David M. Brown
Over the past few months, COVID-19 has turned on its head many things that we previously took for granted. Live sports are in empty stadiums, concerts are off, and we’ve had a tragically confusing relationship with in-restaurant dining over the past year.
Even our “tried” and true method of judicial dispute resolution, the in-person trial, has changed a bit.
Recently, my co-counsel, Victoria Merritt, and I completed a two-week long Supreme Court trial in Fort St. John, BC, and were afforded a unique opportunity to experience the changes that COVID-19 has brought to courtroom procedures.
In-person trials are still happening?
Live trials are a cornerstone of the Canadian justice system, and it was no surprise that our 10-day trial was held in-person. That said, the courtroom did look different from pre-pandemic days.
First, the number of people allowed in the courtroom was limited, and when you add up the judge, the clerk, counsel and the witness, it didn’t leave a lot of physical space for onlookers in the gallery.
Second, everyone had to respect social distancing norms. While my co-counsel and I were considered to be in each other’s “bubble” and were allowed to sit together, we had to ensure space with opposing counsel. The gallery pews also had large sections crossed out to promote social distancing.
Finally, lawyers, the court clerk and the witness were separated by clear Plexiglas dividers.
Is in-person attendance of witnesses required?
This issue was addressed at the trial management conference, and any non-party witnesses that were concerned about in-person attendance were allowed to attend remotely. In our case, we had one witness from out-of-province that attended using Microsoft Teams. In advance of the trial, we had to carefully plan for this video attendance to ensure that the witness had copies of relevant exhibits and to coordinate timing and technology with the court. Ultimately, the video feed was a little laggy and froze on us a couple times, but it was nonetheless functional and got the job done.
Is masking required?
We asked court staff about masking requirements before trial commenced, and we were told that it would depend on the preferences of the judge. In our case, the judge spoke to this in introductions, and decided that anyone who was speaking was permitted to remove their mask, including the judge, the witness and examining counsel. Everyone in the audience was masked, as well as the clerk and seated lawyers.
COVID rules apply in the courtroom as well
Other changes to the trial process were small but entirely consistent with what we have been experiencing outside of court:
· Every morning upon arrival, we were asked the same three clearance questions to ensure that no one posed a COVID risk;
· There were alcohol sanitization bottles everywhere;
· Lawyers had to bring their own water bottles; and
· We also had to stand down between witnesses for about 10 minutes so that the witness booth could be sanitized.
In the end, I found that the court was well prepared to handle the challenges of COVID-19. Everyone was professional, courteous and patient. Cleaners were frequently seen walking the halls with disinfectant in hand.
Despite the long days, I always felt safe and comfortable.
Justice continues and in-person trials remain very workable albeit with a few common-sense modifications.