Raising the bar for lawyers and litigants attending Provincial Court remotely

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Court
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20/07/2021

While not without challenges, the Court’s use of technology during the last year to conduct some types of proceedings has increased access to justice for many people. Among other benefits, it has saved litigants and lawyers from travelling long distances for short court appearances.

Lawyers have been able to increase their efficiency by appearing remotely in several virtual and in-person courtrooms in a single morning without leaving their offices. Litigants have been able to appear remotely from their homes or workplaces, saving travel costs and time away from home or work.

The Court began conducting some proceedings virtually using the Microsoft Teams video platform in the pandemic’s early months. At the time, people were isolated in their homes and learning to use new technology. Judges understood the challenges they faced in creating appropriate environments for virtual court appearances and learning the ropes.

However, all court proceedings, both virtual and in-person, are conducted with a level of formality and solemnity because of the crucial role they play in resolving disputes and their importance to the people involved. Participants, particularly legal professionals, are expected to conduct themselves in a manner that contributes to the solemnity and dignity of the Court’s function and work.

The convenience of appearing in court remotely brings with it responsibilities – responsibilities for everyone appearing in court by telephone or video to conduct themselves with the same dignity, formality, and respect for the proceedings as if they were physically in a courtroom.

Unfortunately, during the last year, the Court has seen remote appearances being made from inappropriate locations (in a coffee shop line-up, while driving a car) as well as inappropriate behaviour during virtual proceedings (eating food, using the chat function to chat or tell jokes, lawyers dressing informally).

To make the Court’s expectations clear, on July 15, 2021, the Chief Judge issued an updated Notice to the Profession and the Public (NP 21) with directions for anyone attending either a virtual or an in-person proceeding in the Provincial Court remotely, whether by telephone or using Microsoft Teams. It contains directions on etiquette, procedures, and technical aspects of virtual proceedings and remote attendance.

Of particular note to lawyers, it requires them to:

• wear business attire
• appear in a quiet, private space with a neutral background
• use cameras for video-conference proceedings

It also makes clear that:

• like those who appear in court in person, participants appearing remotely may neither eat or drink anything except water, nor smoke or vape, during the proceeding
• all profiles and background images used for remote appearances should be appropriate for any courtroom
• people using a smartphone to participate remotely should flip the phone horizontally and enable landscape mode so their full headshot displays
• no one is permitted to audio- or video-record, photograph, or take a screenshot of any portion of a virtual or in-person proceeding

Re-titled “Virtual Proceedings and Remote Attendance in the Provincial Court”, the updated Notice NP 21 contains these directions:

“This Notice provides direction and information for anyone who will attend a virtual or in-person proceeding in the Provincial Court remotely by audioconference (including telephone or Microsoft Teams) or videoconference (including Microsoft Teams).

In this Notice:

• “virtual(ly)” – describes the type of court proceeding which is designated by the Court to be conducted by telephone or using the Microsoft Teams audio- and video-conferencing platform, as opposed to an in-person court proceeding; and

• “remote(ly)” – describes the court participant’s method of attending an in-person or virtual court proceeding, by telephone or using the Microsoft Teams audio- and video-conferencing platform, in contrast to attending in person.

A step-by-step guide to appearing in a Microsoft Teams audioconference or videoconference proceeding is attached as Appendix “A”. It contains detailed information about connecting to and managing a Microsoft Teams audioconference or videoconference. Review the guide carefully before your matter proceeds.

Notice

Virtual Proceedings and Remote Attendance Etiquette
In some ways, the behaviour expected of people attending and observing court remotely is the same as if they were actually in a courtroom. However, attending and conducting a proceeding fairly and effectively by audioconference or videoconference requires some modification to etiquette and behaviour. The Chief Judge directs that certain aspects of hearing etiquette and decorum required for in-person hearings be modified for virtual proceedings and remote attendance. In particular:

Parties, Counsel for Parties, Witnesses, and Other Court Participants

1. For videoconference proceedings and attendance

a. Use of cameras: Counsel must use their cameras unless there is a technical or other reason why they are unable to do so, in which case they must advise the Court at the commencement of the proceedings. Counsel may turn off their cameras when they are not speaking, unless the judge or justice requests that they keep their cameras on. Self-represented parties, witnesses, and other court participants are encouraged to do the same.

b. Location: Counsel must appear in a quiet, private space with a neutral background. Self-represented parties, witnesses, and other court participants should make reasonable efforts to find a quiet, private space with a neutral background for their court appearance. Inappropriate profiles or background images must not be used.

c. Dress appropriately: Counsel are expected to wear business attire. Self-represented parties, witnesses, and other court participants should dress as if they are attending an in-person proceeding in a courtroom. Click on the link for more information on how to dress for court.

2. For audioconference and videoconference proceedings and attendance

a. No recording or photography: You are not permitted to audio- or video-record, photograph, or screenshot any portion of a virtual or in-person proceeding. Some proceedings are confidential and there may be a publication ban in effect. The BC Courts’ Policy on the Use of Electronic Devices sets out penalties for recording, including prosecution. See, also, Access to Court Proceedings Policy, sections 5 and 8.

b. No publishing, broadcasting, reproducing, transmitting, or disseminating: Except as authorized by the Court, the publishing, broadcasting, reproducing, transmitting, or otherwise disseminating of virtual or in-person proceedings or recordings thereof is prohibited. See section 6 of the Access to Court Proceedings Policy, including section 6.2 which sets out the penalties for publishing etc., including prosecution.

3. For audioconference proceedings and attendance

a. Location: Counsel must appear in a quiet, private space. Self-represented parties, witnesses, and other court participants should make reasonable efforts to find a quiet, private space for your court appearance.”

Everyone appearing in or observing court by telephone or video should read the full text of Notice NP 21, Virtual Proceedings and Remote Attendance in the Provincial Court. Both lawyers and litigants will contribute to the effectiveness of a court proceeding when they follow the directions in the Notice.

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