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Justice Delayed is Justice Denied

Liquor and cannabis stores remain open.  

The list of essential services seems to be about a mile long.

Amid all the concern about coronavirus, covid-19, even dollar stores are open.

Lawyers are considered an “essential service.”  By definition, this includes the judiciary.

Why, then, are our courts essentially closed? The Supreme Court of British Columbia is largely closed.  The Provincial Court has suspended regular court operations. The B.C. Court of Appeal is “strictly limiting” its operations.

If you are scratching your head, you are not alone.

Some readers will remember the days and months following September 11, 2001. Then, North America was consumed with fear. 

Sound familiar?

In the wake of 9-11, governments enacted unprecedented legislation allowing the state to disregard constitutionally protected civil rights in the name of “national security.” Examples include the Patriot Act in the United States, which remains largely in force today. Anyone expressing concern was branded a traitor, and silenced.  

We were not much better here in Canada. Canada’s federal government enacted the Anti-Terrorism Act. Civil liberties were curtailed in the name of combatting “terrorism.”

Fast forward to today.

Those attempting to visit loved ones in the hospital are being forcefully told by health care professionals to leave the building entirely or police will be called to escort them out. I understand that those sitting quietly in Kelowna General Hospital's (KGH) emergency ward have on occasion been taken away from KGH in handcuffs, with force. The "crime"?  Wishing to remain in the building for a patient who did not have covid-19. Sitting quietly in the waiting room without causing a disturbance.

It is unknown how many patients are actually in KGH with covid-19.  Rumours are that at least as of a couple of days ago, the number is very low. Is the province informing medical staff at hospitals how many patients their particular hospital has with covid-19?  If not, why? Should medical staff not know those numbers?  If the number is 5 or 10, rather than 500, presumably they should know this. This may well reduce the number of patients turned away who are in need of non-covid related medical care.

It is too bad that on March 18, 2020, the B.C. Supreme Court (BCSC) announced that with respect to civil matters, it was closing its doors to all but the most urgent cases. Cases that might be heard include (1) those relating to public health and safety and covid-19, such as orders under the Quarantine Act and (2) those that are at face value urgent, including housing evictions, preservation orders, urgent injunction applications and certain other matters.  

The BCSC now has a two-step process “to facilitate the hearing of essential and urgent matters.” First, an online request for an urgent hearing is made. Parties informally submit materials. The court then assesses urgency.  If it considers the matter is “essential and urgent and a hearing is required,” a hearing date is set and the parties formally file materials. 

A somewhat similar process is in place for criminal matters, though those doors may not be quite so firmly closed.    

Important questions loom. What constitutes “urgency”? What constitutes “essential”?  Urgent in what sense? Essential to whom? Based on what criteria?

Which cases, if any, will be allowed to proceed?  

For whom will the doors of justice be slammed shut?  And, why?

Imagine a person who has been wrongfully left to suffer in poverty, unable to buy food and struggling in countless ways.  Is it unjust to tell this person: “Sorry, your case is not urgent; your door to the courthouse is closed”?  The person involved, and probably most Canadians, would say yes.

The B.C. government is suspending many residential evictions.  While this may have some popular appeal, tenants are not the only people with rights. Landlords have rights too. This could result in serious injustice to landlords. Will the courts be closed to them?

Our federal government tried to slip extreme provisions into its “emergency legislation”.  Had the opposition not nipped this in the bud, were Canadians to be left with no legal recourse?  

Our federal government is threatening to enforce a requirement that people “stay home.” Presumably, this will not apply to those who work in liquor stores, cannabis dispensaries and the vast array of other “essential services.” 

Are civil liberties violations “urgent”?  Are constitutional violations “urgent”?

Is it “essential” that the power of the state be kept in check?

If you are adversely affected by any of this, and unable to demonstrate to the court's satisfaction that your case is urgent, you may be out of luck until health authorities deem the covid crisis to be over.  There are murmurs this could take one or two years.

I am interested in those affected by court closures. If you have been adversely impacted anywhere in Canada, I would like to hear your story.

When courts re-open, there will surely be a backlog.  Cases that were originally put on hold, cases that arose during the closure in the ordinary course, and covid-related cases that were not allowed to proceed during the closure will then all wish to proceed at the same time.

More court staff will be required, as will more judges.

During times of uncertainty, our courts are more important than ever, not less.

Is an almost complete suspension of one of the three pillars of our democracy -the judiciary – truly necessary?

We must be mindful that the cure is not worse than the problem.

I hope meticulous records are being kept of what is now happening within the courts. It will be important to analyze this, in time. Which cases were accepted? Which were turned away, and why? How were these decisions made?  What happened after those cases were turned away? Did the process “facilitate” justice? Or did it largely “facilitate” justice being denied?

If indeed we are living in a country in which our governments plan to take unusual steps, while at the same time our courts are largely closed, we ought to all be deeply concerned.  

Canadians appreciate that this is a challenging time. Our governments are struggling to cope with the situation. However, it is essential that we not lose sight of the fact that covid-19 does not erase the many hardships and injustices that still exist for many people. We cannot simply suspend the rule of law and ignore them during this time.  These cases must still be addressed. 

This is a slightly modified version of an article that is appearing in the Kelowna Daily Courier, the Kelowna Capital News and other online publications on or about April 3, 2020. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances.  We may be reached through our website at inspirelaw.ca