Trials in limbo as pandemic stalls courts
Many of those awaiting trials or judicial hearings in Ontario will have to wait a bit longer for their day in court after the province's top justices pressed the pause button on criminal cases due to the worsening COVID-19 situation.
Starting Monday, only the most urgent and serious criminal, child protection, family and commercial matters will be heard in person, at least until May 7 when the situation will be reevaluated.
Discussions were being held Thursday among the various players in the justice system, including lawyers and judges, to hash out details. Geoffrey Morawetz, chief justice of the Ontario Superior Court of Justice, advised the courts were seeking “the co-operation of counsel to defer as much as possible” to assist the province in tackling the “critical situation.”
When the pandemic first hit a little over a year ago, Ontario's court system was initially locked down, and it took months in adjournments, delays and preparations before there was a gradual, but not complete, reopening.
Remote Zoom hearings have since become common, with jungles of courtroom Plexiglas walls and strict entrance and cleaning protocols permitting the return of some in-person proceedings. But jury trials for the most serious criminal cases were still not in the cards even before this week's latest freeze announcement.
Criminal court matters for those currently in custody will proceed in Ontario, and guilty pleas and bail hearings will continue via Zoom or even by phone. At Windsor's Superior Court, however, “all criminal matters scheduled for appearances between April 23, 2021, and May 7, 2021, shall be adjourned to the criminal assignment court on May 14,” local administrative Justice Renee Pomerance stated in a memo to the local legal community Wednesday.
The strict new measures are “due to the ongoing public health crisis caused by COVID-19,” she said.
While the new measures are understandable, said one local lawyer, it does present added frustration for some clients who have seen justice delayed for lengthy periods already.
Daniel Topp, president of the Windsor-essex Criminal Lawyers' Association, said he had a trial scheduled to begin next week that had previously been scheduled a year ago before being adjourned during the first lockdown.
“It's like waiting for a (medical) specialist for nine months and then being told your appointment is cancelled again,” he said.
Many of those awaiting their day in court in Windsor are being housed in the South West Detention Centre, which has seen a number of pandemic-related lockdowns over the past year and which only last week saw the end to a month-long COVID -19 outbreak among inmates and staff.
At a Superior Court hearing in Windsor on Thursday, regional senior Justice Bruce Thomas described the current “incredible pressures on the criminal justice system” caused by COVID-19. Ahead of sentencing a drug dealer, already sitting in jail, to further incarceration, the judge added he had “serious concerns about those serving in custody.”
Much effort went into making courthouses and courtrooms safer to occupy and operate during the pandemic, including installation of multiple Plexiglas barriers separating the various parties, including lawyers from their clients, clerks from court reporters, and the public — in widely separated and limited seating — from court staff.
“We've done everything to set up a safe environment,” said Topp, who described this week's announcement as “a short-term directive to try to get the spike” down in COVID-19 patient cases. “This is specific to the uptick in cases.”
While Monday, May 10, is the target date for a return to the stage at which courts are this week, Topp is worried when he thinks about how the pandemic has led to one opening delay after another at the Windsor-detroit border for over a year.
“I hope this doesn't turn into a border situation,” he said, referring to the near-monthly announcements extending the prohibition on non-essential land crossings.
While judges, lawyers, clients and the public all have access to Zoom remote hearings — it's always the accused's right to accept or refuse that option — court administration, including clerks and court reporters, don't have a choice. Topp said they have to report on-site for work and be present in the courtroom for judicial proceedings.
“The courts don't run without the clerks and court reporters there every day. Why are they not getting priority for vaccinations?” he asked.
And while the courts get to impose delays, those accused of crimes don't.
Pomerance's memo states those Superior Court criminal matters over the next two weeks that are adjourned will go to the next assignment court on May 14. If the accused fails to appear on that date, when new hearing dates will be set, “a warrant will be issued for their arrest.”