Canadian Courts and COVID-19: Experts on the Changing Landscape

CALGARY — The halls of justice may have become less crowded in the wake of the COVID-19 pandemic, legal experts say, and they warn there are still unanswered questions.

Two years ago, when the pandemic first gripped the country, trials were delayed and the public was banned from courthouses. The whole system shut down abruptly.

Courts have since limped along with online appearances and filings, largely administrative changes that had been encouraged by the legal community for years.

“There are all kinds of positive results to the trend that the pandemic has necessitated,” said Tony Paisana, a law professor at the University of British Columbia and president of the National Criminal Justice Chapter of the Association of the Canadian Bar.

“Various people … had been advocating for these kinds of changes.”

Paisana said he believed the administrative changes would remain in place, but in-person appearances at trials and appeals would return.

He fears that the backlog has increased.

“We cannot ignore the inefficiencies that arise from the inevitable adjournments that occur due to (COVID-19) surges,” he said. “There are a number of cases that (have been) adjourned en masse and the administration of the courts cannot catch up.

“It’s madness to say it’s more effective now. It’s more of a byproduct of the pandemic.”

The Saskatchewan government had made a number of its initial changes permanent, including remote witnessing of wills, powers of attorney and land titles.

In a statement, the Saskatchewan Department of Justice said videoconferencing, where available, grew nearly 8% between 2019 and 2020.

The federal government introduced changes a year ago offering “targeted and permanent” changes, including a way to hold some hearings remotely, video appearances of the accused at preliminary inquiries and trials without a jury, and participation video of the candidates for the jury. The bill received first reading before the federal election was called.

“The Government has specifically committed in its election platform to reintroduce (the Bill),” Justice Department spokesman Ian McLeod said in an email.

Toronto lawyer Bill Trudell, president of the Canadian Council of Criminal Defense Lawyers, said the system “will never go back to what it was before”.

The new technology will likely mean the end of paper documents such as sworn police statements, warrants and exhibits, he said.

“We’re going to see the end of unnecessary court appearances, the fixed date appearances that clog up the court.”

Trudell warned that improvements need to be available in all parts of the country, including the most remote – and it will cost money.

“Criminal justice, I’m worried, is going to be at the back of the bus in terms of funding this technology.”

Trudell said another casualty of the pandemic could be rookie defense attorneys.

“I’m really worried about people giving up the practice because they can’t fund themselves. Criminal lawyers don’t get paid,” Trudell said.

“When you cancel a jury trial for six months…it has a direct effect on the ability to earn a living.”

A shortage of defense lawyers could lead to burnout among those who remain and more people appearing in court unrepresented, he suggested.

A juror lawyer in Toronto said the pandemic has also brought about changes for juries.

Mark Farrant, who founded the Canadian Jury Commission, said some provinces issue taxi vouchers to jurors to help them avoid public transportation and provide safety during more contentious trials.

Another problem is the remuneration of the jury. Only Saskatchewan, Quebec and Nunavut are adequately compensating jurors, he said, and with the uncertainty that will follow the pandemic, other jurisdictions – including Alberta, Ontario and British Columbia – will have to follow suit.

“When we talk about Canadians who have been economically impacted, jury compensation goes a long way to supporting individuals,” he said.

This report from The Canadian Press was first published on January 29, 2022.