Focus On

COVID-19 brings American-style injustice to Canada | Jordana Goldlist

Monday, May 25, 2020 @ 12:31 PM | By Jordana Goldlist


Jordana Goldlist %>
Jordana Goldlist
The Canadian Charter of Rights and Freedoms is considered the supreme law of the land. It is the piece of legislation that gives every citizen of this country the right to life, liberty and security of the person (s. 7). If charged with a criminal offence, the Charter gives us the right to be tried within a reasonable amount of time (s. 11b) and provides us with the absolute guarantee to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal (s. 11d). This is basic, first year law school kind of stuff. So why are those in charge of the justice system ignoring these constitutional guarantees by keeping the courts closed and preventing matters from proceeding to trial?

On March 17, 2020, Premier Doug Ford declared a State of Emergency in Ontario. Under the Emergency Management and Civil Protection Act, he ordered the closure of all businesses and services except those deemed essential. The list of essential businesses includes “professional and social services that support the legal and justice system” (s. 34(vii)) and “government services including but not limited to policing and law enforcement, corrections and court services” (s. 34(viii)).

The criminal justice system is an essential service and the trial is a constitutional right for every person charged with a criminal offence. The right to reasonable bail is the only other stage in criminal litigation that is protected by our Constitution. And yet the courts of Ontario, at every level, have closed their doors to all trials, despite the fact that the justice system and the courts were deemed an essential service that was not required by the Emergencies Act to close.

The Ministry of the Attorney General has managed to discover and implement the technology needed to run bail hearings and bail reviews by telephone and Zoom video, respectively. The system worked quickly to ensure the right to reasonable bail was respected by never closing the courts for these types of hearings. The Ministry has also realized that persons accused of crimes do not need to attend court by the dozens (sometimes hundreds) for a 10-second appearance for remand, just to move their case to another date. Lawyers can now have discussions with Crown attorneys and judges by telephone to estimate the length and issues for trials and preliminary hearings. A wonderful and welcome advancement except this is currently an exercise in futility when we cannot set the trial dates we estimated the time for, because, we are told, “the courts are closed due to COVID-19.”

While the constitutional right to a fair trial has been gutted, the government is quite content to allow accused persons to plead guilty. They have worked hard to install Zoom video in the courthouses and are now testing JVN technology. First, only people in custody were given the opportunity to plead guilty.

Now, plea courts are being opened to those out of custody as a way to close their case and get off bail. For some, it is the only way to leave jail. For everyone, it is the only way to have your criminal case come to an end.

This situation is leaving every accused person in an impossible situation: wait indefinitely for your trial or plead guilty to the crime(s) charged. We have no idea when anyone’s trial can take place at this time. We do not know if new dates will be given first to those whose trials were suspended due to COVID-19 or to those trials that were already scheduled. Who takes priority? Will an out-of-custody trial be adjourned so that a suspended in-custody trial can proceed? Will the suspended trials simply get pushed another year into the future, which is when most busy courthouses were scheduling before the pandemic hit?

These are questions I should be able to answer for my clients. But nine weeks into the court closures and I still have no answers to provide to the clients calling me on a daily basis.

For many, this makes a guilty plea all the more enticing. Just imagine you are charged with a crime and waiting for your trial, your day in court, your chance to show that you are innocent of the charges that keep you in jail. You may be presumed innocent but it sure doesn’t feel that way while you sit in jail waiting for your day in court.

And then a pandemic shuts down the world and the media tells everyone to isolate. You cannot isolate or wear a mask or access hand sanitizer because you are in jail and none of this is possible in jail. Some jails don’t even have soap; inmates are using shampoo to wash their hands.

Others are using their sock to cover the phone they share with 10 or 20 other inmates. All while presumed innocent. You try for bail but the Crown attorney is opposed because maybe your crime is too serious or maybe you have failed to comply with court orders in the past or maybe you have no family with assets who can help. If the judge agrees with the Crown, you are stuck in jail. No trial date in sight because all trials are suspended. But the Crown attorney in their shining glory has a solution for you: plead guilty and you can go home. Do you sit in jail waiting to catch COVID-19 from the cellmate you are forced to sleep four feet away from or announce your guilt in a Zoom video link?  

This is part one of a two-part series

Jordana Goldlist is the principal of JHG Criminal Law, a boutique firm in downtown Toronto focused on defending people charged with murder, firearms offences and crimes related to the commercial drug trade. From teenage street kid to TEDx speaker, Jordana aims to disrupt the status quo and help marginalized youth and young adults realize their own potential. You can reach her at jgoldlist@jhgcriminallaw.com.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Dailycontact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.