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How will courts function after COVID-19?

It is time to start planning for the future, and it can’t be business as usual, says Michael Spratt

Michael Spratt

It feels like it has been a lifetime, but only a month has passed since Ontario’s courtrooms, in response to the COVID-19 pandemic, closed their doors to most cases.

Running on a skeleton crew, the criminal justice system has been treading water, with only urgent bail hearings and guilty pleas proceeding. As it turns out, an archaic court system designed to function with in-person appearance and physical documents is not ideally suited to a pandemic.

Frontline justice participants have done an admirable job dealing with the chaos and putting out fires. But the reality is that we are bailing out of a leaking boat.

The current emergency procedures are set to expire at the end of May and there has been no direction from the courts about what will happen in June.

Physical distancing measures are likely to continue for the foreseeable future, and it may be a long time before things return to normal. But trust me, we don’t want a return to the archaic and outdated business model that was the norm in the justice system.

So, let’s start planning for the future now.

Start planning how to re-schedule

There is no publicly available plan for how the courts will deal with the backlog of cases created by COVID-19 adjournments.

Our justice system was already stretched to the breaking point and marked by unacceptable delays before the pandemic. Justice is not a dish best served cold. But, it too frequently was.

It’s this overburdened system that will somehow need to accommodate the rescheduling of thousands of court dates that were cancelled because of COVID-19.

We must start planning for this wave of cases now. Do we open more courtrooms? Appoint more judges? Direct prosecutors to abandon less serious cases? Do the COVID-19 cases simply go to the back of the line, or should we shuffle the entire schedule?

There are lots of questions but there have been no answers.

Ontario courtrooms are used on average of only 2.8 hours per day, and cases are taking about 10 per cent longer to complete than they did four years ago. We need to look for efficiencies, we need to plan for the future, and we need to start now to avoid a scheduling disaster.

Eliminate paper

Almost 2.5 million sets of documents were filed in Ontario's courts last year, more than 96 per cent of them on paper.

It was an inefficient, wasteful, and archaic way of doing business.

Since the COVID-19 outbreak began, in a matter of weeks paper has been largely eliminated. Documents, applications, and caselaw are now filed by email, and judicial orders are signed and distributed electronically.

But there is still too much paper in the system.

Information and indictments, the charging documents that detail the history of each case, are still in paper format and filled out by hand. It is a labour-intensive and error-prone system that creates delays.

We can’t return to the outdated status quo. We need to be planning to expand the use of digital paperless systems.

Remote appearances

In criminal court, business as usual means in-person appearances. Always. For everything. Even simple matters such as adjournments, judicial pre-trials, and joint position resolutions required physical attendance. It was not uncommon to drive hours for a five-minute court appearance. It was all unnecessary, expensive, and wasteful.

COVID-19 has taught us that all of these physical attendances were mostly unnecessary. There is no question that in-person appearances will continue to be necessary for trials and complex matters, but the simple stuff can and should be done remotely.

Remote appearances will save the system time and free up courtrooms to deal with more serious cases.

Reliance on jails

Our provincial jails are filthy, overcrowded, and populated by some of our community’s most vulnerable people.

Simply put, our jails are overflowing with people who should not be incarcerated. There is no reason to waste resources on jail for non-violent offenders. There is little utility in incarcerating, usually without any treatment, people who have addiction or mental health problems. It is cruel and wasteful.

In Ontario, it cost about $200 per day to detain an inmate in provincial jail. Ontario has released more than 2,500 inmates in the fight against COVID-19. The sky has yet to fall.

We have been paying millions of dollars a year to fund an ill-conceived lust for overincarceration.

We can never return to that normal way of doing things.

COVID-19 has been a shock to the justice system.

So far, the official response has been a mad scramble to control the damage and chaos. This is understandable, but we must transition from damage control to planning for the future.

Because business as usual was an archaic and inefficient mess.

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