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COVID-19 silver linings for justice system | Sam Goldstein

Tuesday, March 31, 2020 @ 12:35 PM | By Sam Goldstein


Sam Goldstein %>
Sam Goldstein
I like to look for the silver linings in life. For example, bats will never be on PETA’s endangered species list and no more discussion about climate change for awhile. Those are just two silver linings in this health crisis. I also think there is a silver lining in how the administration of justice has responded to COVID-19 and that response means that the administration of justice is going to be better off once this is over.

Across Canada, government and businesses are adapting to a new normal because of the pandemic. In Ontario the judicial system is no different. Courts quickly told staff to work from home where practical. The criminal justice system quickly triaged cases to reduce public contact at courthouses, for example, by remanding all out-of-custody matters 10 weeks hence.

Indeed, case priority was been given to all in-custody accused; and, wherever possible, technology was implemented to support social distancing by keeping people from gathering at courthouses thereby flattening the curve.  

I was notified, for example, that a bail review I filed in the Ontario Superior Court of Justice, prior to the beginning of the shutdown, would be held by teleconference. That took 20 minutes. The next day I went to Brampton and the release was ready for the surety to sign before the justice of the peace. The release was faxed to the jail and the client was released that afternoon.

It struck me that during this crisis never had the wheels of justice grinded more quickly. This got me thinking why we can’t function like this all the time.

I list three changes that were made to the criminal courts to operate through the pandemic that I think we should keep.

First, continue remanding out-of-custody cases 10 weeks hence — heck make it 12 weeks. Repetitive biweekly administrative court dates where you sit, wait for your name to be called, then stand up and be told to come back in two weeks, because disclosure is not ready yet, is one of the most mind-numbingly inefficient and wasteful uses of everyone’s time.

The Supreme Court said you have a right to a trial within 18 months in the Ontario Court of Justice barring exceptional circumstance. It is plenty of time for all the participants to prepare. From now on, an accused person should be told that she will be expected to come back with a lawyer in 12 weeks to set a trial date.

Second, continue teleconferencing for the intake process. Before an accused person can set a trial, they must have a Crown pretrial, and in some cases a judicial pretrial. These meetings can all take place over the phone. Indeed, all administrative court appearances can be done electronically with discretionary bench warrants issued to maintain the court’s jurisdiction.

Furthermore, a lawyer shouldn’t have to come to court to pick up disclosure when we can implement a password-protected cloud delivery system. I know of one Crown office, for example, that is already e-mailing out witness and police statements to retained lawyers. A cloud system is the logical next step.

Third, continue using video and teleconferencing technology. Video remand for in-custody administrative court appearances exists. We should be expanding video attendance including for bail hearings for consent releases. Don’t get me wrong, I do see value in having a client brought to court sometimes. But there is also value in performing rote functions electronically too.

It is unfortunate that it has taken a crisis for the criminal courts to embrace change but at least it changed!

Oh yes. There’s another silver lining. Maybe somewhere in Africa Joe Clark is marooned in a hotel trying to convince a Third World dictator to support Canada’s bid for the UN Security Council.

Sam Goldstein is a Toronto criminal lawyer. You can e-mail him at sam@samgoldstein.ca and follow him @Willweargloves.

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