Reopening Provincial Court While Maintaining Social Distancing

Right now, the BC Provincial Court is looking at options that will allow it to expand the current services it is offering while maintaining a safe environment for court staff, lawyers, judges, and the public. Committees have been formed and are meeting to discuss some options available.

And, as usual, no one asked me! I jest, as there would be no reason for anyone to ask me to join any committee. But as a lawyer who represents only a specific type of case, and deals with the vast majority of driving offences in the province, I thought I would share my thoughts from my specific perspective publicly.

As someone with a non-legal aid and mostly-driving practice, I also had some suggestions unique to these types of files because they touch on different areas than are covered by the people who are committee members.

 Prosecutions under the Offence Act

 The Offence Act is legislation in British Columbia that pertains to charges related to violations of provincial statutes. Typically, it applies to prosecutions of driving while prohibited, offences under the Wildlife Act, offences under the Liquor Control and Licensing Act, the BC Cannabis Act, and traffic tickets.

The Offence Act is unique in that it dispenses of the need for the accused to attend personally. A person who is charged with a provincial offence may appear by counsel or agent, pursuant to Section 57 of the Act. This was recently determined to include articled students and students from legal clinics, but not non-lawyers in place of the accused.

This means that many cases that are being heard under this statute can be done without the attendance of the accused. Unless identity is an issue or the accused intends to testify, there is no need to have them there. One way to quickly clear these matters from the backlog of cases waiting to be heard is to identify all Offence Act cases where there is an indication that counsel or an agent is involved. The court can then inquire with the prosecutor and counsel for the accused to determine whether there is a need for a personal appearance by the accused.

This would likely clear up a significant backlog of traffic tickets, driving while prohibited cases, and other violations of provincial statutes.

Matters in Traffic Court

When the court began is closures, all traffic tickets that were scheduled for hearing were bulk adjourned. However, many of the adjourned matters can still proceed in the absence of court sitting a regular session.

For example, when people request a dispute of a traffic ticket they can request a dispute of the allegation or the fine amount. For all disputes of the fine amount only, individuals can either be requested to provide written reasons, or permitted to appear by telephone. The power to do this already exists, again in the Offence Act.

Section 15.2 of the Offence Act permits the prosecutor to appear by telephone or videoconferencing if available in the courthouse where the ticket is scheduled to be heard. Given that videoconferencing is not really an option for reasons already expressed by the Provincial Court, telephone seems to be the way to go. But Section 15.2(1) also permits a Justice of the Peace, sitting in traffic court, to adopt procedures “that are conducive to justly and expediently” resolving the matter.

This broad discretion easily confers the power to require fine amount disputes to proceed on the basis of written submissions, or to hear these cases by telephone. Ditto for those cases where individuals are requesting extensions of time to pay the ticket.

In addition, the vast majority of people disputing traffic tickets end up making some sort of a resolution agreement with the police. For example, sometimes tickets are withdrawn if individuals complete some rehabilitation work, or are amended to lesser charges with fewer points or lower fines. If parties were encouraged to contact the officers by email or telephone, they could come to an agreement to resolve the matter.

Those tickets that are for simple dispositions, with amendments, for withdrawal, or for some other type of guilty plea falling short of a trial, can be resolved by telephone appearances from both parties. This would clear up a significant number of the tickets that had already been adjourned, and could be a useful method going forward after May 19, 2020 when the court reopens for traffic court matters again.

Traffic court, after all, is one of the worst places for social distancing. The courtrooms are typically small, often filled with disputants and officers, and the area outside the courtrooms is also small with little space for productive discussion at the best of times. Traffic court cannot operate as normal while respecting social distancing, so these measures are appropriate.

Joint Submissions on Criminal Matters:

In any criminal case involving an agreed-upon resolution between the Crown and the defence, known as a joint submission, there are certain procedures that judges must follow. The Supreme Court of Canada has determined that joint submissions are supposed to be given substantial deference by sentencing judges. It is only appropriate to depart from a joint submission if a certain process is followed.

All matters that are proceeding by way of joint submission can be addressed by telephone. The exception to this would be where an accused is being sentenced to a period in custody. But many joint submission cases involve the imposition of fines, probation conditions, driving prohibitions, and restitution orders. These do not need to occur in person.

If the judge was inclined to depart from the joint submission, the matter could be adjourned to a new date to be dealt with in person at that point. The reality is that if a judge is departing from a joint submission the matter is often adjourned in any event. So this would not change anything from the way that things are already occurring in court.

It would also free up time and space in sentencing courts. In the Vancouver Provincial Court, the sentencing court on any given weekday is one of the busiest courtrooms in the province. There is inadequate space for the number of counsel that typically attend, and it cannot operate at full capacity with social-distancing measures in place. By freeing up those cases that are not resulting in a custodial sentence, the matters can proceed and bodies can be cleared out of the courtroom.

Counsel can either have their client with them on the phone, or the client can be contacted on a phone line as part of a multi-party call. However, not all occasions require the accused to be present.

In the Criminal Code, matters proceeding by summary conviction can be dealt with by counsel appearing as agent. Defence counsel can file written instructions electronically with the court in advance of the sentencing, indicating that the client has been explained the terms of the joint submission, the factors under Section 606 of the Criminal Code have been canvassed with the client, and that there are instructions to proceed as agent.

I have used this procedure for in-person appearances as agent before, albeit rarely. With written instructions for the court file, it has never been an issue.

Trials Where Crown is Proceeding Summarily

In all cases where the Crown is proceeding summarily, the Criminal Code permits the trial to be conducted with counsel appearing as agent.

If the trial relates to a legal issue and facts can be admitted, or are not really in dispute, then the trials could proceed without the accused present. This may only impact a small number of trials, but in cases where there is a legal issue that will largely turn on argument or submissions the the court about the interpretation of the agreed-upon evidence, there should be no need to require the attendance of an accused . 

Increase Some Video Appearances

Accused individuals who are in custody could be permitted to appear by video for the trial. I believe there’s a provision in the Criminal Code that allows the judge to make an order permitting even matters where the Crown is proceeding by indictment to have the accused appear by video or telecommunication. The video link between courts and the jails are already secure, and there is already equipment in many courthouses to permit this.

Similarly, non-essential witnesses in trial matters that are proceeding should be encouraged to appear by videolink from another room in the courthouse. This is a method already used  in sexual assault trials, where the Crown makes an application for the witness to appear by video. Again, the technology exists and it would reduce the number of people in the courtroom as well as the number of people congregating in the hallway outside the courtroom during breaks and before and after court commences.

Encourage Written or Telephone Appearances

Many matters that were adjourned were only scheduled for argument. Whether that argument is on the applicable sentence, or the determination of Charter applications, or the existence of a legal defence on facts, many trials have already concluded the evidence part of the case and need only proceed to argument.

If matters are proceeding to argument, then counsel should be encouraged to do the argument either in writing or by telephone. The BC Court of Appeal is already conducting hearings by telephone, and with written argument in advance and it appears to be working well. Similarly the BC Supreme Court is doing bail hearings by telephone. There is no reason this should not be the case for argument-related matters in Provincial Court.

In the same vein, once evidence is heard on any matters that are currently set for trial or that proceed to trial after the reopening, the matter should be adjourned for written submissions and oral argument by telephone. It reduces exposure time, and the number of people in the courthouse at any one time.

For all matters related to scheduling fix dates or arraignment, these matters can be dealt with using existing Consent Arraignment and Consent Requisition forms. For matters that require more than a basic check in with the parties, appearances should be done by telephone. Scheduling trials with the Judicial Case Managers should be done by email, as it already is done in many cases.

Personal appearances for interim appearance dates should be avoided wherever possible.

Clear Rules Regarding Prioritizing Files

In criminal matters, priority for what is proceeding to trial should be given to files where accuseds are in-custody first. In family matters, determinations in cases involving child apprehension claims should be given priority, as well as cases involving custody and access determinations. These are more important than cases where the accused individuals have been released without conditions.

Matters where accused individuals are subject to restrictive bail conditions should take priority over matters where accused individuals were released on their own recognizance. Similarly, matters involving allegations of domestic violence or sexual assault should be prioritized over other types of offences, subject to the above-noted rules.

The last matters that should be given priority in proceeding to trial are matters where the accused is not subject to any bail conditions. If the parties to those proceedings have reasons why the matter requires a speedier determination, parties can submit a written application to the court explaining how the accused is prejudiced by not having the matter heard right away. The prejudice in such circumstances should be beyond the ordinary inferred prejudice resulting from delay.

Finally, at least for a while, the court will have to limit the number of cases that are heard in the courthouse at any point. Not all trials should be proceeding on the day schedule, in order to minimize the number of people that enter and leave the courthouse.

In my opinion, these are some methods the BC Provincial Court could use to reopen its ability to hear matters, prioritize those matters that have the greatest impact on individuals, and streamline its processes to alleviate the backlog that has been created and will continue to be created by the COVID-19 pandemic.

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