Why Criminal Lawyers Miss the Courtroom and Immigration Lawyers Don’t, by Robert Diab*.
Canada’s court system hasn’t been the same since Covid. With so many things still done on screens these days, it feels like Covid never ended.
Counsel who frequently intervene at the Supreme Court of Canada have been relegated to Zoom since 2022, and they’ve been quite vocal in recent months about wanting to return to the Court in person.
In criminal law, the situation is more dire. The practice has been decimated by a subvariant of the Covid virus called Teams. The whole practice has been relocated from the courtroom to a computer screen. Trips to the courthouse have become a rare treat, like a field trip to the planetarium.
And yet, in immigration, where most refugee hearings now take place virtually, most lawyers couldn’t be happier. The CBA even wants Appeal Division hearings to be virtual by default.
Why does it feel so wrong in the one place and so right in the other?
Natural immunity
Having spent some time at the IRB, I can see obvious differences between a healthy practice in criminal law and immigration.
Refugee cases are paper driven, turning mostly on a personal narrative. A hearing supplements the written record. The claimant is often the only witness, and the questioning is more a conversation than a confrontation.
Criminal law places more weight on live testimony and real-time negotiation. Much turns on the credibility of witnesses and counsel, on seeing and being seen by judges, peers, and clients. Presence carries a kind of moral weight.
Deeper cultural differences
But the difference goes beyond procedure.
Criminal lawyers need to be at the courthouse much of the time because cases move through the system by counsel working collaboratively. And much of this happens informally, off the record, in the hallway. New counsel also learn from watching others, seeing advocacy done well or badly—in ways that can’t be streamed.
Immigration work, by contrast, is mostly solitary and office-based. Counsel meet clients before a hearing often not more than two or three times. Efficiency and accessibility matter more than performance. Virtual hearings cut travel time and spare clients the stress of being in unfamiliar spaces.
Courtroom vs tribunal
But even more broadly, physical presence matters more in criminal law. Standing before a judge symbolizes accountability and equality before the law, and counsel’s presence alongside a client plays a part in this. Decisions about bail and sentencing turn in some measure on the degree of empathy a judge feels for the person in the dock—a feeling often lost on the screen.
Refugee hearings are more about administrative fairness: respectful questioning, timely outcomes. For many claimants, a well-run hearing on Teams might feel more humane than travelling across town to a crowded office tower to recount a traumatic event through an interpreter.
The hope for reform
We’re probably stuck with virtual hearings for a greater portion of litigation than we had before Covid. But it seems worthwhile to keep resisting this virus. To search for a vaccine if not a cure. Corporate Canada did it. Schools did it.
The fact is that virtual hearings don’t belong in criminal law, or courtroom litigation generally, because they’re fundamentally inimical to what it’s about.
Hopefully, Canada’s courts will get over this virus soon and finally declare an end to Covid.
*Robert Diab teaches law at Thompson Rivers University in Kamloops, British Columbia, and writes about law and technology at https://robertdiab.substack.com.