COVID-19 wreaks havoc across the British Columbia court system

By Paul Russell, LegalMatters Staff • The last decision to be handed down by the British Columbia Court of Appeal before it suspended operations on March 18 due to the risks posed by COVID-19 was R. v. Patel, with the appellant represented by B.C. criminal lawyer Gary Botting.

“The judgment went our way in a divided decision,” says Botting, principal of Gary N.A. Botting, Barrister and Solicitor. “It basically overturns my client’s dangerous offender designation and indeterminate sentence on the basis that the judge erred in law in using past non-sexual conduct (including a conviction for manslaughter) to bolster the risk factor for sexual recidivism.”

The pandemic has had a wide-reaching effect on the B.C. court system. The Supreme Court of British Columbia (SCBC) also closed down on March 18, with no resumption date given. A statement on the SCBC website reads, “as part of the Court’s efforts to prevent the spread of COVID-19, the Chief Justice of the Supreme Court of British Columbia has ordered the suspension of all regular operations, effective immediately until further notice. All regular hearings are adjourned. Further details concerning urgent and emergency matters and the running of timelines will follow shortly.”

A responsible response

Botting tells LegalMattersCanada.ca that he applauds the three levels of B.C. courts for acting responsibly by adopting a number of measures in response to the COVID-19 pandemic, though he says he has concerns with the alert level system they have devised.

It is currently set at alert level 2, which means reduced operations to protect public health and to reduce and slow the transmission of the virus, while the courthouses remain open to the public,” says Botting.

“That’s fine, and level three is pretty similar, as it calls for ‘significantly reduced operations’ while public access to courthouses ‘may be reduced,’” he says.

It is the next step that concerns Botting, since at level four “courthouse operations will be limited to essential services, and they will be closed to the public,” he says.

“Justice should not only be done, but should manifestly and undoubtedly be seen to be done,” he says, citing a line from a seminal 1926 judgment in England.

“I wish the B.C. courts could do more at level three, such as screening the public for fevers before they are allowed in the courthouse, the same way airports do,” Botting says.

If the spread of the virus prompts a level four alert to take effect, he says most lawyers will accept that restriction.

“There is the argument that justice delayed is justice denied, however, I think it is important that we take whatever precautions we can to slow down the spread of this virus,” Botting says.

He notes that each level of the courts is responding to the virus crisis.

Provincial court responds

On March 14, the B.C. provincial court issued a statement, noting that as of March 18:

• the scheduling and hearing of in-custody criminal trials and sentencings will proceed unless adjourned by the court on application by a party.
• All judicial interim release (bail) hearings will continue to use video/audio conferences instead of in-person appearances, unless a judge or justice orders otherwise.
• Parties are encouraged to apply to use video conference for in-custody sentencing and trials in criminal matters.

According to the statement, the only matters that will proceed are in-custody criminal trials and sentencings, criminal matters that a judge determines are urgent, urgent family and child protection matters, search warrants and pressing small claims matters such as outstanding warrants.

In a memo issued on March 17 by the B.C. Association of Legal Aid Lawyers, it was noted

provincial courts in Nanaimo and Campbell River on Vancouver Island have been shut down, along with several courthouses on the lower mainland, including Chilliwack.

A virus case in Chilliwack court

“Chilliwack had someone attend for a family matter and he revealed he was positive for the virus after he had already been in the courthouse,” the memo read.

Courts that remain open are adjourning trials and hearings for three months, the memo states, with matters of urgency that arise in the jurisdiction of closed courts are being referred to Victoria, Vancouver and other more centralized courts.

“This is a drastic measure, as there is a lot going on in provincial courts,” says Botting.

 With any court case, Botting says there is a risk that the virus will be spread between participants.

“To reach most courtrooms you have to ride in an elevator, so if a person with the virus sneezes, everyone around that person is potentially exposed,” he says.

Though these changes to the three levels of courts will have an impact, Botting says he is confident the justice system in the province will keep functioning.

“There is the argument that justice delayed is justice denied, however, I think it is important that we take whatever precautions we can to slow down the spread of this virus,” he says.

“Lawyers have to be cautious, and since it is expected that up to 70 per cent of Canadians will get the virus, the longer we wait to tackle this problem, the worse it will be,” Botting says.