Action Committee on Court Operations in Response to COVID-19 - main content
On this page
- Part 1: Risk Identification and Mitigation in Small Courtrooms
- Elimination and Substitution
- Physical Distancing
- Engineering Controls
- Administrative Controls
- Masks and Personal Protective Equipment (PPE)
- Complementing Health and Safety Measures with Accountability and Human Resource Support
- Part 2: Developing an Inventory of Safe Courtrooms
- The New Brunswick Experience
- Part 3: Identifying Alternative Facilities for Court Proceedings
- Resources and References
Physical distancing is a key part of any strategy to mitigate risks of exposure to COVID-19 in court environments. Small courthouses and courtrooms present special challenges, since their limited size reduces the degree to which appropriate physical distancing can be maintained between individuals. Canadian courthouses and courtrooms vary widely, ranging from modern, large-scale facilities to historic buildings that have limited capacity for physical reconfiguration. In some settings, courthouses may be very simple structures, such as trailers or one-room portable facilities.
While technological alternatives to in-person hearings provide a critical means of diminishing pressure on Canada’s court facilities, it remains necessary for many proceedings to take place in person. Providing equal and accessible justice to Canadians thus depends upon developing effective strategies to ensure the safety of all court facilities, including small courthouses and courtrooms, and on identifying alternatives as feasible where existing facilities cannot be used safely.
The Action Committee has developed this Court Audit Tool in order to:
- guide officials in determining the safety adaptations required to maintain operations in any small courthouse or courtroom environment;
- help determine how many courtrooms can remain operational within a given jurisdiction, after accounting for physical distancing and other health and safety requirements;
- help determine the maximum number of occupants that each courtroom can safely accommodate at any given point in time; and
- guide officials in identifying alternative facilities as feasible when existing court spaces cannot meet public needs after accounting for health and safety measures.
The audit tool has three parts. Part 1 defines COVID-19 transmission risks that arise in small courtroom environments, and suggests measures to help mitigate those risks, applying the hierarchy of controls introduced in Orienting Principles on Safe and Accessible Courts.
The phased approach to risk mitigation described in Part 1 can be used to implement safety adaptations to small courtrooms. Crucially, it can also be used to inform decisions about whether operations can be maintained in small court facilities at all, and if so, at what levels of human occupancy.
In the exercise of due diligence and responsible stewardship, control measures are likely to evolve with knowledge related to the risks posed by COVID-19 and the usefulness of such measures to mitigate those risks.
Part 2 illustrates how physical distancing and other health and safety considerations can be applied to complete an inventory of useable court space within a jurisdiction. It recounts the experience of New Brunswick, which highlights some practical and innovative examples of best practices. These considerations and best practices will be relevant as the evolution of the COVID-19 pandemic requires periodical adjustments to health and safety measures in the courts to reflect the latest public health guidance.
Finally, Part 3 offers guidance for the selection of alternative facilities as feasible where existing court spaces cannot be adapted to safe usage in response to COVID-19.
Identifying safety adaptions for small courthouses and courtrooms – and determining whether small facilities are indeed useable in light of physical distancing and other health and safety requirements – are processes that require close collaboration between court administrators, local public health authorities and occupational health and safety experts. The guidance offered in this document is intended to complement necessary engagement between those officials, focused on developing health and safety measures that are responsive to the unique needs of their courts and communities.
Part 1: Risk Identification and Mitigation in Small Courtrooms
Poorly ventilated, closed and crowded spaces, prolonged or multiple close contacts and close-range conversations between individuals increase the risk of COVID-19 transmission. Transmission can also occur when touching a contaminated surface and then touching one's mouth, nose or eyes with unwashed hands. In the courts setting, these activities might include:
- Close contact between individuals at points of entry and exit to court facilities
- Interactions between court users and security or registry personnel
- Congregation of individuals in waiting areas (e.g., prior to entering specific courtrooms)
- Close contact between individuals within courtrooms, whether seated in fixed locations or moving to interact with other individuals, address the court, approach the witness box, or perform some other action
- Close contact between individuals when moving in and out of doorways, approaching the bench, traversing seating rows in the gallery, or making other routine movements
- Contact with doors, chairs, railings, tables, physical elements of the witness stand, and other common or high-touch surfaces
Applying the hierarchy of control measures, these risks could be mitigated as follows:
Part 2: Developing an Inventory of Safe Courtrooms
Not all courthouses and courtrooms will be able to support the adaptations suggested above. Moreover, even after applying these adaptations, maintaining operations within small courthouses and courtrooms may require reducing their overall occupancy levels in order to support physical distancing as needed. This will diminish the total volume of usable court space within a jurisdiction.
In order to determine how alternatives to in-person proceedings can be combined with measures to allocate necessary in-person proceedings to appropriate spaces, it has been essential for individual jurisdictions to have a strong understanding of their available inventory. More specifically, it has been critical to know which courtrooms can accommodate which types of proceeding once physical distancing and other health and safety measures are accounted for. This analysis at the courtroom level in turn helps to inform safe usage levels for courthouses as a whole.
New Brunswick’s recent experience in developing such an inventory is summarized below, with the aim of documenting best practices to aid future court adaptations should these become necessary.
Part 3: Identifying Alternative Facilities for Court Proceedings
Physical distancing and other health and safety measures inevitably diminish the total volume of court spaces that can be used in a jurisdiction at any one time. Certain types of court proceedings, such as jury trials and trials involving multiple parties, may not be feasible using existing facilities. In some cases, communities may be left without operative courthouses, introducing serious access to justice concerns.
Many jurisdictions across Canada thus relocated court proceedings to temporary facilities, such as convention centres, hotels, churches, and sports complexes, where appropriate health and safety measures can be observed. Use of these facilities by the courts can provide stable tenancy to community resources that have faced suspension of their ordinary activities due to the pandemic.
The selection of alternative facilities should always be driven by local considerations, including feasibility, the epidemiology of affected communities and their distinct needs in relation to the administration of justice. Alternative facilities should be:
- Capable of accommodating physical distancing and other health and safety adaptations (of the type described in Part 1 and in the Action Committee’s Orienting Principles on Safe and Accessible Courts);
- Capable of meeting courthouse operational needs, including administrative processes, technological fittings, security, and human resource requirements
- Accessible to the communities they serve, meaning that the facilities should not present undue obstacles or burdens for those seeking access to the courts, and should comply with legal and regulatory requirements related to physical accessibility.
Accounting for these requirements, the Action Committee recommends the following key considerations to guide local decision-makers in selecting alternative court facilities:
- Engagement of local public health authorities should be foundational to any process of identifying alternative facilities. Those authorities will provide critical insight on local COVID-19 infection rates, community risks, and health needs. Ongoing engagement and collaboration with local health authorities can help to ensure the appropriate selection, adaptation, and operation of facilities, and the implementation of any required adjustments as public health guidance evolves.
- The selection of facilities should be informed by close collaboration between the judiciary, courts administrators, and court security providers, who together offer key operational perspectives on facility needs.
- The local knowledge of these officials should be employed to help identify facilities appropriate for the communities in which they serve. These individuals can impart valuable knowledge of community needs and circumstances, and serve as appropriate points of contact for engagement with community leaders and representatives as needed. Specifically:
- Judges can offer key insights on the types of proceeding common to their communities, the related needs of litigants, accused persons and counsel, and other operational requirements. The latter may include the needs of staff working under judicial supervision, judicial office needs, security considerations, and judicial preferences regarding court protocols.
- Local courts administration officials are best placed to assess the accessibility of proposed facilities, including the suitability of facilities to community needs related to language, cultural practices, in-person contact, and other considerations. They are also best placed to determine the adequacy (or adaptability) of facilities to technological, human resource, and administrative requirements.
- Security officials (which may include sheriffs, police, or other security providers, depending on the individual court) can provide insight on the security requirements needed for local court proceedings, including secure means of access and exit for judges, court personnel, court users and others; secure means of transporting inmates or accused persons into and out of the facility; and regulation of facility entries and exits, internal security and security of the general court vicinity.
- Ideally, these officials should be directly involved in suggesting, evaluating, touring, and planning for the adaptation of proposed facilities. Their collaboration and engagement with one another – and with local community members and health and safety authorities – complements the public interest, as expressed in the Action Committee’s Core Principles and Perspectives.