COVID-19 and Ontario’s courts

Don’t come to court.

This is the unprecedented message from Ontario’s top judges.

In response to the COVID-19 pandemic, both the Superior Court of Justice and the Ontario Court of Justice have taken the necessary and unprecedented step of shuttering their courtrooms to prevent transmission of the novel coronavirus.

It may have taken a boycott by Legal Aid staff and the Criminal Lawyers’ Association to force the Ontario Court of Justice’s hand, but it was the right call.

Our courts are incubation factories for the spread of COVID-19. Most court appearances are conducted face-to-face in small courtrooms. And over the past year nearly 2.5 million documents, more than 96 per cent of them paper documents, were filed in Ontario’s courts: an ideal vector for virus transmission.

Indeed, last week a staff member at the London courthouse tested positive for the virus. The cost of delaying decisive action would have been further infections.

The courts may not have been perfect in their response to the COVID-19 crisis, but as Dr. Michael Ryan, the World Health Organisation’s executive director, eloquently put it, “Perfection is the enemy of the good when it comes to emergency management. Speed trumps perfection … The greatest error is not to move. The greatest error is to be paralyzed by the fear of failure. If you need to be right before you move, you will never win.”

The suspension of all non-emergency court appearances will cause chaos. But it will also save lives and help flatten the curve of the virus’s spread.

Months of trial time will need to be rescheduled. In-custody accused, many of whom have patiently waited in jail for their trial date, may be forced to wait longer. And out-of-custody accused, many of whom are subject to strict bail conditions, will be forced to wait even longer.

Rescheduling three months of cancelled preliminary hearings, resolutions, applications, and trials, will be a nightmare.

But it is possible to weather this storm.

COVID-19 has already proven that the historic resistance toward court modernization was born from institutional inertia and not impossibility. For years, defence lawyers have asked for simple things such as disclosure produced via email; simple judicial orders signed online; and teleconferencing for pre-trials and other routine appearances.

But every time the subject of court modernizations were raised, we were told that it was impossible. Email disclosure was not secure; disclosure would have to be physically picked up from the courthouse on a CD-ROM. Judicial orders needed to be dropped off at a judge’s chambers, as staff were too busy to receive them over email. Remote appearances were not routinely available, even if that meant driving hours for a short meeting.

In her 2019 report, Ontario’s Auditor General Bonnie Lysyk observed that despite the fact that past audits of the court system repeatedly identified the need for modernization, limited progress was being made towards using more effective technologies in the court.

COVID-19 has done what countless committees, subcommittees, working groups and test projects have failed to do: drag a reluctant justice system into the modern age.

Yes, the two-month court shutdown will create a scheduling nightmare. But if proactive steps are taken to triage cases and efficiently reschedule trials, the justice system will weather the pandemic.

Yet there are storm clouds on the horizon. Ontario’s jails are filthy, overcrowded and populated by some of our community’s most vulnerable people. In other words, they are a petri dish for the spread of COVID-19.

Swift action needs to be taken to prevent our jails from becoming at best sick houses and at worst morgues.

The only real solution is depopulation.

The Ontario government has announced an intention to release some offenders, but this is not enough. Time matters. Speed trumps perfection. All provinces and the federal government must immediately release every non-violent inmate. This means bail for those accused of non-violent crimes and temporary absence permits for individuals serving sentences.

An outbreak of COVID-19 in the jails will only make the courthouse chaos worse. If jails become a hotspot for infections and prolonged quarantines are required, what could have been manageable chaos will become an extended and unworkable quagmire that could last well into next year.

Strong leadership by the Criminal Lawyers’ Association, and the tireless efforts of CLA president John Struthers, Legal Aid Ontario, and frontline Crown Attorneys have made the current chaos manageable. And by shutting down Ontario’s courts, Chief Justices Lise Maisonneuve of the Ontario Court of Justice and Geoffrey Morawetz of the Superior Court of Justice have provided a good first step to combating COVID-19.

But if you thought the past week was difficult, get ready; now the hard work will begin in order to prepare for a post-COVID-19 justice system.