Danielle Robitaille is a partner at the law firm Henein Hutchison and the co-host of the podcast The Lawyers Lounge.
For thousands of people who stand accused by the state of crimes, the COVID-19 shutdown has meant forgoing their date with justice in exchange for relentless uncertainty. In Ontario, the courts shut down in the middle of March and for nearly four months the justice system held only one trial. The courts dealt with bail hearings, appeals, motions and some sentencings using a combination of telephone, video and a handful of in-person hearings. Nearly all trials – the centuries-old process where the state is forced to marshal evidence and prove its case beyond a reasonable doubt – were stopped completely. In Ontario and British Columbia, criminal trials held in provincial courts finally resumed on July 6.
And so, people have waited. Some have waited in jail while others were freed under strict bail conditions. But they have all waited with the weight, stress and stigma of standing accused of crimes, and with no certainty of when they will be able to assert their innocence. Many of the accused come from underprivileged backgrounds and have faced racial discrimination; their lives are in limbo while they await the outcome of their trials. Witnesses and victims have also suffered under the strain and confusion of not knowing when and how their cases would be addressed.
The Stage 2 reopening of the Ontario courts has been attempted in good faith and its obstacles have been well documented. Confusion abounds on issues related to masking, Plexiglass and health-status screening. The Crown attorneys, joined by other organizations, have brought an injunction against the government on the grounds that the planned precautions fall short. They are likely not wrong. But at some point, when the courts catch their footing, they will be met with a tsunami of backlogged cases – literally thousands – adjourned from the spring.
At present, none of the spring trials derailed by COVID-19 have been rescheduled. The courts are now open to hear trials and preliminary hearings that were previously scheduled for July and August. No one knows what will happen to those cases when a witness, lawyer or judge starts showing symptoms, or when a court staff member tests positive and the entire courthouse has to shut down for a clinical deep clean and 14-day quarantine. Will we be facing a second wave of adjourned cases, with a thousand more accused sentenced to purgatory?
The solution to this law-and-order problem is the very same fix you turned to for your yoga sessions, Sunday worship services, doctor visits and weekly cocktail hours: Zoom.
Between June 8 and 12, I defended a person charged with one count of sexual assault – a historical allegation dating back 15 years – who was facing trial in the Ontario Superior Court of Justice. This was the first and only trial in Ontario conducted through video conferencing technology, and it was the only trial in Ontario to take place at all during the shutdown. It took five days of court time to complete and another three weeks for the judge to deliberate and issue his verdict. It occurred physically distanced, mask-free and COVID-safe, on the Zoom platform. Though I am speculating here, I believe everyone involved wore running shoes.
A Zoom trial is, in many ways, more intense for the lawyers and witnesses than an in-person hearing. There is no time spent walking between the witness box and the podium; the trial judge cannot meander on his way between his chambers and his dais. There are no interruptions by dozens of school children on class trips trying to catch a glimpse of our justice system at work. There is, in other words, no time wasted and nowhere to hide. As an advocate and a witness, you are always “on.”
The procedure’s more human aspects are gone, too. The registrar can’t pass a tissue to a weeping witness. There is no buzz flowing through the courtroom when a particular point is established in cross-examination. I am unable to stand tall, side by side, with my client as he faces the accusation that he broke the law. Those pieces, impossible on Zoom, are important and should not be undervalued.
In its place was something – in some ways – more democratic, dispassionate and with its own set of comforts. We agreed not to don our customary black robes. My clothes were plain, and though I missed the flounce of my “cape,” I can see the value of this stripped-down model of justice. The judge did not wear his sash. Nor was he sitting elevated above the fray between the parties. The missing pomp allowed for a clear focus on the facts, the law and the burden of proof. What the process lacked in solemnity, it more than made up for in a business-like attack on the task at hand.
In the end, the judge commented on the advantages available through technology (for example, he was able to see the witnesses’ full faces when they testified, as opposed to solely their profiles) and concluded that from his perspective, the trial was fair.
Ultimately what was delivered to my client in June, 2020, was an opportunity to plead not guilty and have a fair trial. This is something that no other accused person in the province of Ontario had been able to do for months. That is a tragedy for each of those individuals awaiting trial and the system as a whole.
The video process also allows for greater access to justice: You need only look at the 20,000 people who logged on to watch Justice Joseph Di Luca deliver his reasons for judgment in the R. v. Theriault Toronto police assault case last month to appreciate that e-hearings can really mean throwing open the doors of the courthouse for the whole citizenry to see, criticize and appreciate their justice system at work.
Zoom trials are not suitable for accused people who are unrepresented, underresourced and/or have a distrust for technology. (Importantly, the Crown and the defence have to consent to the format.) The Zoom trial can and should work for a significant percentage of judge-alone (not jury) cases, and should be used as a backstop when the inevitable happens and courthouses and participants have to return to quarantine. The option should not be given short shrift on the basis that the lawyers, judges and administrators are fearful or even uncomfortable with the unknown.
To be clear, the majority of cases in the criminal justice system are the byproducts of poverty, mental health and addiction issues, and social and racial inequality. The COVID-19-backlog would benefit from aggressive Crown attorneys diverting these cases out of the justice system altogether.
I am also not so naïve to think that this crisis will remedy the chronic underfunding of the legal aid system, though it should be said that any serious efforts at rehabilitating the system would see all accused represented by well-funded counsel. In the majority of legal aid cases, the accused’s inequity is replicated in a system that will not pay for the three flat-screen monitors and hours and hours of preparation the June trial required.
Still, for some, Zoom litigation is a real alternative that should be harnessed for the desperate defendant who is constitutionally entitled to say “not guilty,” and for the rest of the country that, after months of inaction, needs to see a justice system that works.