Access to justice diminished as courts deal with pandemic
Five months after the public health emergency was declared, access to justice remains curtailed in B.C. and the legal system left bruised and hobbled.
Victims are waiting longer to know whether they will get justice, and defendants are spending more time in custody or on bail conditions. Families in crisis and businesses and individuals with intractable disputes are frustrated by delays in having their day in court.
Jury trials are in limbo.
The poor, homeless and those with disabilities in particular are facing access-to-justice barriers and the rapid shift to high-tech remote proceedings threatens to exacerbate feelings of two-tier justice.
Rural B.C. is especially hard hit, Attorney General David Eby says: “Also Indigenous people have been disproportionately impacted, especially those in remote communities (where) the circuit courts are still not operating.”
Still, he and the chief judges are breaking novel constitutional ground with the federally appointed justices intimately involved in the province’s jurisdiction as they help make decisions about adapting the courts to the new realities.
“Things have changed. This wasn’t happening in the ’50s,” acknowledged Chief Justice Robert Bauman of the B.C. Court of Appeal.
He said the co-operation may not fit well with some people’s view of the constitutional place of judges, Bauman said. But, he and Supreme Court Chief Justice Chris Hinkson “as chiefs, I think, have a duty above and beyond our colleagues to sit down, roll up our sleeves and appropriately engage with government to win those resources. And we’ve been doing that more and more.”
Hinkson was not so sanguine about the process.
He conceded the novel coronavirus had spurred much-needed funding for technical infrastructure from the current NDP administration: “That may be the only silver lining in the process.”
The legal system was ill-prepared for COVID-19 partly because of a culture of complacency and partly because successive provincial governments failed to heed the call to invest in court infrastructure.
The underfunding has come home to roost.
Only the Court of Appeal is back to a new normal, primarily because it is a document-driven institution that rarely hears witnesses and most participants are professionals.
Both the B.C. Supreme Court and the provincial court are battered and many courts remain shuttered.
Six more provincial court judges — three new, three coming out of retirement — have been appointed to deal with the growing backlog.
The Supreme Court still awaits the cavalry — Victoria has approved five additions to its complement but Ottawa has yet to appoint them.
“Courts in rural B.C. are not functioning, and in some areas no one knows when or how they’ll restart because the circuit court space isn’t large enough for physical distancing and there is no other building that will suffice while meeting constitutional standards for open courts,” Eby explained.
Beyond broad brush strokes, though, he could not provide specific data about the geographic and population differences and challenges across the province — what was happening where, how many and which people were being affected, and what was needed and where specifically.
An independent expert continues assessing what’s required for circuit courts.
“I think it would be fair to describe the experience of self-represented litigants as the most impacted,” Eby said.
“For instance, if you have a lawyer, that lawyer is more likely able to file e-documents quite easily to make a case around that your matter is urgent and so on. For someone who is not familiar with the system, and is representing themselves, it is most difficult.”
Bauman said that was one of the dark sides of the solutions that have been embraced: “We have to be able to offer access to all people regardless of their ability to purchase technology or use it. We can’t leave people behind.”
Eby said the focus has been on rapid response to open as many courtrooms as possible and deploy technologies to allow social distance during hearings.
Still, there is a pressing need to understand the experience of ordinary people using the court, particularly the vulnerable and self-represented litigants under new directives and conditions.
The question of whether remote hearings should be maintained permanently cannot be made without knowing their impact on participants, including their access to the necessary technology and comprehension of proceedings.
For instance, the attorney general and Legal Aid B.C. are looking at ways to provide technology because some lawyers don’t have computers.
“It’s hard to imagine these days,” Hinkson quipped.
While legal aid had a downturn in applications when the legal system all but shuttered in midMarch, demand for its services is back up to 80 to 90 per cent of normal.
The NDP minister agreed more timely data would increase understanding of what was happening; however, he maintained this need “has been frustrated by other governmental priorities.”
With a second pandemic wave looming, the scale of the difficulties facing the trial courts is significant and that means continuing constraints on access to justice and restrictions on constitutional open-court requirements.
“Our current thinking is we have another year of public health restrictions and some people say that’s optimistic,” Eby said.
“So a lot of our work that’s happening right now is preparing for second wave restrictions and minimizing any further accumulation of backlog should that happen.”
Tomorrow: Chief justices discuss pandemic experiences