The court system often seems more creaky than nimble but COVID-19 meant making big changes on short notice.
Many of those working in the justice system hope pandemic-inspired alternatives to the old ways of doing business stick.
“It has worked in a lot of ways,” said Red Deer defence lawyer Jason Snider, of the numerous changes forced on the courts because of health restrictions.
One of the biggest changes was a switch, in most cases, to virtual court appearances, with lawyers, clerks, judges and defendants connected by a video or sometimes just an audio link. Red Deer courtrooms once filled with lawyers and their clients waiting their turn before a judge were almost empty most days.
In some cases, even trials were held remotely, lawyers, judges, defendants, witnesses and clerks never in the same room.
“It’s an interesting experiment that is being played out in real time. And frankly, the court system’s hand was forced by COVID. They were very resistant to remote appearances by counsel prior to COVID,” said Snider, who is president of the local Criminal Defence Lawyers Association.
“The pandemic really pushed them over that line and now they are not willing to go back to a pure in-person model.”
The court system and judges, who usually have final say on whether someone must appear in person, are still struggling with exactly what the future ground rules should be, he said.
“We’re still trying to find the balance of where the best line is. The line is being drawn in different places in the court system in different parts of the province.
“Calgary is going to much more of an in-person model. The rural jurisdictions are keeping much more of a hybrid model.”
There is also a down side to doing much more work remotely. Some lawyers have talked about how it reduces the important connection between them and their clients and changes the courtroom dynamic.
Red Deer defence lawyer Andrew Phypers agrees some pandemic-prompted changes are worth keeping.
“Some of the infrastructure that they put in place, like the remote appearances, should stay. I believe simple docket appearances etc. I believe should be conducted that way.”
It saves lawyers and clients money not having to travel to court for an appearance that might be measured in seconds but could involve hours of waiting their turn before a judge.
But for trials and other cases in which lawyers need to advocate on behalf of their clients, Phypers wants to see that in-person contact retained.
“It gives judges better ability to assess things and for lawyers to employ their skills. I know they conducted some trials remotely during the pandemic and I’ve never been a supporter of that method.
“I think there is a lot of nuances that go unnoticed on TV that can be brought out in-person during cross-examination, for instance.
Even in sentencing the personal advocacy of a lawyer is much more effective (in-person) than on TV.”
While the court system often appears to move painfully slowly, especially for those awaiting justice, significant efforts are being made to drag it into the digital world and make it more efficient. Some began pre-pandemic, but the health crisis has highlighted their value.
“The local court system is going much more digital,” said Snider. “It’s not so obvious from the outside but we’ve had different consultations with them and they’re in the middle of a couple of major digital initiatives.”
In docket court, where dozens of cases — often in the early stages of the process — are herded through the system, notes and endorsements by court clerks are being entered digitally.
The case management office, which itself was an innovation to speed up the process of booking court dates and improve efficiency, has also made it easier for lawyers to access the system remotely.
Red Deer was one of two jurisdictions used for a pilot project, and now that early bugs have been worked out it is now being expanded across the province.
Canada’s chief justice weighed in on the issue earlier this week, warning that the justice system cannot return to pre-pandemic ways and must continue to innovate and modernize.
The Supreme Court began holding hearings via video conference, as well as hybrid sessions, in 2020 to help prevent the spread of COVID. Canada’s top court will continue to allow virtual hearings if participants agree.
“Truly, it does not matter if counsel is standing before them or appearing on screen,” said Chief Justice Richard Wagner. “Strong, well-reasoned and persuasive arguments can be made from anywhere.”