Hamilton courts reopen despite continued safety concerns
Confusion over protocols and technology are part of a changed justice system
Crowns, court staff, Ontario Court of Justice (OCJ) judges and Legal Aid lawyers across the province have been advised by their associations not to return to court because it isn’t safe.
Yet, 44 courthouses reopened Monday. In this COVID era, much about Hamilton’s John Sopinka Courthouse and the way justice is done has changed. Both are fraught with problems.
After four months of being shut down by the pandemic with only certain matters being dealt with remotely, the Government of Ontario ordered courts to reopen.
Unions representing Crown attorneys, court staff and Legal Aid lawyers wrote letters to the Ministry of the Attorney General requesting to delay the reopening, saying safety measures are inadequate.
The Ontario Crown Attorney’s Association sought an injunction.
At 4 p.m. Friday, July 3 — three days before the reopening — the Ontario Association of Judges recommended its members not do in-person appearances.
The Hamilton Law Association, representing 1,300 lawyers, has competing interests, says president Kanata Cowan.
“We have a number of health and safety concerns that must be balanced with
people being able to access justice.”
Lawyers are being bombarded with “conflicting information” about COVID protocols while learning technology to attend court virtually. Members are concerned that screening and limited courtroom capacity could mean denying entry to some justice system participants.
“It’s a very difficult time to be a lawyer,” says Cowan, who practices family law. “You are not able to help people in the same way.”
“The communication piece has been difficult and timelines have been short,” says Justice Anthony Leitch, of the reopening. As Hamilton’s OCJ administrative judge, he consulted with colleagues on their willingness to return to the courtroom. One judge opted not to, but will work full-time by video.
COVID caused 280 OCJ trials and preliminary hearings to be postponed, says Leitch, but 109 were resolved by Crowns through pleas or other means.
Plexiglas cocoons judges, staff, witnesses, Crowns, defence and prisoners. There are slots between panes for passing documents.
Hand sanitizer is everywhere. Judges decide who wears a mask in the courtroom. Lawyers will likely be exempt while addressing the court and so may a witness giving testimony. (A cleaner will wipe down the box between witnesses.)
For prisoners brought to court, Leitch says the Hamilton-Wentworth Detention Centre will waive the 14-day quarantine imposed on inmates entering the jail.
Trials and preliminary hearings will now happen in person. Other matters will be conducted virtually. Jury trials restart in September.
Even before entering the courthouse, things are different.
Visitors scan a QI code posted on the doors to access a COVID screening questionnaire. The process is quick and easy — however many people walk right by the sign and into the building without seeing it.
Those who can’t manage the QI code or a written questionnaire will be asked the questions by staff.
Everyone in the building must wear a mask in a public space. If you don’t have one, it will be provided.
Enforcing the questionnaire and masks is the responsibility of newly hired commissionaires. Also, patrolling the number of people on elevators. Four OCJ courtrooms and one for the Superior Court of Justice (SCJ) are open.
Signs outside courtrooms indicate their capacity — with social distancing factored in. They range from 19 to 40. Masking tape marks which seats can be used.
“You may be requested to leave if courtroom exceeds capacity,” say other signs. Judges will enforce that, but who is allowed to stay and who is evicted remains to be seen.
Dockets — lists of the day’s cases — note if a matter is in person or in “Zoom virtual court.”
In one OCJ sentencing hearing, new COVID protocols — and their flaws — were evident.
While the judge, Crown and two accused were in the courtroom, the defence lawyers were not, appearing by Zoom instead.
Just before court was to begin, staff scrambled to deal with audio feedback and dropped connections.
“My Zoom is updating,” the judge said, needing more time before starting.
The first offender was brought in — masked — and placed against one side of the prisoner’s box. (“We did measure this box and it is over six feet,” assured the Crown.) It was a long delay before the other prisoner arrived because a cleaner couldn’t be found to sanitize the custody elevator.
Once the hearing started, the defence lawyers couldn’t see their clients, the clients couldn’t see their lawyers, and those in the body of the court couldn’t see anyone appearing by Zoom.
Defence counsel also had no way to speak privately with their clients.
Everyone had trouble figuring out when to mute and unmute Zoom, Zoom connections were lost and some people could barely be heard. Ultimately, a matter that usually would have finished by the end of the day will continue next week.