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Blow up 2020 to start over in 2021 | Laurelly Dale

Tuesday, June 30, 2020 @ 9:47 AM | By Laurelly Dale


Laurelly Dale %>
Laurelly Dale
Canada Day is around the corner. I fondly remember a few years back flipping through my copy of Canada at 150: Building a Free and Democratic Society. I look forward to the sequel, Canada at 200: How Kenny vs. Spenny Became Canada’s First Dual Prime Ministers. I anticipate that it will contain at least two chapters devoted to the rapid transformation of our criminal justice system. 

I once had a boss task me with reinventing a litigation procedure that had gone stale. Blowing up the system to find a (hopefully) better way to do something. Every legal nerd’s dream. This pandemic is the bomb that reset the legal system. There’s no going back to the administration we once occupied. How it unfolds in the next six to 10 months will be the focal point of legal challenges in 2021. 

The bomb has gone off. Now what? 

We’re past the point of triaging bail for in-custody matters, now we need to fixate on what our courts will look like for substantive matters.

Keep it simple. Stick to basic audio/video for as many matters as possible, including resolutions. Continue to focus on those in-custody and awaiting trial.

There are people sitting in custody who have no idea when their trial matters will be heard. Some may have COVID-19. They have not been convicted of anything. Target them first.

For all remaining matters, use basic technology to keep as many out of harm’s way. 

Let’s not forget to include the most vulnerable in this conversation. What works in Toronto or Vancouver cannot be applied to northern circuit courts such as Pikangikum. The lack of consistency and input from key stakeholders is concerning.

So far, the numbers of COVID-19 cases in fly-in northern reserves have been kept at bay. That’s the good news. The bad news is that these communities are very high risk. Some still have cases of TB. Many do not have proper medical resources or even running water. Households are crowded and members have pre-existing conditions.

About half of my practice is up north. I honestly have no clue how or when courts will resume.

Until there is a vaccine, it is likely that the risk of returning will outweigh running trials. Ensuring that they still have access to justice is key. Luckily, I’ve been able to resolve a few northern matters via audio court. The alternative video link is not a feasible option for any of my clients as they do not have access to video capabilities.

To address identification concerns, the courts should permit counsel to confirm this through undertakings as officers of the court.   

Don’t fall back into old habits. Policing needs a shakeup. COVID-19 bail plans and sentencings have released many out of custody, only to be brought back in like the tide, a mere hours or days after. Stop holding people for dumb reasons. Use a different set of standards to determine when to arrest and detain, especially on minor breaches.

Follow the Centers for Disease Control and Prevention guidelines. Take a hard look at your policies. In the past two weeks alone I’ve had four clients rearrested for breaches and brought back into a jail with confirmed cases of COVID-19. All but one has since been released. 

Prioritize input from defence counsel. The criminal justice system is set up to deal with those accused of committing crimes. This is why it does not, nor will it ever, satisfy the therapeutic needs of victims.

A case dies with the accused. They are the headliner. Defence counsel are their primary point of contact. We are the ones who scramble for a place in the courthouse to obtain instruction from an accused. More often than not, no meeting rooms are available and we are required to speak in a whispered tone to our clients less than a foot apart. Judges sit high on the bench, and Crowns across an entire table.

Defence remains in close contact with the accused for the entire proceedings. I cannot count how many times I’ve been warned by a police officer not to get too close to my client because they have a communicable disease. For defence counsel, this is par for the course.

Prior to COVID-19, we did not screen our clients for disease.

We are required to represent them regardless of their health or the risk that it poses to us, our family members or that we may expose to other clients. As a precondition to resuming court, defence counsel must be properly consulted. 

The future of advocacy is uncertain. There is no substitution for the power of oral advocacy. It is why we went to law school. It is why we sacrificed our summers studying for the bar. It is why we’ve practised submissions in our heads, in the robing room and in the rear-view mirror on the drive to work. We are creatures of the courtroom. The possibility of having to adapt to virtual advocacy is probably the toughest pill to swallow.

COVID-19 is this year’s Brexit. The topic has exhausted everyone.

It feels like decades ago since my last trial, March 16, 2020. The pandemic was front and centre. Anxieties were high. Since then, and without any choice, we’ve had to cope with the unexpected. But for this world crisis, the evolution of our criminal justice system would not have accelerated at this breakneck speed. Strike at the opportunity to make things better. For those of us who have asked “why are you doing it that way,” now is our time to shine. 

Laurelly Dale is a criminal defence lawyer with Dale LawContact her at ldale@dalelegalfirm.com.

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