Access to justice demands that courts not go back to pre-COVID days

April 22, 2022

With the pandemic over, Ontario’s courthouses have finally returned to normal operations and dispensed most COVID precautions.

I kid, I kid.

The pandemic is far from over. We are firmly in the middle of the sixth wave of infections, driven by the more transmissible BA.2 subvariant and foolish elimination of many effective public health measures.

It turns out that just because you stop testing for infections, the virus doesn’t go away.

Even though Ontario’s hospitalization numbers are on the rise and wastewater data suggests we are experiencing 100,000 new daily infections, Ontario courts have indeed dropped almost all precautionary measures.

Although some judges have continued requiring masking in their courtrooms, it is no longer mandatory in Ontario’s courthouses. There is no mandatory health screening to enter the buildings. Physical distancing is a thing of the past.

Perhaps the most disturbing trend emerging in Ontario’s courts is returning to the outdated practice of mandatory in-person appearances for guilty pleas, sentencings, applications, simple trials, and even some bail hearings.

These mandatory in-person appearances don’t do anything to protect the vulnerable or limit the spread of the virus, but the judges who set these rules aren’t doctors, so perhaps we can forgive this harm.

But judges and court administration should be concerned about access to justice, which will suffer if we return to our old-fashioned practices.

The pandemic did what dozens of working groups, committees, and pilot projects couldn’t do. It dragged the justice system into the modern world.

Before the pandemic, our courts were ruled by paper documents, fax machines, and the necessity to physically show up for even the most minor and routine appearance.

Want to set a trial date? No problem, follow these easy steps: conduct a counsel pretrial at the Crown’s office, personally attend a judicial pretrial to obtain a trial authorization sheet, go to the trial coordinator’s office and trade the trial authorization sheet for a trial date sheet, and physically take the trial date sheet to the next remand court appearance to set the trial date.

Each courthouse had its Byzantine system of overly bureaucratic procedures. Some courthouses had colour-coded sheets, salmon-coloured sheets for trial authorizations, and green-coloured for trial. If defence counsel said pretty please, judicial pretrials could be conducted over the phone in some jurisdictions.

But in all courthouses, lawyers, members of the public, and their clients had to attend court physically for even the simplest of matters.

The impacts on access to justice should be obvious. Let’s look at bail hearings, the canary in the access to justice coal mine.

In the olden pre-COVID days, sureties had to physically attend the courthouse for the bail hearing,  consent release, or to sign the release documents. If the offence took place in a different city, the sureties needed to drive hours for the appearance.

And we wonder why marginalized and impoverished accused are more likely to be denied bail. It is hard to bail a family member out of jail if you can’t take a day off work, can’t afford childcare, or don’t have the means to travel to a different city.

When COVID forced courts to modernize, these bail processes quickly moved to virtual settings. Bail hearings and consent releases took place over the phone or via video. No travel required. No physical appearances needed. COVID broke the system and exposed its systemic inequities.

COVID, in many cases, has enhanced access to justice. I can now conduct remand appearances, bail hearings, many guilty pleas, and even some trials by video. I no longer need to drive hours to assist a client in a remote jurisdiction. I can more efficiently schedule matters and do more work, for more clients, in the same amount of time.

Accused people in small jurisdictions have increased access to defence lawyers to assist them cost-effectively and quickly.

Because of these modernizations, the justice system now operates more efficiently.

For too long, defence lawyers have acted as the grease that kept the gears of the justice system lubricated. Without the hidden subsidies provided by defence lawyers, our court system would grind to a halt.

Defence counsel time is cheap – especially on legal aid. In the pre-COVID days, criminal defence lawyers, accused, witnesses, and sureties, spent countless idle hours waiting in court for their cases to be heard by a judge. We had to attend routine scheduling meetings in person, even if that meant driving for hours. If administrative work was too burdensome for the court, it shafted it frequently to defence counsel.

COVID changed all of that.

But now that the Ontario government and the courts have declared that COVID is over, we risk sliding back to the old way of doing things.

Courts across the province are starting to release a patchwork of new practice directives. Some courts are insisting on physical attendance for simple matters. Some courts require personal appearance or adherence to complicated new systems to set trial dates.

The reality is that the pandemic is not over.

Nor is the access to justice crisis.

With the fool-hearted rush to return to “normal,” we must recognize that normal was just a cover for injustice and inequity in many cases.