Today’s solutions will produce a more efficient and effective court, says chief justice
On May 27 the chief justices and judge of the Alberta courts wrote an open letter to the presidents of the Canadian Bar Association, Alberta Branch, and the Law Society of Alberta outlining steps being taken “to facilitate a return to more regular sittings of the trial courts in response to the provincial government’s recent relaxation of some COVID-19 restrictions.” As in other jurisdictions, Alberta’s trial courts suspended regular sittings in mid-March when the provincial government declared a state of emergency.
The letter also asked for “the Bar’s cooperation in scheduling remote hearings where feasible and in-person hearings throughout the months of June through August, with priority being given to trials adjourned due to COVID-19 conditions.”
Here, Mary Moreau, Chief Justice of the Court of Queen’s Bench of Alberta, answers Canadian Lawyer’s questions about COVID-19’s effects on their courts.
What are some of the adjustments you’ve had to make since COVID-19 was declared a pandemic?
The adjustments have been numerous. That way of proceeding [as usual] ended March 16 with the closing of most sittings except for urgent matters. The directives of the chief medical officer [prohibiting] the congregation of more than 50 people in one location immediately created problems for our courts. No jury trials were possible. We were not particularly advanced before then in IT hearings; we were moving in that direction, but not at the speed we are now moving, which allowed for email filing. We are anticipating we may be able to do so sometime in June, which is lightning speed when you think about where we were before pandemic. As quickly as we were ramping down our sittings, we are ramping up the technology.
What is your greatest concern right now?
We were a court with a considerable backlog of cases, and challenged by the Jordan deadlines before. For several years now there have not been enough judges in our court to deal with the expansion of the population in Alberta. Before the pandemic, we were behind in criminal and civil cases; the pandemic creates an even more urgent situation.
What we've been doing lately is shifting emphasis to resolution methods that might be of interest to the bar. Those are proceedings that do not need to be recorded [as trial proceedings must be]; for example, criminal pretrial conferences, and judicial dispute resolution of civil and family matters, [which] can be done remotely by telephone. We are actively discussing resolution in those criminal pretrial conferences.
There can be room for healthy discussion, exchange, to determine if matters that were scheduled for hearings can be resolved. If Crown and defence have resolution of a matter, they don’t have to wait long to get it resolved. We’re putting out feelers to the bar to emphasize we’re open to business, but in a different way.
What have your experiences been in operating a virtual courtroom?
The experience in our trial court would be [working with] CCTV. We’ve not had a remote trial before the pandemic, but we would have had experience with video. In cases where you have [an] oath-against-oath situation -- that is, perhaps a single Crown witness [and] the accused person -- those are very difficult to run remotely, because the presence of that individual in the courtroom is important. We're trying to look at what we can do to accommodate that, while being subject to the restrictions of the chief medical officer.
The three chief justices are meeting regularly with the Minister of Justice, the Deputy Minister and the Assistant Deputy Minister to go over new, creative ideas of dealing with issues and certainly expediting any IT solution that is needed quickly. And we talk about .. if there is a problem with CCTV access for persons in custody, whether or not one can have communications between them and their counsel by the provision of cell phones to the units there.
We’re interested in developing an electronic filing platform. Courthouses can be petri dishes for the spread of contagion. Within days [of the announced restrictions] we amended the requirement for personal filing to email filing; but, there’s no capacity to hold [documents] properly [by email]. So let's go to e-filing, which then allows access to those documents electronically. That’s what we're working on right now with our court.
We reached out to various bars in the province: the criminal bar, family bar, commercial, civil, the Masters chambers, where lawyers know their work very well and their requirements.
We're inviting counsel to present [applications] in writing and have a very short, written decision from a judge who is working from home. You would not have a court hearing or court date if you are prepared to have that matter heard by the judge, reading the materials, as opposed to hearing submissions from counsel.
Another way of proceeding [in family law] is to determine whether the matter is suitable for an early intervention case conference.
The challenge is that we do have many self-represented individuals, especially in family law, and we have to devise ways [in which they can] file forms.
What can lawyers do to help the courts overcome its challenges?
Patience is the first one. It’s important that the bar keeps in touch with the websites of the court; we have a lot of online resources. The other thing is, please consider what can be done outside our courts. There's a lot of the practice of law that continues without court intervention: arbitration, mediation, four-way meetings within the family context, or in any civil context, that is the two lawyers, if there are two parties, and their clients, collaborative law approaches. If you have a consent order or judgment that you are able to reach, we will make sure we make room for it to be signed.
Following our courts announcements, looking at what they can do creatively to move their cases along, and patience. Today we had a problem with our internet connection for a WebEx meetings, and it’s frustrating. The new reality is, it’s like standing in line at a cinema; you’ll be standing in line a little bit longer.
When I started my job I liked to refer to our administration as entrepreneurial, because even at that time there were budget constraints in Alberta and challenges with respect to moving the technology ahead in our court. I call ours an experiential court, because we're experiencing all sorts of different ways of doing things. But the lesson in all of this is that we needed to make changes and modernize the way we operate, and the solutions we are working on now will outlast the current crisis, and make us a more efficient and effective court.