Daniel Brodsky was all set to help defend a local man on child pornography-related charges when everything came to a screeching halt on Wednesday.
“I spent time preparing and, well, I got to court today, I was all dressed up and there was no place to go,” said the criminal lawyer, partly in jest.
What he was ready for was a two-week hybrid trial set to begin in the Ontario Superior Court of Justice in Barrie. So although some people were in the courtroom, many were appearing virtually via Zoom.
Crown attorney Hanieh Azimi didn’t have a chance to roll out her opening arguments. Instead, Justice Mary Vallee announced the chief justice of the Ontario Court of Justice had issued a notice to the profession late Tuesday that, given the province’s latest stay-at-home order, the court is to defer as many matters as possible, including virtual hearings.
“A lot of different people are affected in different ways when a proceeding is suspended,” said Brodsky. “My client was hoping I would help him clear his name.”
Before day’s end on Wednesday, the provincial court — the Ontario Court of Justice — announced it will later follow suit, adjourning in-person and virtual trials and preliminary inquiries for those who are not in custody starting Monday, from April 26 and continuing until May 7.
The move is intended to reduce the number of people — including court staff, lawyers and other parties — who must leave their home to attend court proceedings.
But case management appearances, pleas and resolutions and judicial pre-trials involving those not in custody will go ahead as will criminal matters involving those who are in custody, including trials and preliminary inquiries.
“It’s disappointing,” said Gary Pickard, president of the Simcoe County Criminal Lawyers’ Association, adding that at least people who are being held in jail waiting for their day in court will be able to access justice.
Up until now, he said, there have been some slowdowns in provincial court, but many inroads have been made through the remote hearings.
The past year has been difficult for those dealing with family court issues as well and Tuesday’s order by the chief justice means further delays.
“For family law litigants, it is already challenging to navigate the court system and have matters heard,” stated Ashley McInnis, president of the Simcoe County Family Law Lawyers’ Association in an email. “COVID-19 has only served to further delay the ability of lawyers and litigants to obtain timely court dates and access to justice.
“However, our local judges are just as concerned about these challenges and have been in regular communication with the Simcoe County Family Law Lawyers’ Association to work with us to address these issues," McInnis added.
The difficulty, she noted, is the system was not prepared when the emergency orders resulting from the pandemic were issued in March 2020. So although much of the system was able to pivot online, there was still a need to staff the courthouse and courtrooms in order to operate.
That creates an exposure risk to court staff given the most recent resurgence of COVID-19.
“While I am disappointed with the new announcement about restricted court access... I am certain that there will still be access to family court matters that require immediate attention,” said McInnis.
The Superior Court did announce it will focus on hearing the most serious child protection matters, urgent family matters, critical criminal matters and urgent commercial or economic matters where there are employment or economic impacts.
The past 13 months have presented several challenges.
Although the provincial justice system has made many inroads with a dramatic technology infusion and pivoted to remote hearings, the digital approach can’t replicate a hearing where everyone is in the same room.
“Doing a trial by Zoom is not ideal. It’s convenient for some of the participants because they don’t have to leave their home, or even put pants on,” said Brodsky, adding it’s all a tough balance.
“Effective cross-examination means being able to respond to the moment and to read cues from witnesses. In order to be effective, sometimes you need to be in the courtroom with the witness across the courtroom from you," he said. "You lose that in a Zoom call, so you have to balance convenience against effectiveness. I would have preferred to have an in-person trial.”
Marg. Bruineman, Local Journalism Initiative Reporter, barrietoday.com