'Remarkable transformations’ coming to B.C. courts, says Eby

The province is accelerating plans to modernize B.C.’s court system in the wake of challenges caused by the COVID-19 pandemic

A photo from the BC Supreme Court in Vancouver, which is facing a backlog of cases due to the COVID-19 pandemic | Rob Kruyt

What happened: B.C. Attorney General David Eby says government is accelerating work under the province’s digital transformation strategy to help modernize B.C. courts and improve the functioning of B.C.’s judicial system.

Why it matters: Eby said the pandemic has shown him personally just how brittle court infrastructure has become. Members of the legal community have warned of a massive backlog of cases at B.C. courts due to the COVID-19 pandemic.

In response to the impact COVID-19 health and safety measures have had on B.C.’s court system, the province’s attorney general says his ministry is working with the courts and other stakeholders to accelerate the digital transformation of a largely out-of-date system.

“There’s some big changes and remarkable transformations that will happen in the short term,” Eby told Business in Vancouver.

“The first lesson I think was – for me personally – an awareness of exactly how brittle the infrastructure that supports our courts has become, following years of underfunding.”

Eby explained that the informal policy for critical court infrastructure – a PA system, a phone system, a fax system – has been to run the technology until it fails, and then replace it.

A lack of access to the technology that powered the world’s pivot to working from home significantly hampered the capacity of B.C. courts to maintain regular operations during the pandemic.

“The consequence of that approach, and not having regular refreshes, has been that the courts were very ill-prepared to deliver services in a way that wasn’t high-contact. The whole system has been developed for centuries around face-to-face interactions,” Eby said, adding the situation was made 10 times worse by the fact that some courthouses didn’t have decent WiFi, and some courtrooms didn’t have their own phone line or speakerphone to enable hearings by teleconference.

Members of the legal community have warned that the adjournment of hundreds – if not thousands – of cases during the pandemic will create a massive backlog of cases at courts already burdened by delays.

Eby also acknowledged there will be a huge number of criminal cases that see challenges because defendants were unable to have their cases heard in a reasonable amount of time. It has yet to be seen how courts will consider defendants’ constitutional rights against the unprecedented consequences of the pandemic.

An initial $2 million investment in critical infrastructure has been approved to address some immediate needs at B.C. courts. The funding will cover conference-style speakerphones for courtrooms, will ensure each courtroom has its own phone line and will secure modern computers for judges.

“It’s an initial investment but everybody recognizes that there will be more work to do,” Eby said.

Chief Justice of British Columbia Robert Bauman told BIV that the silver lining to the pandemic has been the level of collaboration between executive, legislative and judicial branches of government to address issues caused by the pandemic.

“The level of collaboration is unprecedented,” he explained, adding that the scenario presented by COVID-19 has provided B.C. courts with opportunities to learn.

“I think we’ve learned that technological infrastructure is critical to successfully navigating these kinds of issues. The ability to react quickly is important, of course. The need for constant communication with our community is critical.”

While lawyers expressed concerns about how and when they would be able to reschedule matters at the Provincial Court and BC Supreme Court levels, B.C.’s Court of Appeal had reset by early June all but four of its approximately 41 matters that were adjourned due to the pandemic.

Bauman, who also serves as chief justice of the Court of Appeal, says the relatively quick turnaround is in part because the court hears fewer cases than do lower courts. The appellate workload is also different – “easier to control,” he says – and relies heavily on written submissions.

These characteristics, Bauman argues, has made the Court of Appeal a great testing ground for the adoption of new technologies.

“I think we’re among Canadian leaders,” he explained. The court has offered webcasting on certain files for a number of years. It has tried to pioneer electronic appeals. It has had a web-based case management system in place for more than a decade and a half – and while Bauman admits that system is being held together with a bit of duct tape, so to speak, it has been extremely effective.

“I think in British Columbia we’ve been willing to try new things,” Bauman said. “We have to be prepared to entertain new ideas, or we’re not going to make any progress.”

“We have to be centred on our users. We have to be prepared to take some risks, prepared to fail, prepared to learn from those failures and, with evidence, move towards other solutions.”

Six months before B.C. declared a public health emergency, the Ministry of the Attorney General published a four-year court digital transformation strategy, which prioritizes improving access to justice and addressing court timelines.

The plan – created in consultation with B.C. courts and other stakeholders – is one of several modernization initiatives underway pre-pandemic that have proven to be “incredibly timely," said Eby.

His ministry is working with the Provincial Court on online processes, hearings, reviews and mediations that can take place before parties show up to court – an effort to minimize the number of files that require in-court appearances, which will serve to reduce the backlog of cases waiting for their literal day in court.

“That was certainly an idea before, but now it’s really become the priority,” he explained.

“Before, it would have been a couple years-long discussion about: ‘should we do this, what should it look like.’ Important dialogue, of course, but out of necessity these things have jumped to the front of the line.”

The province is working with stakeholders across B.C. – including more than 20 municipal police chiefs and more than 100 Royal Canadian Mounted Police detachment commanders – to transform the way bail hearings are heard.

Pre-pandemic, a fleet of vehicles would take people accused of crimes from where they were held in custody to the nearest available court. In some cases, individuals would have to be flown to or from a courthouse.

Eby said he hopes – in a “very short period of time” – those hearings will take place by videoconference. While the shift requires a significant investment of both time and capital, he says the potential savings are quite dramatic.

“It will be transformative and the system will never go back to the way it was before,” Eby said.

The ministry is also eyeing regulatory and legislative reforms to address challenges and barriers to speedy justice. This includes changes to court rules to enable them to conduct digital hearings. British Columbians can now opt for a virtual hearing for a traffic ticket, for example.

Longer term legislative amendments – to provincial laws around small claims, and to the Criminal Code at the federal level – are most likely to be addressed in the fall, after – at the provincial level – B.C. moves beyond the essential business currently before the legislature. There might be an opportunity to expand the small claims mandates of the Provincial Court and B.C.’s Civil Resolution Tribunal (CRT) to get more matters out of BC Supreme Court, Eby said.

At present, Provincial Court can hear small claims of up to $35,000, and its procedures and rules are less formal and less complicated than those of the BC Supreme Court. The CRT can resolve small claims disputes worth $5,000 and under.

There is also an opportunity for B.C. courts to leverage software used by the CRT to facilitate online processes.

The Ministry of the Attorney General has confirmed that 74 superior courtrooms – which include two appellate courtrooms – and 101 provincial courtrooms have re-opened for in-person hearings as of June 15.