COVID-19’s profound impact on justice

If an innocent person is held in jail and not allowed to set a trial and a guilty person on bail is not allowed to plead guilty, can we really call it a justice system?

There is no need to construct a fanciful hypothetical to answer the question. All you need to do is take a trip through the looking glass and into Canada’s COVID courthouses.

Following the outbreak of the global COVID-19 pandemic, courtrooms across Canada shut down operations. This was a necessary measure. Our outdated and archaic justice system relied on close physical contact, paper documents, and personal appearance. To continue business as usual would have created a breeding ground for the spread of the virus.

In fact, it was defence lawyers, led by the fearless president of the Criminal Lawyers’ Association, John Struthers, who were a key group in pushing for enhanced safety measures, including the temporary suspension of normal court operations.

That was in March. And today, months later, our courts are still shuttered.

But don’t say the word “closed” to Geoffrey Morawetz, chief justice  of the Superior Court of Justice of Ontario. In an April fireside chat hosted by the Advocates’ Society, Chief Justice Morawetz set the record straight, saying, “And let me be very clear, the Ontario Superior Court of Justice has never closed. March 17, effective that day, we suspended in-court operations, but made it very clear right from the get-go that the court was operating. It continues to operate, and it is never going to stop operating.”

Superior courts are open for business — unless that business includes a trial, scheduling a trial, arguing a motion, pleading guilty, or doing almost anything else. 

And the same is true across the country.

In Ontario, since March 17, all courts have been scheduling emergency matters only. Bail hearings are being conducted by video or over the phone. Some guilty pleas can now be accommodated. In-custody accused can plead guilty in limited circumstances, mostly to get out of jail. And out-of-custody accused, in some jurisdictions, can plead guilty if all parties agree that jail is off the table.

So no, our courts are not open – they have been closed for weeks. And they are not set to open, at the earliest, until July, and jury trials are not set to resume until September.

I have clients who have waited for months in jail for their day in court, only to have their trials cancelled. At present they are not even able to set new trial dates. Our justice system is now forcing the presumed innocent to suffer an indeterminate wait behind bars.

I also have clients who have been released on strict bail conditions but want to plead guilty and serve their short sentences. But they can’t. Instead, the justice system is forcing them to wait on house arrest, or separated from their children, or suspended from their jobs.

This is not justice.

Some COVID-19 court disruptions were necessary to protect the public. There is no going back to business as usual.

And years of neglect and ossification mean the justice system started the pandemic with one technological hand tied behind its back. But, that does not change the current staggering and unprecedented lack of any meaningful access to justice.

It is possible to do more business remotely. The Ontario Review Board is conducting hearings by Zoom. Why can’t our courts conduct trials in the same way? Even before COVID-19 parts of trials were often conducted via video; complainants in many sexual assault cases and all cases involving child witnesses testified over video link. Why could this technology not have been expanded for trials during COVID-19?

Too often our justice system reflexively resists any change. It is time for that to end. Remote trials may not be appropriate in all cases, but the majority of trials, especially in our busy lower courts, can be conducted remotely in whole or in part. It may not be a perfect option, but where the accused consents it is surely better than the inefficient limbo we seem to be stuck in now.

Maybe this is all too much for a system that was stuck in the 1980s; but that does not excuse the seeming lack of any proactive planning after the pandemic hit.

Detained accused and their lawyers have yet to be told how trials will be rescheduled when courts do open back up. Who will get priority? What factors will be considered? Will extra courts be added? Will new judges be hired? Will defence counsel receive additional funding to do extra work?

With hundreds of judges and crown attorneys sitting at home (and receiving a salary), this was the time to plan, triage and schedule.

There is no question that all the individual actors in the justice system are doing their best in a tough situation. I have seen extraordinary acts of accommodation, creativity and compassion. But individually we can only do so much. And it is not enough.

The truth is, no judge, crown attorney or politician is facing detention without trial. They have not received the call from a distraught client who is at their breaking point. If they had, maybe there would be trials, or the ability to set trials, or a plan on how we will set trials, or a plan on how to plan. There is an avalanche about to hit our already overburdened justice system, and I’ve seen no indication of a real plan to address the looming catastrophe.

We are all doing our best to keep the justice system functioning, but our best efforts are not good enough when, with all due respect to Chief Justice Morawetz, our courts are closed.

And a system that does not dispense justice can hardly be called a justice system.