The practice of law in Ontario has undergone unprecedented change due to the COVID-19 pandemic. Both the Ontario Court of Justice and the Superior Court of Justice have had to place many matters on hold, including all trials, and in person court appearances remain suspended for the foreseeable future. Ontario’s justice system is trying to keep pace by instituting a variety of reforms designed to ensure that access to justice is not lost.
While the pressure for these reforms is certainly amplified at the moment, the recognition of their potential benefits for persons interacting with the justice system is not new. In November 2017, the Attorney General for Ontario released a plan for the modernization of the province’s justice system entitled, “Putting Justice Within Reach: A Plan for User-Focused Justice in Ontario.” The plan called bringing the justice system “up to speed”, by embracing technology that can “enhance access to justice, save time and reduce costs”. At the same time, the plan noted that the justice sector’s core features – its integrity, people and commitment to equality and fairness – must be preserved. But fundamentally, the plan called upon all members of the legal profession to accept that, in order to be “truly innovative”, we must be willing to “challenge the status quo and step outside our comfort zone.”
The spirit of this plan needs to be embraced now more than ever. All areas of the law have been affected by the pandemic, and all courts and lawyers are having to drastically adapt. It will take a great deal of ingenuity and creativity for the legal profession and the courts to ensure that timely access to justice can remain achievable.
For cases involving children and youth, the need for reform is even more pressing. The Supreme Court of Canada commented on the “inherent vulnerability” of children and youth as they interact with the justice system in AB v Bragg Communications. This recognition has “deep roots in Canadian law” and may require adapting common procedural practices where appropriate.
Ontario’s courts and justice system participants are already demonstrating a commitment to these principles as the pandemic continues. Delays are, unfortunately, inevitable. If having a case adjourned months – or even a year – is frustrating for adult litigants, imagine what that kind of delay is like for children and young persons. Consider a 12 year old child and her parents awaiting the decision of a family court judge on if she will be able to continue living with her parents. Or a 16 year old teenager wondering when his criminal case of assault can finally end, so he can apply for the summer jobs or volunteer opportunities he needs to finish before he can graduate and apply for college or university.
Fortunately, court matters for children and youth have been able to adapt to the current crisis. Much work and innovation must still be done, yet there are signs of progress. In this article, we will explore what has been changing in both family and youth criminal court over the past six weeks.
Youth Criminal Justice
The Youth Criminal Justice Act (YCJA) governs Canada’s youth criminal justice system. It applies to any young person aged 12 to 17 who is charged with a criminal offence. It requires that the youth criminal justice system must be separate from the adult system. Young persons who offend must be held accountable for their actions, but in a manner that takes into account their greater dependency and reduced level of maturity.
The Act also requires that the youth criminal justice system implement “special procedures” to ensure that young people are treated fairly, and it must emphasize the importance of “timely intervention” in matters involving youth. Similarly, those charged with enforcing the YCJA must conduct their responsibilities with “promptness and speed”, given that young persons perceive time differently than adults.
In R v KJM 2019 SCC 55, the Supreme Court held that prolonged matters in courts can have a greater psychological impact on young persons. Adolescence, the Court made a point of noting, is a time of rapid brain, cognitive and psychological development. Youth matters should proceed “expeditiously and in a timely manner.”
Young persons are often offered the opportunity to complete extra-judicial sanctions (EJS) in exchange for their charges being withdrawn or stayed. These are non-court measures used to dispose of a criminal offence and hold a young person accountable for his or her criminal conduct but without the need for a formal finding of guilt. It often involves a young person completing community service hours or engaging in appropriate programming. Such programs have continued even in the face of the pandemic. Online programming and counseling are often available and the Ministry of Children and Social Services has made great strides in adapting to the challenges posed by the pandemic. Counsel should inquire of their local Crown’s office what can still be done so that their youth clients can continue with these opportunities.
Youth criminal courts continue to operate in a revised but restricted manner. Urgent criminal court matters may be heard by way of video or teleconferencing. For young persons arrested by the police and held for a bail hearing, the Ontario Youth Court of Justice remains functioning. Bail hearings can be held remotely, with all parties appearing by way of a teleconference. If counsel are proposing a surety bail, the surety can be cross-examined over the phone and need not attend at the courthouse to sign the bail papers. Bail de novo hearings – heard before a judge – can also be scheduled.
Some simple matters may be possible to conduct by way of email applications to the court. The Ontario Youth Court of Justice will now accept filing of materials electronically. Counsel should review the Court’s website for the appropriate procedure to follow when doing so. Matters that are typically straightforward – such as applications brought under YCJA s. 25(4) for the public funding of counsel – may be done entirely via email if they are on consent. Bail variations can also be obtained where conditions are causing undue hardship on a young person or his or her family. Again, a simple email application to the appropriate judicial office with the forms attached and signed may be sufficient.