B.C. Supreme Court reduces in-person proceedings due to rising COVID-19 case counts

During the last two winters, B.C. courts have not moved as quickly as those in Ontario to curtail jury trials in criminal cases

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      A new notice from the Law Courts will result in adjournments of B.C. Supreme Court trials. But unlike in Ontario, B.C.'s chief justice has not issued any directives specific to jury selection in the wake of a rising number of COVID-19 cases.

      "All in-person civil and family trials and other in-person proceedings scheduled to begin on January 4 (or during the week of January 4 – 7) are adjourned," the notice states. "Civil and family trials or other in-person proceedings adjourned as a result of this notice may be rescheduled by contacting Supreme Court Scheduling any time after (not on) January 5, 2022."

      The notice, which came at the direction of B.C. Supreme Court Chief Justice Christopher Hinkson, stated that criminal trials and other in-person proceedings beginning this week have been adjourned. Counsel and the accused person must appear by telephone on the day when their proceeding was to start so a new appearance date can be scheduled.

      In addition, civil, family, and criminal trials that were scheduled to continue this week have also been adjourned.

      "Counsel or the parties should appear by telephone at the date and time when the proceeding is scheduled to begin to address with the seized judge, master, or registrar whether the matter should continue that week," the notice states. "For continuations of criminal cases, the accused person must appear by telephone or (where available) video for the appearance if the scheduled proceeding was one for which their appearance was required."

      Juries will continue hearing cases after adjournment

      The effect of the new order means that jury trials have been adjourned but juries will have to return when these trials resume.

      The Law Courts' COVID-19 Notice No. 27, which was revised on December 9, 2021, notes that face masks are required in courts.

      It contains no mention about the quality of face masks, which is something that some atmospheric chemists have been stressing repeatedly as an important means to prevent the transmission of COVID-19.

      However, this notice includes an extensive section on cleaning and sanitation, offering specific instructions to lawyers about steps they can take to facilitate proper scrubbing of tables.

      "Government has retained daytime cleaning services during this COVID-19 period to ensure that the high touch areas in courtrooms and courthouse are cleaned daily, or upon request by the Court," the notice states.

      Nowadays, many experts say that COVID-19 is airborne, travelling on tiny aerosols that are exhaled and remain suspended in the air. This is why these experts argue that it's far more important to emphasize improving ventilation and wearing effective masks indoors for extended periods—such as N95 and KN95 models.

      That can achieve far greater results than spending enormous amounts of time and money scrubbing surfaces and installing Plexiglas to remove larger "droplets", which can create a false sense of security.

      Criminal jury trials allowed for 16 straight months

      Eight days after the World Health Organization declared that COVID-19 was a pandemic, Hinkson suspended regular operations of the Supreme Court of B.C.

      Urgent matters were heard by telephone and over video. Most jury trials remained cancelled to September 7, 2020, according to a July 17, 2020 notice to the profession, public, and media.

      Criminal jury trials resumed on September 8, 2020.

      "Some courthouses (mainly very small courthouses) cannot accommodate jury trials in conformity with public health guidelines and cannot be suitably modified," the July 17, 2020 notice stated. "Criminal jury trials scheduled in those locations may be held offsite in places such as community centres or hotels, or may be moved to another court location within the same judicial district."

      Unlike in some other jurisdictions—such as Brampton, Toronto, and New York state—Hinkson did not cancel jury trials in criminal cases even as the number of COVID-19 cases soared to more than 800 cases per 100,000 in Vancouver last winter. He did, however, cancel civil jury trials for an extended period.

      As the B.C. Ministry of Attorney General video above shows, jury members in criminal trials are seated side-by-side, separated by Plexiglas.

      This is in spite of concerns expressed by some health experts and atmospheric chemists that Plexiglas can heighten risk of COVID-19 in "lateral" situations because it interferes with air circulation.

      Civil juries resumed in the fall

      B.C. Supreme Court lifted its ban on juries in civil trials on October 8, 2021, according to a March 2, 2021 notice on the B.C. Law Courts website. That took effect as a result of an order-in-council signed by Lieut.-Gov. Janet Austin.

      The Ontario Court of Justice, on the other hand, has suspended all jury selections in any court location until February 7.

      "Criminal  judge alone trials and other criminal matters may proceed in-person or hybrid at the discretion of the presiding judge taking into account the positions of the parties and making any adjustments as necessary to accommodate those who do not wish to attend in-person," the most recent Ontario notice states. "Efforts should be made to hear these matters remotely where possible."

      The legislated age for an exemption under B.C.'s Jury Act is 65, which was created before the pandemic began.

      Notices to prospective B.C. jurors have been sent out listing a number of exemptions that people could check off in boxes to avoid being called.

      However, these notices did not include a box stating that serving on a jury "may cause serious hardship or loss to the person or to others", which is an allowable exemption under section 6(1)(b) of the Jury Act.

      Therefore, prospective jurors in B.C.—including those with compromised immunity—could only learn of this exemption if they or one of their advisers had actually read the legislation.