The SARS-CoV-2 novel coronavirus and its disease consequent, COVID-19, have had a transformative—and sometimes disruptive—effect on court operations in Canada. Much as with the pandemic itself, the impacts have been uneven, borne most heavily by provinces that have experienced the highest levels of infection and transmissibility. Some of the initial procedural and structural changes implemented by the judiciary worked well in protecting the health and safety of court-service users but posed barriers to accessibility and transparency, leading to delays in the timely adjudication of cases. However, through effective collaboration with justice stakeholders, many of those early-onset problems have been resolved. The courts in Canada have developed innovative means of delivering just outcomes; some of these changes are likely to remain in the future as we learn to live with a new sense of normal.
July 27, 2021 Feature
COVID-19 Impacts on Courts in Canada
By Judge Del Atwood
The opening response to the first wave of the pandemic was an almost total shutdown of all in-person proceedings in Canadian courts. In the province of Nova Scotia, the judiciary adopted an essential-services model, intended to be in line with the advice of public health officials regarding physical distancing and interior-structure capacity. Courts began conducting proceedings remotely, generally by teleconferencing with counsel and self-represented parties. Even at the onset of the pandemic, judges in certain centers were well equipped with state-of-the-art technology to be able to convene remote proceedings by high-definition videoconferencing. However, the technological capacity of those courts was not always matched by the capacities of counsel, which led to some degree of tension—R. v. Gillingham, a decision of Judge Wayne Gorman of the Newfoundland and Labrador Provincial Court, is a case in point.1
As nationwide lockdowns continued, and public access to courthouses remained restricted, the judiciary allocated substantial resources to ensure the promotion of the “open-courts principle.” That core jurisprudential doctrine—set out by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp.2 and R. v. Mentuk3—affirms the right of public access to the courts. Justice centers took steps to ensure media and public access to proceedings by teleconferencing and webcasting cases likely to attract media attention.
In most provinces, courts mandated the wearing of masks by justice system participants. This led in some instances to litigation over mask removal during witness testimony. In R. v. Mackinnon,4 the court found that masking was an important public-health measure, designed to limit indoor transmission of the virus, a first-priority risk given the presence of variants of concern in the community. The court held that requiring witnesses to remove masks while testifying in person would interfere with the important public-health interest of limiting transmission of SARS-CoV-2 and would not create a serious impediment to trial fairness.
In criminal proceedings, courts and counsel have had to increasingly resort to provisions of the Criminal Code of Canada, which allow witnesses to testify remotely by video link.5 This has allowed in-person proceedings to continue, while ensuring court operations remain compliant with courtroom-capacity guidance.
Very early public-health risk assessments identified persons in custody as being at elevated susceptibility to COVID-19 infection. During the first wave of the pandemic, significant steps were taken by courts to reduce in-custody populations, which met with good outcomes and did not lead to increases in criminal activity in the community. Unfortunately, that progress has eroded with the passage of time, and custodial institutions remain areas of considerable concern. The most recent data from the Correctional Service of Canada record that, of the 13,700 persons serving federal terms of imprisonment, 1,557 have contracted COVID-19, and five have died.6 Data from provincial institutions are harder to aggregate; however, customary extrapolations from federal statistics would suggest provincial-institution infections would likely be about three times the federal number.
As the understanding of the nature of the risk of transmission has improved, so has the court’s approach to custodial outcomes. Sentencing and bail decisions rendered at the beginning of the pandemic typically required accused persons to identify personal health histories demonstrating the existence of elevated risks of infection in order to effectively advance arguments against incarceration.7 However, as the quality of epidemiological evidence improved, making clearer that risks pertain not just to people but also to places (situating prisons near the top of the list of high-risk sites), that requirement for linkage to personal health vulnerability became attenuated.8
As courts in Canada have transitioned from the first, second, and now into the third wave of the pandemic, scheduling disruptions have continued in lockstep. Delays are leading to litigation, as there is a constitutionally protected right in Canada to trial within a reasonable time,9 to which the Supreme Court of Canada has applied very clear timelines.10
However, even as we are required to lock down again in the presence of variants of concern, our earlier experiences have led to an improvement in corporate memory, so that we are able to effectively run courts remotely using technology. Here in Nova Scotia, the judiciary has adopted Microsoft Teams as the remote videoconferencing standard. Judicial education—offered primarily through the National Judicial Institute and the Canadian Association of Provincial Court Judges—has migrated effectively to online learning.
As is normal in any paradigm shift, many of the changes have had unintended consequences, some of them beneficial. The use of remote-appearance technology has assisted some judges and counsel in managing multitasking more effectively. Allowing self-represented parties to tele- or videoconference with the court has helped alleviate job-absence or childcare problems that arise because of the need to appear in court in person.
Within the first month of the pandemic, there were 265 reported cases in Canada dealing with COVID-19–related issues. As of the date of submission of this article, that number has grown to almost 9,500. As our understanding of sequela of this event continues to evolve, building collaboratively on experience will be essential.
Endnotes
1. [2020] N.J. No. 107, para. 5–7 (QL). All citations in this article conform to The Bluebook: A Uniform System of Citation tbl.T2.6 (Columbia L. Rev. Ass’n et al. eds., 21st ed. 2020), available at http://legalbluebook.com.
2. [1994] 3 S.C.R. 835.
3. [2001] S.C.C. 76.
4. [2021] O.N.S.C. 2749.
5. R.S.C. 1985, c C-46, ss 486.2, 714.1–714.8.
6. Correctional Serv. of Can., Testing of Inmates in Federal Correctional Institutions for COVID-19, Gov’t of Can., https://www.canada.ca/en/correctional-service/campaigns/covid-19/inmate-testing.html (last visited May 4, 2021).
7. R. v. BTD, [2020] N.S.S.C. 165.
8. R. v. Kleykens, [2020] N.S.C.A. 49, para. 103.
9. Canadian Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, para. 11(b).
10. R. v. Jordan, [2016] S.C.C. 27; R. v. Cody, [2017] S.C.C. 31.