COVID-19 Concerns Linger as Ontario Courts Reopen

Ontario courts are finally resuming in-person proceedings after closing their doors for months due to COVID-19 risks. However, many court personnel and lawyers are not so sure that courts are resuming their functions safely.

The Ministry of the Attorney General assured that Ontario courts would reopen gradually, with the goal of having all courtrooms operational by November. The initial plan was to have 149 courtrooms in both the Superior Court of Justice and the Ontario Court of Justice open last week for trials and preliminary hearings in 44 locations.

Even before Ontario courts reopened, prosecutors and courthouse staff filed a court notice seeking an injunction to put a stop to it. According to them, the province’s reopening plan lacks basic safety measures and would expose them and their families to the risk of “irreparable harm” from COVID-19.

Additionally, the group of some 5,000 provincial and federal Crown prosecutors, legal aid lawyers and courthouse staff demanded a mandatory mask policy as well as a ban to Ontario court entrants who are ill, or appear to be ill.

The notice filed by the group presents a threefold legal argument supporting their injunctive request:

• Employers have an obligation to protect the health and safety of workers;
• The government has a duty to respect the right to personal security, under the Charter of Rights and Freedoms; and
• There will be a discriminatory effect, the group claims, due to the courts’ reopening on certain people because of age, disability, family or marital status.

According to the Ontario Crown Attorneys’ Association, the Ontario Public Service Employees Union, the Association of Law Officers of the Crown, the Association of Justice Counsel and the Society of United Professionals, the provincial government “has not taken every reasonable precaution to protect the health and safety of its employees in these courthouses in the midst of the ongoing COVID-19 pandemic.”

Additionally, the group accuses the Ministry of the Attorney General of having used risk assessors with no background with regards to how Ontario courts function or how the virus spreads. For example, they say a forestry specialist was hired to assess COVID-19 risks in North Bay courts, and that the government excluded their associations from discussions on their safety plan.

 COVID-19 Concerns After Ontario Courts Reopen

After Ontario courts resumed their functions last week, the group’s concerns appeared to be justified. According to them, physical distancing was impossible to maintain in the often overcrowded courtrooms across Ontario.

Toronto defence lawyer Daniel Brown, who serves as vice-president of the Criminal Lawyers Association, described the partial reopening of the courts as confusing and chaotic.

According to Brown, too many cases have been put on the agenda for the number of rooms available, prompting some prosecutors to suggest proceeding virtually. However, there was no plan in place for virtual hearings in Ontario courts.

Wearing masks also created confusion, he added, alleging that only Crown prosecutors and public service employees were provided with personal protective equipment, while others had to provide their own protective equipment.

“What we’re seeing is that many of the courtrooms, where we were told security measures had been put in place, actually don’t have those appropriate preventative measures in place,” Brown said.

Indeed, resuming court operations in the midst of a pandemic presents unique challenges, some of which are not health related at all. For example, Toronto criminal lawyer Sherif Foda argues that preventive measures have made cross-examination particularly difficult.

“It’s a lot harder to keep up the pace and demonstrate the evidence in the way that we’re used to,” he told reporters. “It’s not particularly pleasant or conducive in litigation cases. It’s hard to talk, hard to hear…. It’s much slower than what we’re used to.”

He added that it was impossible to maintain physical distancing at the lawyers’ table, where lawyers had to sit next to each other during hearings.

A spokesperson for the Attorney General, however, assures that the government worked with public health officials to establish phases of Ontario court reopening, and says many other measures have been deployed including, hand sanitizer stations, staff reductions, more rigorous cleaning and the distribution of protective equipment to employees.

Ontario’s provincial website also boasts various measures in place to ensure safety in court. For example, screening questions must be answered online or at a courthouse before entering an Ontario court. Additionally, the website invites individuals to consider online filing of civil claims, small claims and family law matters rather than in-person filing.

Do you think Ontario courts are prepared for reopening? Are you concerned about your safety in court? Tell us what you think in the comments below!

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