BC Provincial Court Processes during COVID-19

Posted: Mar 20, 2020

Topic: Justice

Source: FNLC

TO: FIRST NATIONS LEADERSHIP

FROM: FIRST NATIONS LEADERSHIP COUNCIL & FIRST NATIONS JUSTICE 

COUNCIL DATE: MARCH 20, 2020

RE: BC PROVINCIAL COURT MATTERS DURING COVID-19

 

PURPOSE 

To provide an update regarding BC Provincial Court processes, including family, civil and criminal matters, as well as BC Provincial Court closures during the COVID-19 pandemic so that Leadership can inform impacted members and/or family members. 

RECOMMENDATIONS 

  1. For pending Court matters, scheduled between March 16th and May 4th, contact the lawyer or the Courts to find out if and how it will be dealt with at this time or adjourned. The BC Provincial Court notice included as an Appendix, includes information on how to contact the Courts. 
  2. For new “Urgent” matters (further defined below), contact counsel to determine the process. If a lawyer is not assigned or representation is needed, contact Legal Aid BC or the lawyer/firm that would otherwise represent the individual. 
  3. As the situation is constantly evolving, monitor the BC Provincial Courts website for the most current news and updates: https://www.provincialcourt.bc.ca/COVID19 
  4. The First Nations Justice Council will continue to maintain regular communications with the Attorney General on all justice related matters that may impact First Nations and will provide technical and expert guidance to the Justice sector to ensure no legal or human rights of First Nations citizens are impacted by closures, delays or lack of access to counsel, courts or alternative measures. 
  5. The First Nations Leadership Council will provide political direction to the First Nations Justice Council with information that is needed for First Nations and ensure it is communicated out efficiently.

BACKGROUND 

In an effort to limit the potential spread of COVID-19 in BC Courthouses, measures have been put in place to limit appearances to “Urgent Matters” only. On March 19th, 2020, a notice was issued stating that all BC Provincial Courts will be closed, with the exception of a “hub” courthouse in each of the five regions which will hear urgent matters in person or by videoconference. All Indigenous Courts have been closed, and matters postponed until May 2020. 

CURRENT STATUS 

Indigenous Courts have been suspended at this time, and efforts are being made to ensure that any First Nations Court clients who are in custody will have their matters heard with minimal impacts. The First Nations Justice Council is working to communicate with Elders who serve in the First Nations Courts to ensure they are updated. 

As of March 25th, 2020, all BC Provincial Courthouses will be closed, except for a single “hub” in each region where urgent matters will be heard in-person by videoconference. 

As of March 15th, any non-urgent Family, Civil or Criminal matters will be adjourned until after May 15th, 2020. This includes all scheduled trials between these dates. Prior to any matter being heard an application must be made to a judge to determine, on the record, whether the matter is urgent. 

Urgent matters are clarified below. 

Family (Including Child, Family and Community Service Act and Family Maintenance Enforcement Act and Family Maintenance Enforcement Act) Matters: 

“Urgent” family matters are listed as follows: 

  • Issues relating to the safety of a parent or child; 
  • Protection orders, including applications for protection orders and applications to set aside a protection order; 
  • Urgent matters relating to parenting time or access to a child; 
  • Urgent decisions around the wellbeing of a child, including: medical, wrongful removal or retention of a child and relocation of a child; 
  • All urgent or statutorily mandated CFCSA matters, including: protection and presentation hearings, applications for supervision orders and extensions, and urgent motions or hearing. It has not been defined what may be considered an urgent motion, but may include protection orders, medical care, or urgent applications for access. 
  • FMEA hearings that relate to an order for imprisonment or committal. 

Criminal (Including Youth Criminal Justice Act) Matters 

For individuals who are out of custody, matters will be postponed for approximately 90 days or they will be required to attend court as scheduled by telephone. 

For individuals who are in custody, the following measures have been implemented: 

  • Bail Hearings will take place by telephone or via videoconferencing. 
  • Consent remand matters will take place by teleconference, or through the filing of the appropriate form. 
  • Criminal and in-custody trials will proceed as scheduled, unless adjourned by the Court on application of one of the parties. Parties are encouraged to apply to use videoconferencing in these matters. 

Small Claims 

The majority of small claims matters will be adjourned to a later date. Matters related to warrants will be heard as urgent. 

ANALYSIS 

The First Nations Justice Council is actively monitoring and engaging with the Province and is in regular contact with the Attorney General’s office and the Judiciary. The First Nations Justice Council will keep the FNLC updated as information is received so the FNLC can communicate out to First Nations Leadership accordingly. Recognizing that these limitations on access to justice will have disproportionate impacts on First Nations, the First Nations Justice Council is also actively monitoring to ensure that the legal and human rights of First Nations are respected and upheld during this time. 

For children, youth and families who are involved with the Ministry of Children and Family Development (MCFD) or a Delegated Aboriginal Agency (DAA), there are heightened concerns with the closures of schools, recreational centers and many programs and services they may otherwise access, as well as difficulties accessing basic necessities. A response has been requested from Canada and BC as to how they intend to mitigate these risks and will be provided to First Nations Leadership as received. 

A further concern is around the facilitation of access between family members and children who are currently in the care of MCFD or a DAA. While physical visitation may be challenging during this time, there must be measures taken to ensure that visitation can continue remotely, whether by videoconference or telephone. We encourage you to raise these concerns with the agency or office serving your community to ensure families can continue to have visitation with children in care during this time. 

APPENDIX 

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