It has been a year now. A year since the government determined that the Courts would shut down. In light of COVID19, in person Court hearings were eliminated on March 16th, 2020. Trials were cancelled, resolutions were delayed. As we cautiously start to open back up, the Court is now allowing in person matters but Crown prosecutors are routinely bringing applications for remote testimony that are seemingly receiving unfettered support. The problem is not that the Courts refuse to force people to come to Court, the problem is that the rights of the accused are being unjustly limited in the face of fake fear or the absence of fear altogether.
During the pandemic no one should come to Court if there are reasons that require them to stay at home and eliminate potential exposure. The Criminal Code allows for an application for remote testimony to be made in situations where there are specific individual reasons to testify remotely, and the Court finds it appropriate. The problem is that applications are receiving judicial approval, absent any specific personal circumstances as required by the law. Remote testimony does not allow for the same witness safeguards. There are multiple news stories about witnesses looking at phones, muting microphones while on Zoom to have off-record conversations, and even testifying with other people presumably giving cues while in the same room. A traditional courtroom would never allow such things, let alone be set up in a manner to make those types of shenanigans possible. The traditional style courtroom, in-person hearing, allows for all the necessary procedures, safeguards and consequences should things go awry, that Zoom Court hearing does not. You should not have the ability to testify from your living room couch in your pajamas when the Court is determining guilty or innocence and the potential loss of liberty.
If you can go to the grocery store, you can come to Court. The government of Ontario has assumedly spent hundreds of thousands of dollars ensuring the safety of the folks who attend the Courthouse. There is controlled, screened access, mandatory masks, police enforced social distancing (they are always at the Courthouse anyway), plexiglass barriers between counsel, witnesses, clerks, clients, the Judiciary, and small capacity limits per courtroom. I feel far safer in a courthouse than I do at a Costco. The truth-seeking function and the presumption of innocence depend upon the decorum and manner in which the judicial process play out in a Courtroom, that cannot be replicated in a witnesses’ bedroom through a computer screen. The Criminal Code allows the Court to take a witnesses’ personal circumstances into account but does not allow for a carte blanche remote hearing in the name of public health. We can have trials safely. If the government didn’t think so, the Courthouses wouldn’t be open.
If you or someone you know is charged with a criminal offence you need a lawyer who will fight for your rights at every turn. Cake Criminal Defence is prepared to take up the torch. Call us today.
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