At the OBA Council Meeting in September of 2019, new president, Colin Stevenson, gave an inspiring address that covered a topic that seemingly foreshadowed the difficulties our profession would face with respect to COVID-19. President Stevenson’s address focused on innovation in the legal practice. Six months later, our profession would realize how difficult this lack of modernization would make our work and the disproportionate impact this would have on marginalized members of our community.

As President Stevenson aptly pointed out, the legal system is very slow to change and lacks modernization. This was evident during the COVID-19 pandemic. The legal system was forced to rapidly evolve, using much of the technology our OBA president alluded to only months before.

A Rapidly Evolving Legal System

At the onset of the pandemic, the courts began hearing matters that they deemed “urgent” – a limited list of matters that left many finding their dates adjourned ten weeks or more, or indefinitely.

Courts eventually began hearing matters via teleconference and videoconference, court filings began occurring via email, and commissioning of materials was able to be done via videoconferencing. All of these innovative changes, while spontaneous, were necessary so that justice system participants would not be subject to excessive delays with respect to their matters.

Although these innovations and updates to the justice system are much needed and good in practice; we must ensure that while we are innovating we are not leaving out vulnerable populations who may not be able to participate in the advancements wholly. For instance, not everyone has access to a device to allow them to attend a court matter via teleconference or videoconference. Not everyone has access to the internet capabilities that allow us to hold court matters via electronic means. And not everyone is able to file their court documents electronically.

Effects on Marginalized Individuals

Although the Government of Canada seemed to react swiftly to managing the spread of the virus, it could be argued that it underreacted in areas, which has negatively impacted Black, Indigenous and people of colour (BIPOC).[1] The Canadian Civil Liberties Association (CCLA) wrote a report on Canadian rights during COVID-19, which was released in June 2020.[2] The report discusses and grades the provinces and the Canadian government’s response to the pandemic and how it has or has not limited the rights of Canadians. The report considers the effect the pandemic has on marginalized individuals and acknowledges that those who are homeless, incarcerated, victims of domestic violence, and children have been uniquely affected. More needs to be done to address these concerns. It is clear the first step in addressing these concerns and disparities is acknowledging their existence. We as a profession bear this responsibility.

Vulnerability of those Incarcerated

As the pandemic continues, one important measure individuals can take to protect themselves from the virus is social and physical distancing. This safety measure, although extremely important, is not something everyone has the choice to abide by. For example, prisons have incarcerated individuals in extremely close capacity, leaving them vulnerable to the virus. This situation is exacerbated by the fact that those who are incarcerated may themselves have conditions that leave them especially vulnerable to the disease. Indigenous individuals in particular represent 30 per cent of the incarcerated population in Canada despite only accounting for 5 per cent of the general Canadian population.[3] Indigenous Canadians are also three to five times more likely than other Canadians to develop type 2 diabetes, more likely to develop chronic respiratory conditions and are 50 per cent more likely to develop heart conditions.[4] All of these illnesses can significantly weaken one’s resistance to the COVID-19 virus. Black, Asian, Hispanic and other minority groups make up approximately 19.8 per cent of offenders in Canada.[5]

BIPOC individuals are overrepresented in the prison system due to a variety of systemic factors, which includes poverty, unemployment, fewer educational opportunities, inadequate housing, the violation of rights and traditions, racial profiling, and the slow pace at which the legal system has begun to consider and adopt Indigenous culture.[6] At the beginning of the COVID-19 pandemic, Correctional Service Canada did not act proactively to address the vulnerability of those incarcerated except for increased cleaning measures, adding additional hygiene supplies and cancelling programs and visits.[7] This did not do anything to address the problem the prisons have with social distancing and overcrowding issues.

The total federal prison population is approximately 14,000 – out of 533 inmates tested for it, 177 have contracted the virus.[8] Severe outbreaks have occurred at certain facilities; for example, at the Mission Institution in British Columbia, 60 inmates out of 85 tested have tested positive for the virus.[9] At the Joliette Institution for Women, out of the 76 inmates tested, 51 have tested positive, including 34 staff members.[10]

The justice system has now started to address the issues they have with overcrowding and the risks it poses to the inmates. More than 2,300 low-risk inmates in Ontario jails have been released since mid-March.[11] This has been a necessary measure due to the adjournment of court matters and the inability of incarcerated individuals and those eligible for parole to have their matter heard before a judge or a justice of the peace in order to be released.

Adjourning court matters and reducing operations leads to increased length of judicial and administrative proceedings, prolonged detention of pretrial detainees or prisoners eligible for early release and contributes to increased case backlogs. These delays provide a longer time that charged individuals have to be subject to criminal conditions – which means a longer time for the potential of a breach and more associated charges. It is important to remember that some of these individuals are innocent.

Suspension of In-Person Parental Access

During this pandemic, many child protection agencies suspended in-person access visits between parents and children in care, leaving many parents without in-person access to their children for months. This did not only occur for access visits that were occurring at supervised access centres – this included access visits that were previously taking place in a private residence, regardless of the safety precautions being taken by the parties. Many children’s aid societies adopted blanket policies that suspended face-to-face access and there was little to no communication to the parents about what access would look like moving forward.[12] Parents involved in this process were forced to bring urgent motions to resume their in-person access, even if they had an Order in place specifying their access, further taxing a system stretched thin.[13]

A letter written by the CCLA urged the province, Ministers and child protection societies to provide direction to “allow for ongoing in-person parental access” to occur and for variations to be made only on sound medical evidence and only by the court.[14] The above noted issues have not been addressed in a uniform way and are instead addressed on a case-by-case basis.

Some societies have implemented alternate access plans. This includes the use of video conferencing means. However, this is a poor substitute for in-person access, especially when the child is of a young age or where parents do not have access to such technology.

These blanket policies have disproportionately impacted BIPOC and other marginalized groups. Families involved in the child protection system often have limited resources and are facing significant challenges.[15] Research by the Ontario Human Rights Commission (OHRC) confirms what has been suggested for years – racial disparities in the child protection system do exist and BIPOC are over-represented in the child welfare system.[16] The OHRC observed “disproportionately high incidences of Indigenous and Black children in admissions into care at many of these agencies across the province.”[17] Indigenous children admitted into care were represented 2.6 times higher in the child population and the proportion of Black children admitted into care was 2.2 times higher.[18] The main reason Indigenous children enter the child welfare system is due to the label of “neglect”, which is associated with household and caregiver risk factors that stem from chronic family concerns, such as poverty, poor and unsafe housing, substance use, mental health issues, and social isolation.[19] The rate of “neglect only” investigations for Indigenous children is six times higher than that of non-Indigenous children.[20]

Children affected by these policies are missing valuable time with their parents. The impact it will have on these family dynamics moving forward has the potential to be very severe and have lasting impacts on the children and their future.

Addressing Disproportionately Negative Impacts

In order to address the disproportionately negative impacts as outlined above, transformative change to our justice system and innovation in the way we practice law is required. Alternatives to imprisonment and alternative sentencing measures are one way we can move forward and reduce the overcrowding rampant in our prison systems. Videoconferencing, video questioning/discovery and the use of video trials are ways that matters can be heard sooner.  This would address the backlog and various adjournments that have occurred. Courts should also be cooperating with social justice organizations in order to address the disparities that marginalized communities face when involved in the justice system. Such disparities have been exacerbated by the pandemic. For example, making such technological equipment and access to internet available to as many marginalized groups as possible.

To address the pandemic, the Department of Justice created an Action Committee on Court Operations.[21] It is unclear what specific work will be undertaken by this committee but they hope to tackle the issue of “restoring the full operation of Canada’s courts while ensuring the safety of court users and staff.”[22] However, one thing is certain; BIPOC need to have a seat at the table.

OBA president, Colin Stevenson brought up an important issue when he made his focus for this year innovation. The legal system is behind in the way they facilitate matters. Should his recommendations have been implemented sooner, the justice system’s response to the COVID-19 pandemic may have not only been quicker and easier, but may have had less of an impact on marginalized communities.

The types of measures indicated above do not deal entirely with the disparity that BIPOC face within the justice system. It is clear that systemic changes are needed to address the issues outlined above. There is no one-size-fits all measure that will be fair for everyone – it will take the work and cooperation of many stakeholders to move our profession forward in the way we service our clients. As we all know, hindsight is 20/20 – but if we recognize our shortcomings and commit to change, we can improve the way we practice law so that we are better prepared to fully serve our clients, including those most vulnerable in society.

After all, as President Stevenson once noted, “all of these objectives are better achieved through practice innovation. And to modernize, anticipate and adapt will only expand and enhance your opportunities to practice your profession.”[23]

 

About the author

Donna Dorrington is a bi-racial graduate of Queen’s University Law School and was called to the Bar in 2004. She began her legal career in Toronto and within one year decided to move back to Northern Ontario where she settled in Timmins in 2006. Her main practice area is family law and she is a member of various boards and committees including Timmins Chamber of Commerce, Timmins BIA, Northeast Legal Aid Area Committee, NOSM, OBA Regional Council, the Equality Committee and is a member of the Federal Judicial Advisory Committee.