B.C. justice system teetering on edge of collapse amid coronavirus pandemic: lawyer

Editor’s note: In response to concerns raised by some members of the legal community, NEWS1130 has revised this article. We acknowledge that the opinions in this article do not represent the views of all lawyers. 

VANCOUVER (NEWS 1130) – As people are once again allowed to get haircuts and eat in a restaurant, there are growing concerns about the backlog of cases sitting, for the most part, untouched as the doors to B.C.’s court system remain closed because of COVID-19.

The system wasn’t great pre-pandemic, and Criminal Defence Lawyer Michael Shapray says things are so bad right now, he feels the system is close to collapsing because there is currently no game plan to deal with the tens of thousands of cases just sitting there.

Shapray, who has practiced law in Ontario and B.C. for more than two decades, explains the other concern the public should be worried about is some criminal cases could be thrown out because they have to be heard within a certain timeframe. At the provincial court level, it’s within 18 months and 30 months if it goes up to the Supreme Court, which is constitutionally protected under the Charter of Rights and Freedoms.

“There are exceptions for exceptional circumstances and that could be a live argument but it may very well be the defence counsel argues that the provincial courts lack of a plan to re-open has created a delay that it wasn’t exceptional that they didn’t run any trials and therefore cases should be thrown out. We were already buffering against the outside edge of that 18-month timeline for some cases and with the tens of thousands of cases that have been adjourned until at least July 3rd without any rescheduling at this point, it’s very likely that we’ll be impossible to get on a trial in the provincial court within the 18 months, let alone potentially up to two years.”

The Office of the Chief Justice has set July 3 as the next date to revisit re-opening the court, but it’s not set in stone and has the potential to be pushed back again. Shapray thinks it will be delayed.

“At this stage, the July 3rd is only the date they have set for cases to be automatically adjourned to. The first group of cases was adjourned until May 16th and as May 16th drew close, the court set out a new directive adjourning everything from May 19 — which was after the long weekend — until July 3rd, 90 days in advance for each of those cases. My concern is if the provincial court does not open in short order or a plan to re-open in short order that July 3rd will come close and we will see an adjournment of thousands of more cases until September,” he says.

The BC Supreme Court has a plan to re-open on June 8.

“What we haven’t seen is anything from the provincial court, which has adjourned all of their trials from March 16th all the way until July 3rd to come back into operation, at all, on even a limited basis other than the urgent matters they’re hearing by telephone at this stage which has created a massive backlog of cases in a system that was already fractured and really no understanding of how they can re-open and start to eliminate a further increase of that backlog,” Shapray explains.

The Criminal Defence Advocacy Society has written a letter to the Office of the Chief Justice, among others, pushing for Provincial Court to re-open, citing concerns for clients who aren’t getting the justice, it thinks, they deserve.

Shapray echoes that sentiment, adding cases seen at the provincial level include family law, like divorce and child custody, criminal justice, and small claims, like civil disputes. “It has created a complete lack of access to justice for people involved in the criminal justice system, whether they be victims or accused persons or witnesses, for people who have matrimonial proceedings, or for people with small claims court matters.”

He feels small courthouses in communities like Sechelt could get back up and running right away while following physical distancing guidelines put in place by the province. “Absolutely, without question, the provincial court must begin to open courtrooms. They must respect social distancing practices but they can’t be comatose and handcuffed by this idea that they’re going to have a 100 per cent safety in operation. They have social distancing guidelines and get the cases running again so the backlog doesn’t continue to grow until there’s a complete and utter collapse of the justice system.”

Possible solutions

We know what the problem is so how does the system sidestep it?

Shapray feels trials can move ahead sooner than later because you don’t need many people in the courtroom.

“The average trial involves about six people. A judge, a clerk, a sheriff, lawyers for both sides, the accused and a witness. I believe almost every single courtroom in this province could accommodate a social distancing trial without any or very minor modifications to allow that to happen,” he explains. “Clearly, there are issues with public galleries which would have to be closed. Jury trials that aren’t heard in the provincial court have different issues and certainly, the access and departure from the courthouse has to be done in a social distancing manner, no different than a grocery store or anything else that has people coming in and out. The courtrooms themselves could easily accommodate trials across this province and in my view, there is no reason why a trial could not take place right now at the provincial court in British Columbia.”

Two weeks ago, Shapray says the provincial court started handling dispositions on the phone. Those are guilty pleas where both the Crown Counsel and the Defence have come to an agreement. “Only cases that are deemed urgent by the court are being heard and my understanding is very few, if any cases, are being found to be urgent and any proceedings have not been in person in the provincial court since the middle of March,” says Shapray.

In the coming weeks he suspects a focus will be narrowed on judges only pre-trial conferences to figure out which cases really need to go to trial and which cases can be resolved. “Also have the Crown Counsel Office look at their cases and determine if cases can be resolved and if there’s a way to cull a large number of cases out of the trial system that can be dealt with in another manner. Other than that, you’re going to have a volume of backlog cases that would have to be scheduled and there are only so many courtrooms and so many judges and so many lawyers available at each and every time to run those cases. So, the longer the provincial court stays shut, the bigger the backlog grows and the less people are going to get justice in the end one way or another.”

There are three levels of court in BC: the appeals court, which is hearing cases using different forms of technology, the BC Supreme Court — slated to re-open next month and the provincial court which remains closed.

“There is no need for anybody in a court room to have any close contact. Cleaning has to be done in a courtroom, of course, you have to wipe down surfaces, you have to maintain social distancing, you can put up a piece of Plexiglas in front of a witness, you can put up a piece of Plexiglas in front of the judge, but these are easy solutions that are being implemented in businesses across the province… and in opinion, there is nothing about running a trial that couldn’t be accomplished in any courtroom in the province of British Columbia.”

Ministry of Attorney General says the pandemic has resulted in unprecedented challenges for all court users and justice sector partners.

“A re-opening plan for each courthouse is being developed in collaboration with the judiciary and other justice sector and government partners,” reads an emailed statement. “The Ministry continues to advocate for efforts to increase and maintain the availability of electronic alternatives and virtual hearings continue to be supported. These initiatives will reserve the requirement for in person attendance for only essential matters while maintaining access to justice.”

The ministry also says two advisory groups have been created to support the province’s “response to the impact of restrictive public health measures on the justice system.”

For more information about the court’s recovery operation in response to COVID-19, click here.