COVID-19 brought sweeping changes to the court system. But the jury’s still out on whether it can weather a second wave
News Oct 06, 2020 by Betsy Powell Courts Reporter
In the case of the ill defendant, they’ll try again in a few weeks, after an elaborate — and expensive — off-site jury selection process at the Metro Toronto Convention Centre, which is where the first juries were picked a week ago.
Jurors in the other case, where a member of the prosecution team tested positive for the coronavirus, have been asked to return to court next week — if the COVID all-clear is given.
That’s a big if, given Friday the city’s top doctor recommended the province restore some of the lockdown measures that were in place in the spring.
Even with all the safety protocols in place in court — including courtrooms fitted with Plexiglas barriers between all participants, masking and, where possible, physical distancing, as well as courtrooms repurposed to be jury rooms — the rapid rise in Toronto cases and testing backlog means it will only get harder to keep trials going.
Courthouse screening rules prohibit anyone — from witnesses to judges — showing COVID-19 symptoms from entering the courthouse.
Are the courts ready to weather the second wave? Legal insiders predict there will be lots of COVID-interruptus, but say there’s no going back, not when the criminal case backlog continues to get bigger and bigger.
“The court system can’t withstand another shutdown,” observed Sid Freeman, a long-time criminal defence lawyer. “We have to make sure people are safe because the virus has devastating consequences. But at the same time there are devastating consequences to shutting down the courts and shutting down the economy. We need to be able to strike a balance.”
The good news is that over the past few months the pandemic has delivered a much-needed kick in the pants to the notoriously archaic legal system, which still relies heavily on fax machines and photocopiers.
“I have been a litigation lawyer since 1993, and as we entered 2020, the requirements in terms of filing documents and serving documents, had not changed in 27 years,” said Toronto personal injury lawyer Darryl Singer.
Both criminal and civil courts are now routinely operating by phone and videoconference in a way unheard of pre-COVID. Though criminal jury trials are not taking place via Zoom, the Ministry of the Attorney General’s web conferencing platform of choice, other trials have that option. Bail hearings, pleas and sentencing hearings continue to take place remotely, and the much-maligned “set-date courts” used for scheduling have been replaced with virtual courts where the waiting happens over the phone rather than in person.
“You can do three things by 10:15 a.m. without even getting out of your pajama bottoms,” said one long-time Toronto prosecutor, who asked not to be identified in order to speak freely.
Some defendants are now opting to have their day in court before a judge, instead of a jury, after being offered a pick of judges. There’s plenty of incentive: “Go next week, or … wait for an in-person jury trial next August,” said the prosecutor.
Defence lawyer Harpreet Saini says more needs to be done to ensure consistency across courthouses and to have up-to-date, accessible information about the new court processes.
Even in the virtual courts, old issues remain. Bail courts are still overloaded, leaving people in custody for longer than they should be. Jails have increased access to video, but not enough.
Among the most pressing new concerns is the uncertainty of future trial dates. Defence lawyers are concerned it is pressuring guilty pleas for defendants eager to get out of jail.
“If a person is in custody and they don’t know when or if they are going to have a trial you have them in a tough spot. And it’s far easier for Crowns to leverage a guilty plea,” Saini said. And for people out of custody on house arrest or saddled with onerous bail conditions, a delayed trial can be very hard to face.
Crown attorneys are also under pressure to reduce the case backlog compounded by all the arrests made during the pandemic. For some accused, that could mean some pretty sweet plea deals on offer, said the prosecutor.
Under normal circumstances, significant delays to the start of a trial would result in cases being tossed, as with the landmark Supreme Court decision in R v Jordan,which set hard limits on how long a case can stay in the system. But there is an exception for unforeseen circumstances, Freeman notes, and a global pandemic almost certainly fits the bill.
Freeman hopes the current extraordinary situation prompts a serious overhaul of the criminal justice approach to drug crimes and crimes involving people with mental illness.
The need for change to how drug possession charges are handled in the context of a worsening opioid crisis was recently raised by Ontario Chief Justice George Strathy at the annual opening of the courts.
“We need to consider whether these and other social challenges are most effectively addressed outside the courts,” he said.
Whether that happens remains to be seen.
The courts have also been taking a go-slow approach to resumption. By Wednesday, across the province there were 14 jury trials in Ontario’s Superior Court and 34 non-jury trials, of which 13 were taking place entirely remotely.
Between 800 and 900 jury trials had been set to take place between March and September, and more than 1,300 non-jury trials were scheduled between March and May.
At the Ontario Court of Justice, where as of June 2020 there were 35,000 more cases pending than the same month in 2019, the courts have also become increasingly busier.
The number of completed cases dropped from between 17,000 and 18,000 per month pre-COVID to just 6,800 in April. Only 52 cases were completed after a trial in April, compared to between 600 and 800 a month pre-COVID. By June 2020, the most recent month available, the number of completed cases had climbed back to 10,478, with 171 after a trial.
The COVID-19 pandemic also upended the civil and family court systems, which are struggling to get back on track.
In March, the Ontario Superior Court of Justice adjourned all non-urgent family and civil cases across the province, along with small claims proceedings.
That unprecedented postponement left hundreds of thousands of cases — and people — in legal limbo, yet lawyers contend practices and procedures introduced in the pandemic era have left the civil and family justice systems much better off.
“There’s no doubt that the somewhat rapid shutdown in March created a lot of delays, with proceedings getting punted, uncertainty about rescheduling things, health concerns and litigants/clients having trouble funding their cases because of the slowdowns in the economy,” Justin Nasseri, a Toronto civil lawyer who is chair of the civil litigation section of the Ontario Bar Association (OBA), wrote in email.
Yet over the long term he’s optimistic that technological innovations will result in cases moving forward faster.
For example, documents are now being served by email, affidavits commissioned virtually, and discoveries, cross-examinations on affidavits, mediations, arbitrations, motions, and now even some trials and tribunal hearings are being done virtually.
He points to a recent two-day Superior Court hearing that was “emblematic of some of the positive changes that have come about during the pandemic.” The judge, court staff and a phalanx of lawyers participated via Zoom and the “proceeding went without a hitch.” The efficiency also means lower costs for clients.
The shift to online isn’t without difficulties.
While commercial and corporate clients have generally embraced the changes, it’s more of a challenge to get buy-in from clients and litigants in real estate or tort cases, especially if they’re elderly and susceptible to COVID-19.
“It may not be easy for everybody to jump in and do a virtual hearing or testify through a computer,” Nasseri said. Singer, the personal injury lawyer, is certainly among those encouraged by what has gone on in the legal profession.
But he’s not holding his breath about the resumption of Ontario civil jury trials, which have largely been scrapped until at least 2021, except in Toronto, where they are poised to begin convening next week.
“It remains to be seen if that’s actually going to happen, depending on the COVID numbers, and even if it does, it’s a limited number. Only two courtrooms are available for civil jury trials,” (in Toronto) said Singer, who sits on the board of the York Region Law Association and chairs its civil litigation committee.
Like the criminal system, civil cases have piled up since March, particularly in Brampton, which he calls one of the most backlogged courts in the province for civil jury trials.
By the time someone files a lawsuit, say for a slip and fall, it can take up to seven years before the case gets before a jury, “and that was before COVID,” Singer explained. In Toronto, it’s a little better, though a four-, five-, or six-year wait is not uncommon.
The situation in family law has also been tense for many clients since COVID-19 hit, says Frankie Wood, who practises civil litigation and family law in Peel Region.
Since March, it’s been difficult to for most cases to get heard, even virtually, unless the courts were satisfied that it was of an “extreme urgency.” Those hearings have tended to relate to child protection and custody access matters.
But over the last few week, family courts are working hard to ramp up capacity, a relief to anyone who has been waiting for their day in court, particularly in jurisdictions beset with lengthy delays, says Wood, chair of the OBA’s family law section.
At the same time, the pandemic has added to the stress of many clients embroiled in disputes over support payments and property division.
“If someone is waiting for child support … trying to pay rent or mortgage, and buy groceries, the added delay represents real challenges for our clients.”
Yet, she counts herself as a believer that this time, even in the face of the disturbing news about climbing COVID-19 infection rates, that Ontario’s courts are “much more ready to deal with the … second wave.”