We must act before COVID-19 spells the end of an independent criminal bar

A criminal defence bar, strong and independent, is a pillar of every democracy, writes Bill Trudell

Bill Trudell

Too often these days, we hear the COVID-19 virus has changed everything. It’s far from easy to decide what everything is.

Nevertheless I fear that there is one change that will be demonstrative and fundamentally rock the administration of justice in this country… the disappearance of an independent criminal bar, especially young barristers struggling to earn a living.

Today the courts are essentially closed except for important bail hearings and other emergencies. Trials are adjourned with no reliable dates for resumption. Jury trials are suspended until the fall in most locations and how they will be renewed and even jurors’ willingness to serve in a crowded array will surely be problematic, to say the least. Jordan will once again just be a river in the Middle East.

There will be an enormous and concerted effort to actually replace the right to a jury trial with what will be heralded as a more efficient and arguably expeditious judge-alone trial. Pleas of guilty will be accompanied by substantial discounts.

Over the last number of years, the workload of many criminal lawyers has been steadily declining. The future may see this trend starkly increased. The police have been and will continue to lay fewer charges. Budget restrictions and decriminalization incentives will continue to have a direct effect on the need for defence counsel. The increasing public defender initiatives to reduce legal aid funding for the private bar will only increase. If restorative justice philosophies translate into policies there will be less need for defence counsel. Moreover, society, it seems, may be being jolted into realizing that jails are unhealthy cocoons for viruses and perhaps unnecessary for many offenders.

The emergence of restorative justice and the eventual decrease in incarceration may have a resounding impact on the need for counsel. The COVID virus will and is wreaking havoc on enjoying a collegial office and sharing insight, mentoring, experience and guidance. Unable to afford rent payments, the work-from-home world we now inhabit and the use of electronic communication and Zoom meetings may usher in a new world. Many members of the criminal bar are currently facing and looking ahead to crushing reductions in income.

This may all seem inevitable, and yet it should not be allowed to happen. A criminal defence bar, strong and independent, is a pillar of every democracy. Actually, if we examine the impact of COVID-19 with a wider lens, we may come to realize that certain erosions of our rights are accompanying this pandemic. Tracing with the use of cell phones to locate carriers, their locations and associates is inherently dangerous to privacy rights if the genie stays out of the bottle. Government imposed emergency restrictions from freedom of movement, association and access and ordered confinement with rigorous penalties are open to abuse. Increased police powers go hand in hand with these initiatives. Artificial intelligence used as investigative tools unchecked will be widely abused and likely lead to wrongful convictions. People’s debt levels will be staggering and recovery very difficult. This will inevitably, when coupled with unemployment, lead to unrest, desperation, depression and criminal acting out often just to survive. Partner assaults and uncovering the provocation that often precedes them will require balanced advocacy against zero tolerance policies.

Peering into these windows clearly suggests that strong, courageous and independent defenders will be needed to stand between the individual and the state, quite frankly I suggest as never before.

We need to protect, support and enhance the criminal bar and especially the young crusaders currently struggling and those that will follow. The law societies across this country should immediately cancel, not just suspend membership dues and insurance fees. Governments should be lobbied to set up funding directly accessible by these lawyers, most of whom do not qualify for the current subsidies being introduced. Associations should cancel membership fees and move to donations and government support. The tsunami of the unrepresented where there is no defence counsel able to help will swallow up the system. There must be a concerted determination by governments to fund legal aid programs.

It’s fascinating and should be acknowledged that the criminal bar throughout this country has rushed to defend and rescue, most often for no fee, individuals in need of bail hearings and those languishing in custody. It has been a remarkable demonstration of the essence and passion of the defence lawyer.

There is a motto that many counsel adhere to, that there is no client not worth saving. It is time to realize that the independent defence lawyers are also vitally worth saving.

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