Our criminal courts are controlled by unaccountable anonymous jail guards

It is time to talk about who is really in charge of our criminal courts.

You might guess that the presiding judge runs their court. Maybe you think the Crown Attorney or court administration sets the rules. Perhaps you are naïve enough to think defence counsel or the accused has some control over the court process.

In reality, all of these players are impotent in the face of the real puppet masters. You see, the secret is that unaccountable anonymous jail guards control our courts.

In the new COVID justice system, jails have complete control over who is brought to court, when they produce inmates, and how inmates appear. And Ontario’s jails are abusing that power.

In the before times, jails would physically transport inmates to the courthouse to appear for trials, sentencings, and bail hearings. And at the courthouse, the accused would physically meet with their lawyers, appear before judges, and have their matters adjudicated.

But we don’t do that anymore.

Due to new COVID procedures, an accused person can easily go from arrest to sentencing without leaving the province’s Dickensian jails.

The accused routinely “attends court” over a jailhouse telephone for many bail hearings and sentencings. Courts may even conduct trials with the accused making their appearance by Zoom or the province’s antiquated Justice Video Network.

Most participants in the justice system have made incredible sacrifices to keep the gears moving, and accused people have consented to flawed audio and video proceedings because the alternative is no justice system at all.

The jails, on the other hand, have acted with entitled lawless impunity that risks injustice.

It is a notorious fact that our provincial holding facilities have refused to produce inmates, hung up the phone in the middle of proceedings, and ignored judge’s orders.

One of my clients experienced this injustice firsthand at his bail hearing. On the day of the hearing, the jail called into the courtroom and put my client on the phone. They were 30 minutes late. And although no one could see him, my client stood by the phone and listened to the evidence. And just as I was about to submit why he should be released, a nameless guard picked up the phone and told the court that our time was up. The jail only had one phone line, or they were short-staffed and could not accommodate my client on the phone. The guard gave both excuses.

There is always some excuse.

And then the jail told the judge that the next phone availability was in 7 days and hung up.

The next day, the jail produced my client physically in court. We finished the bail hearing, and he was released. But because of the jail’s unilateral act of hanging up the phone, my client’s liberty was unduly deprived, and he spent an extra day in jail.

This type of misconduct is far an isolated incident.

A few days earlier, I Zoomed into court for a resolution. My client was set to plead guilty to a minor breach of probation. Everyone agreed he had served his time and should be released from custody.

On the day of the hearing, the jail said they could not bring my client to the video room because he was on COVID “droplet protocol.” The jail claimed that they were, for some mysterious reason, unable to bring him a phone. The judge, Crown, and court staff waited in court with me all day. Despite a judicial order, the jail never produced my client. At 5 pm on a Friday, the Crown did the honourable thing and withdrew the charge — they knew it would be an affront to justice to have my client spend one minute longer in custody than necessary.

The jail, on the other hand, didn’t give a damn.

This scenario is the pattern of injustice that is playing out in the courts.

Our institutions have had 15 months to adapt to the new COVID reality, but they have refused — just like they have refused to comply with lawful orders.

Instead, anonymous and often rude jail guards feel entitled to hang up on judges, ignore lawful court orders, and violate the person’s inalienable right to life, liberty, and security.

If my clients walked out of court in the middle of a hearing or refused to attend court, they would be held in contempt or arrested.

The next time a jail guard hangs up the phone on the court or refuses to follow a judicial order, the same should happen to them.