What justice during a pandemic looks like in northeastern Ontario

The Haileybury courthouse held its first COVID-era trial last week and defence lawyer Laurie Galway was very excited to argue in court for the first time since March.

At first, anyway.

"It was very different," she says.

"They had us in a very small courtroom and I didn't feel comfortable in it. There was too many people, it was going to be a full day trial and all those people breathing."

Galway asked to move the trial to the larger of the two courtrooms in Haileybury, but they had to wait for another proceeding to wrap up first. And for the room to be cleaned. 

While in-person hearings are resuming across northeastern Ontario, justice during the pandemic is still riddled with problems. 

Galway, who is also president of the Temiskaming Law Association, says several smaller town courts have yet to re-open, including those in Kirkland Lake, where people arrested since March are still waiting for their day in court. 

"It isn't really fair for those people to have to stay in custody and they can't even set a date," she says.

Court is also not back in session in Elliot Lake, Kapuskasing, Chapleau or the remote communities of the James Bay Coast.

Timmins lawyer Graham Jenner says there are people from the coast who are being held in jail awaiting a court date, but that could be weeks away with James Bay First Nations in lockdown during the pandemic.

He says trials could be moved, but both defence and Crown have to agree and there would be questions about witnesses travelling.

The 2016 Jordan decision by the Supreme Court sets a deadline of 18 months for charges to be tested at trial.

Jenner says while the delays caused by COVID-19 are extraordinary, charges can still be tossed out based on how the system responded to those delays.

"The failure to open some courts, while others remain open, could be problematic," he says. 

Sault Ste. Marie lawyer Jennifer Tremblay-Hall has a client in jail who has reached a deal with the Crown, but is waiting weeks for a chance to have it heard at the courthouse.

She's also had a preliminary hearing for a murder next month move suddenly to Sudbury when the Elliot Lake courthouse wouldn't be opening.

And the president of the Algoma Law Association says she has totally lost contact with some clients charged with crimes early on in the pandemic. 

"Are we all wondering if this is a futile exercise some days? Sure. But we're part of the system, so we have to find a way to make it work, right?" says Tremblay-Hall.

She says Crown attorneys have been much more willing to make offers and reach settlements to keep cases out of court and accused out of jail.

The John Howard Society of Sudbury says more cases are also being dealt with through "direct accountability" where minor thefts, assaults and mischief are settled with volunteer work and apology letters.

CEO Sara-Jane Berghammer sees that as a good long-term shift for Ontario courts instead of a temporary COVID-19 solution. 

"I'm not even really sure if we'll ever return to the way we did business before," she says.

Berghammer says keeping minor charges out of court also helps cut down on delays that are seeing months go by between the committing of a crime and the punishment.

"That doesn't help our clients learn lessons from the mistakes that they've made," she says.

Dhiren Chohan, a family and civil litigator and president of the Sudbury District Law Association, says one silver lining of the pandemic is that the justice system is finally embracing new technology, especially when it comes to filing documents electronically.

But he feels trials and hearings should still be held in a courtroom in front of a judge.

"While they've been open in quotes, have really been receptive only by way of telephone or by way of Zoom," says Chohan.

"You know, practicing law is not meant to be practised on the telephone."

With a rise in domestic violence, he says there have been more emergency custody motions brought to family courts, as well as concerns about children being unreasonably exposed to COVID-19, but often those matters have to be heard by a judge virtually and are sometimes delayed. 

"Can we maintain social distancing, can we do all the things that COVID requires us to do in a safe manner, but also give people access to justice that they so desperately need?" says Chohan.

"Justice is being delivered, but I'm not sure justice is being delivered effectively."

The northeast has yet to stage a jury trial and it's thought to be the next big test for the pandemic justice system. Officials are said to be searching for banquet halls or arenas to rent so they can safely stage jury selection, which often draws a couple of hundred people.