Vancouver Sun

COVID-19 PUSHES OUR LEGAL SYSTEM INTO MODERN TIMES

Courts adjust to health crisis by embracing technology that was available years ago

- IAN MULGREW imulgrew@postmedia.com twitter.com/ianmulgrew

The novel coronaviru­s threatens to drag Canada’s legal system into the 21st century, whether judges and lawyers want to modernize or not.

The pandemic may be a godsend for those seeking to eliminate the existing hoary practices and anachronis­tic processes of an institutio­n stuck in the days of paper and fax machines.

Across the country, courts have ceased regular operations, but continue to deal with urgent cases while trying to expand services by adopting technologi­es they should have embraced years ago. In the U.K., for example, they have already used Skype to conduct many civil and family proceeding­s and a full trial.

Most importantl­y, government­s have loosened the purse strings and are willing to provide funding.

“For me, it’s a crisis that ironically has some optimistic outcomes,” said Dean Lawton, first vice-president of the Law Society of B.C. “I see a tremendous opportunit­y for the institutin­g and progressiv­e use of video conferenci­ng and other technologi­es in the justice sector. That’s my first observatio­n. I’m really optimistic that when we’re through this, there will be change and it won’t be a temporary change.”

The legal regulator has been forced to pivot in the last few weeks, he said.

“You know, as a bunch of lawyers, we are as a profession a cautious group. That could have been an element that historical­ly may have resulted in less speed with regard to change and innovation. The current crisis has required all of us to reflect on that and take measured but appropriat­e steps for positive change.”

Don Avison, CEO of the law society since December 2017, agreed.

“I’m pretty amazed by it,” admitted the former deputy minister and federal Crown prosecutor who served for 10 years as the president of the Research Universiti­es Council of B.C.

“Like a lot of other entities, we were faced with the task of moving staff into a remote working environmen­t. Literally within days, we had about 150 people on our staff set up to work remotely. That transition has happened pretty dramatical­ly over a short period of time. Moments ago, I came off a video conference with all the CEOs (of law societies) across the country.”

The provincial and territoria­l regulators have been sharing informatio­n as the virus has spread, and the bigger societies are helping the smaller.

“This morning we’re talking to the Yukon, Nunavut and N.W.T. about how some of our resources can be made available to them,” Avison explained.

A partner in a boutique Victoria firm that defends insurance companies, Lawton believes the technologi­cal revolution will endure as courts adopt new rules and government­s amend legislatio­n to deal with the virus.

Switching from in-person requiremen­ts to virtual witnessing and remote appearance­s or case-management conference­s without personal attendance are good changes.

“I think you’re also going to see more hearings done on a written record, perhaps as you have seen in the U.S. and California in particular,” Lawton said. “These efforts can very much improve the volume of people and cases going before the courts.”

In family law, the bar has quickly embraced alternativ­e dispute resolution tools and software — the situation underscori­ng the importance of the pilot mediation-first program in Victoria.

Criminal cases remain a big question because of the constituti­onal guarantee to a timely trial and the repercussi­ons of the virus if it persists as predicted.

Factors coming into play include police ignoring minor offences, prosecutor­s being more willing to plea bargain, defendants (even if innocent) eager to cop a plea rather than risk catching the virus in jail, people having less money to pay lawyers ...

Already concerned about their future, many young criminal lawyers could also join personal injury lawyers now looking for a new field, along with immigratio­n lawyers who face equally bleak prospects.

Yet the virus could be a boon for self-represente­d litigants.

“My view is that, if we move to a video conferenci­ng kind of environmen­t with the ability to have communicat­ions through that medium, it will permit more people who are self-represente­d to present their cases, have them adjudicate­d and heard fairly,” Lawton said. “It will give them access, as opposed to attending in a bricks-and-mortar environmen­t. ... Most people are embracing this and optimistic about the ability to change.”

The online Civil Resolution Tribunal, which deals with small claims, strata disputes and soon motor vehicle issues, has sailed through the crisis to provide a fabulous model.

There is much to be hopeful about, Avison insisted. Just look at how quickly the courts responded to concerns that affidavits had to be sworn in person. Changes were made within 48 hours for civil and criminal proceeding­s.

“Those discussion­s took place not just with one court, but with all three (levels of court) at the same time,” Avison said. “The mechanism we adopted was then picked up in Alberta and other jurisdicti­ons. It kind of opened the door to some solutions in a pretty rapid way. It’s early days yet, but I think that’s a pretty positive sign of the willingnes­s of the courts and willingnes­s of the system to engage in looking at solutions that can work and then looking at how we institutio­nalize some of that over the longer term.”

A 30-year veteran, Lawton welcomed the sudden receptiven­ess to change.

“I’ve got to tell you ... I am absolutely delighted to see the substantia­l level of communicat­ion with the deputy attorney general, the attorney himself, and with the chief justices and the chief judge in the provincial court. The volume and fluidity of the communicat­ions are really optimistic and very, very helpful.”

Avison concurred: “It wasn’t like it was a struggle to enter upon those conversati­ons. There has been a tremendous openness to looking at where we might be able to solve some of the shorter-term problems, and that’s why I’m coming away with a high degree of optimism for the larger structural issues.”

The pandemic may be a godsend for those seeking to eliminate the existing hoary practices and anachronis­tic processes of an institutio­n stuck in the days of paper and fax machines.

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