Canadian Courtrooms in the Pandemic Era

From the courtroom to the video screen: court’s changing reality.

While the law is ever-evolving, the way it was practised has remained generally static – until now. The coronavirus pandemic plunged the world into chaos and uncertainty and the legal profession was not spared.

Courtrooms throughout Canada closed their doors to all but urgent matters and while they have started to reopen, it is evident that video technology will have to continue to play a role in ensuring the wheels of justice keep turning.

In the past few months, the legal profession has utilized teleconferencing to handle such matters as pretrial conferences, mediations and examinations for discovery. And there’s every sign that the remote hearing is here to stay.

As one judge noted “the need for the court to operate during the pandemic has brought to the fore the availability of alternative processes and the imperative of technological competency. Efforts can and should be made to help people who remain uncomfortable to obtain any necessary training and education.”

Courtrooms in the pandemic era

Like the rest of the country, Alberta was forced to embrace the new reality. In late March, a judge presided over a criminal proceeding by video from her home while the accused, defence attorney and the Crown were in an Edmonton court.

In April, in what was considered a first for the province, two women were sentenced in a case where only the judge and clerk were in the courtroom. The lawyers watched remotely through a web application, with the accused appearing by closed-circuit TV.

"This was a success and it has encouraged us to move forward more aggressively to remote hearings," Court of Queen's Bench Chief Justice Mary Moreau was quoted by CBC in April. "We're becoming more proficient in a remote world." 

In June, a man faced a trial for sexual assault in Ontario through video-conferencing technology. The proceeding, on the Zoom platform, took five days and was the first trial in the province since courts shut down.

Also in June, The Supreme Court of Canada held its first hearing entirely by video-conference. 

 “This week, between judges, counsel, media, and public observers, our courtroom will be in dozens of different offices, living rooms, and other locations across Canada. This isn’t what any of us expected when we set dates for the hearings this week, but here we are – and so far, so good,” said Chief Justice Richard Wagner.

“None of us have done this before. There will be hiccups. There may even be unexpected visits by children or pets. That’s okay. There are some things that are beyond our control, like the COVID-19 pandemic that has kept us all at home and sickened or taken so many Canadians, possibly even your own loved ones,” he added. “We are adapting, and nothing is perfect the first time. Just remember that we are here for your arguments, not the angle of your camera or your facility with the mute button. We will get through this hearing, just as we will get through this pandemic.”

Fine tuning the profession and the process

There are, of course, growing pains with most any new change. Some lawyers are resistant to technology, preferring the tried and true methods of practising law.

Chief Justice Wagner, who co-chairs a COVID-19 court response committee, told CBC one positive aspect to the crisis “is the chance, or the opportunity, to use more technology for the justice system in Canada."

He told the news agency that the Criminal Code is the best vehicle to allow the federal government to make changes because it regulates the rules of conduct, how jury trials are conducted, the number of jurors and how they are selected. 

Wagner said amendments to the Code could permit evidence to be introduced by video-conferencing and allow judges to hear cases in other jurisdictions, adding that it’s also been suggested that the committee look at the possibility of reducing the size of juries.

However, critics point out that any legislative changes may be challenged under the Canadian Charter of Rights and Freedoms with the possibility that the Supreme Court would ultimately be tasked with deciding the issue of their constitutionality.

Two sides to the remote hearing concept

With courts open to some degree, the work can begin to clear backlogged dockets. It’s not expected to be an easy process, but proponents of teleconferencing maintain there are decided advantages to expanding the system thrust upon the legal community by the pandemic. 

Among the pros:

• Convenience is often cited as a major selling point for remote hearings: There is no need to travel to court and litigants can attend hearings in the comfort of their home. It can also cut down on expenses since lawyers would not have to charge clients for travel time.
• Lawyers are generally participating from their offices, with valuable resources nearby.
• Streaming court proceedings could give the public more access to the justice system. 
• Proceedings tend to be more efficient, taking less time to adjudicate.

Among the cons:

• Critics say that not being in the courtroom gives a trial a different dynamic, arguing it is important to be in the same room when assessing a witness’s credibility.
• Maintaining privacy and upholding the integrity of the court have been cited as concerns.
• Technology is hardly infallible and susceptible to power or internet outages.
• Zoom trials are not always suitable for those litigants without representation.

Making the most of a Zoom trial

Preparation is important with any trial but there is much more to think about – even little nuances to consider – with a remote trial. For example, because there is a less formal feel to teleconferencing, there have been reports of lawyers addressing each other by their first names, which is not fitting for a court setting. 

It can be helpful to make a checklist.

1. Ensure someone on your team is familiar with the technology to test equipment before the hearing and be on hand in case problems arise.
2. Prepare participants on what to expect and advise them to be mindful of facial expressions when not speaking.
3. Premark exhibits and have them readily accessible so they can be shared on-screen with the court, counsel and witnesses.
4. Ensure witnesses are comfortable with the method of viewing documents on a screen.
5. Appear in front of a neutral background to avoid distractions and reduce or eliminate background noise. Lock your office door and mute your phone,
6. Act the same way you do when appearing in an actual courtroom and remain professional at all times. Refrain from eating. Dress appropriately. Advise your clients to follow suit.

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