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COVID - Appeals. R. v. Varennes
In R. v. Varennes (SCC, 2025) the Supreme Court of Canada considered law that indictable offences should be tried by judge and jury, except where both defendant and Crown agree to judge-only trials [under CCC 469, 471 and 473 - Part XIV 'Jurisdiction']. The court allowed an appeal, here where the Quebec Court of Appeal ordered a new murder trial after the Crown refused to consent to a judge-only trial - finding two exceptions (Charter s.11(b) due to risk of COVID delay and inherent jurisdiction) to this statutory elections rule.
Here the court comments on COVID-related appeals:[94] I also do not agree with the Court of Appeal’s assessment, repeated by the Crown, that it was only speculation that a jury trial would not happen within the Jordan deadline and that it could still technically take place if the trial judge took certain measures, such as holding the trial with fewer jurors (paras. 63-67; R.F., at paras. 76-81). Appellate courts should not review a trial judge’s findings with the benefit of hindsight, especially during such extraordinary circumstances as the pandemic. As Pomerance J. (as she then was) stated in Ontario (Attorney General) v. Trinity Bible Chapel, 2022 ONSC 1344, 160 O.R. (3d) 748, at para. 6, aff’d 2023 ONCA 134, 166 O.R. (3d) 81, when it comes to protecting rights during a pandemic emergency, hindsight is not the standard: “. . . historical measures must be understood against the backdrop of historical knowledge. The question is not what we know now; it is what was reasonably known and understood at the time of each impugned action.” I agree with Rowe J. that “[i]t is hard to overstate the degree of uncertainty that loomed over the criminal justice system in the summer of 2020” (para. 177).
[95] The trial judge made her decision at the height of the pandemic, before a vaccine. Her findings of fact were grounded in the record as it existed in the profound uncertainty of summer 2020, and display no legal errors. The trial judge was also best equipped to determine whether the Crown had taken reasonable steps in response to an exceptional circumstance (Jordan, at para. 79).
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