Blow up 2020 to start over in 2021

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.

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.

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.

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.

Originally published in The Lawyer’s Daily June 30, 2020:

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