The virtual courtroom

When I last attended court on March 13, I brought a bottle of hand sanitizer and promptly placed it next to my assortment of highlighters on the counsel table. That bottle was a small source of comfort I eagerly slathered on every time I touched a chair, a door handle, or an elevator button. The Crown prosecutor and I stood apart as we spoke and agreed not to shake hands at the conclusion of our case. I knew I had to make these little changes because no matter how bad the situation got, I told myself the Court would be the last place to shut down. Jury trials and jury selections had already been suspended, but surely that was as far as it would go.

The emergence of the novel coronavirus, Covid-19, has brought about sweeping changes to the legal landscape. Still, I would argue none more so than to the practice of criminal law, a practice whose bread and butter is in the courtroom. And to me, the courtroom was synonymous with the courthouse – the 70 + buildings scattered throughout Alberta that mark the heart of the criminal justice system. 

But my view was narrow-minded and turned out to be very wrong. After that court appearance on March 13, the Court of Queen's Bench announced it was limiting hearings to emergency or urgent matters only; the Provincial Court was soon to follow. On March 16, the Provincial Court announced that all out-of-custody criminal matters (along with other civil, family, and traffic matters) would automatically be adjourned ten weeks from the date of the scheduled court appearance. With some limited exceptions, the only criminal matters now being heard were those where the accused was in custody. 

More changes quickly followed. Docket appearances were allowed to take place over the telephone. Appearing via video has followed. Certain regional judicial centers collapsed into central hubs. The courthouse emptied, and now only the most urgent matters are being heard. Other smaller, yet significant, changes were introduced, such as filing documents by email, commissioning affidavits over video, and probation check-ins over the phone.

Even the Alberta Court of Appeal, notorious for its strict adherence to the rules, adapted swiftly. Appeals can now be done by video, with Justices sometimes appearing both in Edmonton and in Calgary for the same appeal. Applications are argued over the phone. The courtroom is no longer confined to the physical building; it now occupies an online space.  

These changes have been responsive and, for a system that typically operates at a snail's pace, have been implemented with breathtaking speed. The various groups and individuals who have worked tirelessly to keep the system functioning and its participants safe, deserve all our thanks and appreciation. I recall only months earlier the never-ending discussions about allowing counsel to make simple docket appearances via telephone in rural jurisdictions. Now entire criminal trials are being held over video (although this is yet to be the norm). 

The rigidity of court procedures has, by necessity, been replaced with practicality. While brought about by a tragic crisis, these practical changes should not be forgotten if and when the legal world returns to normalcy. Given that fax-filing has been an option for some time, why not continue with email-filing? If the parties live across multiple jurisdictions, why not continue to allow virtual court appearances? Before her departure as Chief Justice of Canada, Justice McLachlin persistently advocated for access to justice. Digital access to the Courts is another way to increase both access to justice and affordable legal representation. 

The new reality, however, is far from perfect (many were shocked to hear individuals were convicted-in-absence for traffic tickets after the court had shut down), and the unintended effects are yet to be seen. While some matters have been able to proceed virtually, most individuals who are not in custody have seen their cases automatically postponed for a significant time. With the "curve" having yet to peak in Alberta, it is expected that court cases will be further delayed. These delays have real consequences for all parties involved. In times where stress is already high due to the Covid-19 crisis, people accused of committing an offence have to bear the burden of being subject to a charge, the uncertainty of when that may be resolved, the continued adherence to sometimes onerous bail conditions, the inability to meet with a lawyer in person, and the pressing desire to have the matter come to an end but having no ability to do so. 

Furthermore, there remains concern of a potential domino effect, which will create further delays once the courts increase operations. They will not have adequate time to deal with the backlog of cases created by the current attempts to address the immediate needs of the justice system and the health and safety of those involved. In the post-Jordan era, we'll see how this delay will be treated. 

Arguably the most pressing problem which has received attention but not enough concrete action, is the situation in our jails. An outbreak of Covid-19 in any of Alberta's institutions has the potential to be catastrophic. And while some steps have been taken to release some individuals (whether through bail, temporary absences or early release), many linger in our remand centers, provincial jails, and federal penitentiaries with inadequate supplies and the inability to self-isolate. 

But while there is still work to do, the changes that have been made (so quickly) are nothing short of extraordinary for a system that can often be stubborn. As I welcome the return of the courthouse, I also am hopeful that some of the changes brought on by necessity will remain part of this new modern Court, which will better equip the system for dealing with future crises and enhance access to justice at all times.