Realities of criminal Zoom court

By Maria Rosa Muia

Law360 Canada (February 4, 2021, 1:39 PM EST) --
Maria Rosa Muia
The need for technological innovation has been at the forefront of the COVID-19 pandemic and globally adjustments have been made to adapt to lockdown and stay-at-home orders. Almost everything has shifted strictly online. The courts and the judicial systems have seemingly done their best to jump start an archaic profession to the modern 21st century, changes that some were calling for even prior to the pandemic.

Through the Zoom platform the courts have been able to return to some kind of normalcy, allowing for counsel and accused to participate in typical court proceedings. The only restriction has been on jury trials which still remain suspended. Forms and materials that usually required personal delivery can now be filed electronically and the courts are now accepting e-signatures on all documents.

The forced modernization of the courts has been met with comments on both sides, particularly with the members of the criminal defence bar who by nature are required in court on a daily basis. Some criminal lawyers have rejoiced in the ability to attend multiple jurisdictions in one day from their own home while others long to get back to the courthouse.

Given the current stay-at-home order in Ontario it is uncertain as to when regular in-person appearances will resume. Virtual court is here to stay, bringing with it a number of Zoom faux pas.

Perhaps it was a mute issue, a wardrobe malfunction or pets deciding to make their appearance, everyone at some point has struggled with attending virtual court. It is not uncommon to see a young staff member in the background of a senior counsel’s screen setting things up for them and reminding them where the mute button is. Virtual Zoom court comes with its failings and difficulties however being able to participate on this platform is a matter of privilege.

In order to attend virtual court the following requirements are needed: a strong unlimited wireless Internet connection, a computer with a good quality microphone and video camera, the required technological knowledge or someone to assist you, a quiet and private place with a non-distracting background and unlimited amount of time to spend online.

The courts have taken for granted that the above resources are available to everyone. For many clients coming from low socioeconomic backgrounds participating in virtual court is simply not possible. A great number of accused do not have a roof over their head let alone high-speed Internet. So what are those accused to do? Failure to appear in many cases results in an automatic warrant for arrest unless that person has been able to retain a lawyer to appear on his or her behalf.

For many criminal defence lawyers, having to get clients to participate in Zoom court has proved to be an additional burden of the ongoing pandemic. What are we to do when our client does not have any of the means to participate in Zoom court? Often our pleas and explanations to Crown attorneys and courts are brushed off with a simple “Counsel can figure something out.” Great.

So what are we to do? We put ourselves at risk by allowing our clients to come into our offices, trying to set ourselves up in our boardrooms, which for some lawyers are small or non-existent, we wear our masks, gather our notes and push on. Some lawyers may be lucky enough to have an extra computer or laptop around which can set up for the client across the table to maintain at least some distance.

Sometimes we call the clients on our cellphones and have them on speaker so they can hear what is going on in court and participate if needed and explain to the court why the client is not on video. If we are lucky the client has most of the means to participate but requires an in-depth tutorial on how to use a computer, so we take time out of our busy days to do so. If all else fails we start preparing materials for an adjournment application and cross our fingers hoping it is granted.

Many are quick to criticize and dismiss the notion of hardships on the criminally accused, but the issue is far beyond that; the issue is access to justice. Access to justice is a paramount pillar of our legal system, a value that we as Candians take great pride in. However, this pandemic access to justice is only for the privileged. Nothing has been done to address how those who come from low socioeconomic backgrounds are expected to participate in the courts during these times, without putting themselves and members of the profession at risk.

This responsibility should not fall solely on the shoulders of the criminal defence lawyer or duty counsel, it is a weight that should be shared evenly across the shoulders of every single member of the justice system. While the courts sped towards modernization and returning to a functional state it seems that they completely missed the stop when it comes to providing access to justice for every person before the court. This is an issue that some judges are becoming sympathetic to, but they are by far in the minority. By continuing to raise awareness about these issues we can only hope to inspire change.

Maria Rosa Muia is a lawyer practising exclusively in criminal defence throughout the GTA. Connect with her on Linkedin or Twitter @mariarosamuia.

Photo credit /  Alina Rosanova

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