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Select number of B.C. judges inappropriately using mask discretion, claim court workers

Last Updated Feb 19, 2021 at 7:46 am PDT

FILE - Packages of face masks. (CITYNEWS/Tony Fera)

Majority of judges using discretion about mask use appropriately

Court workers tell NEWS 1130 a select number of judges are using mask discretion inappropriately

Removing a mask in court can be needed to verify identity or to help others understand someone more clearly

VANCOUVER (NEWS 1130) – B.C. judges have discretion about mask use in their courtrooms, and some staff claim a select few are using that power inappropriately.

There’s good reason for the flexibility judges are permitted in their courtrooms when it comes to facial coverings.

Removing a mask can be needed to verify identity, or to help others understand someone with a thick accent who is required to speak during a hearing.

From speaking with people who work in B.C. courtrooms, it’s clear the majority of judges are using this leeway appropriately, requiring everyone to mask up when in smaller, poorly ventilated courtrooms.

However, some workers have brought concerns to NEWS 1130 about a small group which refuses to mask up in Vancouver, Surrey, and on Vancouver Island — or are allowing or even instructing others to go without a face covering during proceedings. Under the rules, judges are allowed to do this. But given many courtrooms in this province are in small, poorly ventilated rooms, it’s creating what some argue is an unsafe workplace environment.

The court workers NEWS 1130 spoke with do not wish to speak publicly over concern about potential employment repercussions. However, lawyer Kyla Lee with Acumen Law has seen a number of examples during the COVID-19 pandemic.

“I’ve had numerous instances where I’ve been in court and I’ve been asked to remove my mask, either while I’m speaking or while I’m in the courtroom listening to evidence being heard,” Lee tells NEWS 1130. “On some occasions, I’ve protested and said — ‘I’m not going to remove it.’ My decision to keep it on has usually been based on the courtroom safety. If there aren’t barriers between me and other people, or there isn’t sufficient room in the courtroom to keep six feet apart, or not any ventilation in the courtroom, I’m not going to take off my mask.

“I’ve advised the court of that and they have backed down when I’ve told them that that’s not going to be happening,” Lee continues. “But a judge could direct me to remove it and if I protested they could still maintain that I was required to remove it. That does pose a problem for people. The courtrooms in B.C. — our courthouses — many of them are quite old, they’re not well ventilated. Because a judge can compel people to remove masks for portions or all of the proceedings, this can lead to safety issues, especially for people who are working in the room.”

Lee stresses most judges are using discretion appropriately, from what she’s seen.┬áBut she feels for staff who work in close proximity to judges for extended periods.

“It might not be a big deal for individuals who are in the courtroom for a few minutes to provide some testimony or to do a brief appearance. But if you’re sitting there, like a court clerk or a sheriff, for the majority of the day, and you’re exposed to all of these people who don’t have masks on, and you’re being told not to wear your mask as well, it becomes a significant health and safety issue.”

But not every courthouse is a problem. When we look at BC Supreme Court in downtown Vancouver specifically, lawyer Frances Mahon with Mahon & Company says her experience there has been largely positive.

“My experience has been largely that everyone in the courtroom, with the exception of the judge, is masked at all times,” says Mahon, who points out plexiglass barriers have also been set up. “The judge is quite far away from us and up on a dais.”

Mahon stresses she does not challenge the concerns brought by others, especially those working in smaller courtrooms. And she insists there are good reasons for the discretion judges have.

“Judges always have a difficult job because they’re balancing a lot of competing considerations,” says Mahon. “They need to make sure everyone in the courtroom is healthy and safe during the pandemic, but there’s a lot of other stuff going on. So, for example as a criminal lawyer, my clients who have been accused of crimes, they have a right to confront the witness. That can mean in certain circumstances that the witness might need to remove their mask, so that my client can see their face while they’re testifying.”

The BCGEU, the union which represents many court workers, says it has not heard complaints recently but encourages its members to contact it with concerns if they have them.

The office of the chief judge for provincial court has sent a statement pointing out the safety upgrades that have been made, insisting it recognizes the need to protect health and safety during the pandemic.