Safety issues raised as in-person trials get set to resume,
In-person trials resume next week, but some fear safety measures fall short
In-person trials are set to resume at 44 Ontario courthouses next week, even as unions representing Crown attorneys say the safety measures are inadequate and the start date should be delayed.
A Ministry of the Attorney General guidebook says Plexiglas barriers have been installed around lawyer desks, the witness stand and the judge’s dais. The number of people who can go into a courtroom will be limited. There will be frequent cleaning, no cafeterias and plentiful hand sanitizer. And anyone who isn’t courthouse staff or a judge will have to wear a mask, except while testifying.
“As we are opening up we’ve already put the pieces together to open safely and we’ve done that in concert with our justice sector partners across the system,” said Attorney General Doug Downey in an interview Monday, acknowledging the “significant challenge” posed by the need to reschedule thousands of cases postponed over the past three months.
“We have the best advice available, we are taking all precautions, we’re moving cautiously and slowly, we’re making sure that, as they return, that they will be safe for in person proceedings,” he said.
But in a letter to the ministry on Monday, the union representing senior Crown attorneys said not enough is being done and that with only a week left to go they are still lacking critical information about how the measures will work and how they will be enforced.
“You have given us no training on why some risks are acceptable and others are not,” the letter states, seeking delay of the July 6 date. “We are concerned for our own health and the health of our staff. You are asking us to make ill-informed decisions, in an area where we have no expertise, with the lives of our staff hanging in the balance. We do not feel we can properly implement any ‘good faith’ or ‘due diligence’ level of safety assessment in the very short time frame we are left with.”
The concerns in the letter echo those raised last week by unions representing Crown attorneys and court staff with the ministry. The Ontario Crown Attorneys’ Association (OCCA) filed a notice of application with the court on Friday for an injunction to delay resuming inperson trials, and a grievance with the ministry over the OCCA not being involved in the committees in charge of courthouse safety. The injunction application has been paused pending a meeting with the deputy attorney general this week, according to the Friday letter from the OCCA.
The concerns include: some risk assessments of courthouses have been conducted by people without experience of how courthouses work; no requirement for masking for staff where physical distancing is not possible; no way to enforce physical distancing or mandatory use of hand sanitizer; lack of clarity about who would clean spaces between witnesses; not enough Plexiglas barriers; and inadequate risk assessments of the ventilation systems.
“I urge you to step forward and slow down the process of reopening so that we can all be comfortable that we are all working in a safe place and not risking our lives to do our job,” said the letter to the deputy attorney general from Robert Parsons, president of the union representing senior Crown attorneys. Parsons declined to comment Monday. Meanwhile, on Monday morning judges began confirming trial dates for next week in special COVID-19 trial readiness courts. At least one case was left in limbo as the Crown said more time was needed to know if the health and safety issues would be resolved.
A preliminary hearing was adjourned altogether because the defence lawyers involved are in high-risk groups for COVID-19 and felt the risk of returning to court is too high. In some hearings where both the Crown and defence agreed to proceed, accommodations were made to allow some participants — in one case the accused and in one case the judge — to appear remotely.
“We want to return to the courts but of course we want the courts to be as safe as possible,” said Daniel Brown, vicepresident of the Criminal Lawyers’ Association. He said there need to be clear procedures in place so that accused people or witnesses do not have to attend court if they have symptoms. “We are encouraging ongoing dialogue ... to ensure that the courts can open safely for everyone to participate in them.”
He added that virtual alternatives are crucial for lawyers who are at high-risk or who have family members who are at high-risk.
Downey said the gradual reopening of in-person hearings will not stop the investment in virtual courts through the use of video-conferencing and other forms of technology.
“It’s going to potentially allow us to do trials that are a mix ... partly virtual and partly in person. The judges will have to work out what they are comfortable with ... but it opens up so many possibilities to move things along faster, more efficiently, cheaper,” he said.
Criminal defence lawyer Daniel Lerner had a trial set to begin next week at the 1000 Finch courthouse, scheduled before the pandemic. On Monday morning he agreed to go ahead with it, but said not enough information has been provided about what exactly is being done to ensure courthouses and courtrooms are safe, leaving lawyers, accused, witnesses and victims unable make informed decisions.
“I have a client who is not sure if it’s safe or not safe,” he said.
Critical information about how the measures will work and how they will be enforced is lacking, union says