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Pandemic's impact on judicial system tricky: MP Cooper

COVID-19 has brought with it some beneficial and much-needed changes to the judicial system in Canada, says St. Albert-Edmonton MP Michael Cooper, but it has also brought some unique, albeit serious, drawbacks.
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The pandemic is impacting courts across Canada, including St. Albert Provincial Court, in many ways, according to St. Albert-Edmonton MP Michael Cooper. St. Albert Gazette/PHOTO

An order for a medium double-double coffee is not what one would expect to hear in the middle of a court case.

But the pandemic is stirring up more casual interruptions such as this during weighty legal proceedings, and other concerns, as COVID-19 safety measures push court interactions online. A local MP is pushing for more data on the impact this will have on the system.

“(A judge) suddenly heard the witness say, ‘hold on a second,’ and then cry out, ‘a medium double-double’ so you know that just underscores the issue of when you remove witnesses, when you remove lawyers, when you remove a judge from being in a courtroom together in terms of the solidity of (the gravity of testifying in court),” said St. Albert-Edmonton MP Michael Cooper.

COVID-19 has brought with it some beneficial and much-needed changes to the judicial system in Canada, but it has also brought some unique, albeit serious, drawbacks, he said.

Last fall, Cooper brought forward a motion to study the impact the pandemic is having on the Canadian judicial system. That study began at the end of April and will continue for six meetings, although there is no date set for the conclusion. The study will include insights from judges, lawyers, court administrators, and representatives from organizations involved in the judicial system.

Cooper highlighted the challenges faced by witnesses who have already testified – delays, backlog, and technology issues, according to the Canadian Judicial Council and the Canadian Superior Court Judges Association.

This can be positive in some instances, said Cooper, but in others it has posed challenges, "particularly in the context of trials, whether it be in the criminal, family, or civil context, where credibility is a key part of adjudicating those matters. It's difficult to do if, for example, it is not in person,” he said.

The trappings of the courthouse in a courtroom can help impress upon the witness the significance of testifying in court, said Cooper

“That isn't the case (with COVID-19 measures in place.) It's much more difficult to convey that in the context of these zoom trials,” Cooper said.

One of Cooper’s biggest concerns with the pandemic is the issue with backlogs.

“Courts were already struggling to deal with the volume of cases," he said, which was further impacted when courts across Canada closed for three-and-a-half months, other than for a limited number of matters. Now some provinces are facing reduced sittings during a third wave.

"That has (had) a huge impact on the entire system,” he said.

In 2016, the Supreme Court of Canada established the Jordan decision, which established that trials must be heard within a reasonable timeframe. Trials under a province’s main point of entry into the court system must be heard in 18 months. Trials under a province’s superior court must be heard in 30 months.

Cases not heard within the timeline have the potential to be thrown out if the Crown can’t establish there was not an unreasonable delay.

“The primary concern for me was what impact was COVID having on creating a further backlog in the courts," said Cooper. "I had been following quite closely in calling for the government to take measures to reduce the backlog in our courts when we saw a number of serious cases thrown out … I think it's timely to be studied,” he said.

Cooper also echoed one of the concerns raised by Heidi Illingworth, the Federal Ombudsman for Victims of Crime, at the Standing Committee on Justice and Human Rights meeting for this study on April 27.

“One of the concerns that she had raised was not in a court process, but in terms of the parole board. When the parole board for a time had cancelled all observer attendance at parole hearings, which meant that victims would not be able to attend, that obviously had a real impact upon victims,” Cooper said.

Despite some of the issues the pandemic has created in the judicial system, there have been some positive changes, too, including conducting trials and hearings over zoom.

“It can create efficiencies, including cost efficiencies. For example, someone might not – lawyers and other parties – may not have to travel long distances (to) stay in hotels,” Cooper said.

Electronic filing measures have created significant and important efficiencies, Cooper said.

“In terms of what is going right, what has gone wrong, and what we can learn, that's really the purpose of the study. I don't pretend to have the answers to all of these issues," he said. 

"What I'm interested in doing – which is why I brought forward the motion to initiate the study – was to hear from stakeholders in Canada's judicial system.”

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