Murder trial delayed by COVID leaves grief-stricken family in pain and awaiting justice

It’s been nearly four years since Susan Forsyth’s worst fears were realized.

Forsyth’s only child, Jeffrey Johnston, was stabbed to death in an Oshawa rooming house in December of 2017.

She’s still waiting for justice.

“I was so angry at the accused and now I’m just as equally angry with the system,” Forsyth told CityNews.

The jury trial for the man accused of Johnston’s murder was set to start in the fall of 2020. Even before the COVID-19 pandemic hit, the case faced repeated delays, with the accused changing lawyers several times and later backing out of a plea deal. Then COVID-19 closed the courts, and the trial was postponed to May 2021, before being delayed again — this time until February 2022.

“It’s extremely serious,” said Abby Deshman, Director of the Canadian Civil Liberties Association’s Criminal Justice Program. “We had a justice system that was under serious strain before the pandemic.”

In the Ontario Court of Justice, Canada’s busiest court system, it’s estimated 5,595 trials and judgments were postponed between March and December of 2020. The Ministry of the Attorney General says of those cases, 2,392 were completed in some way, 1,000 have been rescheduled, while the remaining 2,203 cases have not.

However, the pending jury trials, which are handled by the Superior Court of Justice, are the most worrying. The Superior Court of Justice has extended the suspension of jury trials until at least June 7 in four regions and until July 5 in another four regions including Toronto.

“There’s a lot of stress and anxiety around criminal proceedings in the best of circumstances,” said the federal ombudsman for victims of crime, Heidi Illingworth. “When we have delay after delay after delay, victims are retraumatized.”

Illingworth adds there are civil rights issues for the accused when people are left to languish in remand. It’s also a problem for the operation of the trial itself, according to Deshman.

“Memories fade. Evidence becomes less clear,” she said.

That’s something Forsyth worries about. She launched her own search for her missing son when she alleges Durham police failed to promptly investigate. Johnston, 31, had been dead for four days before officers found his body. Forsyth came upon the crime scene and is now a witness in the case.

“I’m scared the defence is going to start asking me certain times and dates. We’re talking four years ago,” said Forsyth.

While Deshman said some cases will have to wait until jury trials resume, the bulk of what Ontario’s courts deal with are non-violent allegations. She suggests diverting cases dealing with mental health, addictions, and administration of justice offences out of the formal justice system.

“We need to work with our police to make sure we are not responding by criminalizing people where a better response would be social services,” she said.

The Attorney General has issued a temporary directive to prosecutors to resolve both existing and incoming cases where possible, so that time and resources are focused on the prosecution of the most serious offences.

Additionally, spokesperson Brian Gray said, “the ministry continues to work with justice partners to establish new and innovative ways of administering justice, including supporting new ways of conducting proceedings, more remote proceedings and moving more services online.”

Gray said 275 courtrooms across the province are currently able to hold remote hearings, with audio and videoconferencing equipment to be installed in at least 70 additional courtrooms by April 2022. Province-wide statistics with respect to virtual trials are not available.

But because jury trials are the only hearing that cannot currently be held virtually, they require more space than most courtrooms allow while respecting COVID-19 rules, further slowing the system.

With the trial over her son’s death still looming, Forsyth cannot bring herself to take Johnston’s ashes to his final resting place. For now, they’re inside the home she shares with her grandson, Alex. While he and his grandmother wait for a court date that never seems to come, they live in limbo.

“You can’t do that to a family, you can’t do that to a child,” said Forsyth. “I just need closure. We just need this to end.”