QUIS CUSTODIET IPSOS CUSTODES - “WHO WATCHES THE WATCHERS?” ~Juvenal
A growing tsunami of criminal cases may be at risk of never seeing the light of day due to delays arising from the coronavirus pandemic and the response of British Columbia courts. In mid-March of this year, all three levels of our court system effectively shuttered their doors to all but the most “urgent” of cases. Unfortunately, even these most urgent of matters could not proceed due to the woefully inadequate technological infrastructure at the disposal of the court system. Today, we are face to face with an ever-increasing log jam of delayed hearings that add daily to the already clogged corridors of our courts. The continued inability of our court system to stem the tide increasingly raises the spectre of unreasonable delay under section 11(b) of the Charter.
Thus far, the overwhelming assumption among court stakeholders has been that Covid-19 constitutes “exceptional circumstances” when it comes to R. v. Jordan and delay. According to the court in Jordan, exceptional circumstances lie outside the Crown’s control in the sense that they are reasonably unforeseen or unavoidable. But the exceptional circumstances analysis does not end there. Both the justice system and Crown must also proactively mitigate the delay resulting from a discrete exceptional circumstance. This is the sword of Damocles that now hangs over our justice system in terms of a possibly devastating cascade of delay issues arising from continued closure and a seeming inability to efficiently or effectively pivot to deal with them.
Much of the current criticism against our justice system has centred around the failure of technology to pick up where the closure of our courts left off. There can be no doubt that the tradition laden court system has lagged behind advancements in technology that have reshaped our daily world. However, the technology issue is a proverbial red herring. Even if the technology available to our courts were far more advanced, the vast majority of hearings still could not have proceeded. That is because in person hearings are required to tender exhibits, for credibility assessments to be made, to allow juries to sit or myriad other reasons underpinning our system of justice. Thus, the technology issue may factor into the delay analysis but it plays a far lesser role than the real question. That being whether our courts took reasonable steps to mitigate issues of delay using the considerable resources they did have at their disposal.
Charter analysis will begin with the fact that, unlike many other jurisdictions that imposed strict “lockdown” policies, British Columbia’s approach was to require safe operation of a broad range of services designated as essential services, to protect the health care system and maintain access to key services and supplies. Many non-essential businesses remained open, provided they could operate safely. Our court system and related legal professionals were designated an essential service by the government of this province. From hospitals to laundromats and liquor stores to large retailers with numerous locations and employees, essential and non-essential businesses across the province quickly responded to social distancing directives in a timely if painful manner in order to keep their doors open. Thus, the delay analysis begins with the question of why our courts could not pivot in a timely manner to do the same.
Analyzing inconsistencies in the response of our courts will inform the delay analysis. On March 13, 2020, a joint notice was issued by all three levels of our courts that they had developed a coordinated approach to manage impacts of coronavirus on their operations. However, this coordinated approach did not translate to what was actually occurring on the ground for long. Due to the nature of appellate practice, the British Columbia Court of Appeal was able to shift gears to online hearings courtesy of Zoom video conferencing technology in a way trial courts simply could not.
But the real dichotomy in responses will likely lay between British Columbia Supreme and Provincial courts. Supreme courts opened for at least some in person hearings including trial matters in May by simply employing social distancing protocols. Meanwhile, our Provincial courts remained closed. Our Supreme Court announced that they would be reopening their doors on June 8, 2020 (although if this actually occurs remains to be seen). On the other hand, the workhorse for most criminal matters, the Provincial Court, directed a far more limited opening of 2 courtrooms in Surrey and 1 courtroom in 4 other courthouses in the Lower Mainland and Fraser Valley as of June 8th. There will be an obvious inconsistency if one level of court in this province is open for business and the other is not. This inconsistency is perhaps most glaring in courthouses where both Supreme and Provincial courts function side by side within the confines of the same building. For instance, a litigant could seemingly walk into Victoria Supreme Court to have their day in court but it would apparently be too dangerous to do so in the Provincial courtroom next door.
The delay analysis will not only involve exploring inconsistencies between our courts, but also with government. On May 6, 2020, the provincial government announced that Phase 2 of British Columbia’s Restart Plan would commence as of May 19 and include restoration of a wide array of services including elective surgeries, dentistry, physiotherapy, massage, the retail sector, hair salons, restaurants, pubs, libraries, offices, sports, parks, child care and much more. The government further announced that Phase 3 would commence in June and would include reopening of schools, hotels, parks and movie theatres.
Meanwhile, on May 7, 2020, our Supreme Court directed that all criminal matters scheduled for any type of appearance up to and including May 29, 2020 were to be adjourned. One day after this, on May 8, 2020, the Provincial Court announced “Covid-2” or the second phase of yet further rolling adjournments for all criminal law matters scheduled for trial or continuation between May 19 to July 3, 2020. If any in custody trials in the month of May were believed to be urgent, accused, their counsel or Crown counsel were required to arrange for an “Urgency Application”. Otherwise, consent to the adjournment would be deemed to have been provided.
The incongruous and similarly timed announcements of our government’s Phase 2 Restart Plan and the announcement of “Covid-2” by our Provincial Court, as well as its unnamed equivalent from Supreme Court, raises further questions when assessing delay. Dr. Bonnie Henry, British Columbia’s provincial health officer, had declared that citizens of this province were able to safely resume numerous services and activities including those involving close physical contact. By May 15, 2020, health authorities were directing that gyms could reopen. Charter scrutiny will require us to ask how it was possible that British Columbians could receive a massage or a haircut but still not access their courts?
The delay analysis will not only involve scrutinizing inconsistencies but also assessing outcomes. If our courts reopen weeks or months from now with some physical distancing measures in place, a somewhat different courtroom layout with plexiglass and hand sanitizer added for good measure we will have to ask why it took so long for such basic measures to be taken when businesses of all sizes accomplished such changes within days. If they reopen without some of those basic measures in place even more questions will be raised as to delay. In fact, some observers have already noted that courtrooms, where counsel, court clerks, the judge and witnesses typically sit approximately 6 feet apart from one another are better situated than many businesses to respond to the pandemic. Assessing outcomes will involve working backwards to see whether resources were made available by government to our courts on a timely basis, whether proper expertise were engaged and when as well as myriad others questions to determine whether circumstances remained exceptional.
Charter challenges will not be limited to delay alone as the “Urgency Application” process implemented by our courts is also vulnerable. Under section 7 and 11(d) of the Charter, all Canadian citizens have a right to a fair trial. The “Urgency Application” process turns these Charter rights on their head by reversing the burden so an accused person, who is presumed innocent, has to make application to even have an opportunity to access this right. This includes individuals who are in custody awaiting trial and whose very freedom is at stake.
Perhaps even more problematic, the “Urgency Application” process turned out to be a straw man as virtually no such application was successful. This is because our shuttered court system actually did not have the ability to accommodate even so-called urgent trial proceedings. As a result, the potential for constitutional argument exists that the “Urgency Application” process was, in fact, a veneer of due process used to dress up the closure of our court system. A hearing process with no chance of success is not due process and strikes at the core of our constitutional values. Further, failure to bring an “Urgency Application” meant you were deemed to be giving away this right. This is problematic for every single litigant but especially so for self-represented accused whose trial rights were summarily stripped from them by the very courts sworn to uphold them.
Each day that passes while our courts remain closed or operating at greatly reduced capacity creates a devastating domino effect on all currently scheduled matters. Add to this a possible flood of delay applications as litigants argue their right to a timely and fair trial has been violated. One of the greatest court systems in the world is in its worst moment of crisis as numerous criminal matters dangle on the precipice of oblivion. Now is the time for bold action as well as increased innovation and transparency or we risk reaching the point of no return.
 R. v. Jordan, 2016 SCC 27 at para.69
 R. v. Jordan, supra at para.75