Like just about everything else, the Ontario Court system suffered massive disruptions during the government-mandated shutdown that swept across Ontario in March 2020. While governments had little choice with respect to the drastic steps it took at that time, the profoundly negative impact on the administration of justice cannot be overstated.
Lawyers were advised in a tweet on a Sunday afternoon in March that public access (and lawyer access) to our local courtrooms was prohibited. Over the following several weeks, the public was advised that it no longer had access to judges for basic and necessary court proceedings such as motions, pre-trials and trials. I have no doubt that judges want to do their jobs, but the restrictions imposed by COVID-19, highlighted serious challenges with respect to the existing court system. While many law offices have increasingly become paperless and technologically sophisticated, the crisis made it clear that long-standing funding challenges to the Ontario court system had not allowed it to keep up. We learned that, for the most part, court files are not scanned and do not exist anywhere in electronic form. As a result, as much as they wanted to do their jobs, judges and other court workers found that they were unable to access the court files in a way that would allow them to do their jobs.
Since then, the Judiciary and the Ministry of the Attorney General have been expending considerable resources to bring a court system up to date. Significant funds have gone into implementing social distancing protections such as Plexiglas shields and other safety protocols to allow for the day when the public will begin to re-enter the courts. There has also been considerable discussion about the steps that are necessary to move the courts back into the modern age in terms of the scanning and sharing of documents.
Over the last several weeks, steps have been taken to return the court system to normal function. First, the court began accepting consent motions and has now moved forward to considering contested motions in civil cases. Judges have begun to preside over pre-trials held either via Zoom or teleconference. New filing submission protocols have been put into place to allow lawyers to put the necessary materials in front of judges in order to ensure that there is at least some return to proper function.
Let there be no mistake, however, things have not returned to normal. Almost all trials scheduled to take place from March 2020 forward have been postponed indefinitely. With respect to jury trials, Chief Justice Geoffrey Morawetz sent a notice to the legal profession on June 25 in which he stated they would be deferred to September 2020, at the earliest. He has subsequently gone on record as indicating that he does not believe the jury trials will return until a vaccine is readily available.
The concern of the Chief Justice is well founded. Selecting a jury requires sending out notices to several hundred members of the community and putting them all into a crowded courtroom to watch a video and then go through the jury selection process. It would be practically impossible to maintain social distancing protocols during our current jury selection process. It would be irresponsible to subject members of the public to the jury selection process when the courts could not guarantee they could keep potential jurors safe and free from infection.
The Ministry of the Attorney General’s office has suggested that one way to continue with civil trials before the vaccine is available would be to suspend jury notices in civil cases during the crisis. This suggestion is a good one. Trials continue to stack up like dominoes. Even before the pandemic, it took several years – far too long – for civil cases to get to trial. Our cases were already often delayed and postponed due to the legitimate concerns of the court system and the judiciary as it relates to criminal and family cases. The Supreme Court of Canada has made it clear that if matters in the criminal area are not resolved quickly enough, the accused will be set free due to the delay even if they are potentially guilty of serious crimes. This is clearly not acceptable. Having said that, it is also clearly not acceptable to ask individuals whose lives have been turned upside down due to car accidents, falls, or other incidents to wait years for their day in court.
The courts have indicated that they are moving toward some sort of gradual reopening. There are a limited number of courthouses opening in most jurisdictions in July and August. Unfortunately, it is likely that priority for this limited reopening will be afforded to Criminal and Family Matters, and there is little likelihood that civil trials will proceed in the short-term. Even when courts open up, there is a real and serious danger that the delay in getting civil cases to trial will continue for an unreasonable period of time.
There is a very famous Old English Judge, Lord Denning, who wrote that “Justice delayed is Justice denied.” No one is to blame for the horrific damage to individual lives and our society caused by COVID-19. However, dynamic and innovative leadership is required to take steps like striking jury notices and allocating additional resources to the system to ensure the innocent victims of misfortune are not forgotten and are not denied their legitimate right to Justice and their day in court.