The Coronavirus Pandemic and Access to Justice

Slightly over 30 years ago, the Supreme Court of Canada upheld a self-initiated injunction by the Chief Justice of British Columbia to prevent picketing in front of the courthouses in British Columbia: B.C.G.E.U. v. British Columbia (Attorney General). As Dickson CJ said in his opening statement in the majority decision, “This case involves the fundamental right of every Canadian citizen to have unimpeded access to the courts and the authority of the courts to protect and defend that constitutional right.” The union did not have the right to impede access to the courts. Twenty years later, the unprecedented spread of COVID-19 has resulted in the unprecedented closing of courts across the country, restricting “unimpeded access to the courts”. What is the difference?

During the strike action by the B.C.G.E.U. in 1983, the union encouraged people not to cross the picket line, but if the union issued a “strike pass” to a lawyer to represent accused in custody, they would be considered to be “honouring” the line. The Chief Justice of the BC Supreme Court on his own motion issued an injunction ex parte, which was obeyed. The injunction provided, “any person affected by this Order may apply on 24 hours’ notice in writing to the Registrar of this Court at Vancouver for an Order setting aside or varying this Order” and the union moved to have the injunction set aside. The Chief Justice upheld the injunction and the Court of Appeal upheld it on appeal. Chief Justice Dickson at the SCC dismissed the union’s appeal, noting “the picketing constituted a deliberate course of conduct which could only result in massive disruption of the court process of British Columbia, and the consequential interference with the legal and constitutional rights of Canadian citizens [sic]”.

Now it is the courts themselves that have impeded access, for the most part apparently unilaterally. We do not know how long this turn of events will last. There are major differences that justify closing the courts’ physical buildings under today’s circumstances compared to picketing. Many institutions have voluntarily closed or restricted their services. Since the courts issued their notices, some provinces have declared a state of emergency. For example, Ontario Premier Ford ordered “recreation centres, public libraries, private schools, daycares, bars, restaurants, theatres, concert venues and cinemas to close immediately and remain closed until March 31 at the earliest”; some institutions, such as schools, had already closed. Unlike courts, none of these institutions are fundamental to the rule of law.

As the state imposes more mandatory restrictions on people’s activities, including not only voluntary self-quarantines (or the less onerous “self-isolation), but also mandatory quarantines under certain circumstances, it is particularly crucial that Canadians retain the ability to challenge them when appropriate. Canadians are prepared to accept many restrictions with the objective of containing, “flattening the curve” of the virus’s impact or minimizing the number of deaths, but while we certainly cannot be complacent about the impact of the coronavirus, we also cannot be complacent about the capacity of governments to exceed their limits.

Have the approaches taken by the courts ensured their accessibility if needed? Almost all the courts have effectively postponed current and near future proceedings: those involved in those proceedings will have to delay their access to justice. At the same time, nearly all the courts have ensured some degree of accessibility for certain cases, limited in type, by relying on remote access (or old school written materials).

Some courts began with the intention to carry on as if circumstances were normal, but quickly changed in response to fast-changing developments outside their control.

The Federal Court of Appeal initially determined to continue with hearings during these two weeks, but would be flexible with respect to adjournments or holding hearings by videoconference (see Notice dated March 13th). By March 16th, however, the process had changed and the court cancelled hearings, except urgent matters to be held by teleconference, motivated by the request from authorities for everyone to limit their movements.

In British Columbia, the concern as of March 12th was that people be healthy enough to attend the court (or alternatively to participate by telephone). The Supreme Court of British Columbia also made arrangements with respect to jury trials, cancelling jury selection, and permitting accused to be tried by judge alone if they wish; the court permitted parties in civil cases to proceed without a jury and left it to the presiding judge to decide if current proceedings should continue. The Court of Appeal requested parties to consider adjourning non-urgent cases, but by March 17th, the Chief Justice issued a memorandum that, speaking generally, stated hearings (in the Court of Appeal) would be adjourned, recognizing some urgent matters must proceed, by teleconference or in writing.

On March 15th, the Alberta Court of Queen’s Bench announced it had suspended sittings, except for urgent matters, which will apparently be held in person. This is a significant change from two days before when Queen’s Bench stated it “is implementing social distancing measures in Chambers, Criminal Appearance/Arraignment Court and other Court proceedings with hearing lists” and is suspending upcoming jury trials and jury selection (see here).

Some courts are going ahead with in-person hearings, including the Supreme Court of Canada, the Alberta Court of Appeal, the Saskatchewan Court of Appeal and Provincial Court, the PEI Provincial Court and the Nova Scotia courts.

The Supreme Court of Canada is closing the court to the public, but continuing to hear cases. As of writing, certain cases have been adjourned, while all others are going ahead. Certain matters (such as request for adjournments) will be by tele/videoconference. The Alberta Court of Appeal is continuing to allow in-person attendance, but only for those people involved in the case and proceedings will change later in March when matters will be heard by teleconference or telephone. The Saskatchewan Court of Appeal continues to hear cases in person. The Saskatchewan Provincial Court continues to hold hearings, but also provides for video or audio appearances in some cases, such as by persons in custody.

The PEI Provincial Court will continue to sit, following social distance protocols (see here), as will the Nova Scotia courts, with more information coming and admonition not to come to the court if you have travelled outside Canada in the past 14 days or are experiencing virus symptoms (a caution appearing on several sites of courts where people will appear in person).

Most courts have adjourned cases, with provision for hearing urgent matters. These include the Federal Court, the Manitoba courts, the Ontario Court of Appeal, Superior Court and Small Claims Court (which may have been one of the first to suspend hearings), the Newfoundland and Labrador courts, the PEI Court of Appeal and Supreme Court and the courts in Nunavut and NWT.

The Federal Court is restricted to urgent matters, with all general sittings across Canada cancelled, although it may be possible to have a teleconference or a written hearing for matters no longer than 90 minutes (see Notice here), if the parties jointly request it. (Requests may also be made in other cases.) Manitoba courts are also restricting themselves to urgent matters by teleconference or in writing. The Quebec Court of Appeal is explicitly curtailing its activities in response to the declaration of health emergency in the province, but as the other courts has made provision for some matters to be heard by teleconference.

In Ontario, the Court of Appeal and the Superior Court have adjourned matters, with provision for urgent matters to be addressed on written materials or remotely (here for the Court of Appeal and here for the Superior Court). (See here for the notice regarding criminal matters.) Small claims court sittings are suspended, although the courthouses will remain open. In Newfoundland and Labrador, the Provincial Court has developed a more detailed response than Court of Appeal or Superior Court (these are closed except for parties for March 17th and 18th and there will be further information on March 18th) (see here); most proceedings in the Provincial Court have been adjourned, with provision for urgent matters. In PEI, the Court of Appeal and the Supreme Court have adjourned hearings, with some matters heard by tele/videoconference.

The Nunavut Court of Justice has extended closures of satellite courthouses until July 27th, the longest period of any of the courts, with suspension of jury trials until May 31st. (Unfortunately, weblinks were not connecting to further information or clarification.) The NWT courts have responded with a combination of sittings cancelled until May 1st, other sittings cancelled until May 31st and provision for videoconferences as required, such as for in-custody accused.

In yet a third approach, a few courts are combining in-person and remote hearings, in a somewhat confusing mix, including the Saskatchewan Court of Queen’s Bench, the Court of Quebec, the Ontario Provincial Court (it seems) and it appears the New Brunswick courts.

The Court of Queen’s Bench has established special procedures for child protection matters with a mix of hearings by telephone and social distancing. The Court of Quebec is limiting proceedings to urgent matters, either in person or by teleconference. The Ontario Court of Justice will remain open, but some matters will be adjourned and some held by tele or videoconference. The goal is to reduce the number of people attending court, “ensuring that those with urgent matters continue to have meaningful access to the court”. As of March 17th, access to New Brunswick courthouses was restricted to persons who needed to be there for a proceeding, including members of the media. Again, however, hearings generally will be by teleconference.

(There does not seem to be information on the Yukon courts website, where one is directed to the government statements on the virus, which do not refer to the courts (there are no cases in Yukon as of writing).)

The three BC courts have issued the only notice that publicly identifies a plan designed to respond to evolving circumstances, a coordinated plan governed by three goals:

• maintain and preserve the rule of law;
• protect the health and well-being of judiciary, judicial staff, courthouse staff, sheriffs, lawyers, litigants, witnesses, jury members and the public; and
• facilitate efficient and effective decision-making processes for Courts across the province.

They also developed a plan to respond to developments in the crisis, which they called “Alert Levels”. As of March 13th, the alert level was 2: – “Reduced operations due to moderate judiciary, judicial staff, courthouse
staff and sheriff absences, and to protect public health and to reduce and slow the transmission of the virus. Courthouses are open to the public.”

The memorandum from the BC Chief Justice was one of the few that referred to self-represented litigants, advising them where to obtain assistance.

I have described the protocols created across Canada by courts at different levels to show that while they do share some attributes in common (most have cancelled hearings and most have provided for alternate ways of hearing urgent matters), they are nevertheless different from each other. Several of them have changed very quickly, as have developments in response to the crisis more generally. Many are detailed in listing the matters that are considered “urgent”, others seem content to address it on a case by case basis. The time periods during which most proceedings will be suspended vary considerably, although it is likely that those with shorter time periods may be forced to consider extending them.

There will, of course, be consequences in the delay of justice. As one lawyer explained, delays in criminal trials because of the coronavirus will not affect calculation of constitutionally prohibited delay for those trials, but the delays now and subsequently will push other trials further along, raising concerns down the road.

However, even since the courts began to post their processes, some law firms have implemented working remotely, following the requirement to practice social distancing and self-isolation, although definitely not all; others have recognized they may need to in the future. The same is true of Legal Aid Ontario, community legal clinics and the law societies. Together with the reality facing many of their clients, the legal supply chain has been severely disrupted and some people seeking access to justice, such as self-represented litigants, will face greater hurdles than usual not only during the current crisis, but when the situation eventually begins to return to “normal”.

In many ways, COVID-19 has changed the nature of how we address law in Canada, has tightened the parameters of “access to law”. Like much else with the pandemic, we do not know how tight those parameters will become, nor do we know how long access will be restricted. However, while most of us trust our governments to be taking the most restrained steps necessary, despite their increasing mandatory restrictions, the courts’ efforts to balance the safety of their employees, parties and the public, with their mandate to protect the rule of law at this point indicate they will be available if we need them.

We can assume that all courts understand their role in society and how it must be taken into account in their coronavirus responses. Some courts have acknowledged so explicitly. The Chief Justice of Canada stated in a March 16th press release that the Supreme Court of Canada “is working with various stakeholders in the justice system” and the measures the court is taking “are designed to balance the need to protect the health and safety of all with the need to maintain judicial operations”. Furthermore, although the court is closed, “Out of respect for the open courts principle, the press and media will be allowed to attend the hearings [that will go ahead] in person.”

Other courts have also been explicit in appreciating the balance they believe they need to attain. The Chief Justice of BC noted the premise underlying the new arrangements for the BC courts:

The Court plays a fundamental role in our constitutional democracy and must provide access to justice on the most urgent matters at all times. The limitations described in this notice ensure that the
Court continues to hear the most urgent matters while responding proportionally to the COVID-19
international pandemic.

The New Brunswick courts are still developing their response, which will reflect their recognition of “the seriousness of the situation and [need to] prioritize the health and safety of all court participants, while balancing the need to maintain judicial operations and to preserve the rule of law.” The Ontario Superior Court notes, “The Court plays a fundamental role in our constitutional democracy. Access to justice for the most urgent matters must always remain available.”

At the same time, it is perhaps disappointing that they do not all preface their protocols with a reference to the significance of the courts and the rule of law, that they remain, especially in these times when the temptation to abuse emergency powers is not unknown, the bulwark against authoritarianism and unconstitutional action.

UPDATE: I originally posted this on March 17th and am reposting today with revisions, primarily in form. I have not attempted to update the information above, which was current on March 17th. However, it has come to my attention that the Canadian Judicial Council website lists the websites of all courts in Canada containing information about their arrangements in response to COVID-19 as of March 17th.