Law in the time of COVID: How the pandemic radically reoriented Ontario's justice system

When Erin Townleyhad to testifyagainstthe man who nearly killed her, she took solace in the fact theCOVID-19 pandemic meant she could do it from her ownhome.

In 2018, Townley had been riding with a group of cyclists around Lake Ontario, raising money for pancreatic cancer, whenthe driver of a grey Nissan veered onto the highway shoulder and slammed into them.

Townleywas struck so hard she lostconsciousness. When she woke up, she was cradling her fractured forearm.

Another rider, Jeff Vervaeke, wasn't so lucky. He bounced off the Nissan's windshield, flew into the air,and was found a short distance away, lying in a pool of blood and gasping for air.

He was rushed to a Kingston, Ont., hospital, but died five days later.

"I actually found [the trial]experience, from a witness perspective, to be less intimidating," said Townley, whose testimony helped convict the driver, Robert Saunders,of dangerous driving causing bodily harm and dangerous driving causing death.

"It was easier to do that when I was sitting in my dining room, and had my animals around me [as] a source of comfort andsupport."

'A pretty jarring transition'

In the time between the fatalcrash and the ensuing trial, COVID-19 forced Ontario's justice system and others around the world into uncharted,occasionally choppy online waters.

As in-person matters ground to a halt, courts and tribunals wereoutfitted for virtual hearings. OntarioAttorney General Doug Downey rolledout a quick$1.3 millionfor laptops, virtual private networks (VPNs) and other technology.

Behind the scenes, exhibits and other court files were being digitized, a huge shift for a system that reliedon paper copies for just about everything.

As Downey said in April 2020, the limitations imposed byCOVID-19 had "modernized the justice system 25 years in 25 days."

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"It was initially a pretty jarring transition," said Michael Spratt, a criminal defence lawyer in Ottawa.

"The courts were forced to movefrom the 1980s or 1990s right up to modern-day standards basically overnight. Prior to the pandemic most things, if not everything, was done in person."

The pandemic's first wave, Spratt recalled, was especially chaotic.Defence attorneysfound themselves unable to reachclients as jails locked down to prevent outbreaks. Bail hearings took place over the phone. Trials were postponed.

But gradually the wrinkles smoothed out, Spratt said, and some advantages becameapparent like the fact certain witnesses, such as experts, could be patched inremotely instead of potentially being flown in great distancesatsubstantial cost.

Defence counsel can more easily represent clients in "far-flung" areas, Spratt said, while simple matters like pleading guilty for a probation violation can be done remotely.

But Spratt said the digitization of court documentshas been perhaps the most substantive change, allowing cases to proceed without "razing a small forest."

"It's unfortunate it required a global pandemic to get rid of the fax machine and move to email. But nonetheless it's happened, and that's a positive thing."

More technology, more problems?

With any shift of this magnitude, though, there have been stumbles some amusing, others less so.

For Cornwall, Ont., family and criminal lawyer Neha Chugh, her "worst day" in virtual court came when her toddler barged into the nursery she'd outfitted as a makeshift office.

"Everyone on the Zoom call is watching and laughing, because they all can see him. So I stand up to remove him and I'm wearing a blazer on top andpyjama shorts and fuzzy socks on the bottom," said Chugh. "It was quite a spectacle."

Another time,she was making"very serious submissions on a very serious motion" when she realized her shirt wasn't exactly arrayed the way it was supposed to be.

Despite thosewardrobe malfunctions, Chughchampions theonline transition and the fact it's made court more accessible forher clients, many of whom are spread out acrosseastern Ontario.

But even something likea simple shirt mix-upbeliesa potential problem: virtual hearings can lack the "solemnity" of those in person.

"That's what worries me," Chughsaid. "People wait a long time for their day in court. And if it's not everything they expected it to bein terms of the seriousness, it can be a letdown."

That solemnity hasn'talways been apparent toviewersbeaming in forproceedings, either. Since the online transition, judges have had to remind people streaming court matters without clear consent isprohibited, including during therecent bail hearings for the leaders of the Ottawa convoy occupation.

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Broadcastinghearingscan be a grievous violation of a person's right to privacy, said Toronto-based defence lawyer Jessyca Greenwood, particularly when the case involves sexual assault.

But the fact it's happening at all shows the limits of video conferencing technology like Zoom, which capshow many viewerscan log on at once, Greenwood notes.And with online court,physical barriers like the size of a courtroom or one's distance from the courthouse should, in theory, be a thing of the past.

"I understand why it ended up being broadcast, because there werecapacitylimits and more people wanted to see it than werewere able to," said Greenwood, whositson the executive for theCriminal Lawyers' Association, the country's largestcriminal law organization.

"It's something that we're going to have to deal withas the use of technology expands."

An 'end-to-end' digital future

While that expansion has gradually been rolling out, both Greenwood and Sprattstill worry about marginalized, vulnerable clientswho can't spend hourson a Zoom call or wholivea privacy-challenged life in a shelter or group home.

There have been cases over the past two years, Greenwoodsaid, where people have run out of minutes on their phone and disconnectbefore a judge can speak to them with potentially severe consequences.

"If a person doesn't make their appearance the court can issue a bench warrant for them, which means they get arrested," said Greenwood.

"We need to think about not just all the ways lawyers can benefit from this, but how [we]actually make it accessible for clients."

There are "simple solutions," she adds, likeprivate iPad stations at courthouses where clients can use Zoom to access their hearings.

I'm pretty biased, just because of my own experience. [But] Ithink online court works great.- Erin Townley

It's possible those are on the way: in February, the attorney general's office set aside $65 millionfor things likecourthouse computer upgrades, new audio-visual technology and staff training.

That announcement followed an earlier pledge in November 2021 to create an"end-to-end digital system" that would move all sorts of routine legal practices online, from scheduling hearings and filing documents to paying fees and accessing court decisions.

As for Townley, herself an Alberta-based family lawyer, taking the virtual witness boxin thedangerous driving trial instead of booking two weeks off work and flying out to Ontario has sold her on the benefits of online justice.

"I'm pretty biased, just because of my own experience. [But] Ithink online court works great," she said."From a selfish viewpoint, I loved it."