Lawyer hopes Alberta's courthouse COVID-19 precautions will stop short of masked witnesses

During a trial, lawyers and judges are listening carefully to what a witness says, but they're also paying keen attention to how they're saying it.

But new health rules around mask use in Alberta courts have a prominent Edmonton defence lawyer concerned about potentially covering up a witness's facial expressions.

"We want to see people. As a defence lawyer, I want to see people's faces, I want to see their reaction. I think a judge or jury wants to see that as well," Brian Beresh told CBC Radio's Edmonton AM on Friday.

"I think that's absolutely necessary. And we can build in safeguards, in terms of distancing, to still protect individuals."

At the start of this week, Alberta's Court of Queen's Bench and provincial court began hearing more in-person cases.

In a notice issued Monday, the courts said that anyone entering a courthouse must wear a mask in public areas like entrances, reception areas, waiting areas, hallways, stairways, restrooms and elevators.

Inside courtrooms, a presiding judge or master may order that masks be worn.

"It's a good idea for people to have to wear masks outside the courtroom in a public area, but once in the courtroom … if they are participants directly in questioning and answering, I think they should not wear masks," Beresh said.

"It's not a safety issue. We're not standing over the witness shouting at them. We're a great distance away, no judge is going to let us get close. So that shouldn't be a concern."

Could health precautions impact justice?

While Beresh supports courthouse measures to prevent the spread of the coronavirus, which also include distancing and Plexiglas barriers, he said care needs to be taken to ensure they don't interfere with the effective delivery of justice.

He said he has participated in webcasts for procedures that have no witnesses, including a bail application and a manslaughter sentencing.

Plexiglas barriers around the judge, prosecutors and defence lawyers also worked well — and were especially helpful for opposing teams of lawyers, who sometimes "do get into physical fights," he joked.

But some courtrooms he has been in have limited spectators to about 15 people, which causes Beresh some concern. "I think the public has a right to see justice, they have to know it's being transparent," he said.

Given that these are early days, Beresh said he expects adjustments and new measures to be phased in as the court system comes to terms with new ways of doing business.

Currently, masks are not handed to people entering courthouses but Beresh thinks that will change. Measures will need to be considered around documents that are often shared during a trial, he said. And more web-based procedures may be necessary to ensure things don't get too backed up.

There will also likely be more standardization about the correct protocols to follow, he said, describing a recent court experience which was a "real mish-mash."

"I did a major case involving six lawyers arguing. Half were masked, half were not. The judge was not masked. He was sitting with another judge who was in training. She was not masked," Beresh said.

"The judge left it to counsel to decide their own safety level."