Saskatchewan Court of Queen’s Bench Chief Justice Martel Popescul confirmed that the courts have been collaborating with the province’s Ministry of Justice to come up with solutions as to how jury trials and jury selections could be held in such a way as to adhere to the new norm of social distancing.
“Jury trials normally take place in a courthouse, in a courtroom, and the jurors sit in a jury box, shoulder to shoulder,” Chief Justice Popescul told The Lawyer’s Daily. “Given the COVID-19 climate, that just can’t work. What we then look at is modifying courtrooms, which is not feasible in most of the province’s judicial centres because, for example, there are several jury trials scheduled for [the] Battleford [courthouse], which is a building more than 100 years old and not designed to have television screens inside of it, let alone for social distancing. So, what we’re looking at is any large space that could accommodate a jury trial in an expanded type of fashion. That would include hotel ballrooms and educational facilities that aren’t being used, convention centres, arts centres, things of that nature. The Ministry of Justice [is] currently exploring those opportunities and will be getting back to myself and the judges to determine whether or not what they’ve come up with [something] suitable.”
Justice Ministry spokesperson Noel Busse said the government is “exploring options … for holding jury trials in locations outside of courthouses” but that there were “no immediate plans to hold court in a location other than a courthouse.”
But Chief Justice Popescul said he expects that the first three criminal jury trials currently scheduled for September — one for Sept. 14 in Melfort; another for Sept. 21 in Battleford; another for Sept. 28 in Regina — will proceed as planned.
“They are all scheduled and judges are assigned to hear them and, as far as we’re concerned, the matters are proceeding,” he said. “You need some lead time to send a jury summons out to the prospective jurors. That time is coming up fairly quickly. … So, sometime likely by the end of July the jury summonses will go out and the venue will have had to have been selected by that time so the jurors know where to report to, and that will happen and it’s certainly my expectation that these jury trials that are scheduled for the fall will, in fact, proceed and the court will be able to accommodate those jury trials coming up.”
Earlier this month, a federal action committee of justice officials released guidance documents both detailing the hazards of resuming jury trials and giving recommendations on how to do it safely. They recommended considering large venues, but also suggested turning an eye toward “electronic alternatives.”
Chief Justice Popescul doubts that latter option is viable, at least when it comes to jury selection.
“I personally have not considered some type of jury selection by video. … I can’t envisage at this point a situation in which that could operate. There may come a time where the technology catches up and we might be able to figure something out, but right now I think it’s difficult to think of a circumstance where you could have a jury selection where the jurors aren’t asked to come … to the venue where the jury selection is occurring. Having said that, as far as using technology, technology is used all the time and is being used more frequently given the COVID-19 situation. For example, having witnesses testify remotely.”
In this, the chief justice sees some potential.
“It’s quite possible that you could end up having a jury trial where the jurors are in a remote location, say, a ballroom, and you would have a witness testify from out of province, an expert witness, for example, and that happens routinely right now and that would not be anything different than what we would have before. I think as far as remote technology, that means many things to many different people, and depending upon what it means, it may or may not be something that is viable.”
Chief Justice Popescul’s confidence that the September jury trials will commence as planned also comes from the fact that there is some prep time.
“What I did as chief justice [is] I cancelled all the jury trials between March 16 and May 30, and then I extended that cancellation from May 30 to June 30. We traditionally in Saskatchewan don’t have jury trials in July and August. That gives us a little bit of breathing space to start the jury trial process Sept. 1, and as it so happens the first jury trial scheduled in the fall schedule would be the one on Sept. 14, the one in Melfort.”
There is also the fact that effort has been made to mitigate backlog caused by the courts’ shutdown.
“As a result of the reduction of general operations for March April and May, we started things back up in a fairly robust fashion in June and we had what … I called a chambers blitz for the middle three weeks of June, [where] we heard about 650 applications. And so what that has done is it has caught us up in the chambers applications, so I don’t believe there is any backlog there. And during … July and August we are having extra pretrial conference sittings. For all the judges, they are working additional days in order to handle and deal with [what is] approaching 200 pretrial conferences. What that does is it gets rid of a lot of that backlog. So, come Sept. 1, when we’re back — not into regular sittings, but we’ll say ‘new-normal,’ COVID-19-type sittings — we should be in relatively good shape.”
Saskatchewan is not alone in attempting to solve the COVID-19 jury puzzle.
In May, news out of Newfoundland and Labrador spoke of that province’s chief medical officer conferring with a senior judge on how to safely hold criminal jury trials.
Also, news stories surfaced around that time as to how some jurisdictions in the United States — courts in California and Washington state, for example — were exploring the use of large, off-site facilities.
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