COURT FILE NO: CR-21-696 DATE: 2022 01 06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN J. Vlacic, and A. Rowell for the Crown Crown/Respondent
- and -
DEAN SINCLAIR A. Trica and D. Stein, for the Accused Accused/Applicants
HEARD: 4 January 2022
Ruling Re Covid Necessitated Adjournment
NOT FOR PUBLICATION UNTIL AFTER VERDICT
Trimble J.
[1] On 4 January 2022 I convened a scheduling meeting in the absence of the jury, the purpose of which was to determine whether and how this trial would continue in light of the challenges posed by the spread of the Omicron variant of Covid-19 and its effects, and the Chief Justice’s 17 December 2021 Notice to the Profession.
[2] At the outset of the 4 January 2022 hearing, I advised counsel that I had been advised by Central West’s Regional Senior Justice that the projected 30% absentee rate among employees during this wave of the pandemic had already been reached at the Brampton Court and the court was having great difficulty staffing proceedings both online and in person. The court was giving in-process in-person criminal trials priority although no guarantees were being given with respect to any staffing levels.
Positions of the Parties
[3] The parties made a joint submission; namely, that the trial should continue on 10 January 2022. The trial is nearly at an end. There are only a few days left. Neither the Chief Justice’s Notice to the Profession nor the restrictions imposed by the Government of Ontario on 3 January ended in-person jury trials already in progress. Implicitly, the Chief Justice approved of trials in process continuing.
[4] The parties recognize that the continuing trial may be interrupted should someone in the courtroom need to isolate, become infected with Covid-19, or is no longer ready, willing, and able to serve because of Covid-19 concerns. If a juror becomes infected then, because we have 13 jurors, the specific juror can be dismissed, and the trial can continue.
[5] Counsel had not given any consideration to the standard by which we might dismiss jurors; for example, would we dismiss a juror merely because he or she raises a Covid related concern or a fear, or does there have to be an actual infection?
[6] Counsel agreed that at the opening of court on 10 January, the jury should be given an instruction and asked a question modelled on the question on the challenge for cause about whether they are ready, willing, and able to continue with the trial. They have provided their agreed-upon wording, for which I thank them. Counsel did not think an inquiry of individual jurors would be required, although that depended on the question and the answer.
[7] Counsel’s view is that the extent to which a Covid related concern, infection, or imposed isolation would affect this trial is, at this stage, speculative. In their view, it is best to get on with the trial and deal with any Covid related concerns, infections, or imposed isolations, as they arise. It is not inevitable that such difficulties will arise. In other words, we should cross any bridges as we come to them. There may be none. If a mistrial is required because of loss of jurors or some other reason, then we deal with the issue when it arises.
The Role of Counsel
[8] Counsel for each side made it clear that their responsibility was to advocate for their clients in the circumstances. They recognized that I had to grapple with large issues in my exercise of discretion. Those large issues include:
a) Should the court be concerned that jurors may not have had their booster vaccinations, and requiring them to come into the Courthouse requires them to accept any increased risk that they will be exposed to Covid-19? b) Should I be concerned that the jurors’ exposure while in the Courthouse will affect those with whom they live and interact, which may include Covid-19 vulnerable individuals? c) Should the jury be addressed in terms of whether they are ready willing and able to continue the trial? Should that address include a statement about the changes in the pandemic since mid-December, and the changes in risk? Should they be asked merely whether they are ready willing and able or by way of preamble, should they be given a summary of some of the public health concerns expressed since mid-December? d) What standard should be applied to excusing jurors who express concerns about continuing, and whether that standard should change as jurors are excused?
[9] These are but a few of the issues.
[10] Neither side was prepared to make anything but tentative submissions about these issues, in part because of their view that their obligation is to their clients, but also because of a lack of evidence upon which to make such submissions. They thought that they would be making submissions based on their personal understanding of the change in the pandemic since the middle of December, not having any evidence in that respect.
[11] I will address the issue of evidence concerning the pandemic later in these reasons.
[12] It is trite to say that the first and foremost obligation counsel have in an adversarial system is to promote and advance their clients interest in the litigation.
[13] In Ontario, however, counsel are officers of the Court. They have an obligation to assist the court in discharging the court’s obligation. To say “I cannot help you because I would be giving only my opinion” is of no assistance to the Court in coming to a result that is fair and just. They have an obligation to go further.
[14] Because of their reticence, counsel made no submissions directly with respect to the safety of those in the courtroom, or in the Courthouse, or with whom the jury might come into contact at home, in light of the change in circumstances of the pandemic. Counsel’s responses to my questions on these larger issues was unhelpful.
Trial Status
[15] This trial began with jury selection on 22 November 2021 the start of evidence on 24 November. Between 24 November and 13 December, the jury had heard 13 days of evidence.
[16] At the end of 13 December, the parties agreed that, for various reasons, we would not sit on the 14th and the 15th, but would return the 16th, and evidence would be completed by the 18th. The jury would be sent home until January 4th, at which point counsel would make their final submissions and I would charge the jury. There would be pre-charge conferences on 22 December and again on 30 December 2021.
[17] For reasons addressed below, this timetable fell apart.
Further Court Time Required
[18] I expect that this trial will require a further 8 or 9 days spread over 10 or 11 days comprising:
a) “One and a bit” days for Mr. Sinclair’s case, should he decide to call evidence. The Defence case will comprise Mr. Sinclair’s own testimony. b) 2 or 3 half days for pre-charge conferences with perhaps a day intervening between each to permit me to revise my charge. c) 2 days for counsel’s closing argument and my final charge. d) 2 or more days for jury deliberation.
[19] Based on this calculus, should the trial resume, it will take 8 or 9 days over the next 10 to 12 days with the jury in the courtroom for 6 days or more, and counsel and staff 8 or more.
Pre-Christmas Covid Related Events
[20] Several Covid related things happened just before the Winter break, three of which caused the loss of 5 sitting days between 16 and 22 December and could have caused more lost time but for the Winter break intervening.
[21] On 16 December 2021, I was advised that Ms. Rowell, one of the two Crown counsel, was in isolation because she was in close contact with a confirmed case of Covid infection.
[22] So as not to lose the day completely given that the jury was waiting, senior Crown counsel read the Agreed Statement of Facts into the record and closed the Crown’s case. Defence counsel advised the jury that the Defence would begin its case on Monday, 20 December, and close its case at the close of business on Tuesday, 21 December. The jury was so advised and excused. Court finished for the day, the jury having been in the Courtroom for approximately 30 minutes. I set. 17 December so that this matter could be spoken to in order to determine the status of counsel’s Covid test results.
[23] By proceeding this way, counsel hoped that Ms. Rowell would obtain Covid test results. All agreed, that if Ms. Rowell’s test results were positive, we would not proceed on 20 December but would have to determine what next steps were required.
[24] On 17 December the Crown advised that Ms. Rowell had received a negative rapid test, but that while she had received her PCR test, she had not yet received the results.
[25] Further, late on 17 December 2021, the Chief Justice of the Superior Court for Ontario issued a Notice to the Profession that said that given the rapid spread of the Omicron variant of the Covid-19 virus, no new in-person events (including jury trials and jury selections), would be held before 7 February 2022. Whether, and under what circumstances, ongoing in-person matters would continue was left to the discretion of the presiding judge.
[26] This announcement was made in light of the 16 December 2021 Science Advisory and Modelling Consensus tables released by the Covid-19 Advisory Science Table for Ontario and posted on its web site: https://covid19-sciencetable.ca/wp-content/uploads/2021/12/Update-on-COVID-19-Projections_English_2021.12.16.pdf. The key findings of that body are:
a) Infections by the Omicron variant are climbing across Ontario. In Peel region, for example, the infection rate went from 20 to 30 per 100,000 between November 28 and December 11. b) Omicron will become the dominant variant by the end of December. c) Omicron transmits very quickly. Infections double every 2 to 4 days. As of 16 December, in Ontario it was doubling at approximately every 2.5 days. Omicron is infecting 6.1 times more individuals than the Delta variant. There is a high risk for close contacts of an infected person becoming infected with Omicron. d) Estimates are that if every citizen of Ontario reduces his or her contacts by 50%, and there is an aggressive booster vaccination campaign of at least 250,000 vaccinations per day, the rate of new infections per day could be limited to 5,000. Without those measure new infections are projected to be between 6,000 and 10,000 cases per day. As of 19 December, the number of daily infections are already at 4,177. This will overload Ontario’s intensive care unit capacity, to say nothing of the toll that hospitalizations will have on those admitted and their families. e) The Omicron wave will peak in mid to late February. f) Early evidence suggests that Omicron has the same severity as the Delta variant. In other words, it can produce the same level of severe disease. Without prompt intervention, ICU occupancy could reach unsustainable levels in early January. g) Although vaccines are less effective against Omicron infection, boosters can substantially increase protection. Even 2 doses likely provide strong protection against severe illness. The risk of severe illness is dramatically higher in the unvaccinated. It is clear, however, that even vaccinated people are at risk with Omicron. h) Rapid rollout of booster doses is essential, with strong focus on the most vulnerable (e.g., long-term care, shelters, high risk communities) and healthcare workers. i) One of the essential aspects of the government’s control plan is the frequent use of rapid tests, for example, before entering a large gathering, to determine the individual’s infection status. We have not been provided with those in the Courthouse. j) Increasing vaccination is not enough to slow this wave. Circuit breakers with strong additional public health measures (at least 50% fewer contacts) and strong booster campaigns (250,000 per day) could blunt the Omicron wave. High-quality masks, physical distancing indoors, improved ventilation, and increased access to rapid testing can help buy time for boosters to take effect and keep schools open. k) Waiting for more information will eliminate the opportunity for action. Action is required now.
[27] On 20 December, Mr. Stein, one of the defence counsel, advised that he was isolating at home because his child had been sent home from daycare, the daycare having been closed because of a confirmed Covid case in the daycare.
[28] On 20 December I was also advised that one of the jurors did not attend because he or she was suffering from cold or flu symptoms. The trial could not proceed on that day.
[29] I was advised on 4 January 2022 that Ms. Rowell’s and Mr. Stein’s tests were negative, and they no longer needed to isolate.
[30] On 3 January 2022, the Premier of the Province of Ontario announced increased restrictions on gatherings designed to slow down the transmission of the Omicron variant in order to reduce pressure on Ontario’s healthcare system.
[31] In his remarks, the Premier made the following comments salient to the questions before this court:
a) Ontario faces a “tsunami” of new infections. The officially reported new daily Covid infections are significantly higher than the 13,000 to 18,000 reported over the past 10 days. He estimated that the number of new daily infections with the Omicron variant likely exceed 100,000. b) Over the next month or more, between 20% and 30% of the workforce will be absent at any given time because of Covid infections or the need to isolate. c) Omicron is the most highly transmissible Covid variant, yet. d) Vaccination remains the best weapon against Omicron. Vaccination with three doses, however, does not guarantee safety from infection. Omicron has the ability to infect the vaccinated. Thankfully, such “breakthrough infections” are generally mild. e) Those with compromised immune systems, the very old, and the very young, remain at a high risk of being infected and hospitalized with Omicron.
[32] The Premier imposed a number of restrictions aimed at controlling the spread of the Omicron variant that came into effect at 12:01 AM, 5 January 2022 and will remain in effect at least until 26 January, including:
a) Ceasing indoor dining at restaurants and bars; b) Closing gyms and other indoor recreational sport facilities, museums galleries, zoos, science centres, historic sites, amusement parks, festivals and other attractions, and indoor meeting and event spaces; c) Limiting social gatherings to five people, indoors (assuming proper ventilation and social distancing is maintained), and 10 people outdoors (assuming appropriate social distancing is maintained); d) Reducing the capacity of retail stores, malls, public library, and personal care services, weddings, funerals, and religious services to 50% of capacity (assuming appropriate spacing could be maintained); e) Requiring employees to work remotely unless their work requires them to be on site.
Most Recent Omicron Developments
[33] At the 4 January hearing, I advised the parties that information was available to the public at the Science Table’s web site, referred to above, and also on the Ontario Science Table’s Dashboard Tracking Omicron (https://covid19-sciencetable.ca/ontario-dashboard/).
[34] The Dashboard for 5 January 2022 has verified the conclusions and recommendations of the 16 December 2021 Modelling Consensus Tables released by the Covid-19 Advisory Science Table for Ontario referred to above. The Dashboard advises:
a) The number of positive Covid cases on 3 January 2022 was 19,854, an increase of 9,555 from the week previous. b) 97% of these cases are Omicron. c) The positivity rate is 32.48%, a 7% increase from the week previous. d) Covid related hospital occupancy was 1,302, an increase of 799 over the week previous. e) Covid related ICU occupancy was 266, an increase of 79 over the week previous.
Judicial Notice
[35] I want to address the question of judicial notice since defence counsel raised the question that much oof what we hear about Covid 19 and the Omicron variant is hearsay.
[36] I have referred, above, to the analysis of the “Science Table”, the Covid-19 “Dashboard”, and the statements of the Premier, and the newly enacted restrictions on gatherings that the Ontario Government imposed on 4 January to slow down the pace of the Omicron variant’s spread. I have done so carefully, mindful of the limitations on the use of judicial notice as discussed in Skarica J.’s 20 April 2020 decision of R. v. Baidwan, 2020 ONSC 2349, and Varpio J.’s 1 May 2020 decision of R v. Cunningham, 2020 ONSC 2724.
[37] In Cunningham, a bail review case, beginning at para. 15, Varpio, J. says:
[15] …A number of my colleagues have taken judicial notice of the conditions in certain facilities and expressed heightened concern regarding the possibility that COVID-19 could spread rapidly through the inmate population. I take the view that I cannot take judicial notice of much of the scientific information that one receives from the government and/or the media because it is expert evidence that has not been subjected to cross-examination.
[16] Skarica J.’s recitation of the evolution of the “accepted facts” of the coronavirus shows the frailties of an aggressive use of judicial notice in such a fluid circumstance. At paragraph 46 of his reasons, Skarica J. rightly noted that taking judicial notice of the known “facts” of COVID-19 prior to mid-March 2020 would have led to findings that, inter alia, COVID-19 cannot be transmitted person-to-person and that it would not affect modern life in a meaningful way. Clearly, this would have led to incorrect conclusions.
[17] Therefore, it is clear to me that a cautious use of judicial notice is appropriate in the circumstances as per para 48 of R. v. Find, 2001 SCC 32. An aggressive or overly-flexible approach to judicial notice would lead to circumstances whereby the courts fail to adhere to the two-part test in Find, namely that facts may only be noticed judicially when they are either:
- So notorious or generally accepted as not to be the subject of debate among reasonable persons; or
- Capable of immediate and accurate demonstration by resort to readily acceptable sources of indisputable accuracy.
[18] Much of the readily-available information regarding COVID-19 fails both prongs of the Find analysis. Because further analysis is not relevant to my decision, I need not go through a comprehensive review of same. Nonetheless, it is clear to me from all the various sources of information currently available that the following meets the Find test:
- COVID-19 is spread by person-to-person contact either directly or via indirect transmission;
- Individuals may be able to spread the virus while they are either pre-symptomatic or are asymptomatic;
- The virus can be lethal;
- The rates of mortality appear to be pronounced among the aged as well as among those who have certain underlying conditions such as respiratory ailments. The mortality rate among those who do not fall within these categories is not nearly as high; and
- Social distancing has been utilized to lessen the rate of infection in the population and, as such, the failure to adhere to social distancing will generally increase the rate of infection.
[19] To go beyond the above-referenced five points would, to my mind, be an aggressive use of judicial notice that would not adhere to the Find analysis. The acceptance of other facts related to COVID-19 requires expert evidence given the fluidity of the science involved (emphasis added).
[38] The Court of Appeal said in earl 2020 that it falls within the accepted bounds of judicial notice to take into account the fact of the Covid-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission (see: R. v. Morgan, 2020 ONCA 279, at para. 8).
[39] Implicitly, the Court of Appeal is saying that as information develops, information migrates from speculation to notoriety such that they meet the Finds test, or at least do not represent an overly aggressive application of the Finds test.
[40] Those cases were decided in early 2020 when the pandemic was in its early stages, when much was unknown about Covid-19, and when information about the virus was developing rapidly.
[41] We are now 20 months further into the pandemic than were Justices Skarica, Varpio, and the Court of Appeal. Our knowledge about Covid-19 is much more developed.
[42] As time has passed, Courts have expanded the Covid-19 facts of which it could take judicial notice, which Gibson J. helpfully summarized in Halton Condominium Corp. No. 77 v. Mitrovic, 2021 ONSC 2071, at para. 17, where he said:
Canada is currently confronted with a grave public health crisis without parallel in recent decades. Courts have taken judicial notice of this in a number of ways:
(a) “There is currently a global pandemic which has resulted in a significant number of deaths and serious illness throughout Canada and the province of Ontario. The virus affects people of all ages and is particularly dangerous to older people and those with certain medical pre-conditions”: Solanki v. Reilly, 2020 ONSC 8031 at para. 4;
(b) “The fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission”: R. v. Morgan, 2020 ONCA 279 at para. 8;
(c) “The fact that COVID-19 is caused by SARS-CoV-2, a communicable and highly contagious virus [and] that people who are infected with the virus can be asymptomatic yet still contagious”: Manzon v. Carruthers, 2020 ONSC 6511 at para. 18; and,
(d) “The pandemic has wreaked untold death and destruction worldwide; COVID-19 is extremely infectious and can spread rapidly in any location; the main mitigatory steps recommended to “flatten the curve” of infection are i) social distancing, ii) the wearing of personal protective equipment (PPE), and iii) regular testing of the population : R. v. Grant, 2020 ONSC 3062 at para. 25.
[43] I take judicial notice of the facts as set out by Varpio J., the Court of Appeal, and Gibson J.
[44] Accepting the Finds approach to judicial notice, I add the following facts which I consider to be notorious enough today to take judicial notice of:
a) The Omicron variant is significantly more transmissible and infectious than earlier variants; b) Full vaccination with two full doses and one booster does of a Covid-19 vaccine does not provide the same level of protection against infection by the Omicron variant as the Delta or earlier variants. So called “breakthrough infections” are frequent. Full vaccination means that a breakthrough infection is less serious. The old, young, those who are immune-compromised, or those with underlying health issues are still susceptible to severe consequences from the Omicron variant, including admission to hospital and the ICU.
[45] I do not take judicial notice of, or accept as true other information I have cited, above, from the Science Table, Dashboard, or the actions of the Ontario Government. I consider that information important only as it informs the seriousness with which public health authorities, the Ontario Government, and the Chief Justice’s view the Omicron variant and its effects, and the necessity of the actions they are taking. I cannot exclude from my exercise of the discretion the expressed opinions and actions of those informed people who have an obligation to ensure the health and welfare of the citizens of Ontario.
Result
[46] This trial is adjourned, effective immediately, until 10 AM, 7 February 2022. Court’s administration is to advise jury members that the trial is adjourned until then because of Covid related precautions and the Chief Justice’s 17 December 2021 Notice to the Profession. Courts administration is to ask each jury member if that jury member is ready willing and able to continue the trial on that date.
[47] The matter will be spoken to at 10 AM on 31 January 2022 (or such other time as counsel and the Court agree), by Zoom, with Mr. Sinclair attending by video or audio, as can be arranged. On that date, we can reassess the situation, including reviewing the responses of the jury members as to whether they are ready willing and able to continue trial.
Analysis
[48] Under the Chief Justice’s 17 December 2021 Notice the Profession I have the discretion to determine whether, and if so under what circumstances, this trial can continue.
Co-existing Values
[49] In determining whether, and if so under what circumstances, this trial can continue, I must weigh a number of co-existing values the first and foremost of which is Mr. Sinclair’s right to complete his trial in a fair process, in an expeditious manner.
[50] Mr. Sinclair’s right is not absolute, nor does it exist in a vacuum. I must also consider the health and safety of all occupants of the courtroom during this trial (the registrar, reporter, CSO’s, jury, lawyers, Mr. Sinclair, guards, and the public) given the transmissibility of the Omicron variant and its effects on the population of Ontario and the Court, none of which were foreseen or foreseeable at the outset of this trial. For example, Mr. Sinclair’s aged parents wished to be present in the courtroom (as opposed to by zoom) during Mr. Sinclair’s testimony to give him support.
[51] Given the high transmissibility of Omicron I must also be concerned about others in the courthouse and those with whom the occupants of this courtroom live and come into contact.
Mr. Sinclair’s Interests
[52] Mr. Sinclair is accused of second-degree murder. Until the jury determines otherwise, Mr. Sinclair remains innocent. He has the right to have the charge against him resolved in a fair and expeditious process.
[53] He has been in detention at Maplehurst Detention facility since August 2019. His counsel advised that he contracted Covid while in detention. Since this trial began with jury selection on 22 November, Maplehurst has been under almost constant lockdown because of Covid outbreaks in the institution.
[54] Any adjournment of this trial means that Mr. Sinclair will remain in Maplehurst until the resumption of trial, and under lockdown so long as lockdowns persist because of a Covid outbreak.
[55] He has a right, given the seriousness of the charge and the length of time he spent in detention, to have this matter completed as quickly as is reasonable and safe to do so.
[56] The evidence is almost done. We have had 13 days of evidence but lost a 5 days the due to Covid related exposures. There are 8 or 9 days left, spread over 10 or 11 sitting days.
[57] The adjournment increases the risk that the jury will forget some of the evidence that it has heard, forget some of the nuances of the evidence, and/or forget the witness’ body language or demeanor.
[58] Some of this risk is ameliorated by the jury members having taken notes during the trial. Some of this risk will be ameliorated by thoughtful and thorough review of the evidence in the addresses by counsel and thoughtful and thorough review of the evidence in the final instructions.
[59] The risk that some of the jury members may forget some of the evidence still exists if the trial continues, if and when the trial is interrupted, perhaps several times, for 5 to 10 days each time, because of exposures by or infection of occupants of the courtroom during the continuation of trial and the need to isolate.
Safety Concerns for Others
[60] While Mr. Sinclair’s interest in a timely and fair resolution of the charges against him are primary, there are other co-existing interests I must consider such as the health of all those in the courtroom and those with whom those in the courtroom live or come into contact.
[61] We are told by the doctors and epidemiologists in the news that because of the high transmissibility of Omicron, we must assume that if one person in a household is ill with Omicron, all members of the household are infected, regardless of their vaccination status. This assumption is sensible, and I make the it about members of the jury and the occupants of the courtroom.
[62] In this respect, I must consider Mr. Sinclair’s aged parents who wish to be present in the courtroom for Mr. Sinclair’s evidence through to the jury’s verdict. I was advised by Mr. Sinclair’s counsel that Mr. Sinclair’s parents appreciate and accept the Covid related risk of being present in the courtroom. I was advised at the time that they were fully vaccinated, having received two doses of vaccine each. This message was conveyed before the arrival of the Omicron variant. I do not know about their booster vaccination status.
[63] Notwithstanding Omicron’s transmissibility even with three vaccine doses, short of polling the jury and every other occupant of the courtroom, I have no information about whether the occupants of the courtroom have received their booster vaccinations. Based on the anecdotal evidence of the lawyers and my personal experience, it is probable that everyone in the courtroom who wishes to have a booster vaccination, will not have received it before this resumes or ends (assuming it resumes immediately). I must assume, therefore, that should this trial continue on 10 January, many in the courtroom will be under-vaccinated.
[64] Assuming that many in the courtroom will not have received their booster vaccination, by ordering them into the courtroom (even if just to poll the jury as to whether they are already willing and able to continue serving or to determine the vaccination status of all those in the courtroom), I am ordering an under vaccinated group of people to enter the courtroom where they may be at greater risk of exposure to Covid or to contact with someone else who has Covid, than they were before the arrival of the Omicron variant. To put it another way, by continuing with this trial I am, it in effect, ordering that the under vaccinated people in the Courtroom should bear an increased risk of exposure to Covid-19 due to the Omicron variant.
[65] Counsel never averted to this issue in their submissions.
[66] The increase risks posed by the Omicron variant are compounded by space restrictions.
[67] The courtroom assigned to this trial has a Covid adjusted room capacity of 20 individuals. We have, at minimum, 25 to 26 people that must be in the room in order for this trial to continue, excluding the public. In other words, the number of people who have to be in the courtroom for this trial always exceeded the Covid capacity of the room we occupied.
[68] In order to address capacity problem, I took certain steps to protect the safety of those in the courtroom, and through them, those with whom they live or come into contact. What were those steps?
[69] We knew that every juror had to be fully vaccinated, in other words, had to have received two doses of Covid vaccine. Full vaccination was required to be on the jury panel.
[70] I disclosed to all that I was fully vaccinated.
[71] The vaccine status of those in the courtroom other than jury members (e.g. staff, lawyers, guards, and Mr. Sinclair) was unknown. In order to ensure their safety (as much as could be done) all those in court in the courtroom, agreed to the following procedure:
a) Each person would disclose to me, privately and confidentially, whether he or she was fully vaccinated, not fully vaccinated, not vaccinated, or declined to disclose his or her vaccination status for privacy reasons. Those written responses were placed in an envelope, sealed, and the envelope marked as a lettered exhibit with the order that it not be opened except by Judge’s order. b) If any individual was not fully vaccinated, not vaccinated, or declined to disclose his or her vaccination status because of privacy reasons, at all times that the individual was in the Courthouse, the individual must wear a mask and eye protection or face shield. c) It was also open to any individual, regardless of vaccination status, to fully mask and wear eye protection, by choice.
[72] I advised the jury of all of these precautions at the outset of the trial, as well as of the steps taken in the Courthouse, overall, to protect the safety of all of those in the Courthouse.
[73] This was all done before the arrival of the omicron variant.
[74] While there is nothing more that can be done to reduce the risk that those in the assigned courtroom will be infected by the omicron variant or exposed to someone who is, with the increased transmissibility of omicron there is an increased risk of infection even if fully vaccinated, or exposure to someone who is.
[75] By the time any person in the courtroom realizes that he or she is infected or finds out that he or she was exposed to another who is confirmed to be infected, the affected person will have had contact with others in the courtroom, thereby exposing the others, and through them, their families, to possible infection.
[76] Any report of anyone in the courtroom being in contact with an infected person will cause a delay of several days while that person obtains an appointment for, and the results of a PCR test. All people in the courtroom will be required to quarantine until the test results come back. If the PCR test result for the affected individual in the courtroom is positive, he or she must isolate for 10 days or 5 days depending on their vaccine status. Others in the courtroom will likely have to isolate for the same period and arrange a PCR test. Those tests are hard to obtain, and the results several days in coming.
[77] While we try to maintain physical distancing in the courtroom and follow all of risk mitigation strategies everywhere in the Courthouse, this is not a perfect system, which has become less perfect with the Omicron variant.
[78] In my view, the likelihood that one or more persons in the courtroom will be infected or exposed is more than a mere likelihood, and more than a mere probability. It is a certainty. We have already had three instances wherein people in the courtroom have reported contact with an infected person, or a possible infection. These caused the loss of 5 sitting days, and probably more had the Winter break had not intervened.
[79] As indicated, the Government of Ontario expects that soon, 20% to 30% of Ontario’s workforce will be absent from work at any one time because of exposure to Covid or related required isolation. I am advised by Central West Region’s RSJ that the Court in Brampton has already hit that absentee level, which is causing severe problems in staffing courtrooms. Proceedings are being cancelled because of employee absences. If we apply the same absentee projections to the jury, 2 to 4 jurors are likely to be absent at any given time.
Conclusion
[80] Under normal circumstances, this trial would have continued on 4 January 2022 and continued until its completion. Mr. Sinclair’ right to an expeditious resolution of the charge against him in a fair proceeding would have demanded so.
[81] We are in extraordinary times, however. In mid-December there was a sudden change in the Covid pandemic that brought a significantly increased risk of disease transmission. The risk mitigation strategies we applied during the trial to that point did not change except for individuals taking a booster vaccination, which increases protection against infection, but only partially.
[82] Any order that this trial will continue in the current circumstances forces those in the courtroom to bear the increase risk of exposure or infection. The likelihood is that the trial, should it continue on 10 January is that it will be disrupted by absences of the lawyers, Mr. Sinclair, or members of the jury.
[83] With great reluctance, I find that it is necessary to adjourn this trial, effective immediately, until 7 February 2022, in order to protect the health and safety of all those in the courtroom, including Mr. Sinclair and his parents. Court staff is to advise jury members that the trial is adjourned until 7 February because of Covid related precautions and the Chief Justice’s 17 December 2021 Notice to the Profession, and to inquire as to whether each jury member is ready, willing, and able to continue the trial on that date.
[84] The matter will be spoken to at 10 AM on 31 January 2022 (or on such other date convenient to counsel and the Court) by Zoom, with Mr. Sinclair attending by video or audio, as can be arranged. He is remanded until then. When we reconvene on that date, we can reassess the situation, including reviewing the status of the responses of the jury members as to whether they are ready, willing, and able to continue the trial on 7 February 2022.