Reasonable Doubt: Trial lawyering during the COVID-19 pandemic

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      Lawyer: I don’t wear a mask in the courtroom.

      Judge: You will have to wear one. We are not spending three days together in a small courtroom in a poorly ventilated building with counsel not wearing a mask.

      Lawyer: Well, I’m not going to wear one, so what are you going to do about that?

      This tense exchange took place in July in an Alberta courtroom between a judge and, according to news reporting, one of Edmonton’s most senior and well-respected lawyers.

      It was a sexual-assault trial. The criminal-defence lawyer refused to wear a mask at the counsel table. He stated that he was fully vaccinated and argued that the safety protocol restricted the public’s access to the courts and that the protocol was unconstitutional. The judge invited counsel to reconsider his position over a break. He dug his heels in and she cited him for contempt of court.

      Now, contempt of court is no trivial thing. It is a big deal when a lawyer is involved. The Edmonton lawyer will have a hearing for this citation. It may even be investigated by the Law Society of Alberta as well.

      This is yet another instance of COVID-19 politics entering the courtroom. The pandemic has affected our court system as it has all other aspects of society. Safety measures have been set up to allow the courts to continue to run.

      As we ride the waves of COVID-19 here in B.C., how are the courts running? For much of the spring of 2020, the courts were closed for all but the most urgent and essential cases. A year later, how does the courtroom look?

      The B.C. Supreme Court is still holding some proceedings via videoconference and teleconference. These are for smaller matters that adapt better than full-on trials. Trials, in contrast, continue to be held in person at the courthouse.

      If you show up at a B.C. Supreme Court courthouse, you will likely see a sheriff at the entrance asking people if they have COVID-19 symptoms. Anyone reporting symptoms will likely be refused entry. I myself know of one Vancouver trial that had to be rescheduled because the lawyer was not allowed in. In fact, that lawyer had bad side effects from his vaccine and reported this to the sheriff.

      Walking through the halls of a B.C. Supreme Court courthouse now, you’ll notice a big difference. Before COVID-19, you’d see lawyers toing and froing in the halls and others loitering about. You might see spirited negotiations, last-minute pep talks, and scrambling to make filing deadlines. Now the courthouse hallway is so quiet it feels like you’re there after-hours. People dart straight into their courtrooms and there is little milling about outside in the halls. Those that stay in the halls talk in hushed tones, muffled by masks.

      That said, members of the public and media may enter court to attend a hearing—but only if the courtroom can accommodate the space needed for physical distancing. The courts continue to be open to the public to a limited degree in order to keep the justice system transparent.

      The courtrooms look different as well. Most chairs in the gallery are taped off to ensure physical distancing. Lawyers sit apart from one another and are required to physically distance. Plexiglass walls are set up as barriers to separate the counsel and the judge. The witness stand is boxed off with so much plexiglass that one witness remarked that he felt like he was encased in glass.

      The judge presiding over trial at the B.C. Supreme Court has much authority and discretion over the COVID-related safety measures. Depending on the judge, masks may be required to some degree (in a recent trial of mine, the judge allowed the witness and lawyer to remove their masks when speaking but required masks at all other times). The judge might also start each trial day by directly asking individuals in the courtroom whether they have COVID-related symptoms. The judge may also allow witnesses to testify by videoconference rather than in person.

      It’s not clear when courts will return to how they were. Jury trials for civil cases have been suspended for a year now and they aren’t returning until October 2022 (barring any change in policy). It’s quite possible that some of the virtual measures taken will remain for good, since they are convenient and cost-effective.

      As for safety measures taken inside the courtroom, it seems that the courts will take their cues from the overall situation in B.C. And with any COVID-19-related measure, there will be some who buy in and some who act out.

      The author’s opinions of this case are based on news reporting and not on any firsthand knowledge or from any personal involvement.

      A word of caution: You should not act or rely on the information in this column. It is not legal advice. To ensure your interests are protected, retain or consult a lawyer.