Sarah Leamon: In wake of COVID-19, legal system must maintain access to justice while protecting participants

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      With the COVID-19 pandemic affecting nearly all aspects of our daily lives, some are wondering what toll it may take on justice system.  

      As the world responds to the unfolding crisis, lawyers, judges, court staff, corrections workers, and even accused persons are contemplating what may lay ahead for them in terms of their safety and access to justice. 

      After all, the practice of law is a relatively social endeavor.

      Lawyers often visit numerous courthouses a day, meeting with clients and appearing in crowded courtrooms. These trips can cover a large geographical expanse, particularly in the Lower Mainland, where legal professionals regularly find themselves travelling from Richmond to Chilliwack and everywhere in between. 

      Over the last three weeks, my own office of four saw lawyers travelling to engagements in Toronto, Victoria, Ft. St. John, Penticton, and Kamloops, along with the usual appearances in Vancouver, Richmond, Abbotsford, Port Coquitlam, North Vancouver, Surrey, New Westminster, and Chilliwack. To say that we get around is putting it lightly.

      Normally this is all in a day's work, but when a pandemic has been declared extra precautions must be taken.

      With courthouses all over the U.S. announcing restrictions—from taking precautions, such as prohibiting guests who have visited particular affected countries from entering judicial buildings, to suspending operations altogether—we have to ask “what’s next?” for us.

      The first preventive measure that lawyers are enacting in their offices and in courtrooms across the country is social distancing. Accustomed to greeting clients and colleagues with handshakes, many legal professionals are now opting out of physical contact, settling instead on a warm verbal greeting from a safe distance away. 

      But with an average of seven new COVID-19 cases in British Columbia a day, and our own prime minister in self-isolation, holding back on handshakes may not be enough.

      All levels of courts in British Columbia have now released their responses to the COVID-19 pandemic. Their goals are to maintain and preserve the rule of law while also protecting the health and well-being of the community—and facilitating efficient and effective judicial processes in the face of a rapidly evolving situation. 

      At this point, our courts are reducing operations to help reduce and slow the transmission of the virus but they remain open to the public. If threat levels increase, the courts may reduce public access or may even close and limit themselves to essential services. 

      But if courthouses close, there will be questions about how the rule of law will be maintained within the interim period; particularly when it comes to criminal law, as these cases can have significant implications for an accused person and the community at large.

      Criminal proceedings often see people being arrested and detained until they can appear in court, before a judge, where lawyers speak to their release. If they are released, they or their lawyer will be required to return to court on multiple occasions thereafter until a trial date is set or their matter is resolved. It is labour intensive and requires courtroom appearances, which ultimately translate into a great deal of human interaction. 

      And despite the intense nature of such proceedings, the Supreme Court of Canada has set stringent guidelines with respect to the timeliness of criminal cases. 

      Generally speaking, our courts have between 18 and 30 months to prosecute an individual—depending on the nature of their charge—before their charter rights become compromised, which could result in the case being dropped.  

      Our court system is already plagued by delays. 

      Even before the COVID-19 concerns, our legal system was struggling to keep up. After all, our courtrooms are often inundated by systemic delays due to lack of resources and a myriad of other factors. Closing courthouses or scaling back operations—even for a short period of time—will only put additional pressure on a system that is already at its limit.

      The key to managing this crisis—like many that have come before it—will boil down to innovation and compromise. 

      And although the legal profession isn’t well known for embracing swift and rapid change, the good news is that we won’t have to reinvent the wheel. The judicial system already has some tools in place that will help us get through. 

      One option may be to temporarily do more legal work remotely and put more trust in technology.

      Lawyers appearing in remote jurisdictions often have the option to seek leave of the court so that they can use the telephone to avoid travel. For example, if a lawyer lives in Vancouver but has been retained on a file in Prince George, they may apply to appear in court via telephone for nonsubstantive matters.

      Although the court can exercise discretion in granting such applications, they would be wise to take a broader, more lenient approach in light of our current health crisis.  

      The trickier part of the equation will have to do with more substantive court appearances, such as hearings and trials, where arguments will be made and evidence must be given. 

      This is a hurdle that has somewhat been overcome by moving some courtroom proceedings into administrative settings. Much of the time, administrative matters are heard by way of written submissions, affidavit evidence, and/or oral arguments over the phone. 

      However, this is not ideal. 

      Truncated review processes run the danger of watering down our judicial system and can present concerns with respect to procedural fairness and access to justice. It is also not an option—nor should it be—for the vast majority of criminal offences in this country.

      The last thing we want to do is compromise legal rights and liberties out of fear; but striking the appropriate balance between individual rights and social responsibility will become increasingly difficult as time goes by. While technology may answer some of our concerns in the short time, it cannot replace in-person applications and hearings in the long term. 

      Hopefully, the COVID-19 pandemic will be behind us before we know it; but the uncertainty that it has caused serves to highlight the fragility of many of our social systems and the pressing need to adapt. 

      Our judicial system is no exception.