Legal experts worry about changing court landscape after COVID-19

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

Two years ago, when the pandemic first gripped the country, trials were delayed and the public was banned from courthouses. The entire system came to a grinding halt.

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

"There’s all sorts of positive outcomes to the trend that the pandemic has necessitated," said Tony Paisana, a law professor at the University of British Columbia and chairman of the Canadian Bar Association’s national criminal justice section.

"Various people … had been advocating for those kind of changes."

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

He’s worried the court backlog has worsened.

"We can’t ignore the inefficiencies that arise from the inevitable adjournments that occur because of (COVID-19) surges," he said. "There are a number of cases that (have been) adjourned en masse and court administration can’t catch up.

"It’s folly to say it’s more efficient now. That’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 documents.

In a statement, Saskatchewan Justice said video conferencing, where it’s available, increased almost eight per cent between 2019 and 2020.

The federal government introduced changes a year ago proposing "targeted and permanent" changes, including a way to hold some hearings remotely, video appearances of the accused at preliminary inquiries and non-jury trials, and video participation of jury candidates. The bill received first reading before the federal election was called.

"The government specifically committed in its electoral platform to reintroduce (the bill)," said Department of Justice spokesman Ian McLeod in an email.

Toronto lawyer, Bill Trudell, chairman of the Canadian Council of Criminal Defence Lawyers, said the system is "never going to get back to the way it was before."

New technology is likely to mean the end of paper documents like sworn police statements, warrants and exhibits, he said.

"We’re going to see the end of unnecessary appearances in court, the set-date appearances that cram up the court."

Trudell cautioned the improvements need to be available in all parts of the country, including the most remote — and that’s going to cost money.

"Criminal justice, I’m worried, is going to be at the back of the bus in terms of fxjmtzywunding for this technology."

Trudell said another victim of the pandemic could be defence lawyers just starting out.

"I’m really worried about people dropping out of the practice because of not being able to fund themselves. Criminal lawyers are not on salary," said Trudell.

"When you cancel a jury trial for six months … then that has a direct effect on the ability to make a living."

A shortage of defence lawyers could lead to burnout among those who remain and more people appearing without counsel in court, he suggested.

A juror advocate in Toronto said the pandemic has meant changes for juries as well.

Mark Farrant, who founded the Canadian Juries Commission, said some provinces are issuing taxi chits to jurors to help them avoid public transit and provide security in more controversial trials.

Another issue is jury pay. Only Saskatchewan, Quebec and Nunavut are adequately compensating jurors, he said, and with the uncertainty that will follow the pandemic, other jurisdictions — most notably Alberta, Ontario and British Columbia — will need to follow suit.

"When we are talking Canadians who have been economically impacted, jury pay goes a long way to support individuals," he said.

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