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Doug Downey

‘Everything is on the table’ as Ontario eyes a return to courts, says attorney general

Tuesday, June 09, 2020 @ 9:45 AM | By John Schofield

Last Updated: Tuesday, June 09, 2020 @ 11:43 AM

As Ontario moves toward a July 6 target date for resuming in-person proceedings amid COVID-19, Attorney General Doug Downey says his Ministry is consulting closely with two health experts and is even considering using gymnasiums to enable physical distancing.

“Health and safety are at the centre of everything we’re doing,” he told Criminal Lawyers’ Association (CLA) president John Struthers during a June 4 CLA webcast. “People need to feel safe, as well as be safe.”

Attorney General Doug Downey

The target date applies to criminal, civil and family matters, and all decisions will be guided by public health authorities, confirmed Ministry spokesperson Brian Gray. The Ministry of the Attorney General is consulting with Dr. Michelle Murti of Public Health Ontario and Ron Kelusky, chief prevention officer and assistant deputy minister with the Ministry of Labour, Training and Skills Development — as well as other medical, health and safety experts.

Along with its health consultants, the Ministry of the Attorney General is looking at individual courtrooms and how well they will accommodate safety measures, said Downey. Not every courtroom in every building will be reopened.

The Ministry is also working on courthouse health issues such as entrance protocols, food services, washrooms, air quality, accessibility, enhanced disinfecting, proper social-distancing signage and the use of hand sanitizer, Plexiglas barriers, gloves and masks.

Three mockup, anti-COVID courtrooms will be unveiled as early as the week of June 8-12 at the Brampton courthouse. The reopening effort could also involve health and safety training for some 3,100 court staff and 1,000 Crown attorneys, and a courthouse safety manual is being produced.

“This is a very granular exercise,” said Downey, who holds a master’s degree in judicial administration from Brock University, a law degree from Dalhousie University, and a master of laws degree in municipal and development law from Osgoode Hall Law School at York University.

“I’m a real detail guy,” he added. “I like to know where we are.”

If health authorities give the green light, Downey said, Ontario is on track to open 149 courtrooms beginning July 6, although it will likely be a rolling opening into the fall as safety measures and materials are put in place.

He added, however, that “everything is on the table” in terms of potential courtroom venues that permit physical distancing. He noted that YMCA gyms are currently closed and could potentially be used for court proceedings. “Where are the big spaces?” he asked, hearkening back to his days as an Ontario court clerk to provide an example: “I remember picking a jury in a hotel ballroom,” he recalled. “It was fine because there was so much more room.”

All options are on the table, too, to help reduce the pandemic backlog in cases, including off-hours court sessions.

In the meantime, he noted, the Ministry will push ahead with its plans to modernize the province’s justice system — a process that has rapidly accelerated due to the pandemic. Among other things, he said, it wants to standardize the system’s videoconferencing platform and is currently in talks with Zoom, the popular, U.S.-based videoconferencing software firm. Prior to the pandemic, Ontario’s justice system was using five different video platforms.

“I’m absolutely pleased with the progress we’ve made,” he said. “But we have to be using modern tools.”

He confirmed, however, that no accused or lawyer will be compelled to conduct a case via videoconferencing and will not be punished in any way if they do not because the Criminal Code makes it clear that it must be consensual.

Downey said the Progressive Conservative government of Premier Doug Ford is continuing to call on Ottawa to fully fund a $45-million provincial legal aid program for immigrants and refugees. Struthers noted that legal aid funding will be an even more critical issue in the coming weeks and months because the impact of the pandemic has significantly reduced the Law Foundation of Ontario’s annual grant to Legal Aid Ontario, which totalled $38.3 million in 2017, according to the foundation’s website.

Chief Justice Geoffrey Morawetz

He applauded the hard work being performed by Ministry staff, most of whom are working from home, and the “unbelievable” level of co-operation among the Ministry, the judiciary and the bar.

The webinar also included interviews with Chief Justice Geoffrey Morawetz of the Ontario Superior Court of Justice and Chief Justice Lise Maisonneuve of the Ontario Court of Justice.

Morawetz said it will not be “business as usual” in Ontario’s judicial system even after the resumption of in-person proceedings starting July 6, and the courts will have to rely on a mix of remote and in-person activities. He said he has not ruled out remote trials.

Both Morawetz and Maisonneuve said it is critical to improve video capacity at the province’s correctional institutions to improve the efficiency of bail hearings and other matters and reduce a growing backlog. One option, Maisonneuve said, might be to use mobile videoconferencing studios in trailers.

In an effort to expedite cases and trim the backlog, she said, the Ontario Court of Justice will be holding judicial pretrials for all matters that have been adjourned due to the pandemic.

Editor’s note: This story has been updated to correct the spelling of a name.

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