Bail in time of COVID | Nathan Baker

By Nathan Baker

Law360 Canada (February 10, 2021, 12:23 PM EST) --
Nathan Baker
Bail in the time of COVID-19 is an interesting thing. An accused person appearing by video for their bail hearing has been the norm in many court locations for years. However, up until a year ago, the rest of the players in the courtroom drama would be appearing in person. The shift to online hearings has been an example of the opportunities and great work that can be accomplished by a system defined by its hard-working participants. There remain a number of new issues along with these new times and new technologies.

Almost all bail hearings are being conducted with participants attending virtually over Zoom or similar platforms. There are some advantages to this. Lawyers can now attend at locations further from their office or in multiple jurisdictions in a day without having to travel. Sureties too, can attend via a phone or video link which can give greater access to a bail hearing in a shorter time. However, there are drawbacks to this as well. It is much more difficult, almost impossible, for a justice to determine the credibility and reliability of a surety where that surety is testifying by means of an audio connection alone. The quality of connections can be an issue all its own.  

A recent article in the Toronto Star highlighted the problems which courts face. In rural jurisdictions especially, lack of access to stable Internet or strong cell signals can affect the sound quality of participants in a hearing. The increased demands on Internet connections in courts, struggling to deal with multiple online courts with individuals connecting from Crowns’ offices, judicial officials and court staff in the court all stress a system which was not designed for such high usage. Upgrades are ongoing but until they are complete, the system can falter at times.

Audio via Zoom meetings is mono-channel. In courts, each location in court has a separate microphone and a separate channel that can be isolated when preparing transcripts. This was lost when hearings moved online. The court transcriptionist’s bane of multiple parties talking over each other has grown into an, at times, insurmountable hurdle. Interference and background noise further complicate matters. Accurate recordings of proceedings are integral to the justice system. The answer to a question can be the difference between guilt or innocence at times. Whether a condition was worded one way or another in a bail release can have long-ranging effect on an accused party but also on the people that such conditions are imposed to try to protect.

The ability to obtain an accurate transcription of a hearing is a key component to judicial review. Simply put, appeals require transcripts. They rely on them as they set out the facts which courts rely on to justify decisions and recount the decisions themselves which are to be reviewed. Access to judicial review of decisions is foundational to our system of justice.

Appeals have been allowed and mistrials declared when part of a case was not properly recorded. This problem is serious. In a time when all court time is precious, the risk of needing to use an increasing amount of it to deal with this issue is a risk that needs to be mitigated.

The steps taken to allow matters to be dealt with in new ways have been impressive. Change is difficult but has been largely attained due to the stresses of COVID-19. Many of these changes have been beneficial but that does not mean they are not without issue. The justice system cannot rest on its laurels at this time but must continue to push ahead to make things continually better.

The adaptation to new technologies by lawyers, judges and other justice participants has been significant. The problems that are now faced can be dealt with through better use of the technology already adopted. The new systems now in place do not require the kind of sea change which was necessary last March but do require the kind of ongoing investment in improvement to make sure that being good enough does not get in the way of an even better system.

Nathan Baker is a criminal defence lawyer in Peterborough, Ont., and is a sole practitioner at Nathan Baker Law. He takes special interest in impaired driving cases, especially those involving drug impaired driving and impaired boating. E-mail him at
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