It is a tale of two courts: For one, the five-month pandemic has been not quite the best of times; for the other, it was definitely the worst of times.
After the public health emergency was declared in mid-March, crippling access to justice, B.C. Court of Appeal Chief Justice Robert Bauman and his bench were back at work by the end of April conducting hearings by Zoom.
“Now we’re at the point where we are giving people the option of hearings in-person or hearings by Zoom,” he crowed.
By contrast, B.C. Supreme Court Chief Christopher Hinkson was practically pulling his hair out trying to determine how many contempt hearings he could safely hold in a day, to deal with lawyers who don’t want to return to work, and to figure out how to dispense justice in local theatres.
“I don’t know what the issues for the lawyers are, but they are staying away in droves,” he complained. “I don’t know when we’re going to have the bar fully engaged again, but for the present, it isn’t the lack of judges or courtrooms — other than in criminal cases — that is keeping cases from being litigated and resolved.”
Everything is taking much longer, and glitches are constant.
“Each time we think we have got the equipment part of the equation solved, something goes wrong and the appearance doesn’t go as quickly or as expeditiously as we would like,” Hinkson lamented.
“I was sitting in New Westminster last week and, when we finished one witness, we had to shut down and clear the courtroom. The cleaners came in and sanitized the witness box and we all reconvened for the next witness.”
Technology has allowed the legal system to continue functioning, and long-needed upgrades and modernization are happening after years of funding procrastination.
Still, Hinkson noted “virtual” justice had its downsides.
“It’s not as good a process as having people in front of you personally, particularly if there are credibility issues,” he said.
“There’s something, it seems to me, that might be lost in watching somebody on camera, and we don’t know who is behind the camera and what kind of help they are giving the witnesses.”
He worried about access to justice.
“We have a lot of self-represented people who may have sometimes language challenges, sometimes intellectual challenges, sometimes they lack or don’t know how to use computers and, even among those who can, we had a serious problem with (the lack of) bandwidth that was interfering with our ability to hear matters,” Hinkson said.
“We were overloading the system and people were disappearing on camera in the midst of hearings. Even for bail hearings, the centres where they were being held did not have sufficient equipment.”
Bauman thought virtual hearings were working well, but he was sensitive about forcing them on participants in an appeal.
“If any single party without explanation says they don’t want to appear on Zoom, that becomes the default. In other words, one person rules on choosing a Zoom hearing versus an in-person hearing and we don’t embarrass them by making them provide a reason.”
Both judges cited unforeseen issues.
The electronic filing of documents and a proper document management system remains elusive.
“I can tell you we canvassed the court of appeal judges, who are a little older and perhaps some are not as savvy with technology, and there is a real problem dealing with electronic documents because of eye-strain and ability to make notes on them and that sort of thing,” Bauman said.
Hinkson pointed out the system just didn’t work: “The electronic filing system doesn’t talk to the system that the judges use to conduct hearings remotely. So if somebody files an affidavit in Fort St. John, you can’t read it in Vancouver because our systems don’t mesh.”
He was frustrated.
“We’re only reacting to change as we go along. Each time we think we have a problem solved, something arises. In the first six years I was a chief justice, I probably issued a half-dozen practice directions. I am up over 30 now during the COVID crisis. And I expect that, if there is second wave, we’re going to probably be back pretty close to where we were in March.”
The province’s two chief justices are suffering from very different COVID-19 symptoms.
“The experience could have been surreal, but I don’t think it has been,” Bauman said. “My problems pale in comparison to (his trial court counterpart). I have a manageable docket that is primarily based on a written record, so we were able to get up and running pretty quickly, as you know.”
Hinkson grumbled agreement: “My court faces challenges his does not.”
For him, every day brings new problems.
“We resumed hearing full trials in early June,” Hinkson said. “By then, we had 1,100 trials that had not proceeded from about mid-March. Surprisingly to me, although we said we would provide judges to hear trials, the bar didn’t seem ready to embrace that very fully.”
Still, the court has managed to reschedule over 500 of the 1,100 displaced trials, and 32 have been heard.
“So we’re trying to address the backlog, but we’re also living with the reality that the bar just isn’t prepared at present to get back to full speed,” he emphasized.
Civil jury trials are suspended for the rest of the year.
“On the criminal side, we have done what we can to try and get criminal juries back in action,” Hinkson explained.
“We have, I think, nine criminal jury trials set for September, something like 20 for October. There is one that is set to go in Nelson. The attorney-general has rented a theatre up there because it will allow sufficient social distancing for the jurors and allow members of the public to observe the trial and let the lawyers keep appropriate distances. We have endeavoured to do that in Chilliwack, but the venue there we hoped to use was already booked.”