As British Columbia enters phase two of its restart plan, many of us are preparing to go back to work.
Services such as hair salons, child care facilities, art galleries, and even retail stores are set to reopen under enhanced protocols on Tuesday (May 19).
However, our courts will remain all but closed.
Trials and other non-urgent substantive matters set to proceed between late March and early July have been adjourned, delaying access to justice for countless people. While some cases can be heard using remote technology, many are ill-suited for such an arrangement. For these people, there’s not much to do other than to wait.
It is no secret that our courts are already plagued with delays. Even under normal conditions, the wheels of justice move slowly.
Many criminal matters can take upward of a year to get to trial. And although the Supreme Court of Canada established stringent guidelines to help expedite the right to a speedy trial, the COVID-19 pandemic presents a unique set of challenges, never previously encountered by our justice system.
But these challenges are not insurmountable.
Here are the top five things that our courts can do to get our justice system back on track, sooner rather than later
Limit court lists
Oftentimes, courtrooms are overburdened with lengthy hearing lists. Double or triple-booking courtrooms for trials or scheduling a large number of matters to be heard on the same day is not unusual. In fact, it is normally done in order to make the most efficient use of precious court time.
However, this means that a large number of lawyers, defendants, police officers, witnesses, applicants, and others attend court, piling into small spaces, waiting for their turn to be called.
Given the COVID-19 pandemic, though, the benefits of packing court lists are eclipsed by the potential risks.
Limiting the number of matters scheduled to appear in a particular courtroom on a particular date will help reduce foot traffic. This, in turn, this will help to ensure that physical distancing measures can be properly observed and respected.
Scheduling just one trial per courtroom and limiting hearing lists to a maximum of one matter at a time will ensure that only essential persons are present and will reduce unnecessary physical interaction in hallways, common areas, and in the courtroom itself.
Stagger start times and breaks
Court hearing times are usually scheduled for two start times; one in the morning and another in the afternoon. There are also breaks throughout the day at regularly scheduled intervals, which are more or less in sync with one another but can be subject to change, depending on how proceedings are moving along or at the request of counsel or the judge.
This means that, more often than not, hallways and common areas in courthouse are busy throughout the day.
If courts were to implement staggered start times and breaks, and stick to them, there would be fewer people in common areas at any given time. This would allow more space for people to move around the courthouse without encountering others.
Moreover, predictable, staggered timelines would also provide support staff with the opportunity to regularly sanitize high-use areas, like washrooms.
Equip courtrooms with new equipment and technology
Our courtrooms could use a technological update. In many jurisdictions, special equipment, like computers or television monitors, need to be ordered by counsel in advance and are brought into the room as required. Moving equipment around like this increases the opportunity for contamination.
If courtrooms were equipped with necessary technology, the risk of contamination could be reduced. It would also encourage lawyers to make use of it.
Instead of physically handing paper pleadings and casebooks to the court clerk, who in turn hands them to the judge, these materials could be electronically filed in advance and accessed by all parties using computers and monitors in the courtroom.
But low-tech upgrades are also necessary.
For example, plexiglass barriers could be erected between the gallery and the bench, as well as on either side of the podium and between counsel tables and clerks. This, combined with increased ventilation inside courtrooms, could help significantly reduce the risk of viral transmission.
Rely on sheriffs to enforce physical distancing guidelines
Sheriffs are present in all courtrooms anytime a matter is being heard. They also regularly stand in hallways and near courthouse entrances and exits in order to conduct safety checks and ensure order.
For that reason, sheriffs are used to directing people and keeping an eye on their surroundings. They help enforce simple courtroom rules, like no eating or drinking or wearing hats, for example.
When courthouses open again, sheriffs will undoubtedly play an important role in ensuring that physical distancing guidelines are being observed and respected. They will be tasked with managing the flow of people in and out of courthouses and courtrooms.
Sheriffs should therefore be provided with increased training about COVID-19 prevention, as well as appropriate personal safety equipment including gloves and masks.
Encourage prosecutorial discretion and collaboration between counsel
Not every case needs its day in court. In fact, only a small number of court cases ever make it to trial. Most end up being resolved in one way or another well before it gets to that point.
Those with matters set for trial, or eagerly awaiting new trial dates after numerous postponements, should reconsider whether or not a trial is even necessary. Prosecutors should do the same.
If, for example, Crown and defence can reach a resolution that does not involve a long, drawn-out trial, the interests of all parties may be best served. While the right to make full answer and defence should not be compromised, there is certainly something to be said about the art of skillful negotiation.
Encouraging collaboration between parties and finding amicable, creative ways to resolve files without clogging up the court system is more important now than ever.
At this point, July 3 is the earliest date that courts are expected to reopen and to resume operations as normal.