Ian Mulgrew: Pandemic hasn't shuttered courts, say B.C.'s top judges

  • April 30, 2020

By Ian Mulgrew for The Vancouver Sun

After six weeks of curtailed access to justice, B.C.’s three top judges appeared in a landmark webinar on Wednesday to explain and defend how their courts have responded to the COVID-19 pandemic.

Obviously stung by criticism from even former Supreme Court of Canada Chief Justice Beverley McLachlin that the legal system pivoted too slowly to the crisis, they insisted the provincial judiciary acted as nimbly as possible.

The rules that govern each of the three levels of court, however, and the Criminal Code of Canada were impediments to quickly switching to video or teleconferencing and new procedures, the chief judges explained.

They itemized other challenges — the lack of government funding in the past has meant technology hasn’t been installed, court design means social-distancing for a judge and clerk are difficult given the installed equipment, electronic document handling needs improvement, some remote communities lack the capacity and the bandwidth, and some self-represented litigants lack the skill and equipment to interact electronically.

“We’ve also had some resistance from the legal profession and others to the use of new technology,” said Chief Justice of the B.C. Court of Appeal and of Yukon Court of Appeal Robert Bauman.

Three defence lawyers apparently recently could not participate in a hearing because they lacked laptops.

The chief judges maintained the judiciary was not being “unwillingly dragged into the 21st century,” but was eager to embrace new technologies and processes to get the courts fully functioning again.

“Legal problems, if they aren’t addressed … fester and worsen,” Bauman said.

B.C. Supreme Court Chief Justice Christopher Hinkson said he had to rein judges in from trying to do too much: “I have judges chomping at the bit.”

Provincial Court Chief Judge Melissa Gillespie agreed during the hour-long webinar called “Justice Adapting: The B.C. Courts” streamed on the legal site LexisNexis and simultaneously on Facebook and YouTube.

She said there was unprecedented collaboration happening within the legal system.

Unfortunately, the discussion ended abruptly a few minutes early due to technical issues.

In the rare joint appearance, the chief judges provided an update on operating virtual courtrooms, plans for further adaptations, technological successes and some unexpected consequences since the courts suspended normal operations March 19.

Bauman said the appeal court will be back to near normal by May 4, acknowledging, “Its challenges were considerably less.”

The province’s top bench almost never hears from witnesses and works from written submissions.

Still, despite being putatively “receptive” to new technology, it had not embraced any.

Bauman expected the pandemic to hasten the adoption of technology for handling electronic documents and provide enhanced e-filing.

The B.C. Supreme Court is not so fortunate and is struggling to restore normal operations as a backlog of cases grows daily.

Jury trials are impossible because of physical-distancing health orders, Hinkson said.

He said the court has expanded the scope of applications that can proceed by way of written materials and more is being done via video and teleconferences.

But the court has lagged behind other jurisdictions in adopting new technologies because the government hadn’t provided the money.

In a statement posted to the court’s website Thursday, Hinkson amplified his complaint the government failed to respond to “numerous and repeated requests” to provide the funding to keep the court technologically up-to-date.

“Prior to this pandemic, the court was working with the Ministry of the Attorney-General to develop a digital strategy for the courts which had a timeline of three or four years for full adoption,” he said.

“COVID-19 has certainly highlighted the urgent and pressing need to compress that timeline. To date, however, request for the financial investments necessary to make the strategy a reality have gone unanswered. … The lack of sufficient and effective tools has been hampering the court’s ability to adapt its processes.”

He added it was a difficult decision to curtail services. “I am acutely aware of the tremendous hardships that the suspension causes for court users most notably accused persons and litigants.”

During Wednesday’s presentation, though, Hinkson emphasized infrastructure and technology weren’t the only hurdles.

The supreme court has had e-filing for 10 years and many self-represented litigants remained uncomfortable, unwilling or unable to do it, he noted.

“Senior counsel are uncomfortable with anything other than the traditional hearing process,” he explained. “(Change) isn’t going to happen overnight.”

He, too, had qualms that electronic proceedings were a panacea and said that people in rural communities had a right to see in person the administration of justice, not simply be forced to accept a telephone or video hearing because it was better than nothing: “It’s a balancing proposition.”

Hinkson also pointed to unexpected problems that had arisen from some of the emergency measures the courts have adopted in the face of the pandemic, such as removing limitation periods and deadlines. “We’re struggling with the consequences.”

The chief justice said the senior trial court was also constrained by the Criminal Code, which is federal legislation requiring amendment in Ottawa.

Gillespie acknowledged her court was facing similar obstructions — traffic matters, for instance, are suspended because the governing provincial Offence Act doesn’t allow virtual appearances.

“It’s a very challenging time,” she said.

The provincial court has been conducting telephone and video-conferencing for years and offered virtual proceedings on weekends before the outbreak.

Gillespie said her bench was moving on many fronts to get services back up to speed and hoped more focused and managed pre-trial conferences would help.

But she too worried about technological barriers in remote communities and the need for more robust and enduring platforms to resolve legal issues electronically.