on the Friday preceding the date of the teleconference. If counsel fail to meet this deadline, the teleconference JPT will be cancelled.
  6. Counsel must be available at the time set for the JPT and must be in a stationary location with good cell phone or land line reception.
  7. No-one other than counsel may be present on the teleconference line, without the express permission of the presiding judge. The defendant will not be present for the teleconference.
  8. No recording will be made of the teleconference.
  9. Estimates of the time needed for all pre-trial motions and the trial itself will be noted by the presiding judge, but it will not be possible for the presiding judge to offer hearing dates for motions or trials, even on a “target” basis. Those dates will be fixed on the applicable June “to be spoken to date” specified in the Order of Chief Justice Morawetz referred to above.
  10. At the conclusion of the teleconference JPT, the presiding judge will scan or email the completed Report to Trial Coordinator to Ms. Barrett/Mr. Colomvakos. The presiding judge will retain all materials, including the completed Report to Trial Judge, to be placed in the court file when normal court operations resume.
  11. In the event a follow-up teleconference JPT is needed, counsel will contact Ms. Barrett/Mr. Colomvakos to arrange for a date and time.

Please note that it will not be possible to offer teleconference JPTs for defendants who have counsel retained only for the purpose of assisting at the JPT, or for defendants who are self-represented, as those JPTs must take place on the record with the defendant present.  In these cases, a rescheduled JPT date will be set when normal court operations resume.

Judicial Pre-Trials That Were Not Previously Scheduled

Teleconference JPTs are not currently being offered in any case where a JPT was not scheduled as of March 16, 2020, when the Superior Court’s operations were suspended.  This is due to resource limitations while the Court is operating remotely.

If there is an urgent need for a JPT in any such case, counsel should contact Ms. Llyshelle Barrett at Llyshelle.Barrett@ontario.ca and explain the nature of the urgency.  Ms. Barrett will seek direction from the Regional Senior Judge.

In the event it becomes possible to conduct additional non-urgent JPTs by teleconference, counsel will be advised by further written Notice to the Profession.

90 Day and Other Bail Reviews

Counsel who wish to schedule a 90 day or other bail review should serve counsel for the opposite party with the materials by email, and then consult opposite counsel as to whether there will be consent.

If there is consent:

  1. No hearing need be held.
  2. Counsel will jointly complete all necessary paperwork, including terms of release and surety declaration, to enable a registrar to prepare the release document.
  3. Counsel will forward the completed paperwork to the generic email address for the trial coordinator in the location where the defendant is charged.
  4. The registrar will prepare the release document (for example, recognizance).
  5. The registrar will contact the trial coordinator and arrange to have the release document emailed to a judge of the Court for review and approval.
  6. The judge will confirm their approval by return email message to the trial coordinator, who will forward the email to the registrar. This email should be retained by the registrar for the court file.
  7. The registrar will forward the release document to defence counsel to obtain the signature of the surety/sureties. Defence counsel will confirm in writing to the registrar that they have witnessed the signature of the surety/sureties, and viewed photo identification, either in person, or by Facetime, Skype or other means.
  8. Defence counsel will scan the signed release document to the registrar.
  9. The registrar, pursuant to s. 3(2) of the Criminal Code, will sign the release document. It is not necessary for the judge to sign it.
  10. The registrar will forward the release document and any other documents required to effect the defendant’s release, to the institution.

If there is no consent:

  1. Counsel requesting the review should send a copy of the materials and an email requesting a hearing to the generic email address for the trial coordinator in the location where the defendant is charged. Requesting counsel should copy opposite counsel on the email.
  2. Where defence counsel requests the hearing, defence counsel should include in the materials either an affidavit of any proposed surety or a surety declaration form, and confirmation that defence counsel witnessed the signature of the surety, either in person or by some other means such as Facetime or Skype, and confirmed identity by viewing photo identification. If counsel seeks relief from compliance with this requirement or any other aspect of the Superior Court’s Criminal Proceedings Rules concerning materials required for 90 day/bail reviews, counsel should include that request in the materials sent to the trial coordinator.
  3. If counsel anticipates that an interpreter will be needed for the hearing for the defendant, a surety or a witness, counsel must advise the trial coordinator at the time the hearing is requested.
  4. The trial coordinator will identify a date and time for the hearing, after consulting both counsel.
  5. The trial coordinator will forward the materials to the assigned judge and advise them of the date and time of the hearing.
  6. In the event the assigned judge wishes counsel to provide additional materials, the judge will attempt to notify counsel through the trial coordinator, in advance of the hearing.
  7. Hearings will take place by teleconference. The teleconference line will be one that permits the proceedings to be recorded. It may not be possible to have a court reporter on the teleconference line.
  8. The trial coordinator will request that Court Services Division assign a registrar to the teleconference.
  9. The trial coordinator will request that Court Services Division obtain any interpreter required for the teleconference.
  10. Review hearings can take place in the absence of the defendant. If counsel nonetheless wishes the defendant to be present on the teleconference, that counsel must immediately notify Ms. Llyshelle Barrett, Assistant Trial Coordinator, at Llyshelle.Barrett@ontario.ca . Ms. Barrett will make the request of the institution where the defendant is in custody.  A Judge’s Order is not required.  Counsel should request that the defendant be present on the teleconference only if it is truly necessary.  There are very significant limitations on the number of defendants who can be given access to teleconference lines from the jails, and it is not possible for institutions to facilitate every request.
  11. The trial coordinator will advise counsel, the jail, and court staff of the teleconference information. The presiding judge will be the Moderator.
  12. In advance of the teleconference, counsel who seeks the review should complete a terms of release form and circulate it to opposite counsel.
  13. If it is not possible for the surety/sureties to be in the presence of defence counsel during the teleconference, defence counsel must provide the surety/sureties with the teleconference information and have the surety/sureties dial in to the teleconference line at the appointed time.
  14. At the conclusion of the review hearing, the presiding judge may give their decision orally or may reserve their decision and release it to the parties in writing at a later time. In either case, the presiding judge should handwrite a brief written endorsement and if possible, scan it to the trial coordinator to be attached to the Indictment in the future when normal court operations resume.
  15. If the defendant’s release is ordered, the registrar will complete the release document (for example, recognizance), then send it to the judge by email for review. The judge will confirm their approval by return email message.  This email should be retained by the registrar for the court file.
  16. The registrar will forward the release document to defence counsel to obtain the signature of the surety/sureties. Defence counsel will confirm in writing to the registrar that they have witnessed the signature of the surety/sureties, and viewed photo identification, either in person or by Facetime, Skype or other means.
  17. Defence counsel will scan the signed release document and send it to the registrar by email.
  18. The registrar, pursuant to s. 3(2) of the Criminal Code, will sign the release document. It is not necessary for the presiding judge to sign it.
  19. The registrar will forward the release document and any other documents required to effect the defendant’s release, to the institution.

Guilty Pleas

Due to very limited connectivity to the jails for Superior Court of Justice matters, it is not possible to schedule guilty pleas and sentencings except in urgent circumstances for in-custody defendants, meaning where Crown and defence counsel are agreed that the defendant should receive a sentence of “time served” or other non-custodial sentence, or a short custodial sentence that likely will result in release before June 1, 2020.

Such guilty plea and sentencing proceedings will proceed by teleconference, with the defendant present on the conference call line from the jail.  The defendant must give express consent to proceeding in this manner.  The teleconference line will be one that permits the proceedings to be recorded.  It may not be possible to have a court reporter on the teleconference line.

Counsel wishing to schedule such an urgent guilty plea and sentencing should contact Ms. Llyshelle Barrett, Assistant Trial Coordinator, at Llyshelle.Barrett@ontario.ca to make arrangements.

Counsel are expected to provide Ms. Barrett with a copy of the Indictment and any documents that are to be viewed by the presiding judge, no later than 12 noon on the Friday preceding the date of the guilty plea and sentencing.

Other Urgent Matters

Hearings for other urgent matters, including extensions of driving prohibition Orders and bail pending appeal Orders, can be obtained by contacting the generic email address for the trial coordinator in the location where the defendant is charged, in the same manner as set out above for 90 day/bail reviews.

Before requesting a hearing date, counsel are expected to consult with one another to determine whether there will be consent.

Generic Email Addresses

The list of generic email addresses for the trial coordinators in the Central East Region is as follows:

Barrie.SCJ.TC@ontario.ca

Newmarket.SCJ.TC@ontario.ca

Oshawa.SCJ.TC@ontario.ca

Peterborough.SCJ.TC@ontario.ca

Provincial Crown Counsel Contact Information

For Ontario Crown matters, the contact information is:

For Barrie, Lynn Shirreffs, email is Lynn.Shirreffs@ontario.ca  and cell is 705-716-4771

For Bracebridge, Lyndsay Jeanes, email is Lyndsay.Jeanes@ontario.ca  and cell is 705-706-4773

For Cobourg, Russell Wood, email is Russell.Wood@ontario.ca and cell is 905-376-9226

For Durham, Paul Murray, email is Paul.T.Murray@ontario.ca  and cell is 905-213-1564

For Lindsay, David Boulet, email is  David.Boulet@ontario.ca and cell is 705-341-4771

For Newmarket, Peter Westgate, email is Peter.Westgate@ontario.ca and cell is 289-763-7049

For Peterborough, Frank Schwalm, email is Frank.Schwalm@ontario.ca  and cell is 705-313-6106

Federal Crown Contact Information

For Federal Crown matters, the contact information is:

Carol Shirtliff-Hinds, email is carol@shirtlifflaw.ca and cell is 289-319-0606, ext. 101

Criminal Lawyers’ Association Representative

For assistance with self-represented accused, the contact information is:

Lisa Jorgensen, email is LJorgensen@rubyshiller.com and cell is 416-770-4449

Justice Michelle Fuerst
Regional Senior Judge,
Superior Court of Justice,
Central East Region