Case backlog could lead to disaster
‘Logjam’ of cases requires urgent action, group writes in critique to government
A group of Fraser Valley lawyers led by John Conroy and Gurpreet Gill fear “a growing tsunami of criminal cases may be at risk of never seeing the light of day.”
They blame the failure of the courts and Attorney General David Eby to deal with delays arising from COVID-19 for jeopardizing cases that will now exceed timely trial deadlines set by the Supreme Court of Canada in the 2016 Jordan decision — basically, 18 months in the provincial court and 30 months in the superior court.
In a 1,700-word critique sent to the government, the legal professionals said bold action was needed to avert a disaster because the courts in midMarch curtailed all but the most “urgent” proceedings.
“Unfortunately, even these most urgent of matters could not proceed due to the woefully inadequate technological infrastructure at the disposal of the court system,” the score of lawyers wrote. “Today, we are face to face with an ever-increasing logjam of delayed hearings that add daily to the already clogged corridors of our courts. The continued inability of our court system to stem the tide increasingly raises the spectre of unreasonable delay. ... One of the greatest court systems in the world is in its worst moment of crisis as numerous criminal matters dangle on the precipice of oblivion.”
They were making a legitimate point, Eby conceded Thursday, and they certainly were not exaggerating the pernicious side-effects of the pandemic.
“Oh, no, not at all,” the NDP minister emphasized.
“It’s all hands on deck right now and why we need defence lawyers to be part of the solution around working for pretrial, in advising their clients and being realistic with their clients in narrowing the issues and stay out of court if they can because we all have to work together ... the backlog is significant, incredibly worrying for everybody and why it is consuming everybody’s attention and all available resources.”
Although the B.C. Court of Appeal has returned to work using video- and teleconferencing, the B.C. supreme courts and B.C. provincial court remain hobbled by the virus.
Both of the chief judges have wrung their hands — blaming the lack of funding for technology, internal courtroom architecture, statutory requirements and other excuses.
“There is a very significant backlog that is worrying courts and ministers responsible for justice systems across the country because we’re all in a very similar boat,” Eby explained.
The Fraser Valley lawyers were focused primarily on the question of whether the courts and Eby took reasonable steps to mitigate the delays triggered by the pandemic.
Lawyers, court clerks, the judge and witnesses typically sit about two metres apart in court anyway, meaning they should have adapted more easily to distancing than many of the businesses that have adopted the measures, the lawyers said.
The province on May 19 resuscitated elective surgeries, dentistry, physiotherapy, massage, hair salons, restaurants, pubs,
libraries, offices, sports, parks and child care.
“Charter scrutiny will require us to ask how it was possible that British Columbians could receive a massage or a haircut but still not access their courts,” the lawyers said.
“This is the sword of Damocles that now hangs over our justice system in terms of a possibly devastating cascade of delay issues arising from continued closure and a seeming inability to efficiently or effectively pivot to deal with them.”
The B.C. Supreme Court believes it should be back to its “new normal” by Monday, but the workhorse provincial court will still offer limited services.
“This inconsistency is perhaps most glaring in courthouses where both supreme and provincial
courts function side by side within the confines of the same building,” the lawyers noted.
“For instance, a litigant could seemingly walk into Victoria Supreme Court to have their day in court, but it would apparently be too dangerous to do so in the provincial courtroom next door.”
The lawyers claimed the courts were also vulnerable to a charter challenge: “The ‘Urgency Application’ process was, in fact, a veneer of due process used to dress up the closure of our court system. A hearing process with no chance of success is not due process and strikes at the core of our constitutional values.”
On that, Eby said he “couldn’t disagree more.”
“The idea that the courts have set up a Trojan horse of an urgency applications process,
that is unacceptable,” he said. “It’s really important to recognize that many of the urgency hearings were conducted during the earliest period of the COVID pandemic when there was a lot of uncertainty in B.C. — cases were rising and there were very strict public health restrictions.”
He said lawyers had to be more involved in finding solutions.
“I’ve heard reports from the court, they feel there is an opportunity for defence counsel to be more actively involved. I say this with respect because I know the lawyers, and I know they are working hard, and I know they are concerned, but if they are sitting at home waiting for somebody to call them with respect to their matters — it’s not going to happen.”