As COVID-19 establishes a firm foothold in Manitoba jails, a judge has green-lit the first trial in the province allowing an accused to appear by video.

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As COVID-19 establishes a firm foothold in Manitoba jails, a judge has green-lit the first trial in the province allowing an accused to appear by video.

"Fundamentally, there is no clear reason why the ability to make full answer and defence could not be accomplished by the accused watching the Crown case by video," provincial court Judge Tim Killeen wrote in a nine-page decision allowing Aaron Azure to remain at Headingley Correctional Centre for his two-day trial this week on weapons charges.

Court heard testimony Monday and Tuesday, with Killeen indicating he may be ready to deliver his verdict Wednesday.

A COVID-19 outbreak at Headingley jail includes 33 inmates and six staff, a development that resulted in the cancellation of all visits and transfers.

"A year ago, none of us would have seriously contemplated that a trial could not easily proceed because an accused was locked in a jail which was shut for public health reasons because of a pandemic," Killeen said.

Video appearances by an offender or accused are common for bail applications and sentencings, but to date have not been approved for trials in Manitoba.

Lawyers for both the Crown and defence urged Killeen to consider the move, rather than incur further delay for Azure, who has been in custody since July 2019.

"Mr. Azure is supposed to have his day in court as soon as possible," defence lawyer Mitchel Merriott said outside court Tuesday. "If (the trial) was adjourned, then that’s more time on remand status awaiting trial for something (when) he’s presumed innocent."

Currently, video appearances are restricted to inmates who are symptom-free, not subject to isolation and who are not housed in a unit with infected inmates. Azure fit that profile.

At Headingley, there are four rooms equipped for video court appearances. The rooms are also equipped with a phone if an accused needs to talk privately with their lawyer.

"While the accused does not have the ability to look the accuser in the eye — literally, figuratively or otherwise — that is no different to what already happens in trials where a screen is used to prevent the witness from seeing the accused," Killeen said.

Had Azure chosen to testify, it would have to be in person, the judge said.

"I will not allow him to testify by video, as the ability to assess him as he is examined and cross-examined will be critical," Killeen said.

Any future move to allow an accused to stand trial by video will have to be weighed against available resources and how many other video appearances have been scheduled, the judge said.

"This decision is specific to these facts," he said. "If this trial does not proceed smoothly, it may at least provide useful information about what we need to do or avoid in the near future as we grapple with the pandemic."

Dean Pritchard

Dean Pritchard
Courts reporter

Someone once said a journalist is just a reporter in a good suit. Dean Pritchard doesn’t own a good suit. But he knows a good lawsuit.

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