BC courts respond to COVID-19 and emergency measures legislation both federal and provincial

 

Both the BC Provincial Court, and BC Supreme Court have adjourned all, but the most urgent cases, scheduled from now until early May.

Urgent cases, that will proceed, include in-custody bail hearing, in custody criminal trial, and urgent cases including child protection, house evictions, refusal of treatment and end of life matters, orders under the Quarantine Act or the Public Health Act, or a variety of other urgent cases, as determined by a judge on a written application.

Witnesses, jurors, and others with cases scheduled prior to the beginning of May have been directed not to attend court unless they are specifically directed otherwise.

Both the BC Provincial Court and BC Supreme Court are providing frequently updated directions with respect to how cases, urgent or otherwise, are to be handled on their web sites.

In other legal news, both the province of BC, and the federal government, have legislation to address public health emergencies. Federally there is the Emergencies Act, and provincially there is the Emergency Program Act.

So far, the province is utilizing the legislation, but the federal government has not.

Both pieces of legislation permit temporary emergency government actions without the need for legislation to be passed in the ordinary way.

One of the interesting provisions of the provincial legislation is the power to “authorize or require any person to render assistance of a type that the person is qualified to provide or that otherwise is or may be required to prevent, respond to or alleviate the effects of an emergency or disaster”.

This authority would seem broad enough to allow qualified people to be “authorized” to provide assistance with things they might not ordinarily be permitted to do. This might include authorization for people with lapsed credentials, or training from other jurisdictions, to assist with medical care in an emergency.

As discussed last week, BC is the only jurisdiction in Canada without any Employment Standards Act requirement that employers provide any sick leave for employees. On that front, the premier has suggested this will be remedied in an emergency sitting of the legislature next week.

 

Legally Speaking with Michael Mulligan is live on CFAX-1070 every Thursday at 10:30, and is available on Apple Podcasts.

 

An automated transcript of the March 19, 2020 show:

 

Adam Stirling [00:00:00] Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers as we practice our best social distancing protocols. Speaking by phone today. Michael, good morning. How are you?

Michael T. Mulligan [00:00:08] I’m doing well. Thank you very much for having me.

Adam Stirling [00:00:10] Now, I’ve been curious, how are the courts responding to all of these concerns regarding COVIE -19?

Michael T. Mulligan [00:00:17] Well, there’s been a flood of e-mails and announcements to lawyers over the past few days in terms of how the courts are responding. And then there are in British Columbia there is a provincial court system which handles the majority of criminal cases, as well as small claims and family or many family cases. Then we have the British Columbia Supreme Court system, which would deal with larger civil claims, very serious criminal matters and so forth. Each of those two levels of court have been issuing their own announcements about how they’re dealing with the COVID-19 and how they’re responding to it. And there are some elements of that, that I think it’s important for the public to know about. So the latest announcement which came out at the end of the day yesterday from the B.C. Supreme Court advises that witnesses, lawyers and jurors should not attend court for trials on any matters scheduled between today, March 19th and May the 1st, 2020, unless specifically directed to do so by the court. So that’s important to know. If you’ve got a jury selection notice, for example, telling you to show up between March 19th and May the 1st, the direction is not to do that for pretty obvious reasons. You don’t want to force 12 strangers to be in a room together given the current state of affairs. The provincial court has also made the decision to adjourn all family and criminal matters that are scheduled between slightly different dates. For family matters, they’ve, the provincial court has chosen to adjourn family case conferences and other family matters, anything scheduled between March 16th, which just passed and May the 4th. Those are going to have to be scheduled into the future. And then for criminal matters in provincial court they have decided to administratively adjourn trials for people who are not in custody. And I’ll come to that in a moment. The scheduled between now and May the 16th. So that would mean that trials presumptively before May, the 16th won’t be proceeding as scheduled. There being adjourned till June when new dates will be fixed. Both levels of court have also set in place procedures to deal with some matters which are considered urgent. They would include things, for example, in the criminal context, like people who are in jail waiting for their trial or people who have been arrested and are awaiting a bail hearing, for example. Those would be examples of cases which would proceed unless the judge agrees that it would be appropriate to adjourn them. Both those, of course, have also set out procedures where there could be an application brought. It would be sent in electronically by email or fax and then have a judge determine whether something is of such urgency that it needs to proceed despite the general adjournment of cases. And it’s important that we have that, because the court system, of course, is a requirement for a proper sort of functioning of constitutional democracy.

Adam Stirling [00:03:49] Yes.

Michael T. Mulligan [00:03:49] You can’t have a circumstance where it’s impossible to go to court for a remedy. And many of the fundamental things that we need, that we have protections for in a in our country are enforced by going to court, of course. We haven’t yet seen, for example, what exactly the government plans to say in terms of border closings.

Adam Stirling [00:04:11] Yes.

Michael T. Mulligan [00:04:12] But in that regard, we all need to bear in mind, of course, you have a constitutional right to enter Canada if you’re a Canadian citizen. So, it would be surprising to me if the whatever is announced there would prevent that from occurring. And that would be the sort of thing where if they did try to prevent a Canadian citizen from getting back in, it would be important that there be a court process available so somebody could, in theory, at least make some application to permit that. The Supreme Court has set out a list of things which would presumptively be the sort of urgent and essential matters in addition to those in custody things, like have you’ve been arrested and you’re awaiting a bail hearing to determine if you’re willing to get out or if your trial is scheduled for next week, and you’ve been waiting in jail for nine months for your trial. It would be awfully unsatisfactory if the response was, I’m terribly sorry, you’re going to be there till June. That’s not acceptable. So, the other list of things which are given as examples of urgent matters, which on application to a judge could proceed would be things like orders under the Quarantine Act, orders under the Public Health Act. Other things which would prima facie be urgent, would include things like, application dealing with end of life, or refusal to provide treatment. Individuals who would be detained under the Mental Health Act would be challenging that.

Adam Stirling [00:05:45] Yes.

Michael T. Mulligan [00:05:45] Matters, like you just mentioned earlier, dealing with things like eviction.

Adam Stirling [00:05:49] Yes.

Michael T. Mulligan [00:05:50] Stays of orders under the Residential Tenancy Act. That would be another example of something which would presumptively be urgent. Right. If let’s say there was an order made that somebody be evicted and they’re wishing to appeal that there has to be a mechanism to deal with that rather than saying you’re waiting till June. By that point, it’s over. Other things would include urgent injunction applications, civil restraining orders, and then there’d be a whole list of things which would often be dealt with in provincial court, for example, in the family context, things like child protection matters. Right. You know, what do you do if there or urgent matters dealing with parenting or access to children or urgent issues dealing with the well-being of a child or the need for child protection cases? Those would be other examples of things which would be so urgent that they would need to be some provision made to hear them. And both courts have suggested modified processes for conducting some of those hearings, things like where possible, conducting hearings by telephone or using video conferencing. And in fact, for people who are in jail having their bail hearings, one of the presumptions would be to try to deal with those by way of a video link with the jail rather than having people brought to the courthouse for those sort of hearings because of all of the challenges that might present. That brings us to another urgent topic, which would be what we are doing with people who are currently in jail.

Adam Stirling [00:07:32] Yes.

Michael T. Mulligan [00:07:33] The jails have both federal and provincial have decided to suspend all visits with inmates out of a concern that you would wind up with infections in the jail. That’s obviously not going to be a complete solution to that problem, because we have other things like staff members who would be going in and out of jail, correctional officers. And you can imagine how problematic it would be in a jail environment if you were to see a disease like this spreading there.

Adam Stirling [00:08:05] Yes.

Michael T. Mulligan [00:08:06] And you do have even if you don’t have visitors going into the jail, you would have, for example, the correctional officer who’s going to be in the unit dealing daily with inmates who are all dealing with each other. People aren’t in a position to self-isolate if they’re in prison. They would have communal facilities for eating, you know, showering all the sort of activities that people are in a confined environment with staff coming in and out of the institution. There have been in some places releases of people who were in prison. Iran, for example, decided to release, the last count was fifty thousand people. And the most recent announcement was to, I think, pardon another 10,000 people and let them out of jail. And there have been calls, at least some calls for that in other provinces in Canada. And we’ll have to watch carefully for how this progress, because that is an environment where that could be a very serious problem and where you could have transmission occurring very easily.

Adam Stirling [00:09:15] Yes.

Michael T. Mulligan [00:09:16] And that would create the danger is only for inmates, but staff members there. You can imagine what it would be like if your job as a correctional officer working in a unit in close proximity to people who are in custody, and you would have no ability to be self-isolating in any meaningful fashion.

Adam Stirling [00:09:36] Want to take our first break.

[00:09:37] COMMERCIAL BREAK.

Adam Stirling [00:09:37] Michael Mulligan with us, as always. As we continue here at CFAX 1070, want to bring Michael Mulligan back on the phone lines here? Michael, there’s been a lot of talk over the past few days about emergency declarations and why not? Canada has laws that allow such powers to be used in extremely limited circumstances. How does all of that work?

Michael T. Mulligan [00:09:57] Yes. Now, I should say. Also I wanted to mention, before we get to that, I should say, we talked about last week the fact that British Columbia was the only province in Canada not to have any protections in our employment standards legislation that prevented, prevents an employee from being fired if they are sick or required to self-isolate. I don’t know whether the government was listening to us or not, but it sounds like they’re going to get the legislature back in a limited way on Monday. And from the early reports of it, it sounds like they’re going to pass an amendment to the Employment Standards Act that would correct that deficiency. So, if that all goes ahead, good on them. That, to my mind, would be an improvement.

Adam Stirling [00:10:45] Indeed.

Michael T. Mulligan [00:10:45] Now, you’re quite right. We have employed we have emergency legislation both federally and provincially. Federally we have the Emergencies Act and potentially we have the Emergency Program Act. And the Emergencies Act, the federal one would be the modern version of the War Measures Act that people will be familiar with from the FLQ Crisis days with Mr. Trudeau Senior. Now the modern version of that act, the Emergencies Act, contemplates four different possible kinds of emergency, a war emergency, public order emergency, and the one of the other forms of emergency there is an emergency called a public welfare emergency. The public welfare emergency is the one which would potentially be relevant in the current circumstances. It is one which can be engaged if there is a real or imminent threat caused by a disease in human beings, animals or plants. And the idea there is that if an emergency of that kind is declared, it then permits quite broad powers pursuant to regulation rather than requiring legislation to be passed. Which would mean that you wouldn’t have to have the House passing and debating in the ordinary way some of the things which would be provided for in this act. They would include things like establishing emergency shelters or hospitals or making emergency payments or making regulations, dealing with the distribution of essential goods, prohibitions on travel. One of the things listed there, but there are other ways that can be done as well. Now, this hasn’t yet been used federally. The Prime Minister was asked about that, and I think his answer was to the effect of, well, we could do what we need to so far without engaging this. The federal act interestingly, in contrast with the provincial act has a number of safeguards and protections in it which provide for things like parliamentary oversight if it was viewed that this act was being used in some inappropriate way. There are provisions there which would have a committee of MPs reviewing regulations. And if there was ever a time when the number in here is 10 members of the Senate or 20 members of the House of Commons signed a request and delivered it to the speaker, they could force a debate at an end to the use of the Emergency Act, if that was viewed as appropriate an appropriate thing to do. Provincially, we have the Emergency Program Act and this one there was an announcement the other day that they were implementing or using this, this act. The Emergency Program Act, the provincial one, is also designed to permit various things to be done by regulation or orders of a minister in an emergency circumstance. That would be what we’re currently going through would be included within what’s contemplated there. That act permits various things, such as fixing of prices, rationing of food, clothing or equipment or medical supplies. Another interesting, when there is authorizing or requiring any person to render assistance of a type, that person is qualified to provide.

Adam Stirling [00:14:28] Interesting.

Michael T. Mulligan [00:14:28] Or that otherwise either may be required to prevent, respond to or alter the effects of an emergency or a disaster. And so, you know, things have been talked about like what do you do if there is sort of overwhelming demand for medical services? And some adjustments have already been made to deal with things like permitting pharmacists to renew prescriptions without requiring people to go back to their doctor simply for the purpose of getting a prescription renewal. That seems entirely sensible.

Adam Stirling [00:14:59] Yes.

Michael T. Mulligan [00:14:59] But you could imagine other things that somebody thought might be required. You know, there’s been talk in some places about the use of people who are recently retired medical professionals, for example. And so, this act would contemplate things like, you know, directing people or authorizing people. Hopefully you’ve got people volunteering or able to do that sort of work, authorizing people to do things which they might not otherwise be authorized to do. Somebody who is, for example, a retired doctor. Right. Or a retired nurse, something of that sort. The language in here is very broad, as you would expect. And so, you could, for example, authorize a person who would be otherwise qualified to do things which they might not be able to do because they were retired, for example. Right.

Adam Stirling [00:15:48] Yes, yeah.

Michael T. Mulligan [00:15:48] Or you could imagine categories of people who, for example, might be, you know, qualified somewhere else to provide some particular kind of assistance but don’t have the qualifications in British Columbia. Maybe they’re not current or haven’t applied to do them. This would authorize people to be permitted to, to perform services which they would be able to do. It also authorizes things like the evacuation of people. It authorizes things like the use and entry into buildings or land. I mentioned before the issue of procuring medical supplies or equipment.

Adam Stirling [00:16:29] Yes.

Michael T. Mulligan [00:16:30] Although it’s important to remember that, you know, somebody’s ordering something or raising it on paper or passing it in the House doesn’t make that thing so. All right. I must say, I smile a little bit, watching the announcement as to the use of this act in the language was effective, we’re doing this to ensure supply chains function, for example.

Adam Stirling [00:16:54] Yes.

Michael T. Mulligan [00:16:54] So, you know, no order or regulation or act causes physical things to occur. The things which caused physical things to occur, people doing them, producing them and delivering them and so forth.

Adam Stirling [00:17:07] Precisely. Yes.

Michael T. Mulligan [00:17:08] And so it’s a little bit hollow if you think that, you know, the language used the other day was, you know, I’m doing this to ensure the functioning of supply chains for medical supplies and so on. Well, it doesn’t really have that effect. Those tasks and functions are performed by actual people, not by people directing or ordering or passing legislation requesting that things be done. And so, we all need to bear that in mind with all of these things. The other thing is important to know, of course, circling around to the issue of the functioning of courts and the functioning of the judicial system is absolutely necessary to any of these other things having any real effect at all.

Adam Stirling [00:17:57] Yes.

Michael T. Mulligan [00:17:57] Because if there’s no functioning justice system there, there is no meaningful way to enforce any of these things. You know, these Acts, the Emergency Act and the Emergency Program Act, you know, specify things like, well, you know, doing or failing to do something which is ordered constitutes an offense punishable by some amount of money or some period of time in jail.

Adam Stirling [00:18:22] Indeed, it’s 8 sub 1 sub J (1) I believe, on summary conviction of a fine not exceeding $500 or imprisonment, not exceeding six months or both that fine and imprisonment or and they even have an indictment section as well.

Michael T. Mulligan [00:18:34] Right. So how is that actually having any? How is that meaningful in any way at all? If you don’t have a functioning justice system? Right.

Adam Stirling [00:18:43] Yeah.

Michael T. Mulligan [00:18:43] And so that’s why it’s so important that the courts continue to function to deal with emergency matters. I should also mention the in terms of dealing with emergency matters in courts, both levels of court have set out mechanisms to do that. However, with respect to some provincial courthouses, they are completely closed as a result of a they described as a court participant or an employee who works there, having been in contact with an individual who tested positive for cCOVID-1. And as a result of that, there is a list of several provincial courthouses which are shut. Campbell River is shut until March the 23rd. Chilliwack Provincial Courthouse is closed until further notice. In addition, the Vancouver Criminal Courthouse at 222 Main Street and the Downtown Community Court are also closed until further notice. And Nanaimo is closed for that reason until March the 23rd. So, again, there is a provision for emergency applications to a judge to deal with emergency matters, but those, particularly in those places, would have to be dealt with some modified fashion by telephone or electronic communication, video conference, something of that sort. Because those locations that have indicated are now physically closed as a result of concern about exposure there.

Adam Stirling [00:20:15] 60 seconds left, Michael Mulligan. Anything else you’d like to touch upon in this week’s segment?

Michael T. Mulligan [00:20:20] No. It’s an evolving thing. And it’s interesting to watch how this has been responded to both from a political legislative basis and also how the courts are responding to it. The courts, of course, are independent. They make their own determinations as to how these things are to be responded to and they’re modifying that procedure. It feels like almost every day we received these notices, but it’s apparent at both levels they’re, they’re taking seriously their obligation to ensure that the justice system, civil and criminal, both continue to function, particularly for those urgent matters, people in custody, child protection, all of those things that just must be dealt with.

Adam Stirling [00:21:02] Michael Mulligan with Mulligan Defence Lawyers, legally speaking, every week here on CFAX 1070. Your pleasure, as always. Michael, thank you for your time and your insight.

Michael T. Mulligan [00:21:10] Thank you for having me.

Adam Stirling [00:21:11] Have a great day.

Michael T. Mulligan [00:21:12] You too.

Automatically Transcribed on March 19, 2020 – MULLIGAN DEFENCE LAWYERS