Criminal Court during COVID-19

The courtroom setting has maintained a number of traditions that provide a type of familiarity and comfort regardless of the jurisdiction you find yourself in – stand when speaking, bow when entering or exiting an open courtroom, and refer to opposing counsel as your “friend” (to name a few). In some ways, this reliance on tradition and processes that have worked well in the past are posing a current challenge with the closure of courtrooms to in-person appearances.

The courtrooms in Ontario have been largely closed in the latter half of March through April, May, and June 2020. While the courts are scheduled to reopen in some capacity on July 6, 2020, we are not sure what this “re-opening” will look like.

In the criminal context, in March to April, the only matters that were being heard were bail hearings and bail reviews, as well as in-custody guilty pleas. In May and June, this procedure was expanded to include out-of-custody guilty pleas where counsel was involved. However, this has left a large, unfulfilled gap in our justice system with trials, motions, applications, and hearings that are unable to go ahead as scheduled and have been postponed indefinitely.  This delay is directly impacting the protected Charter right to trial within a reasonable time, as accuseds (both in and out of custody) are anxiously waiting for trial.

Moving forward, some changes that have already taken place involve the switch from paper to electronic filing of documents and attendance at court via audio or video conference. This poses different challenges as we have to navigate new technological issues and find a suitable environment for conference calls. This transition also emphasizes the importance of moving away from paper files and developing a thorough competence in managing electronic files.

Leaders, judicial officers, and involved parties have been working hard to open the courtrooms safely and/or find suitable alternatives. Lawyers are forced to adapt to changing times with an increased reliance on technology – a change that may not have been made as quickly if not forced upon us. As we continue to move forward, and with so much uncertainty ahead, I encourage all of us to advocate with a patient and flexible mentality in order to be prepared for any “change” that comes our way and to ensure the best outcome for our clients.