Please see the Regional Notices for scheduling protocols related to the application of the following presumptive guidelines including scheduling processes related to requests for changes in the presumption.
A. Overarching principles
These guidelines set out presumptive methods of attendance for events in criminal proceedings. In applying these guidelines, the Court will take into account the following general principles:
- Discretion of the Court:
While presumptions for each event set out the default position of the Court, the final determination of how an event will proceed will remain subject to the discretion of the Court. This will take into account the issues in the proceeding, the expected length of the hearing, the evidentiary record, the status of the parties (e.g. self-represented litigants), the need for in person Interpreters, and access to technology (including virtual capacity at institutions and courthouses). - Access to justice:
While virtual platforms to conduct proceedings remotely have enhanced access to justice for many, the Court also recognizes that there are significant variations in the abilities of litigants to access and use the technology that is required for virtual hearings. Until such time as there is a means to provide access to technology to those who do not have it so that they can fully participate in a remote hearing, the Court will take this access issue into account when determining the appropriate mode of proceeding. In that respect, if remote proceedings are utilized, the needs of all participants must be met so they can fully and equally participate. - Self-represented litigants:
While the Court’s determination of the appropriate mode of proceeding will necessarily take into account the ability of litigants to access and effectively use technology for virtual hearings, the Court will also consider other circumstances uniquely related to self-represented litigants. Issues such as the inability to obtain timely assistance from duty counsel and court staff, needing support to use technology or the inability to adequately address issues in writing may mean that in proceedings involving a self-represented litigant, Courts may favour an in-person mode of proceeding. - In-person hearings important:
While the continued use of virtual proceedings increases efficiency at many stages in the litigation process, the Court also recognizes the importance of in-person interaction and hearings for more substantive attendances. For these matters, in-person advocacy and participation will remain an essential feature of our justice system. - Hybrid options:
In determining the mode of proceeding and the application of the guidelines, the Court will also take into account whether some parts of a proceeding should be conducted virtually and other parts conducted in person. In other words, hybrid options will be considered where appropriate or necessary. - Impediments to a virtual hearing:
There may be statutory, security or other impediments to having a remote hearing in certain matters, particularly criminal cases, civil contempt hearings and other matters that deal with sensitive information (e.g. child protection cases). Moreover, a party’s or participant’s personal circumstances (e.g. disabilities or caregiver responsibilities) may make remote hearings less suitable.
B. Definitions of terms
“Virtual” = proceedings using a platform like Zoom video or audioconference or by teleconference.
“Hybrid” = proceedings in which some justice participants are appearing physically in the courtroom and others are participating virtually.
“In-person” = proceedings in which all parties, counsel and the judge are physically in the courtroom.
“Videoconference or audioconference” = connecting into a proceeding using a platform like Zoom through video and audio or audio only.
“Teleconference” = connecting into a proceeding via a telephone number to a landline.
C. Presumptive guidelines to determine mode of proceeding in criminal matters
(i) Assignment court:
Assignment court appearances will be held virtually (either by video or audioconference or in some jurisdictions by teleconference) unless the Court specifies a different method of attendance. In deciding whether any assignment court appearance will be conducted other than virtually, the Court will take into account whether the accused is self-represented (either in custody or out of custody) and any other factor bearing on the administration of justice, including any access to justice issues.
(ii) Bail hearings, bail reviews and detention reviews:
(a) Bail hearings:
All bail hearings will be held virtually subject to the discretion of the Court, which will take into account: the availability of a virtual suite from the custodial institution, whether the accused is self-represented, the position(s) of the parties and any other factor bearing on the administration of justice. The mode of appearance can be decided at the pre-bail hearing conference or a party may request one for this purpose.
(b) Bail reviews and detention reviews:
All bail reviews and 90-day detention reviews will be held virtually subject to the discretion of the Court, which will take into account: the availability of a virtual suite from the custodial institution, whether the accused is self-represented, the position(s) of the parties and any other factor bearing on the administration of justice. The mode of appearance can be decided at the pre-bail hearing conference or a party may request one for this purpose.
(iii) Judicial pre-trials:
All judicial pre-trials will be held virtually (either by video or audioconference or in some jurisdictions by teleconference) unless the Court directs that an in-person judicial pre-trial is required in light of the accused being self-represented, there being multiple accused in a case, the complexity of trial issues, the length of the trial, or any other factor the Court decides warrants an in-person judicial pre-trial.
(iv) Pre-trial motions:
All pre-trial motions will be held in person unless both the accused and the Crown consent to it being heard virtually and the Court approves. The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference. This direction does not otherwise limit either the accused’s or Crown’s ability to seek to call a particular witness’ evidence remotely as authorized by the Criminal Code or the common law.
(v) Judge-alone trials:
All judge-alone trials will be held in person unless both the accused and Crown consent to a virtual trial and the Court approves. The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference. This direction does not otherwise limit either the accused’s or Crown’s ability to seek to call a particular witness’ evidence remotely as authorized by the Criminal Code or the common law.
(vi) Jury trials:
All jury trials will be held in person. The Court may consider the option of a hybrid proceeding and whether a witness, at the request of either party, may be permitted to testify virtually by videoconference. This direction does not otherwise limit either the accused’s or Crown’s ability to seek to call a particular witness’ evidence remotely as authorized by the Criminal Code or the common law.
(vii) Guilty pleas:
All guilty pleas will be held in person unless both the accused and the Crown consent to it being heard virtually and the Court approves.
(viii) Sentencing hearings:
All sentencing hearings will be held in person unless both the accused and the Crown consent to it being heard virtually and the Court approves.
(ix) Summary conviction appeals and special motions:
(a) Assignment court (in jurisdictions where these are held):
All assignment court appearances related to summary conviction appeals and special motions will be held virtually (either by video or audioconference or in some jurisdictions by teleconference), with the exception of self-represented litigants, unless the Court specifies a different method of attendance.
(b) Hearing of the motion:
All summary conviction appeals will be held virtually subject to the discretion of the Court, which will take into account: whether the accused is self-represented, the position(s) of the parties, and any other factor bearing on the administration of justice. Where one of the parties requests another mode of appearance, they can do so at a case management conference or they can request a case management conference for this purpose.