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British Columbia Supreme Court may make exemptions from strict operation of Rules of Court for COVID

Order also expands matters that can be dealt with by way of videoconference, telephone hearing

British Columbia Supreme Court may make exemptions from strict operation of Rules of Court for COVID
Christopher Hinkson, Chief Justice of the Supreme Court of British Columbia

As courts across the country have struggled to continue operating in light of COVID-19 and the physical distancing required, Canadian Lawyer has surveyed chief justices of courts across Canada on how they are managing the crisis.

Here, Christopher Hinkson, Chief Justice of the Supreme Court of British Columbia, answers Canadian Lawyer’s questions about COVID-19’s effects on his court via email.

What is your greatest concern right now?

The single greatest concern from my perspective is the number of criminal, family, and civil trials that have been and continue to be adjourned. With the uncertainty over when COVID-19 restrictions can safely be eased and what a "new normal" could look like, it is challenging to plan for a return to regular court operations. Trial courts face very different problems from appellate courts in this situation.

At the Supreme Court of British Columbia we are continuing to hear urgent matters and short applications remotely, by videoconference, by telephone, and now some exclusively in writing, but it will take time to adapt appropriate social distancing measures and technological solutions to hear trials with live witnesses, particularly jury trials.

I am very aware of the pressure that this backlog causes for those who expected to go to trial in the coming months, and the court is doing as much as it can to continue to move matters forward in the meantime.

What specific challenges have you been facing in the wake of COVID-19?

The most obvious challenge, and one that every court across the country is facing, is the inability to hold most in-person hearings. Some scheduled hearings have gone ahead with appropriate social distancing measures in place or by telephone, but in the short term we have had to adjourn most previously scheduled matters not considered urgent.

We are putting in place the technology to hold more virtual hearings, but that is not as simple as just finding the right conferencing platform. Over the course of 2019 the Supreme Court actively participated in the development of the Court Digital Transformation Strategy, which aimed to bring a web-based virtual hearing system online over the next three to four years. We are now working to adapt that over a period of months, but many inputs are needed: hardware, expanded system capacity including stable internet connections at courthouses, guarantees that the necessary data security is in place, adaptations of paper-based aspects of our system, and training for users, including judges and masters, court staff, counsel, and the public.

The B.C. courts have made e-filing available for more than 10 years, so court registries can still accept most originating documents for filing electronically. However, because of the legislative separation between court administration and the judiciary, document sharing is not seamless. Additionally, many court documents are still submitted in paper form, including by self-represented litigants. Ensuring that all litigants can use the systems we have in place is an access to justice issue. This requires accommodating those who do not have electronic access.

In keeping with the open court principle, we are also working to ensure that the court is still accessible for media and the public. This is complicated in a trial court setting. We are working on remote conferencing solutions and in the meantime relying on social distancing, which has been achievable thus far in our relatively empty courtrooms.

How have you used judicial discretionary powers to achieve just and fair results?

Each judge, master and the registrar of the court is expected to use their discretion, within the constraints of the applicable rules, legislation, and case law to achieve just and fair results. In Wewaykum Indian Band v. Canada, 2003 SCC 45 at para. 59, the Supreme Court of Canada confirmed that impartiality is the fundamental qualification of a judge and the core attribute of the judiciary and is presumed.

In British Columbia, unlike most other provinces, the Rules of Court are regulations under the jurisdiction of the attorney general. The discretion that judges of the court can exercise to vary procedural requirements in civil and family matters is therefore limited. On April 23 the province made a ministerial order giving me and the associate chief justice the jurisdiction to exempt specific applications from the strict operation of the rules, if adhering to procedural requirements would be impossible under the conditions of the pandemic. As a result of the order, presiders will not need to make an order at a case planning conference or judicial case conference before allowing parties to proceed on written submissions alone. The order also expands the matters that can be dealt with by way of a videoconference or telephone hearing.

In the criminal context, the most urgent matters include bail and bail review hearings, detention review hearings under s. 525 of the Criminal Code, habeas corpus applications or other applications by in-custody accused, and applications for search warrants and arrest warrants.

Urgent family proceedings include those relating to the safety of a child or parent due to a risk of violence or immediate harm, the risk of removal of a child from the jurisdiction, and the wellbeing of a child.

What processes, if any, will your court continue to use in the post-pandemic world?

The Supreme Court of British Columbia was already engaged in a process for increasing our capacity to conduct virtual hearings, in order to allow presiders around the province to hear matters remotely. We are a circuit court, and even before the pandemic we had recognized the value of videoconferencing, particularly for hearing short applications. As a result of the COVID-19 pandemic, we will be moving more quickly to put this in place.

What are the most immediate changes that would be most helpful for your court to address these challenges, be it legislative, procedural or the availability of specific resources?

Certainly, funding is necessary to accomplish a relatively rapid transition to more virtual hearings. The monetary investments that are required are considerable, and not only in terms of hardware and software. Our staff have been extremely stretched simply establishing new processes to have matters considered, and we need supplementary human resources to bring new systems online as well.

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