Society of United Professionals President Scott Travers sent the following letter to Ontario Attorney General Doug Downey on April 2, 2020.
Hon. Doug Downey
Ministry of the Attorney General
720 Bay St.
BY EMAIL ONLY
April 2, 2020
Dear Attorney General Downey,
I am writing to you on behalf of the Society of United Professionals, IFPTE Local 160, which represents more than 8,000 Ontario workers, including more than 400 lawyers and legal professionals at Legal Aid Ontario and community legal clinics.
We acknowledge the challenges faced by your office and appreciate your efforts to date to make accommodations within the justice system in order to protect the public during this COVID-19 global pandemic. The Society of United Professionals is prepared to work with your ministry as well as Legal Aid Ontario management and all other justice system stakeholders to help effect the recommendations below.
The Society of United Professionals recommends two broad categories of action to the Ministry of the Attorney General, which are intended to preserve Ontarians’ fundamental rights at the same time as we are making extraordinary efforts to stop the spread of COVID-19:
- Improve the technology and resources in the courts to support remote, rather than in-person, court appearances; and
- Release all detainees who are releasable at the earliest possible stage, to prevent the spread of COVID-19 within the detention centres and to the public, and in order to preserve the court and custodial resources for those who are not releasable.
Improve the technology and resources in the courts to support remote, rather than in-person, court appearances
On March 19, Legal Aid Ontario management removed their staff from the courthouses due to clear, present and unresolved health and safety risks. A week later, Ontario Chief Justice Lise Maisonneuve moved almost all court appearances to remote means and implemented strict physical distancing requirements for the few appearances that must be conducted in person. In light of the Chief Justice’s extraordinary measures intended to prevent our courts from becoming vectors of COVID-19 transmission, the Ministry of the Attorney General must ensure the constitutional rights to bail and due process are preserved in these remote appearances. This includes timely access to fair hearings and the ability to consult with counsel.
- Add teleconference lines to enable one line per operating courtroom during the pandemic – ensure open lines are available for bail courts;
- Increase phone and video booths in provincial facilities and police detachments and divisions, and in the interim, immediately make available confidential and timely access to other phones and video options to compensate for the lack of booths;
- Ensure timely and confidential access to phone contact for counsel meetings for those in provincial facilities and at police detachments and divisions;
- Implement an effective protocol for the remote participation of court interpreters;
- Staff additional remote courts that will hear bails so that all bail matters can be heard at the earliest opportunity;
- Share matters between jurisdictions to enable courthouses with lower volumes of work to assist those experiencing high volumes of matters without adequate resources to manage them;
- Increase the capacity to consider interim releases by using judges in addition to justices of the peace to hear these matters;
- Designate resources to enable the operation of high-volume “blitz” bail and bail review courts on an urgent basis across the province; and
- Coordinate with the Solicitor General to obtain regular reports on conditions in all provincial facilities and distribute these reports to Crowns and defence counsel.
Reduce the population of detained inmates to safe levels for all
Ontario detention centres are at high risk of suffering outbreaks. Prisons and detention centres are recognized in public health literature as places where disease spreads quickly, both among the prison population and into society at large. Further, a 2019 report from the Ontario Human Rights Commission recognized serious overcrowding in provincial detention centres, with as many as three to five people forced to share a cell intended for one person. As you are aware, there have been positive COVID-19 tests among justice participants in a number of the Ontario Courts of Justice and in Ontario detention centres. This puts people in custody, employees and the broader public at risk. The gravity of the situation was recognized by Justice Copeland of the Superior Court of Justice on March 20 in her bail review decision in R. v. J.S. ONSC 1710:
“But I take notice of the fact, based on current events around the world, and in this province, that the risks to health from this virus in a confined space with many people, like a jail, are significantly greater than if a defendant is able to self-isolate at home. The virus is clearly easily transmitted, absent strong social distancing or self-isolation, and it is clearly deadly to a significant number of people who it infects. The practical reality is that the ability to practice social distancing and self-isolation is limited, if not impossible, in an institution where inmates do not have single cells. I note that this factor concerns not only Mr. S.’s own health, but also the preservation of scarce hospital resources to treat patients. If more people are infected, those resources will be more strained.”
While individual justice system actors, such as Justice Copeland, are contributing to the effort to stop the spread of COVID-19, a risk this great demands immediate and comprehensive changes to the justice system. Seventy per cent of those incarcerated in provincial facilities are on remand and presumed innocent. This means that it is within the powers of the Ministry of the Attorney General to take steps to drastically reduce the numbers of those incarcerated in provincial facilities, reducing the strain on the system to respond during the current health crisis.
- Direct Crown Attorneys (“Crowns”) to withdraw or stay charges at the first instance where it is in the broader public interest, having consideration of the risks to the accused’s health, public health and use of court resources during this pandemic. This measure will not only enhance health and safety but will also prevent a backlog of matters in the Ontario Courts of Justice;
- Encourage Ontario Provincial Police (OPP) and local police officers to exercise their discretion to charge given public interest considerations such as court backlogs, the adjournment of all trials, health risks to all parties, including the public. For example, charging should be discouraged for minor property offences, including theft under of food items, and administration of justice charges that don’t invoke safety concerns;
- Where charging is appropriate, encourage police officers to release individuals charged on promises to appear and undertakings in the absence of a significant public safety risk;
- Direct Crowns to recommend judicial interim release at the earliest opportunity. For those individuals who cannot have their charges withdrawn or stayed, where possible, recommend bail reviews and releases in those reviews for those whose bail has been addressed in light of R. v. J.S., supra;
- Direct Crowns to recommend judicial interim release orders without sureties as much as possible in light of the need to reduce having members of the public attend at courthouses and police detachments and divisions, and to avoid unnecessary adjournments for sureties to be secured;
- Direct Crowns to recommend judicial interim release orders without the supports of the Toronto Bail Program or John Howard Society to avoid delays in securing releases and reduce pressures on these agencies;
- Direct Crowns to relax procedural requirements that are not legally mandated and that may delay proceedings, such as surety affidavits and record checks;
- To the extent possible, ensure all new arrests have bail addressed on their first appearance without having to be brought into a detention centre – bail and pleas should be addressed at the earliest opportunities;
- Engage senior Crowns in mass reviews of all pre-trial matters to consider whether or not a stay or withdrawal would be appropriate or a release could be granted for those who have not addressed bail and for those who have addressed bail if a stay, withdrawal or release could be granted and supported through a bail review;
- Direct Crowns to proceed with agreed statements of fact rather than transcripts in bail reviews whenever possible, and particularly where the grounds for the bail review are a material change in circumstances due to COVID-19;
- Operate high-volume “blitz” bail and bail review courts without in-person appearances to urgently address people in pre-trial custody; and
- Engage in the same practices as delineated above for youth in pre-trial detention; where detention is necessary recommend open custody over closed custody.
Through the hardships created by the COVID-19 pandemic, one silver lining is a renewed recognition that as a society we are truly interconnected and interdependent, especially when it comes to our health. The Society of United Professionals has put great thought into the recommendations in our letter; they reflect our best efforts to offer a balanced approach to public health and public safety. We want to also acknowledge the work of other justice system stakeholders who have raised similar concerns, particularly the Canadian Civil Liberties Association, and the HIV/AIDS Legal Clinic of Ontario (HALCO) and the Prisoners with HIV/AIDS Support Network (PASAN).
Society of United Professionals-represented lawyers continue to be ready and willing to support the Ministry of the Attorney General and all stakeholders to facilitate the implementation of these recommendations as well as other steps to create a safe and healthy justice system for all.
Thank you for considering our recommendations. I would be pleased to discuss any of them with you or representatives of the Ministry of the Attorney General. You can reach me via email at [personal information redacted].