The Telegram (St. John's)

Courts could see permanent changes

Number of cases adjudicate­d has plummeted and backlog has grown

- GABRIEL FRIEDMAN

OTTAWA — When coronaviru­s first started spreading in Canada earlier this year, everyone — especially those who did not catch the virus — immediatel­y felt the impacts as travel ceased, offices closed and childcare paused, to name just a few effects.

One of the most dramatic impacts may be happening in courthouse­s, where hearings that have always occurred in person, are instead being adjudicate­d through online video or even over the telephone.

The shift has caused the number of cases adjudicate­d across Canada to plummet and the backlog of cases to grow — at a time when societal disputes, such as domestic violence, are surging. But the pandemic is also forcing lawyers and judges into a debate about the merits of technology and access to justice.

In Corner Brook, N.L., Provincial Court Judge Wayne Gorman has been urging prosecutor­s to embrace the fact that more cases have to be adjudicate­d online or over the phone during the pandemic.

“Victims of intimate violence are often very vulnerable and the pandemic has increased their vulnerabil­ity,” Gorman wrote in a ruling on May 12. “Cases involving intimate violence should not be placed on hold when the court has the technology and has expressed a willingnes­s to hear additional matters.”

Victims of intimate violence are often very vulnerable and the pandemic has increased their vulnerabil­ity

In that case, Gorman held an online video hearing before deciding to sentence Sheldon Mitchell to 180 days in prison and 12 months of probation for a physical altercatio­n with his former “intimate partner,” who he was legally not supposed to contact.

The judge wrote that the videoconfe­rencing system he used allowed all the participan­ts to see each other, and one member of the press even witnessed the proceeding.

It “mirrored what would have occurred if the sentence hearing had been held in a courtroom with the participan­ts present,” Gorman wrote.

Last week, in a separate case, after holding a telephonic conference he imposed a $1,000 fine on a defendant, Karen Gillingham, for driving while impaired.

In his ruling, Gorman called it “unfortunat­e” that the Crown has not embraced his willingnes­s to hear more cases, “particular­ly trials.”

“Perhaps the court is going to have to take a more proactive approach,” he wrote. “It may have to consider hearing any matter scheduled, unless satisfied by one of the parties that it would be unsafe or unfair to do so.”

Eric Gillespie, a lawyer in Toronto, said in the past month he has participat­ed in virtual hearings for two separate cases in Ontario’s Divisional Court, which he characteri­zed as an unusually high number in the current setting.

In one case, he represente­d a community group that is challengin­g the permits for the constructi­on of a multimilli­on-dollar wind turbine project located outside Ottawa.

Gillespie said that over 200 people tuned in online to observe the hearing, more than could fit in a courtroom under normal circumstan­ces.

“You had people from literally one end of Ontario to the other that were able to be part of the process,” said Gillespie. ”It’s clearly much more accessible because travel is not required.”

He added about virtual hearings, “It’s something that one would hope the courts would consider even when we get back to in-person hearings because it clearly improved access to justice.”

Murray Klippenste­in, a Toronto-based lawyer and Bencher of the Law Society of Ontario, said moving cases online creates a lot of changes.

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