Trial postponements in Alberta courts will add to case backlog, lawyers say

New COVID-19 protocols that will see trials postponed threaten to further exacerbate backlogs plaguing Alberta’s court system.

New measures announced by courts go into effect Tuesday

An empty chair where a judge usually sits on the bench in front of a wood-paneled wall bearing the provincial crest.
Alberta courts are enacting COVID-19 protocols that will go into effect Tuesday to limit in-person traffic through courtrooms as the province experiences a rise in COVID-19 cases. (Jason Franson/The Canadian Press)

New COVID-19 protocols that will see trials postponed threaten to further exacerbate backlogs plaguing Alberta's court system.

Both the Provincial Court of Alberta and Court of Queen's Bench recently announced limits for in-person matters to decrease traffic through courthouses across the province.

Measures will go into effect Tuesday through Jan. 21 and delay many in-person civil and criminal trials and hearings.

Trials and any other in-person matters currently in progress will continue until they are concluded but all new in-person criminal trials and matters including jury trials, civil, commercial, surrogate and family matters will be adjourned.

Dallas Sopko, a Crown prosecutor with the Edmonton Rural and Regional Response office and the president of the Alberta Crown Attorneys' Association, said he expects hundreds of criminal cases to adjourn in the coming weeks.

Crown prosecutors are scrambling to figure out the logistics and contact defence counsel as well as other involved parties like victim services.

"It's unavoidable given the dynamic situation but it definitely creates a struggle for us," Sopko said.

Cascading effect

The fresh changes come after multiple COVID-19 adjournment phases by the courts, cascading events that have seen some cases delayed multiple times.

"When these matters are now being added back to the queue instead of being resolved in some matter by proceeding to trial, it just lengthens that queue," Sopko said. 

He expects some criminal cases will never make it to trial, especially as interest might wane or witnesses become more difficult to book.

Sopko said COVID-19 has exacerbated resourcing issues that existed pre-pandemic. Several years ago, the prosecution service enacted a triage protocol.

"There are more and more files that we're having to resolve in different ways or to lesser sentences or not proceed with just because we don't have the resources to handle them within a reasonable amount of time."

Sopko said the Supreme Court of Canada's 2016 Jordan decision— which imposes maximum time limits for cases to be concluded starting from when charges are laid — likely will not apply in most cases because of the unforeseen circumstances of the pandemic.

Alberta lawyers Maia Tomljanovic, Danielle Boisvert and Dallas Sopko say many in-person trials delayed this month will likely add to an already-existing backlog. (Maia Tomljanovic, Danielle Boisvert, Trevor Wilson/CBC)

Proactive alternatives

Danielle Boisvert, president of the Criminal Trial Lawyers' Association (CTLA), said the long-term impact of the latest measures coupled with previous changes is that the system will see bottlenecks.

She said the courts have made efforts in partnership with lawyers to alleviate pressures, including running judge-only trials this summer.

However, Boisvert said opinions are mixed as to whether these adjournment periods are the best path forward.

"We understand the concerns of the courts, and of the government to the public, but we have to go back to the point that this is an essential service for all participants."

The CTLA is planning to meet with the courts to learn more about why the decision was made.

The association executive believes the court needs to look at more proactive measures like providing N95 masks or improving ventilation systems, Boisvert said.

"What else can we do here to further reduce any risk of exposure so that if we do get a sixth, seventh, eighth wave, we're not going to be looking at repeated closures."

Civil litigation

Criminal cases have typically taken precedence over civil cases, according to Maia Tomljanovic, chair of the Alberta Civil Trial Lawyers Association.

Civil litigation sees lawyers entering courts less frequently, she said, with much of the work requiring short hearings and trials being "fewer and further between."

"It's harder and harder to get a civil case into trial and before a court," she said, adding that trials are now being booked two to three years out.

A concern is whether adjournments like those in January will increase that timeline and create further backlogs than already exist.

"It really is hard on these individuals and their families," she said of the lengthy process.

Tomljanovic said there has been a positive development through the remote work implemented, which has created efficiencies.

"This pandemic has forced the courts and the legal system and the legal profession as a whole into this century."