Covid-19 and the Alberta Law Courts: Stop the Spread in Mandatory Cluster-Zones

“There is no terror in the bang, only in the anticipation of it”.

                              Alfred Hitchcock

this is not fear mongering 

I have previously written about the impact of the culture of fear in our criminal justice system. As was written by Barry Glassner in his book The Culture of Fear: “[w]atch enough brutality on TV and you come to believe that you are living in a cruel and gloomy world in which you feel vulnerable and insecure”. Glassner’s argument was that constant exposure to negative messaging may translate into an unreasonable belief that the negative message is real; to the point where the perception of vulnerability may lead a person into unreasonable decision making.

Concern over the coronavirus pandemic is not unreasonable fear mongering.

As of today’s date – March 11^th, 2020 – I suspect that there are very few conversations that do not involve the word “coronavirus”.  To date, the National Basketball Association (NBA) has suspended operations.  To the dismay of playoff bound Canadian teams, the National Hockey League (NHL) has suspended the 2020 season. Schools and universities in some countries have closed. The entire Country of Italy appears to be in the grip of the pandemic. Thousands of people in Italy have been infected, with its death toll breaking 1000. The bloodletting on Wall Street continues, with the Dow Jones Industrial dropping by nearly 2300 points.  Jurisdictions across the planet have banned public gatherings. 

At the time of the writing of this post, there have been 134,183 cases of  COVID-19, 4965 deaths and 68,898 recoveries.  It is written that the elderly or those with compromised immune systems are at high risk.

https://www.worldometers.info/coronavirus/

This Calgary criminal lawyer is not one to advocate fear mongering; however, given the relatively high mortality rate and the large number of infections, it strikes me that there are good reasons to be proactive to stop the spread of this dangerous disease.  Since this is a law blog, my discussion will focus on Law Courts in Alberta, with a particular reference to the Calgary Court Centre. 

reduce in person appearances

At the outset, I am not saying that the Courts necessarily need to entirely shut their doors, but in the short run, it is my opinion that Alberta Courts should modify the current unbalanced and antiquated administrative appearance model.  Broadly speaking, there are effectively two types of appearances in criminal courts: (1) administrative appearances where little or nothing of substance is accomplished and (2) substance appearances, such as trials, bail hearings and guilty pleas.

At present, the administrative appearance model requires the personal attendance of the accused or counsel for the accused for all summary conviction matters or out-of-custody indictable matters.  In my opinion, administrative appearances are of a kind that the Court could implement new protocols designed to reduce the risk of the disease being spread by allowing counsel to appear remotely.

Let me explain.

case management office (cmo)

To begin with, the Case Management Office is basically a window, outside of which lawyers and accused persons gather – often waiting in line for upwards of 30 minutes – generally for no purpose other than to obtain a future court appearance. It is not unusual to have dozens of persons standing together, in close proximity to each other.  

According to Live Science, COVID-19 can be spread through the air and on surfaces. 

"A new analysis found that the virus can remain viable in the air for up to 3 hours, on copper for up to 4 hours, on cardboard up to 24 hours and on plastic and stainless steel up to 2 to 3 days".

https://www.livescience.com/how-long-coronavirus-last-surfaces.html

If the virus can live in the air for up to 3 hours, it stands to reason that cluster zones where human beings are in close proximity, sharing air, are particularly dangerous.  For the purpose of the CMO, even if nobody touches elbows while waiting in line (a tall order indeed), it doesn’t matter; for all of those people forced to attend and stand-in-line by mandatory personal appearance are at enhanced risk of exposure.

To reiterate, I don’t want to say that the Courts need to close absolutely. However, since every pandemic starts with a single person and since it appears that this may be the calm-before-the-spread, practical wisdom suggests that reducing the number of people who are required to attend public gatherings, public places or cluster points is well advised.  This is particularly so in places where personal attendance is mandatory.

For the purpose of the Case Management Office (CMO), it is noteworthy that Crown Prosecutor’s are not required to attend. As I have complained about in the past, the Justice of the Peace (the court with judicial independence) is effectively authorized to appear as “agent for the Crown”. Similar to the Crown, where an accused is represented by counsel, there doesn’t appear to be a good reason as to why defence lawyers should not be permitted to simply call  or email-in their appearance(s). To my knowledge, COVID-19 has yet to spread digitally over a telephone or as a computer virus.  This simple measure would reduce the number of people at risk of exposure at the vulnerable CMO cluster-point.  Of course, it would also make the job of defence lawyers easier.  

As an aside, I am not convinced either Alberta Justice or the Alberta Courts are all that receptive to making the lives of private practicing counsel more efficient.  Arguably, the trend is in the opposite direction.

administrative courtrooms

Now, beyond the CMO, it is worth recognizing that many jurisdictions outside of Alberta permit court appearance by telephone. For example, defence counsel can teleconference into the Territorial Court of Yukon in Whitehorse for the purpose of making an administrative court appearance.  Just call the judge, identify yourself and apply to adjourn the case. It's that easy. It's that practical. This begs the question, why don't we allow this in Alberta?

Though I have always wondered about the Alberta approach that requires private practicing lawyers to be in multiple jurisdictions by travel or agent and does not  allow remote appearances, the Coronavirus pandemic suggests that telephone appearances (where appropriate) could further reduce the number of people in closed-room cluster-points.  I define a closed-room cluster point to include a courtroom.

In my opinion (and in the view of many other Calgary criminal lawyers), it is the responsibility of those in charge of cluster-points to mitigate or eliminate the potential for exposure to the virus. Though unrepresented accused may still be required to attend Court, the simple act of reducing the number of oxygen sharing persons with a susceptible body surface reduces the probability of exposure to an illness that can have a profound impact on human life. 

Imagine, a person makes an administrative appearance at the Case Management Office or in a courtroom. Unfortunately, he or she walked through a pocket of air space where the virus has been lingering for under 3 hours. That person is infected. He or she now moves the air through his or her walking path towards others – perhaps Court employees – and they are  now at enhanced risk of infection. That person then attends his or her place of employment, thus exposing others to infection. That person goes home and brings the infection to his or her spouse, children and elderly parents.  This is how a pandemic spreads.

Now, I appreciate this can happen to anybody who needs to participate in the world. My point is, however, by mitigating the number of people attending certain spaces, the likelihood of spread is reduced. It is clear to me that public places such as the Calgary Court Centre can take proactive steps that would in no way interfere with the course of justice in a high number of cases. Proactive measures could protect everybody; to include, lawyers, court staff, judges, accused persons, law enforcement and everybody else they come into contact with.

Accordingly, it is my opinion that the Courts should immediately make allowances for counsel appearances by telephone. This is a simple protective measure that could dramatically reduce the number of human interaction in closed spaces.

conclusion

Remember, a serious spread of this disease can start with one. Though that is true, in my opinion, this is not a case of anomalous risk (such as those addressed by Barry Glassner) resulting in questionable or absurd behaviour; rather, this is a case where Alberta Justice and the Alberta Courts need to act responsibility. After all, over a hundred thousand people have been infected already. There will be more. Canada has been relatively virus free, but our more open borders increase our vulnerability.  

At present, the justice system in Alberta is forcing people by threat of criminal prosecution into cluster-points. In the circumstances, the liability for taking a laisse-faire approach to the spread of a potentially dangerous disease is obvious – especially in circumstances where mutable policy and procedure is potentially forcing people into danger zones. 

This disease is not only about life and death; it’s about the fact that healthy people may be exposed to a prolonged illness caused in circumstances where they may have been able to avoid it. Though such an exposure may not result in death, it may nevertheless impact a person's household income. If a person is too sick to work and too sick to support their family, that is an issue that has a profound impact on an already struggling Alberta economy.

In my opinion, if the Calgary Flames and other economic juggernauts are taking proactive measures to mitigate risk at the cost of their bottom-line, Courts in Alberta can recognize that they are incubation zones who have the ability, by the implementation of simple procedure, to reduce the risk of coronavirus exposure. Criminal lawyers in Calgary and throughout Alberta should not remain silent on this issue. This is not drama, this is just common sense.

Where possible, work from home!

These are just my thoughts. 

David Chow