Virtual court hearings are criminalizing poverty as fail-to-appear charges spike in Waterloo area: lawyer

A spike in fail-to-appear charges in Waterloo region over the course of the pandemic is akin to criminalizing poverty — as marginalized people often have less access to technology needed to virtually attend court, a Kitchener defence lawyer says.

What those charges show, Brennan Smart says, is that the current virtual court system isn't working. In Kitchener, court  fail-to-appear charges from June 2020 to July 2021 are about 62 per cent higher than from January 2020 to December 2020, according to Ontario court statistics.

That breaks down to an average of 30 fail-to-appear charges each month for the first half of this year, a dozen more than the monthly average for 2020 — and Smart says those numbers have only gotten higher in the last few months.

Through his clients and connections to the marginalized community, the lawyer said it's a population that's overrepresented in those charges 

"I'm told by the outreach workers that virtually everybody at St Andrew's [Presbyterian Church shelter] is subject to a fail-to-appear charge or warrant. The reason is obvious. They don't have phones, they don't have access to phones, they don't have an internet connection or a laptop to do it," he said. 

"They are operating virtually and the system has provided absolutely no assistance to the marginalized community or any part of the community to access the courts," he said.

If they don't want to open the courts, they have to provide the means for people to appear in court.- Brennan Smart, defence lawyer

Smart said that he doesn't believe the Ontario government wants to open the courts during the pandemic. 

But he said the province is obligated to find a way to make the system accessible.

"What they should do is fund it, hire two people to use one of the big rooms in the courthouse and allow people to come to court and access the courts that way," he said. "If they don't want to open the courts, they have to provide the means for people to appear

Police chief concerned about access to justice

The Waterloo Regional Police Chief echoed some of Smart's concerns to council this week. 

Bryan Larkin said that while he supports the use of technology and innovation, he has concerns that people don't have equal access to a virtual justice system. 

"When you move to a completely online platform, not everybody can actually access justice in a dignified, professional manner — I want to be very clear about that," Larkin said. "I think that there's work to be done with the Ministry of Attorney General and access to our judicial system. 

"We can't expect people to just sit on a payphone for seven hours trying to get into their court hearing and I don't think it's reasonable that somebody is at a public library either pleading guilty or not guilty. There has to be dignity in the judicial system."

CBC News first contacted the public prosecution service on Monday with questions about concerns raised by Smart and then by Larkin. Neither the prosecution service, nor the Ministry of the Attorney General to which CBC was referred, provided an answer by deadline Thursday night.

The Waterloo Regional Police Service, however, has been trying to help people access court, according to Larkin. 

He said he's concerned about those who may not have "the privilege of high-speed internet, the privilege of tablets [or] the privilege of smartphones."

"Our police service has public Wi-Fi. Even before the pandemic, we would let people use our lobby," he said. 'We do have public computers [and] we are doing our part because we recognize that we want an empathetic, caring system."

Gurratan Singh, the Ontario NDP critic for the attorney general, said that if the court system is going to virtual during the pandemic it needs to take into account whether people have access to a laptop and stable internet connection. 

"Pursuing fail-to-appear charges against someone because they don't have access to Wi-Fi or don't have a sufficiently fancy phone is unfair — and it's likely to disproportionately punish Black and Indigenous people from low-income communities," Singh said in a statement to CBC News.

Kristen Thompson, staff lawyer at Waterloo Region Community Legal Services, said while her office only sees clients at the Landlord and Tenant Board, they, too, have seen a marked increase in the number of fail-to-appear charges.

"We are definitely concerned with the number of unopposed tenant or eviction applications against tenants," Thompson told CBC K-W.

"Our clients tend to be on assistance or disability assistance, and they don't have access. Some don't even have phones or don't have access to the Wi-Fi signal, so [there are] many tenants that fail to appear at their Landlord and Tenant Board hearing." 

Thompson said failing to appear before the Landlord and Tenant Board does not lead to people being charged, but they are more likely to be evicted when they miss their hearing.

Courts slowly reopening

Meanwhile, Smart said the courts are slowly reopening — two days a week for guilty pleas — and he's "hopeful that that will provide some comfort or some confidence that we can do so safely."

There's still no sign, however, that there are plans to reopen the adjournment courts, he said. 

He urged the judiciary to consider options other than the fail-to-appear charge.

"It's turned into a war on the marginalized, because then what happens is they get a fail-to-appear warrant, the police are looking for them, so it pushes them further underground," he said. "And it's terrible, because the marginalized community has three crises that they are dealing with: the COVID crisis, the opioid crisis and the homelessness crisis. 

"We don't want to push these people further underground."