On March 19th, the Supreme Court of British Columbia issued a Notice mandating that all regular court operations be suspended indefinitely and that all matters except those deemed urgent be adjourned generally. In other words, unless a matter is deemed urgent by the courts, it will not be allowed to be heard. It is fully understandable in an unprecedented crisis such as this that the courts, like all other facets of society, must adjust and adapt to comply with the distancing necessary to combat COVID-19. It is also fully understandable that, in the short term, there be disruptions to the regular operations of the court and that some hearings and trials be postponed. More than being simply understandable, it is necessary that the courts quickly adapt to the current circumstances and they once again provide British Columbians with the access to justice which is their constitutional right.
What I am observing right now is falling short of what is understandable and what is acceptable. While the court has issued missives alerting us as to the steps that it has decided to take, there has been no information provided as to the reasons behind those steps, the efforts being made provide those in need with the ability to use the court system, or the time that the public can expect to be denied that ability.
Those who deal with the court system on a regular basis know that it was already operating beyond capacity before the pandemic arose. Hearings were regularly adjourned due to lack of time. Trials were as habitually double-booked as airplane seating. But in all of that, there was no suggestion that British Columbians would be banned from their system. While the court has maintained the ability to hear urgent matters, it has now unilaterally, without any apparent open consultation with the bar or with the public, determined what constitutes urgency. If one’s legal concern falls outside that definition, justice is delayed indefinitely. A popular maxim would have it that justice is therefore denied.
The elephantine question is why. There are no fewer judges today than there were a month ago. There are certainly fewer trials being run, as it is understandable that witnesses, lawyers, clerks and judges should not congregate. There are secure technologies available to allow applications to take place by phone or by video conference. Judges have long had the ability and have in fact allowed phone applications when it was impractical or impossible for counsel to attend personally at a hearing.
So, why? Why are applications being limited to only those which are deemed urgent? Why is urgency being narrowly defined? Why are judges not all hearing as many applications by phone or video conference as they did previously in person? I have not heard any justification, but if it were suggested that a phone application does not provide as valid an experience of justice as a live application, I would suggest in return that a cancelled application is vastly worse than a telephone application. The effect on people’s lives is real. The vast majority of legal actions are serious and are life changing. People whose livelihoods are already being affected by the economic fallout the coronavirus cannot afford to have their most important decisions placed arbitrarily on a back burner.
Even when the courts resume their normal activities, the repercussions of the decision to scale back hearings will be felt for months, if not years. While the backlog of unheard cases was debilitating prior to the shutdown, the courts will be impenetrable after this to most. And while mediation and arbitration are valid and valuable options to resolve disputes, private options are not and never will replace our court system.
The tragedy is that this is wholly avoidable. Matters can and should be heard remotely. Decisions should be made as often, as quickly and as decisively as they were before the pandemic changed our world. It would take strength of will to change as slow and conservative an institution as our judiciary. These are strange, terrible and momentous times. That strength of will is needed if we are to come out of this as a whole and functioning society. We should expect and demand no less.