Virtual trials have been a challenge: judges
Law firms concerned about backlog, limited number of cases being heard electronically
One of the challenges facing the courts in light of the COVID-19 pandemic has been getting lawyers to agree to proceed with their cases electronically, say two of the province’s chief judges.
Speaking to members of the Newfoundland and Labrador Law Society in a webinar last week, Supreme Court Chief Justice Raymond Whalen and Provincial Court Chief Judge
Pamela Goulding both expressed frustration with what they said was a lack of participation from counsel when it came to bringing cases before the court via phone or video conference during the COVID-19 lockdown.
Courts in this province have been closed since midmarch, with only emergency and in-custody matters proceeding via electronic means. Over the past month or so, the courts have increased the number and types of matters they have been willing to hear via electronic means and have been encouraging Crown and defence lawyers to apply to have their matters proceed that way.
Supreme Court resumed some in-person hearings last week, while provincial court is set to reopen on Monday.
“We strained to develop this capacity, to increase the capacity for virtual court,” Goulding told the law society members, detailing the effort that went into arranging for judges and court staff to have the resources needed to be able to work from home and then working with Memorial University’s faculty of medicine to increase the potential to proceed with cases in virtual courtroom through a MUN platform. “We were very, very surprised and disappointed when there was quite literally two, three, maybe four trials that we heard during this time by virtual court. There was really virtually no uptake on it, which was very disappointing to us.”
Whalen spoke of the quick efforts made to accommodate virtual trials as well.
“Quite honestly, the reply from the law society members has not been great,” he said. “The replies (to emails) are often untimely. Many times we do not get a reply from counsel as to trying to reschedule matters or a reply to the request that we’ve made and there’s no sense of urgency coming to us to the request that we’ve made. So obviously a significant barrier exists to the rescheduling of matters and the continuation of the court’s business, the matters that were postponed in particular.”
Whalen called for lawyers to “step up” and exercise flexibility to help deal with the backlog of matters in Supreme Court, which he reckoned is more than 1,000 cases.
Speaking at the beginning of May in a webinar with other Atlantic Canadian chief judges, Whalen appeared to take a more positive view of the situation — which was then still being worked out — saying the court had moved from the inevitable “unacceptable state of affairs” it found itself in at the start of the pandemic to a relatively smooth teleconferencing process.
“I think the experience has been pretty good in that sense,” Whalen said at that point.
The legal community had been “exceptionally co-operative” and understanding of the unchartered territory in which the court had found itself, he added.
On May 19, three large Atlantic Canadian law firms wrote to the provincial and national legal associations, raising concerns they then had in terms of access to the courts and the operation of the justice system. In particular, they raised concerns regarding the reopening of the courts, the expansion of court hearings being heard and the backlog of cases.
The firms stressed what they said was a need for an expansion of hearings as public health restrictions were relaxed.
“While not all matters may be capable of in-person hearing due to public safety concerns and guidelines, the question is whether the courts foresee moving to other platforms to enable virtual hearings. We believe that currently available technology makes virtual hearing a viable and expedient option,” they wrote in the letter, sent to courts and justice officials in all the Atlantic provinces. “The next question will be what matters can be heard, whether a gate keeper or application process will be necessary to have matters scheduled or whether the court will be setting guidelines for the resumption of non-urgent or emergency cases as well as routine civil and other matters.”
Access to justice is a fundamental right, the law firms wrote, and public health and safety must be balanced with the proper functioning of essential services, like the courts.
“If greater access to the courts is not attained, justice will not only be delayed, it will be denied in some cases,” the letter stated.
Whalen replied, saying the court had yet to determine a date for a reopening based on public health guidelines since the province, at that time, was still in Alert Level 4. Arrangements were being made to address each of the areas of concern, he said, with the goal of resuming in-person hearings as soon as possible.
At the end of May, director of public prosecutions Lloyd Strickland issued a public statement saying his office was doing the same and inviting defence lawyers and people facing criminal charges to get in touch if they felt their case could proceed virtually.
Strickland had previously told The Telegram the Crown was eager to proceed with virtual trials, but they were not without challenges. Not every witness has access to the required technology at home, he pointed out, and the responsibility and risk of arranging for a suitable location from which witnesses can testify is up to the prosecutors, with help from police or Victims Services. He noted the court had only been hearing a limited type of cases for the first two months of the pandemic and many of them weren’t the type that would necessarily see a rush of people pushing to have them go ahead.
“Perhaps it’s not surprising that offenders weren’t streaming forward to get sentenced as soon as they could,” he said at the time.
Some offenders have made the same point to The Telegram, saying they aren’t convinced a virtual trial is in their best interests.