By Cristin Schmitz for The Lawyer's Daily
A national task force, co-led by Chief Justice of Canada Richard Wagner and federal Justice Minister David Lametti, has devised some initial guidelines, and identified overarching principles, to help local courts safely and appropriately resume their operations during the COVID-19 pandemic.
On May 26 the “Action Committee on Court Operations in Response to COVID-19”, created earlier this month, stated “that fundamental principles arising from the Constitution and from Canada’s commitment to the rule of law define an operational landscape unique to the courts, which must be accounted for in developing court-specific protocols for restoration of operations and recovery from the pandemic.”
The committee, which meets virtually on a weekly basis, said its immediate priorities include providing national guidance to address the major challenges courts face in holding jury trials and hearings in small courtrooms and with respect to circuit and remote courts.
“The challenges on the ground are significant and the action committee looks forward to offering support and guidance to local decision-makers,” Lametti said in the statement accompanying separate documents in which the committee approved “core principles and perspectives” for the justice system, as well as identified health and safety risks and considerations applicable in the courts.
“While the action committee’s guidance will help us navigate our new reality, my hope is that it will also serve as an opportunity to promote reform and renewal in the justice system,” Lametti said.
“We cannot simply view our response to COVID-19 as temporary measures to bridge us back to ‘normal’ — they must be seen as opening the door to imagining a new normal,” Chief Justice Wagner agreed in his own statement.
The action committee also includes as members Ontario Superior Court Chief Justice Geoffrey Morawetz; Alberta Queen’s Bench Chief Justice Mary Moreau, Alberta provincial court Chief Judge Terry Matchett; B.C. Attorney General David Eby; federal Deputy Minister of Justice Nathalie Drouin; Tina Namiesniowski, president of the Public Health Agency of Canada; and ex-officio member Renée Thériault, executive legal officer of the Supreme Court of Canada.
The committee identified, and elaborated on, the fundamental principles applicable to the justice system which continue to apply in pandemic times, including: open courts; “meaningful and effective access to the courts” including by vulnerable persons and those with limited access to technology; judicial independence; federalism; and participation in the justice system as a juror, litigant, victim, witness, or accused person should not impose an undue burden of distance from one’s home and community.
The action committee said its overriding focus is to “help restore court operations in a manner that protects the health and safety of Canadians, using public health advice and expertise as a foundation. This involves accounting for the needs of all Canadians who rely on the justice system, including those whose personal circumstances – such as age, underlying health conditions, or living arrangements – place them at higher risk of contracting or suffering severe effects from COVID-19. Restoration of court operations must drive toward a more modern, responsive and resilient court system.”
Decisions related to the restoration of court operations at both the local and national levels must be informed by a shared understanding of public health and legal principles, reflecting the integrated responsibility and collaboration of multiple actors in the public interest, the committee advised. However it emphasized too that the principles it has articulated are intended to guide and support, not replace, leadership and decision-making by the judiciary and local officials in response to community needs.
The committee explained its aims are to: provide national-level guidance based on a common framework of parameters to enable co-ordination and consistency in approach; facilitate access to essential information, expertise, and health and safety resources for chief justices and courts administration officials as they work to restore and stabilize court operations in their communities; highlight best practices and facilitate communication, information sharing, and collaboration among courts, governments and communities across Canada, while recognizing also that the efforts of individual courts and jurisdictions could yield innovations of national importance; and ensure that early decisions around resumption of court operations are framed within a wider vision of courts modernization, thus ensuring that any measures adopted in response to the pandemic pave the way toward longer-term transformation and more resilience.
The committee said judges must consider how fundamental principles, public safety and the rights of individuals are best reconciled in the context of each court proceeding. “This includes balancing innovations — such as online access to court hearings — against potential risks to vulnerable persons, including children, who may be required to share intimate testimony and personal experiences in court.”
The action committee also pointed out that courts rely on governments to provide adequate resources to ensure effective and efficient operations that guarantee meaningful access to justice for Canadians. “This includes the community’s interest in the prosecution of criminal cases, where judges must enforce constitutional timelines for the completion of trials while accounting for public safety and other considerations related to the detention or release of accused persons.”
The committee advised that physical distancing should be the foundation for any court’s strategy to mitigate the risks posed by COVID-19. This could include, among other measures: physical restructuring; use of visual cues and signage; directional controls in hallways; scheduling and volume controls on facility access; reliance on larger hearing space; and diversion to remote and technological alternatives.
Additional elements can be introduced where physical distancing is impossible or insufficient, the committee recommended. “At all points, consideration should be given to ensuring selected mitigation strategies do not introduce barriers to access, particularly for vulnerable court users,” it cautioned.
Engineering controls can be used where physical distancing is not possible or is inadequate, including: plexiglass barriers for certain types of interaction (e.g., with security or registry officials); automatic doors; no-contact document drops; increased ventilation; and designated isolation rooms for persons who become ill.
The committee advised that administrative controls can also help to communicate, reinforce, and supplement, physical distancing and other environmental adjustments. Such controls can include: screening court personnel and users for COVID-19 symptoms or exposure prior to entering court environments; increasing the frequency and intensity of cleaning; adjusting workplace policies to encourage ill employees to stay home; staggering court services, hearings, and work hours to control personnel and user levels; and training court personnel on essential safety measures and practices.
Moreover, personal protective equipment used in accordance with public health advice, such as non-medical masks, face shields and gloves, may be considered in combination with the other control measures, especially for spaces in which physical distancing is not possible. Such spaces could include common areas that experience high volumes of human traffic, or small spaces requiring close proximity. “Medical-grade personal protective equipment that safeguards the wearer against exposure to COVID-19 may be appropriate in certain circumstances,” the committee remarked.
The action committee stressed also that broadly shared and accessible communications are vital to ensuring that protocols are followed and that all court users feel safe within the court environment, including clear and visible signage throughout the courthouse and courtrooms to ensure court personnel and users are aware of, and able, to follow health and safety protocols.