B.C. Provincial Court’s pre-trial conferences have resolved multiple matters before trial

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.

In this installment, Chief Judge Melissa Gillespie of the Provincial Court of British Columbia answers Canadian Lawyer’s questions about COVID-19’s effects on her court, via email.

What is your greatest concern right now?

The Provincial Court, and all courts in B.C., have never closed. The main challenge is to now increase in-person court operations, while ensuring that there are adequate controls in place to ensure the health and safety of those coming in to Court and that our courtrooms are in compliance with the Provincial Public Health Officer’s guidance and orders.

The measures being taken inside courtrooms are described in the Court’s Notice to the Profession and Public NP 22: Resuming In-Person Proceedings During COVID-19 (Health & Safety Protocols).

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

The COVID-19 pandemic is presenting us all with challenges that have no precedent in our lifetimes. Like everyone else, the Court has had to find ways to meet its responsibilities while reducing the risk of spreading the COVID-19 virus.

For matters that were set for trial in March to June we are conducting pre-trial conferences on all criminal trials scheduled for longer than half a day. These proceedings are attended virtually by counsel and the judge using MS Teams. Judges engage with the parties to explore resolutions, and counsel are expected to be prepared and able to make decisions. If resolution is not possible, then files are case-managed to restrict the use of court time to what is absolutely necessary to ensure a fair and timely trial.

The pre-trial conference process has allowed a number of matters to be resolved prior to trial.

Similarly, in our family and small claims divisions, family case conferences and settlement conferences have also resulted in a number of matters being resolved. A recent article posted on the Court’s website describes What to expect in a family or small claims conference held by telephone or video.

The Court is working on expanding the use of MS Teams from criminal pre-trial and family and small claims case and settlement conferences to bail and sentencing hearings, and other trials or hearings (or portions of them), when appropriate for the parties and the issues. The Court had in place a virtual bail hearing process prior to COVID-19 that was used on weekends and evenings. A similar process is being rolled out this week in Surrey (our largest court location) for weekday bail hearings.

Our next step is to take this technology and begin to roll it out to as many places in the province as we can for bail hearings. In the future, the bail courts of the Provincial Court will be presumptively virtual, saving accused persons hours of travel to courts and being displaced from their communities. They will appear for their bail hearings from police stations and correctional centres as much as possible. Their counsel will also appear by video, as will the judge.

At the same time, we have to take into account the fact that many of the parties who appear in Provincial Court do not have access to computers or electronic devices or have internet plans that would permit them to access the courts using videoconferencing. Accordingly, we are also carrying out some hearings by telephone. We have developed guidelines (NP 21) to assist people appearing by telephone.

As of June 8, 2020, the Provincial Court has resumed in-person proceedings in a limited number of courtrooms around the province to hear some priority matters that cannot be conducted remotely. On June 15 the Provincial Court opened in 28 more locations across the province. Initial appearance courts opened on June 15 in many locations across the province. The in-court work of the Provincial Court is already commencing.

What are your plans for further adaptations?

The Victoria early resolution model is a new front-end process that started in May 2019 to assist families in the early resolution of their issues before any court appearances. Except for urgent matters, parties are required to meet with a Family Justice Worker as a first step. There is early assessment, mediation, access to resources such as legal advice, and parenting education services. The goal of the model is to help parents achieve collaborative resolution. We would like to see this model rolled out to other locations as it allows for early legal advice, and mediation helps families become court-ready for any outstanding issues.

We are also working on a streamlined process for changing child/spousal support where income is impacted by COVID-19.

What are the most immediate changes that would be most helpful to your court?

• Increased video and audio capacity.
• E-filing.
• Document management system to facilitate the filing of exhibits and other electronic documents in virtual/remote hearings.
• Greater access to technology and internet for members of the public who do not have access to the same technological resources as others may have.
• Legislative revisions enabling more to be done remotely or, where appropriate, without in person requirements. For example, currently the telewarrant provision in the Criminal Code requires that it be “impracticable to appear personally” and that limits the scope of when that section can be used.
• Legislative changes to the Offence Act to assist in modernizing traffic court.

What can lawyers do to help the courts overcome its challenges?

We have had excellent engagement with both defence and Crown counsel and we appreciate all of counsels’ efforts to accommodate this period of change.

We encourage counsel to:

• review their files and discuss issues with each other before their court appearance to assist with resolution and trial management issues (such as narrowing the issues)
• reach out to judicial case managers to assist with scheduling issues
• bring creative approaches to the Court that allow us to facilitate access to justice and meet statutory requirements
• appear on behalf of their clients whenever possible, and use forms to consent adjourn matters where there is nothing substantive occurring on the date a matter is adjourned to
• embrace technology and learn about how to use remote technology to appear virtually in court where possible.