Remote appearances will become ‘increasingly effective’ in resolving disputes, says C.J. Matchett
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.
As in other jurisdictions, Alberta’s trial courts suspended regular sittings in mid-March when the provincial government declared a state of emergency.
Here, Terrence Matchett, Chief Judge of the Provincial Court of Alberta, answers Canadian Lawyer’s questions about COVID-19’s effects on his court via email.
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What is your greatest concern right now?
Our top priority and greatest concern is and has been to maintain reasonable access to justice and to continue to provide the court’s most essential services, while at the same time protecting the health and safety of our staff, judges and the general public.
What challenges have you faced in the wake of COVID-19 and how are you overcoming/adapting to them?
The biggest limitation has been the need for restricted public access as a public health imperative. This causes major challenges for everything from filing of documents to the holding of docket courts, trials, or any kind of hearing where people are required to attend in person.
The lack of physical presence is also a challenge because of the traditional belief that people (including counsel) are entitled to their day in court, and that attending for trials, pretrial conferences, case management meetings or judicial dispute resolution processes remotely somehow falls short in obtaining truly just outcomes. Our approach to managing this change has been to have almost daily meetings with justice stakeholders to communicate possible approaches to remote hearings, obtain input prior to developing court protocols and then to constantly work together to fine tune any new process.
Generally speaking, our experiences with remote appearances have demonstrated that as they become more widely accepted and as justice participants gain experience using them, they become increasingly effective in resolving disputes.
Another big challenge when the pandemic hit was the lack of technology equipment to support remote hearings. Fortunately, the government of Alberta has stepped forward in a significant way in recent months to address that gap in capacity.
Alberta’s courts have used this situation as an opportunity to reimagine how a court can operate, and are working hard, both to effectively use the technology that we have and that which we are currently acquiring.
Growing case backlogs are perhaps the greatest concern of all courts across the country. When the pandemic hit, the Provincial Court of Alberta was already dealing with significant caseloads and trial delays due to the enormous increase in case volumes over the past decade.
Our mid-term strategy is to plan the gradual reopening of our court over the next few months to more in-person hearings (we are already conducting in-custody trials). In the shorter term, the focus will be on resolving cases through pre-trial conferences, JDRs and other resolution mechanisms.
What have your experiences been in operating a virtual courtroom?
We are currently piloting the use of the WebEx platform to allow for more types of court appearances to be conducted remotely, and over the next number of weeks we hope to have WebEx remote capability in most larger locations and in criminal, family and civil courts.
Remote hearings have worked well in conducting docket matters. Certainly, some glitches have had to be worked out, but over time they have become less frequent. Nonetheless, in our experience, it does take longer to conduct virtual dockets.
We have held a few criminal trials via videoconference, including two while the presiding judge was required to self-isolate at home. Both counsel and the judge were quite satisfied with the process and the outcomes.
What are your plans for further adaptations?
Over the next number of weeks we hope to have expanded WebEx remote capability in most locations across the province.
We plan to soon be able to hear out-of-custody guilty pleas either by WebEx or telephone, depending on the region.
In our Civil Division, we have commenced holding pretrial conferences, simplified trials and other trials by WebEx. The simplified trial process as set out in our rules, with the advance filing of trial statements, is ideally suited to WebEx-type trials.
The Civil Division will also be embarking on an e-filing initiative, with an objective of permitting e-filing of documents by mid-September. At present, emails are accepted with the documents attached, but an e-filing process is not yet in place.
In the Family Division, protocols are in place for urgent matters to be addressed. Further protocols have been developed to start hearing some non-urgent family matters in court via telephone or video in June. Some areas will also implement remote Judicial Dispute Resolutions.
In April, the Edmonton Criminal Court commenced a pilot project seeking to have all applications for search warrants and other judicial authorizations sought by law enforcement during courthouse hours to be submitted and processed digitally through a highly secure technology platform. This pilot project has been very successful and will now be expanded more broadly.
Have you had any technological successes and challenges?
Our rollout of the WebEx platform has, by and large, been successful to date. We are now running dockets remotely in a number of courtrooms, we have conducted virtual hearings and a virtual trial, and are expanding to implement the technology for a wider array of appearances.
Which processes, if any, will your court continue to adopt in the post-pandemic world?
Some examples of processes we are considering continuing are:
1. Enhanced use of CCTV for in-custody accused court appearances
2. Remote pretrial and pre-preliminary inquiry conferences
3. Remote court appearances by counsel
4. Remote court appearances by a judge
5. Remote out-of-custody Summary Disposition Court
What are the most immediate changes that would be most helpful for your court to address these challenges?
The issue that has drawn the greatest amount of our attention as we try to adapt to the new health and safety restrictions is the need for investment in technology, and the need for our court to embrace its processes.
Some investments needed include updates in bandwidth, hardware such as laptops and headsets to allow our staff to better work from home, and the installation of more phone lines and access to Wi-Fi for our regional courthouses, many of which are under resourced. We have made progress, by necessity, in recent weeks and do not want to lose momentum on this front.
Finally, as we ramp up our activities again there will be a significant need for clerks, court staff, IT support and sheriffs.
It will also be beneficial to keep in place some legislative changes made during the pandemic, such as online payment of Traffic Court offences without a service charge.
What can lawyers do to help the courts overcome its challenges?
Feedback from the bar is and will remain important to the court. We have worked with many members of our local bar to assist us in planning and troubleshooting our new processes and procedures. We also welcome input on what processes should be maintained, even after the pandemic plan is no longer in use. We would certainly welcome input from the bar as to what initiatives worked well and which ones could have been improved.
Our business resumption meetings will also require input from the profession, as we work through the many issues that will arise as we attempt to return to full court operations.
Finally, members of the bar can make a significant contribution to reducing backlogs through collaboration with opposing counsel to resolve and settle matters without the need for the court.