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Joseph A. Neuberger
Neuberger & Partners LLP
Criminal Defence Lawyers
Access to the legal system and the proper functioning of our courts is an essential public service. Though the courts are not completely shut down during the coronavirus pandemic, case processing has slowed to the point that the backlog will cause significant problems.
Former Chief Justice of Canada, Beverley McLachlin, writing for The Lawyer’s Daily, “beseech[ed] governments across Canada to see COVID-19 and the courts’ woeful inability to pivot as a wake-up call.”
As many other types of services have changed the way they do business in order to protect employees and clients, there are ways that the legal system could use technology to adapt as well. Many procedural and administrative hearings could be handled remotely to reduce the load on the system and social distancing concerns can be implemented for some in court hearings as well.
Trials are a different matter.
There is a human element at the core of the justice system which is integral to maintaining just outcomes. For an accused in a criminal trial, their physical presence is a reminder that there is a human life at stake in the outcome. This human element cannot be replaced by an image on a computer screen.
People form impressions of each other through both words and body language. As we know from studies of the disinhibited way people behave on the internet, interactions solely through a computer can cause us to treat each other with less compassion and connection to consequences. While written submissions provide opportunity to review and perfect wording, oral submissions in court are much more dynamic and thus compelling.
In live court hearings, judges can also give better voice to their questions, ask for clarifications on the evidence and carefully observe witnesses as they testify. The deference given by appellate courts to the credibility assessments of trial judges is based on that judge’s presence in the courtroom during testimony.
Though alternate means of testifying can be provided, there is good reason that all options to have a witness present in course is first exhausted before other measures are employed.
There are many ways that procedural meetings and preliminary discussions can take place using digital technology, but we should be very cautious before reducing a trial to paperwork and a video screen.
The Right Honourable Beverley McLachlin stated, “It is incumbent on governments to prioritize justice as a critical and essential part of the functioning of our society and ensure that the people at the heart of the system have the tools to meet the demand.”
It is just as important that we find the means of employing safety measures and physical distancing that restores functionality without sacrificing the human element that is essential to fair trials.