Two-month shutdown of non-urgent trials

Temporary absences for inmates to be expanded, more digital parole hearings

On the same day Ontario courts announced a two-month shutdown of all non-urgent family trials and criminal trials, the province expanded its efforts to confront the impending chaos in the corrections system.

The government expanded efforts to grant temporary absences to intermittent inmates, meaning those offenders will not have to report to a correctional facility every weekend to “avoid cycling individuals back and forth” between the community and a correctional facility.

The expanded response to the novel coronavirus crisis was outlined Friday in a joint statement from deputy premier and Minister of Health Christine Elliott and Solicitor General Sylvia Jones, in an effort to “protect our frontline workers and our health care system from the burden an outbreak in our correctional system could cause.”

Senior corrections officials will now be allowed to expand the use of temporary absences, the ministry announced, and the Ontario Parole Board will be able to implement alternatives to in-person hearings by “electronic or written means, rather than solely in-person.”

Longer-term temporary absences, according to the ministry, will allow for early release of inmates who are near the end of their sentence.

“To ensure public safety, inmates would be carefully assessed to ensure they are a low risk to reoffend,” the solicitor general said.

“Those inmates who have been convicted of serious crimes, such as violent crimes or crimes involving guns, would not be considered for early release.”

With security guards posted outside the Ottawa courthouse this week allowing only the most essential parties in, defence lawyers, Crown attorneys, judges, clerks and staff on the inside have been working furiously to process as many urgent cases as possible.

Over the last two days, according to Karin Stein, president of the Defence Counsel Association of Ottawa, the Ontario Court of Justice has been functioning “almost completely remotely.”

“Everybody came together to make it work — the bench, the clerks, the police and counsel. Extra phones have been brought in to facilitate contact between the accused in custody and (their lawyers).

“Crown and defence were for the most part participating via teleconference with the courts and in many cases the accused did not have to be brought in from either the police station or the detention centre and were also able to participate remotely,” Stein said.

The DCAO also stepped in when Legal Aid Ontario removed its lawyers and per diem counsel and made lawyers available to cover the cases normally represented by duty counsel, “making sure that the accused did not go without representation at the bail stage,” she said. “There was a significant reduction in the number of people required to be at the courthouse.”

But while the pandemic crisis has spurred some technological innovation and has seen some positive proactive measures at court, according to defence lawyer Michael Spratt, “it remains to be seen if the jails are doing enough to avert a looming and predictable disaster behind bars.”

“No solution is going to be perfect but doing nothing is going to lead to courthouses and jails becoming petri dishes of infection that risk spreading the virus and ultimately resulting in deaths, given the vulnerable populations involved.”

Courts have encouraged social distancing by mandating the use of modern technology to file documents or to replace routine, non-essential court appearances, Spratt said. “Things that, ironically, the defence bar has been asking for years and has been told were too difficult or cumbersome to bring into practice.”

While the justice system remains “in flux” during the crisis, Spratt said they have held remote hearings, bail hearings where sureties don’t need to attend court and instead send in pictures of their driver’s licences, and bail discussions over the phone and email in place of an in-court appearance.

“But it’s not enough for each lawyer to seek bail for their client, the system simply doesn’t have the capacity for individual defence lawyers to schedule all these bail hearings and conduct them. We’re trying to move water that would normally go through a firehose through a sprinkler,” Spratt said.

But while courts have shown they can “accommodate and survive” the disruption, Spratt has been outspoken in calling on the province to act just as swiftly to depopulate the jails to avoid a potential “firestorm.”

“The solution is very simple,” Spratt said. “Everyone serving a sentence or on remand (awaiting trial) for a non-violent offence should be released. Either released on conditions of bail and monitored in the community, or released on a temporary absence permit if they’re serving a sentence.

“There is no reason for a young man serving the last two months of a fraud sentence to be in jail,” Spratt said. “And there’s no reason for someone who is awaiting a trial for shoplifting from a liquor store or other property offences to be in custody waiting for bail right now . ... We’re not talking about releasing murderers or violent offenders, and when we’re looking at court delays these are not cases that are going to be thrown out of court due to delays. This is clearly a very exceptional circumstance ...

“The sad reality is that our jails at the best of times are filthy, germ-ridden and overcrowded. And now, with COVID -19, one case in the jail will cause a firestorm that will not only cause infection and death and risk community safety, but will compound the delays and the scheduling chaos that we’re going to see in court when court starts back up again.”

As part of Friday’s announcement the Ontario government said it “continues to evaluate all options to limit the possible spread of COVID-19 within our correctional system” beyond the regulatory amendments already implemented. ahelmer@postmedia.com

There is no reason for a young man serving the last two months of a fraud sentence to be in jail.