The main courthouse at 361 University Avenue in Toronto.

We are in the depths of it right now. The COVID-19 pandemic has uprooted and locked down our lives. But as a vaccination effort continues across Canada, there is hope that, in the months ahead, things will get better, and that eventually we will emerge from this crisis. With an eye to that light at the end of our tunnel, the Star’s new series — The Long Road Back — looks at different parts of our world, our society and our lives, and considers how they may emerge from this ordeal forever changed.

The long-awaited jury trial in Toronto for two men accused of brutally murdering and sexually assaulting nurse and mother of three Rhoderie Estrada in 2018 was about to begin.

Then came the second wave of COVID-19, pushing it, and many other trials, back months, adding to an already skyrocketing criminal case backlog that advocates warn is pushing a strained justice system to the breaking point.

“When there’s too many delays and things drag for years and years and years, everyone loses faith in the justice system,” says Heidi Illingworth, the federal ombudsman for victims of crime.

“We know that COVID has made family violence worse, it’s making intimate partner violence worse … so the backlog isn’t going to go away, and we can’t just keep doing what we’ve always done in the criminal justice system.”

But what exactly to do about it when the pandemic — finally — ends? The hope appears to lie in the court’s unprecedented adoption of virtual trials, a long-awaited transition to an electronic records system and a push to resolve as many cases as possible without a trial, either through generous plea deals, diversion from court or dropping charges.

“This isn’t a road back, it’s a mountain climbing exercise,” says John Struthers, president of the Criminal Lawyers Association and a veteran Toronto defence lawyer.

The data system typically relied on by the Superior Court of Justice — which handles all jury trials and the most serious offences — has not been kept up to date for about 25 per cent of cases. But it’s estimated that the court heard between 30 to 35 per cent fewer cases in 2020 than the year before.

In the Ontario Court of Justice — Canada’s busiest court system, dealing with 90 per cent of all criminal cases in the province —the number of pending cases increased by at least 45 per cent by the end of 2020 to 55,000, according to court data obtained by the Star.

“I think it’s serious. There are a lot of cases yet to go through the system,” said Lise Maisonneuve, the chief justice of the Ontario Court of Justice, in an interview, adding that because the pandemic is still ongoing, it’s impossible to predict what the backlog will be by the end.

But concern over delays is top of mind for everyone involved in the system, she said.

“Nobody gains from a justice system that is slow,” she said. “We will strive to deal with the delay in the best way possible with what we have.”

Data kept by the Ontario Court of Justice shows improvement between March and December. In April 2020, after most hearings were postponed, there were only 52 trials, compared to 742 that month in 2019. Even though the rate of new cases dropped 30 per cent, the monthly clearance rate — the difference between total cases added and completed — fell to 50 per cent. Between March and July 2020, 5,595 trials and judgments were postponed.

But by December, the province-wide clearance rate had climbed back up almost 100 per cent, and it seemed that the backlog had, at least, stopped growing.

Of the adjourned trials, 43 per cent were completed in some way and 18 per cent have been rescheduled. The remaining 39 per cent — 2,203 cases — have not been rescheduled. Court statistics so far don’t show a spike in cases resolved without a trial. In November 2020, the court saw 8,764 cases withdrawn — roughly the same number as in November 2019 — and fewer 65 per cent fewer guilty pleas.

The impact of the provincial stay-at-home order imposed in January is yet to be seen — especially as in-person hearings are discouraged.

According to the court data, the backlog is worse in some regions — particularly areas with smaller populations and with fewer resources. Maisonneuve attributes the difference to variation in the volume of new cases in each area but noted Northern Ontario has faced unique challenges with fly-in courts and satellite courts that can’t easily accommodate physical distancing.

It isn’t clear how many trials at the Ontario Court of Justice have been conducted by Zoom rather than in person, but the number of virtual or partially virtual trials has been on the rise since they were first introduced in June. At the Superior Court of Justice about 17 per cent of the 852 criminal, civil and family court trials between March and November were held virtually.

Perhaps the highest-profile criminal trial so far to take place entirely by Zoom was that of Yonge Street van attack driver Alek Minassian, who faces 10 first-degree murder charges and 16 attempted murder charges. At the end of the trial in mid-December, Superior Court Justice Anne Molloy gave the virtual court process rave reviews.

“Everything has been done remotely, and without sacrificing anything, in my view, of the trial process,” she said. “And everyone has managed to remain safe.”

The downside is that virtual hearings can be even more challenging and take longer, particularly if they involve people who are not represented by lawyers. There remain concerns about access to technology — delays due to poor internet connections are common — and technological literacy. Language barriers are even harder to navigate, even with interpreters present. And poor audio quality can be a transcriptionist’s nightmare.

Maisonneuve said she is proud of the enormous effort that has gone into examining all ongoing cases to see if there is a way to resolve them, as well as the “incredible shift at incredible speed” to Zoom and teleconferencing.

The new technology is the newest and perhaps most promising tool in the court’s ability to face the backlog, she said.

But virtual courts also require video and telephone capacity at jails so that more accused people can remotely appear in court — an area the province has been working on but which is still limiting the amount of cases that can be heard, Maisonneuve said.

“We, the court, are willing to be available for whatever amount of virtual hearings they can sustain,” she said.

She hopes that, when court operations can resume at full capacity, there will be options for in-person trials, virtual trials and hybrids of the two, in which, for example, closing submissions might be done virtually.

“If we can do that, I think we will be able to do more work in a shorter period of time,” she said.

Of course, more virtual courts in addition to regular courts would mean more judges, more Crowns, more court staff. Investment in staffing has not yet been formally discussed with the pandemic still ongoing and unpredictable, she said, and no formal ask from the court has been made.

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Another major barrier to expanding virtual courts has been the reliance on a paper-based system, but that is finally changing with a new electronic records system being rolled out soon, she said.

In a statement, a spokesperson for the Ministry of the Attorney General said the system will ensure “data flows seamlessly from police, prosecution, courts and corrections and is available to the right people, at the right time,” and will eliminate the time needed to physically send and process paper court documents. A new digital evidence management program will also allow police to securely share evidence as needed.

“The work that the Ministry has undertaken the past nine months has driven the most significant modernization effort the justice sector has seen in recent memory,” the statement said.

On the federal side, the focus is also on the promise of new technology to improve efficiency.

A spokesperson for David Lametti, the federal justice minister and attorney general, pointed to the government’s Fall Economic Statement, which proposed $46 million to help federal courts adapt and to “increase federal government’s legal aid support for provinces and territories.”

The backlog “is a significant problem, there is no doubt about that,” says David McKillop, a vice-president at Legal Aid Ontario. In recognition of this, Legal Aid Ontario is funding defence lawyers to attend more pre-trial discussions with judges and Crowns in order to resolve cases more quickly, he said.

But the organization, which provides legal services to low-income, marginalized Ontarians, continues to face a significant projected budget shortfall, estimated at about $56 million in their next fiscal year.

In recognition of the backlog the federal and provincial governments have directed Crowns to avoid prosecuting minor drug possession offences and to resolve cases where possible, including impaired driving offences which are among the most common charges in criminal court.

Toronto defence lawyer Reid Rusonik said he has seen first-hand prosecutors dropping even serious drug-dealing cases that might have been triable but where the evidence was weak.

“COVID has forced them to think twice before wasting court time. And yet the sky somehow is not falling,” he wrote in email.

Generous plea deals are causing some defence lawyers to worry that innocent clients are pleading guilty, eager to get out jail as soon as possible rather than wait for a trial. But the incentives to plead have never been better, with judges taking into account the impact a guilty plea has on the backlogs as well as public safety in sentencing decisions.

In a decision in early January, Ontario Court judge Angela McLeod found a guilty plea should be an even larger mitigating factor amid the pandemic: “Guilty pleas eliminate the need for witnesses to attend trials, and thus eliminate the need for difficult decisions about attending in person … A guilty plea, during COVID, serves to help control the community spread of the virus.”

Judges are also giving shorter sentences in recognition that already harsh jail conditions, including frequent lockdowns and severe outbreaks at five Ontario jails, have worsened during the pandemic.

Still, many justice system insiders say they’re left wondering whether more drastic steps are needed.

“The system was already overloaded,” said one veteran Crown attorney, noting that compounding the problem is that so many people are without lawyers. “It can’t go back to the way it was. But it’s like moving a steamer, or a glacier.”

The pending jury trials are most worrying — they are now the only type of hearing that cannot take place virtually.

Abby Deshman, a lawyer with the Canadian Civil Liberties Association, says the backlog is extremely concerning, given that the people were struggling to get trials in a reasonable time prior to the pandemic.

“Trials are less fair when they wait that long, memories fade, and people are sometimes living with very serious charges hanging over their heads for years, some in jail, or with very restrictive bail conditions,” said Deshman, who is director of the CCLA’s criminal justice program.

Struthers, head of the CLA representing about 1,600 Ontario defence lawyers, suggests a mass culling of charges needs to happen. He’d start by ditching the 50,000 administration of justice offences in the system, the kinds of charges — bail condition breaches, for instance — that he says makes up 30 per cent of the Ontario Court of Justice caseload — an area highlighted for reform by a landmark Senate report on delays from 2017.

It’s all about prioritizing, he says. It could also mean cases involving mental health, substance abuse and other factors are increasingly diverted out of the system — or are never brought into the formal justice system in the first place.

The pandemic should be “a lesson to us all that the criminal justice system is being asked to do things that it is not capable of doing,” Struthers said. “All of society’s ills, from mental health issues, drug addiction to poverty and domestic strife, is being dumped on the criminal justice system,” which will not solve any of it.

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