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Crowns, judges ‘urgently’ ask Ontario to suspend in-person proceedings

Friday, January 15, 2021 @ 3:46 PM | By John Schofield

Ontario’s Ministry of the Attorney General and court administration have failed to recognize the “compelling public health and safety need” to ensure that all court proceedings are conducted virtually, according to a letter to Premier Doug Ford from organizations representing Ontario judges, Crown attorneys and court workers.

“In our collective view, the failure to mandate this requirement falls well short of heeding the premier’s advice to do ‘whatever it takes’ to protect public health and safety and limit contact and interaction,” says the Jan. 13 letter, which is signed by leaders from the Association of Ontario Judges, the Association of Justices of the Peace of Ontario, the Ontario Crown Attorneys Association, the Association of Law Officers of the Crown, the Association of Justice Counsel, the Ontario Public Service Employees Union (OPSEU) and the Society of United Professionals.   

The letter, under the letterhead of Toronto-based Goldblatt Partners LLP, is addressed to Ford, Attorney General Doug Downey, Health Minister Christine Elliott, and several other officials, including Ontario’s chief medical officer of health, Dr. David Williams. A number of people are also copied on the letter, including Ontario Court of Justice Chief Justice Lise Maisonneuve.

“There have been over 50 positive COVID-19 findings at courthouses in Ontario since December,” it continues. “Last night (Jan. 12), there was an outbreak declared at the Guelph Courthouse due to three positive cases ‘with an epidemiological link occurring in the same work area within a 14-day period where all cases could have reasonably acquired their infection in the workplace.’ ”

In the wake of the state of emergency and stay-at-home order declared by the government on Jan. 12, the letter “urgently” requests a complete stop to all in-person court operations and proceedings, “unless in exceptional circumstances they are determined to be absolutely necessary.”

“It is abundantly clear that we have reached a critical juncture for public health for all of those that participate in the justice system in Ontario, and the Ontario public at large,” the letter states.

“This is no longer a question about how safe our courts are or should be,” it adds. “If we are to be responsible and meet minimal levels of rationality needed to prevent the court system from further contributing to this public health emergency and crisis, we must take steps to significantly limit the number of people that travel to, between and occupy public courthouses and courtrooms. No in person proceedings should be permitted unless they are absolutely necessary and cannot take place virtually.”

The letter calls on the government to “redouble” its technical support for remote hearings and appearances in courthouses and jails to ensure access to justice for those who lack the necessary technology, especially due to poverty, mental health concerns or physical disabilities.

“Where an in-person hearing is absolutely necessary — and this will be a rare and exceptional circumstance — all reasonable and necessary precautions and safeguards must be in place, as recommended by ECOH (the independent health and safety expert retained by various associations),” reads the letter.

“Indeed,” it adds, “given Public Health Ontario’s recent and long overdue recognition of aerosol transmission of COVID-19, and the use of portable air filters as an effective countermeasure, adopting ECOH’s recommendations regarding HVAC and air exchange are all the more critical.”

In a Jan. 13 notice to the profession and public, Ontario Superior Court Chief Justice Geoffrey Morawetz announced that, due to the state of emergency and stay-at-home order, the current suspension of jury trials will continue until May 3, 2021. He also stressed that all non-jury matters should proceed virtually unless in-person attendance is absolutely necessary.

“To the greatest extent possible,” said the notice, “all other avenues should be explored and implemented. This applies to proceedings throughout the province and will remain in effect until further notice of this court.”

In cases where in-person attendance is deemed essential, the Superior Court of Justice courtrooms will be subject to a 10-person capacity limit, the notice stipulates.

Chief Justice Maisonneuve also issued a message urging all counsel and parties to conduct proceedings remotely if at all possible. But the courts do remain open, she noted.

“Based on expert advice from the Office of the Chief Medical Officer of Health, the court will continue to accommodate in-person appearances where they are required to ensure meaningful access to justice,” reads the Jan. 13 message. “It remains of critical importance that all who attend a courthouse in person be vigilant in maintaining the public health and safety precautions in place at each court facility.”

The signatories to the letter include Steven Barrett, a partner with Goldblatt Partners who works frequently with unions; Justice James R. Chaffe of the Ontario Court of Justice, president of the Association of Ontario Judges; and Veruschka Fisher-Grant, president of the Association of Justices of the Peace of Ontario. It is also signed by Tony Loparco, president of the Ontario Crown Attorneys Association, Jeremy Glick, president of the Association of Law Officers of the Crown, David McNairn, president of the Association of Justice Counsel, OPSEU president Warren (Smokey) Thomas and Scott Travers, president of the Society of United Professionals.

The Ministry of the Attorney General did not immediately respond to a request for comment.

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