Appeal court Zooms into new normal
Going from traditional to Zoom hearing is extremely dramatic, chief justice says
B.C. and Yukon Court of Appeal Chief Justice Robert Bauman was breathing easier.
His bench returned to work last week after curtailing operations because of the coronavirus pandemic and “the new normal” was going well.
“The court is a different place than it was eight weeks ago,” Bauman observed. “I guess wars and pandemics have a way of doing that to institutions.”
The appellate jurists adroitly moved May 4 to a primarily video-and-telephone procedural regime — hearing appeals, including those that are not urgent using Zoom and other applications, and registrar’s appointments via teleconference or in writing.
“Whoever says judges are set in their ways like concrete hasn’t seen what has happened in our court and the other two courts in this province in the course of the last eight weeks,” Bauman boasted. “That has been really eye-opening.”
A conservative who believes in tradition, Bauman nevertheless embraced change in response to COVID-19 and made an unprecedented effort to keep the public and profession informed.
“Communication is so critical and it is going to be the legacy of these times that we’re in,” he maintained.
Like Health Minister Adrian Dix and public health officer Dr. Bonnie Henry, Bauman rose to the occasion.
“We weren’t really prepared,” he acknowledged, “and I make no apologies for that. We weren’t prepared to run a court remotely. … And that’s despite some funding requests we’ve been making over the years.”
Still, he thought the judicial rebound “truly remarkable.”
“Who says we can’t pivot? We have pivoted dramatically! I think it’s a reflection of the unbelievable co-operation we’ve had between litigants, lawyers, judges and government in addressing the challenges of the pandemic.”
In the past few years, with an eye on his own legacy, the chief justice has become an eloquent advocate for self-represented litigants and legal reform.
First appointed to the B.C. Supreme Court in 1996 and elevated to his current post in 2013, the 70-year-old has seized the opportunity presented by the pandemic to advance those efforts.
Two weeks ago, he and B.C.’s other two chief justices conducted an unprecedented joint presentation on the effect of COVID-19 on the courts, which in mid-March postponed most cases to deal almost exclusively with urgent issues. The appeal court, which is document-driven and rarely hears witnesses, now is back on its feet, but the two trial courts face serious hurdles.
Bauman conducted a virtual hearing last week and spent 90 minutes Friday answering questions for some 700 participants on the Trial Lawyers Association of B.C. and the Canadian Bar Association-B.C. Branch websites.
“It didn’t take much of a push to make us do new things, but it reflects a very quick culture change,” Bauman explained.
“Going from a traditional hearing to a Zoom hearing is extremely dramatic and we did it like turning on and off a light switch. So cultural change is possible and we’re demonstrating it now and I think that will be a lasting legacy.”
In his hearing, Bauman and another judge were in Vancouver, the clerk, too, but at a separate location. Two lawyers were in Whitehorse and another justice in Iqaluit, Nunavut.
“We had some technical glitches but overall the three-hour appeal went smoothly,” he said.
Under the rules of virtual etiquette, there is no bowing or standing for the judge; lawyers dress in business attire though judges are robed.
So far, there have been no egregious interruptions; and Bauman wasn’t worried about those.
“If you can hear a toilet flushing in the Supreme Court of the United States and the world doesn’t come to an end, I think we can manage,” he quipped.
“If the court believes someone is intentionally disrupting things so as to prevent the hearing from continuing, we can deal with that. In terms of inadvertent technical problems, we had that in the Yukon hearing and we got through it.”
Some proceedings would always require personal attendance, he pointed out.
“There are, as we all know, certainly in some high-conflict family matters and that sort of thing, it may not be appropriate at all to use this technology,” Bauman said.
“And in criminal matters, there are increasingly in B.C., high-security criminal trials that require confidentiality in aspects of the proceedings, so there are limitations there. It’s not a panacea for every litigant.”
Whoever says judges are set in their ways like concrete hasn’t seen what has happened in our court.
The court hadn’t yet found an answer to full public and media access to the virtual proceedings, which at the moment requires an application and may be restricted. “We have to accommodate that,” Bauman agreed. “It has to be job one in this whole process. … It’s a high priority with us and we recognize our indeed constitutional duty to the open court principle.”
The court should have its backlog cleared by the end of July, he noted, by sitting throughout the month instead of its usual oneweek sitting.
Challenges, however, remain: “We need a comprehensive electronic filing system, we need a stable, enterprise video conferencing system, and these are basic requirements that we hope will be enhanced by government funding in the months to come.”
Bauman wasn’t sure virtual hearings will supplant in-person proceedings.
“I don’t think we are there yet. I’m not suggesting there are any drawbacks to a Zoom hearing, but we still are a courthouse and a court and the oral hearing is not something I’m prepared to give up on and create a new default at this point. But who knows …
“I’m on my way out, young people are on their way up, TikTok is knocking off Instagram and YouTube, so who knows what is going to happen.”