Traffic court may be set to get back up and running in BC again. Or is it? Unfortunately, the information that disputants are getting is not clear and not well-organized.
On April 30, 2020, the BC Provincial Court updated its pandemic response procedures and adjourned most court appearances until after July 3, 2020. But one set of court appearances was only pushed forward a few weeks: traffic court.
Traffic court was pushed forward until May 29, 2020 and then again until June 15, 2020.
And on June 12, 2020, the BC Provincial Court released an announcement to the effect that traffic court dates were adjourned. Without a beginning or an end. Just generally adjourned. And no anticipated date of court commencing again.
But then things got even more confusing.
Despite the fact that the BC Provincial Court website announces that all traffic court matters are adjourned, we started to receive letters in the last week addressing individual traffic court cases. Some, but not all, of our clients scheduled to have traffic court hearings beginning after July 3, 2020 are receiving letters to indicate that their date is going ahead.
So which is it?
On the one hand, the BC Provincial Court’s website says that all traffic court dates are adjourned. But on the other hand, a letter sent to disputants indicates that traffic court is moving forward. And there appears to be no way for people to determine which notice actually applies to them.
The BC Provincial Court website does not indicate whether the notices replace the direction on the website, and the notices do not indicate whether they replace the website information. Meanwhile on social media, the court has been encouraging people to check the website for the most recent information.
Our office plan is, of course, to attend court according to the letters. Better to go and be turned away than to not go at all. But I have grave concerns about people who do not get or understand the import of the letter.
For example, if someone is self-isolating away from home or in a second home or at a vacation property, they may not be checking their mail at home. These people are likely relying on the BC Provincial Court website to advise them whether their traffic court dates are proceeding as scheduled. And if the website does not contain the most accurate information, then they may miss their traffic court date.
Similarly, if anyone mistakenly relies on the website over the letter, they may miss their traffic court date.
In any instance where a disputant fails to attend court on the date scheduled for their ticket hearing, they are deemed to have pled guilty to the offence and the fine amount becomes payable to government. I worry that traffic court judicial justices will be quick to enter deemed convictions when the confusing and disorganized manner in which this information is being disseminated to disputants will only lead to fewer people who wanted to attend actually attending.
Just like warrants are not being issued for people who fail to appear for their criminal court dates that have been reinstated right now, so too should guilty verdicts not be entered for disputants in traffic court. The dates should effectively become optional.
No Information about COVID-19 Protocols
What’s worse is that the letters being sent to disputants contain no information about COVID-19 protocols that disputants are expected to follow or which are being taken by the court.
I am troubled at the complete lack of information from our courts about what will be done to protect disputants.
The anatomy of traffic court is unlike other trials. Each courtroom is presided over by a Judicial Justice of the Peace. The Judicial Justice typically hears between ten and twenty files in a single session. For most courthouses, traffic court sessions are scheduled at 9:30 a.m. and 1:30 p.m. However, in Vancouver, hearings are at 9:30 a.m., 10:45 a.m., 1:30 p.m. and 2:45 p.m.
In the Lower Mainland, Vancouver’s traffic court can have up to four courtrooms running at once. In Richmond, there are two courtrooms. Surrey, North Vancouver, New Westminster, Port Coquitlam, Abbotsford, and Chilliwack each have one running at a time.
So for any given traffic court date, you may have between ten and twenty disputants attend court. Now, of course there are occasions where people do not attend. This is why the courtrooms are scheduled to be overbooked. The court counts on people not attending, or pleading guilty, and very few trials running. But, even still, there are going to be other people attending.
I commonly see people bring their witnesses, their children, their spouses, and other family members. People bring friends or children to translate when they don’t speak English. Or they avail themselves of an interpreter. And then, of course, there are lawyers like myself who attend traffic court too. All of a sudden the numbers go from ten to twenty people, to fifteen to twenty five. Per session.
And that’s not even counting the officers. Each courtroom isn’t scheduled to have just one police officer that day. There are sometimes upwards of seven or eight officers scheduled to be in court. Plus the police officers’ witnesses, particularly in cases involving spotters for cell phone tickets and speed traps.
You’d think with courtrooms frequently seeing large groups – gatherings, if you will – of people that there would be some sort of plan announced to deal with this. For example, for the criminal trials that are now proceeding, people are told to be in close proximity of the courthouse and they will be called to be advised whether their trial will be proceeding. There is no such information for traffic court.
Nor is there information about whether to bring witnesses, support persons, family members, children, or translators. And if people do bring these other people to court, what are the protocols for that? We know this for criminal trials. But for traffic court we have no information.
My concerns aren’t vague. They are specific and informed by my experience. And it would be nice to hear about what the court is doing to address these issues in traffic court, if letters are going to out to people to say it is going ahead.
Number of Disputants in Court
Is the expectation that disputants will not show up because of the pandemic and the lack of a clear plan announced with sufficient time for people to plan? Because that hardly seems fair. In fact, I suspect that more people will show up during this period than before the pandemic.
The reason for that is simple arithmetic.
If you’ve lost your job, the sudden financial hit of a conviction for a $368 cell phone ticket, or a $196 speeding ticket is simply a fine that your family cannot afford. So with nothing better to do with your time, you can go to the courthouse and try to save yourself a few hundred dollars. If you are at risk, or put your family at risk by taking public transit, then the need to keep your license and to avoid a conviction with points becomes all the more serious.
If you’re now working from home, it becomes a lot easier to get the time off work. You simply get up earlier to start your day, or work later. The trip to the courthouse in the middle of the day would likely go unnoticed by your employer.
And for people who have gone back to work, the new rules regarding sick leave make it really easy to call in with a sore throat and mild cough and promise your boss you’ll return when you’re asymptomatic. It’s probably just allergies, but you can never be too safe.
I know I sound cynical, but my experience has been that most people who skip traffic court are doing it because they have to work. And now that hurdle has been removed or reduced for a great many individuals.
The letters being sent out contain absolutely no information about whether there were any limitations on who can come. Is the court only allowing half the trials scheduled for a given day to proceed? Have only half the disputants had the chance to come to court? No one is told this information.
And, if it is the case that the court lists are being cherry-picked for files that will proceed, the public deserves to know the rationale applied. Is it based on the officer? Age of the file? People have an interest in the timely resolution of their traffic court matters and yet no opportunity to be heard about whether they are among those who are being delayed or not. This is not right – in fact, the law requires a court to allow someone to be heard before adjourning a matter without setting a new date.
Space for Physical Distancing
When you attend traffic court, you speak to the police officer in the hallway outside the courtroom. In some courthouses, like Vancouver and Port Coquitlam, there is an interview room where you can speak with the officer. The size of the interview rooms does not allow for six feet between individuals. And in an enclosed, unventilated space, a conversation about the evidence and charges and potential resolution becomes a danger to the disputant and the officer.
The hallway space isn’t much better. New Westminster and Vancouver, for example, have only a narrow hallway space for the officers and disputants to discuss and congregate. Again, social distancing is not really do-able in these spaces.
And then there’s seating inside the courtrooms. In North Vancouver, Chilliwack, New Westminster, and Abbotsford, the seating is extremely limited and very tight. In fact, in Abbotsford the seating is on pews. In New Westminster, there are only about sixteen chairs in the whole room. Everyone else stands, close together, shoulder-to-shoulder against the walls. The traffic courtrooms are often very small. This made sense before. It poses a risk now.
So will the courtrooms be moved to larger rooms? If so, shouldn’t the notices of change in courtroom be sent out? Especially because some spaces, like Vancouver or Surrey, may require disputants to go to a completely different part of the courthouse. If you’re expecting to be on the second floor, and you’re moved to a larger courtroom on the first floor around a corner, shouldn’t you know so you can find it before court has been in session for fifteen minutes?
The court could block off seating in the rooms, to only allow every other chair to be used, but that doesn’t address what happens in those courtrooms where the disputants are already looking at standing room only. Are people then supposed to wait in the hallway? Will there be markers on the floor for where people can stand while waiting in the hall?
Sanitation of Courtrooms
There is also the issue of the high-touch surfaces in the courtrooms. Counsel table, the podium, the witness box, the door handles, and the chairs will all require sanitation between each individual who touches them.
So what is the plan to accommodate those procedures and how are they going to be done in a way that ensures there is sufficient time for disputes to be heard? It would be nice to know, nice to receive a mail out update or a notice posted on the BCPC website to explain the process that will be followed in traffic ticket trials that are proceeding.
Then we have the trial process.
Identity is, of course, frequently an issue in trials and that includes in traffic court. Disputants need to be identified by police, but they also need to be permitted to wear a face mask to protect themselves and others. What are the policies or procedures that are going to be adopted in the traffic court trial process where identity is in issue and the disputant wishes to wear a face mask, but the officer cannot identify them without the mask being removed?
People should have a right to know if they are going to be compelled to remove their mask, and should be permitted sufficient time to apply for an adjournment on that basis. But by now, it is too late to file an adjournment application.
Having hand sanitizer in the courtroom may help, but it is not determinative. There are still exhibits to be tendered (diagrams and photographs), video equipment to be operated and video to be played, and disclosure to be exchanged from police to disputants. Three our four or more sets of hands could touch the same documents, buttons, or exhibits, and surfaces are known to have the virus linger on them for lengthy periods of time.
All of this information is important for people to know. For those who are immunocompromised or elderly, or who live with or provide care to someone who is immunocompromised or elderly, or people with respiratory conditions the risks in coming to traffic court without mitigation through proper sanitation and distancing and limits on groups are immense. These individuals have the right to apply for an adjournment of their court date.
But those applications, if done wisely, are done through the registry with several weeks’ notice. That way, you know before your court date whether you need to attend. And while applicants could submit an adjournment request now, there is no guarantee it will be granted on the court date. This means that anyone who needs an adjournment because the measures to protect the spread of disease are insufficient for them, or who perceives themselves to still be at risk, is at risk of having a deemed conviction.
But instead of certainty and clarity for the vulnerable people coming before the court in traffic court matters, we are left with confusion and more questions than answers.