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Courts need new ideas to safely resume jury trials, selection, lawyers say

Thursday, June 11, 2020 @ 9:26 AM | By Terry Davidson

Canada’s courts are going to have to be “creative” if they want to resume jury trials and selection while continuing to practise social distancing, says a legal mind.

As some of the nation’s courts slowly restart certain operations, questions remain about how they will resume jury trials and the process of gathering large groups of people together to choose who will sit on a panel.   

Trevor Farrow, Osgoode Hall Law School professor

Trevor Farrow, a professor with Toronto’s Osgoode Hall Law School, says courts may have to look to some of the technology they have already adopted for other matters, as well as changing where jury procedures are held.   

“The challenge around jury trials is quite clear, particularly in the post-pandemic world,” said Farrow. “[With] social distancing, sometimes big crowds and relatively small spaces don’t mix, and so we need to be creative in figuring out how we can move forward with this important aspect of the justice system. Having said that, I think we need to be careful basing our decisions on old-world assumptions. Lots of things that seemed impossible 75, 50 or five years ago I think need to be possible, and certainly can be possible, and reform and modernization of the jury process is one of those things. While there are certainly major challenges in having jury trials run remotely, because you need to be able to carefully control the jury environment, there may well be ways where remote jury trials are possible, whether in separate rooms in the courthouse, whether using other, larger facilities while at the same time respecting social distancing.”

And while Farrow does not have the answer as to when jury trials and selection will happen again, he does feel thought must be put into modernizing the process, while at the same time not sacrificing certain “rule-of-law” aspects of the justice system.

“I think there is a really important moment now where there has been a crisis. Clearly there is going to be change, and there is a lot of talk about, ‘We’re not going back.’ I think the key challenge here is finding the aspects of the system that needed to be reformed and move forward on those — now. At the same time, what I don’t want to see happen is that we jettison some of the important values of the justice system in the name of efficiency and progress.”

Farrow spoke of it being case-by-case.

“Some trials can run by paper; some need to be in-person; some need the full force of the major jury trial; some can be done in a more streamlined way; some cases can be done by telephone or Zoom. Some need to be done … in person. It’s finding a way to modernize the public justice system without gutting the justice system. I do not think that they are mutually exclusive. I think the system desperately needs modernization. It needs support. It needs investment. But there are things about justice that are different about other aspects of society that are not always the most efficient but that are important in terms of fairness.”

Towards the end of May, news out of Newfoundland and Labrador detailed how that province’s chief medical officer of health had been in talks with the chief justice of Newfoundland and Labrador’s Supreme Court on ways to run criminal jury trials safely while at the same time practise social distancing.

Laura Hillyer, president of the Ontario Trial Lawyers Association

Laura Hillyer, president of the Ontario Trial Lawyers Association (OTLA), pointed to what some courts are doing south of the border.

“How to empanel a jury post-COVID is a huge problem,” said Hillyer, a personal injury lawyer with criminal defence in her background. “It will affect criminal cases first and foremost, because accused persons have a constitutional right to a jury trial. A civil party’s right to a jury is legislated by the province and is not constitutional in nature. Whenever and however Ontario courts start constituting juries, it is the criminal cases that will have priority over the civil cases. … We’re hearing stories out of the U.S. that the courts are considering renting large venues, like conference centres or sports stadiums, where they could allow for social distancing. Note that in the U.S., civil claimants do have a constitutional right to a jury trial. As well, their jury selection process often takes several days, while we usually manage jury selection in half a day or so.”

Like Canada, U.S. federal and state courts placed holds on jury trials and selection when the pandemic struck, but some have been looking to take matters outside the courthouse in efforts to resume operations.  

In mid-May, it was reported that officials in Washington state’s Pierce County were considering large, off-site locations for jury selection, as well as having jurors spaced throughout the jury box and the court’s gallery during proceedings.

Reports out of San Diego County in California spoke of similar courtroom distancing and noted some jurisdictions considering the possibility of renting movie theatres and other large venues for jury selection.

During a June 4 Criminal Lawyers’ Association webcast, Ontario Attorney General Doug Downey talked of the July 6 target date for possibly resuming in-person proceedings for criminal, civil and family matters for the province’s Superior Court.  

Jury trials and selections are being kept on the shelf at least until September, but Downey spoke of the possibility of utilizing large, off-site facilities.  

“Where are the big spaces?” asked Downey, who looked to his past as a court clerk for possible answers. “I remember picking a jury in a hotel ballroom. It was fine because there was so much more room.”

When asked about it, Hillyer said Downey’s comments “reflect that he is trying to troubleshoot a very real problem” of forming juries while at the same time adhering to social distancing.

“It may be that the only practical solution to that problem is to utilize larger public spaces, such as gymnasiums or other large conference centre spaces,” she said.

When asked about the use of off-site venues, Farrow said this is another consideration that must be put on the table.

“I think that’s part of the creative thinking,” he said. “To me, trying to find larger spaces, whether it’s conference centres, larger spaces in a courthouse, whether it’s the use of hotels or other spaces, all of it needs to be on the table when thinking about how to run jury trials. Part of the problem is not just the trials, but it’s jury selection because you often have large groups of people, particularly for challenging cases or high-profile cases, so finding ways of being creative about running through a number of people, as well, will be important.”

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