Courthouse business as unusual

It may be trite to say that COVID-19 has changed the world; and in the practice of criminal law many changes that resulted from the pandemic have been welcome.

A much-needed technological jolt to the justice system has included the modernization of the antiquated paper-based processes that were well beyond their expiration dates. Many of these changes appear beneficial to the private criminal law bar, and efficiency in the justice system translates into cost-effectiveness, thereby improving access to justice. It took a pandemic to usher the administration of justice into the 21st century, but at least we appear to be arriving.

There will no longer be the need for lawyers to attend at the courthouse for set date appearances, “stand down” resolution meetings, judicial pre-trials, or run-of-the-mill bail hearings and guilty pleas. In order to comply with the required social/physical distancing protocols it is finally universally accepted that all of those procedures can be handled remotely.

After 166 days at home I was excited to get back into court on a large case that started August 24. I wasn't surprised to find the courtroom outfitted with plexiglass and hand sanitizer at every turn, as safety from the novel coronavirus is still a primary concern. It didn’t take long to get used to this new environment, and inside the courtroom it quickly felt like “business as usual.” But venturing outside those four walls into the hallways of the courthouse revealed something very unusual.

In the post-COVID courthouse there is a paucity of energy that in the past has driven the practice of criminal law. Gone are the mainstay counsel in various jurisdictions to whom questions about the intricacies of local practices are asked, or the duty counsel who are milling about the cells and bail courts trying to secure freedom for the unrepresented masses. There are no Crown attorneys carrying stacks of briefs into the courtrooms while shooing away overzealous defence lawyers until they are ready to address the court list, nor fresh-faced articling students who appear overwhelmed, no doubt by the convoluted instructions of their principals.

All of these previous fixtures have been absorbed by the necessity of telephone/Zoom hearings, electronic disclosure, and the need to keep the courtroom populations at a minimum.

As a trial lawyer, I have always viewed the courthouse as my workplace. Unlike the office, which is my place of business, the courthouse has always been more like a job site. Being in court meant you had work to do. As you crossed paths with your colleagues in the hallways, you would hear questions like “what are you here on?”, “what do you have up today?”, “who’s sitting in bail court?”, “have you ever dealt with…?”, and “who are you in front of?” Inevitably those opening questions would lead to discussions about the law, the practice of law, and the personalities in our field. Sometimes those questions would lead to plain old storytelling, and every once in a while a bit of harmless gossip. For whatever it was, it was the definition of collegiality.

If you were lucky you might get some information that would help you in dealing with your matter. If you were luckier you might learn about a legal issue that you were struggling with on a file. If you were luckier still, you might run into an old friend who had a break from court and you’d grab a cup of coffee or lunch together. And if you hit the jackpot, you would hear some war stories from a senior lawyer in the mood to chat.

You were lucky because you practised criminal law and had these courthouse experiences that were uniquely yours.

The criminal bar has come to depend on this courthouse network to gain insight into the practice of criminal law. It has helped build working relationships among defence counsel, as well as with the opposing side, making the adversarial nature of the system more tolerable. Through the human interaction in the courthouse, referrals are made, issues are resolved, trials are streamlined and tactical decisions are fleshed out. These elements of the practice of criminal law will disappear if lawyers are only drawn to court to deal with contested trial matters for which the stress levels are elevated and there is little downtime to interact with other players.

Young lawyers once had the opportunity to meet counsel that they had only previously known by reputation. Experienced counsel got to put a face to a name that had been recognized on the criminal lawyers’ email list. Discussions with the opposing side could be done face-to-face or by happenstance while awaiting court to resume. All counsel were drawn to the courthouse by those busy administrative courts, where no matter the year of call we all would wear the same robes and stand side by side as the court registrar called “Oyez, oyez, oyez ... .” Human interaction was part of the process, and it felt like an important part of the practice.

Liberty is often at stake in the practice of criminal law, and with stakes so high and the many unknown variables of criminal litigation, being able to rely on colleagues in the courthouse for a quick consult, a place to vent, or just as a distraction from whatever has been happening in court has become a hallmark of the criminal bar. Absent courthouse interaction there are few conduits for the various generations of the bar to serve as a reminder that we are all part of the same club.

With the pandemic changing the practice of criminal law, one is left to wonder whether this shared interpersonal experience of members of the bar is at risk of being reduced to folklore for the next generation of criminal lawyers. Without that experience, it will take time for me to say that going to court is “business as usual.”