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Courts must treat defence counsel as stakeholders | Kyla Lee

Monday, December 07, 2020 @ 11:14 AM | By Kyla Lee

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Kyla Lee
As I write this, I am sitting in British Columbia’s fastest-growing COVID-19 hotspot. I have been here for the past two weeks on a serious trial.

Late the other night, my colleague received a call from Crown counsel to advise us that two sheriffs in our courthouse had tested positive for COVID-19, and that we should not proceed with the trial until we received further direction from the judge. Given the location of the trial, we were particularly concerned for our health and safety.

The following morning, we were informed by the court that as far as they were aware, the positive tests were from last week, that no sheriffs who were in close contact with the positive ones had been at the courthouse, and there was no evidence of any further positive cases in the courthouse.

Then, two days after that, I read an article in a local reporter’s Twitter account advising that there were in fact positive tests in our courthouse, and that protocols had been put in place to protect court staff and sheriffs.

None of this information had been relayed to myself, my colleague or our client in advance of the trial proceeding so that we could make an informed decision about whether to run the trial or seek an adjournment. The health authority’s public exposure database did not list the courthouse as a potential exposure site, notwithstanding the court has been open to the public since the exposure. Nothing was posted at the courthouse.

Defence counsel, and the public at large, were kept in the dark.

This is part of a frustrating situation for defence lawyers. Defence counsel are at a great risk of COVID-19 exposure. Unlike court staff or Crown counsel, we do not generally have the privilege of appearing at only one courthouse. While some courtrooms in British Columbia are equipped with Microsoft Teams, those that are not require approval for telephone appearances in advance. This approval must be given within particular deadlines before appearances. This is practically useless if your client is arrested in the evening and scheduled to appear the following morning.

Defence counsel routinely visit two to three courthouses in a day or a week, and often more. We have interactions with our clients, members of the public seeking our assistance, Crown counsel, court staff and sheriffs. We are exposed to the most risk in the courthouse doing our jobs.

And there is often inadequate and unsafe spaces for defence counsel to go for their safety during court breaks. Many courthouses have only small barrister’s lounges, which, with capacity limits, exclude many who are in the courthouse that day. Enter at your own risk, because masking is not enforced in barrister’s lounges and there are no enhanced cleaning procedures.

When a witness leaves the witness box in a trial, court in British Columbia is stood down so that the high-touch surfaces and plexiglass dividers can be sanitized before the next witness. The barrister’s lounges? Not so much. Crown counsel have their own offices, often right inside the court building, where they can return for refuge during court breaks and before and after court sessions.

Defence counsel are, simply put, completely forgotten when it comes to courthouse operations and safety.

This needs to change.

If the pandemic has taught us anything, it is that safety and sanitation were sorely lacking in courts. Now that court staff, sheriffs, Crown counsel and judges have all received extra precautions that protect them, it is time for people to turn their mind to the safety of defence lawyers. Courthouses should be considered our spaces too.

And this issue does not just end at cleaning and sanitation during the pandemic. It is about making court spaces accessible and workable for the lawyers who, in fact, work there.

Many courthouses have dedicated parking lots for Crown counsel, court staff and judges. Defence lawyers pay out of pocket for street parking, or fight for free public spaces in courthouses that happen to have those. Despite the fact that defence lawyers are working in the building and may be there for several hours, the simple act of reserving a few parking spots is always overlooked.

The same goes for space in the courthouse. Many courthouses lack barrister’s lounges. Those that have them often have inadequate spaces with few to no resources. There is no photocopier, computer, printer or Internet access. Defence counsel are made to share public washrooms, rather than having private ones, and lack basic amenities like a refrigerator for their lunch or a coffee maker. Interview rooms to meet with clients are also makeshift legal aid and duty counsel offices, meaning that private space for client consultation or telephone conversations is wanting.

These are minor changes, and the types of things that for the most part defence counsel have just adapted to deal with. But being kept in the dark about health concerns that directly impact us in our places of work should be and is the last straw. We must demand more, and better, from the court system, the attorneys general responsible for court services, and each other in organizing and making our needs heard.

While defence counsel were previously content to shrug our shoulders and sigh when it seemed like our work did not matter in courthouses, the COVID-19 pandemic has made one thing clear: to many players in the justice system, even our lives do not matter.

Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! She is called to the bar in Yukon and British Columbia. Follow her at @IRPLawyer.

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