Witnesses from outside bubble to be allowed in N.B. courts

Officials with the Department of Justice and Public Safety have determined out-of-Atlantic-bubble witnesses may attend trials in New Brunswick under very specific conditions.

The new rules are set out in a memo released last week by deputy attorney general Michael J. Comeau.

The memo says if a witness cannot self-isolate for 14 days prior to attending court, the judge handling the case should attempt to arrange testimony through video conferencing.

In person attendance would only be approved if that fails.

"Where the judge determines that no other options are viable, and that the administration of justice would otherwise be negatively impacted, arrangements to have the witness come to New Brunswick and appear in court while self-isolating can be pursued," writes Comeau.

The memo says the side wishing to bring in the witness must submit a travel, isolation and accommodation plan to WorkSafeNB.

A plan must also be submitted to court services detailing how the witness will be isolated while inside the courthouse.

The witness is to remain in a meeting room when not testifying and will not be allowed to enter or exit the building for lunch or other breaks. A sheriff's officer or designated person will escort the person whenever they leave the room. Meals will be delivered to the room.

All costs are to be billed to the party requesting in-person attendance by the witness.

The executive director of the Law Society of New Brunswick said the professional organization is on board with the rules.

"It's hard to argue against it, against protecting the public," said Marc Richard.

"Our board did not have any issues with it. Nor did we receive any backlash or any [negative] feedback from our members."

Hampton lawyer David Lutz is certainly in agreement. 

"To me the Justice Department is not making anything particularly onerous when the Government of New Brunswick has one obligation and one obligation above all: Make sure that New Brunswickers are safe," said Lutz.

"The bottom line is everything is moving toward circumstances of using the digital universe." 

Lutz said the use of online technology will only lower costs all round.

The attendance at trial of out-of-Atlantic bubble lawyers came to a head in early September, when Rod Gillis, representing west side residents in a class action lawsuit against the city of Saint John, objected to in-person attendance by two Toronto lawyers representing the municipality who were hoping to self-isolate, but not planning to quarantine for 14 days prior to a three-day court hearing. 

The hearing in the case was postponed by Justice Thomas Christie. Several days later WorkSafeNB determined out-of-Atlantic-bubble lawyers cannot enter New Brunswick courthouses unless they undergo the two week quarantine.

Comeau's memo offers further details on that decision, saying lawyers would not be able to do their work in self-isolation within the court building.

"As active participants, counsel and litigants must have free access and flow within the court facility, including barrister's lounge, library, in and around the courtroom, gallery, clerk's office, and close contact with clients and other counsel."

New dates for the class-action hearing are expected to be set within the next few days.