Ian Mulgrew: COVID poses many legal challenges, but there are rays of hope

  • July 11, 2020

This article was originally published by Ian Mulgrew for The Vancouver Sun

A surprising virtual social butterfly, Attorney-General David Eby took a moment from lamenting the legal challenges presented by COVID-19 to finding silver linings.

A five-year technological upgrade of the courts happening almost overnight, streamlined processes, traffic courts being held in post-secondary institutions, virtual hearings, school gymnasiums being considered for empanelling criminal juries to ensure physical distancing…

After five months, Eby is reflecting on how the legal system has responded, and the impetus it has created for long-needed change.

The NDP minister has been fond of saying he didn’t get into politics to do car insurance — not that he wanted an outbreak of the coronavirus.

A sharp and lively mind, Eby is unsurprisingly shining as he deals with a broad spectrum of legal challenges rather than dealing with primarily ICBC gripes.

Emergency powers orders, the COVID response bill, and there were many legal needs as a result of the curtailment of court and registry operations, along with other pressing provincial legal issues.

“I hope I addressed the ombudsperson’s concerns that I didn’t think (Public Safety Minister Mike) Farnworth was drunk with power and going to manipulate municipal councils without the rule of law,” he joked.

“I have the new Wills and Estates bill before the house, and those in that area should pay attention to that.”

The COVID crisis is provoking an impetus for the kind of change the system needed.

Make way for Zoom, Team, and enforced video and tele-conferencing!

Wonder of wonders, the “justice” system is beginning to abandoned archaic and burdensome processes and improve the experience of those entangled within it.

Attributing to his spouse, a doctor, the anecdote that crystallized the good pandemic effects, Eby said that funnily, in small, odd ways, it has made the legal system a little more humane. Talk about your unexpected consequences.

“A client from Alouette (Correctional Centre for Women in Maple Ridge) did her appearance in court via video and was released from there. The nurses on site were able to provide her with all of her medications for the health challenges she faced, and prepare her for release, instead of her being in a courtroom and being released immediately onto the street without any of those supports.

“It was more like a discharge from a hospital than a normal disposition in a courtroom. ‘Thanks, you’re free to go.'”

He sees bright spots that suggest legacy changes among the legal system’s historically hide-bound stakeholders. Video-conferencing has become de rigueur.

“The state of emergency is going to end at some time,” Eby said. “And there are developments of interest — the partnership between the provincial court and the court services branch to expand where services are being delivered, traffic court for example.

“There’s good news out of Victoria — the family pilot rules project with the family justice counsellors has already eliminated the COVID-backlog in Victoria. We’re hopeful that program can be successful in other areas. We’ve got a lot of family law lawyers who say they’re for mediations on a pro bono basis. That’s a good news story.”

Like the rest of the province, Eby explained the legal system is transitioning to phase three with further investments around expanding video conferencing in correctional institutions, family court online processes, and improved internet-based services.

“We’re transitioning now to a discussion with the courts about a Team-based technology investment. That was envisioned as an ambitious five-year plan, but has turned into an incredibly compressed COVID-response plan,” he pointed out.

“Visual services, document management, the ability to have not-in-person hearings, and the distance verification of identity, those kind of things.”

Eby says that in Vancouver and Victoria, the sheriffs and courts have done good work adapting services to physical distancing and other health orders.

But criminal jury trials remain particularly problematic outside of major centres.

“There is a criminal trial coming up in Chilliwack, and these issues are beginning to show up as an example,” he said.

What has become clear, however, is the benefits from the incredible improvement in communications Eby has nurtured and what that has meant.

“There is a roughly zero-per-cent chance that I would have been at as many bencher meetings as I have if they had not transitioned to Zoom and allowed me to drop in virtually to the meetings,” he said.

“That enables me to talk with the benchers and get their feedback, and it’s not just with the Law Society. I can’t tell you how many Canadian Bar Association meetings there have been with their executive in this COVID period. And even with strains in the relationship, meetings with the Trial Lawyers Association of B.C.

“It’s really nice to be able to appear at a meeting virtually and hear the feedback directly. I’m meeting every week now with the B.C. Supreme Court chief justice and associate chief justice. I meet every week with the (Provincial Court) Chief Judge (Melissa) Gillespie, and I meet once a month with (Court of Appeal) Chief Justice (Robert) Bauman.”

He was still a bit incredulous.

“Those just are not things that were happening pre-COVID,” he emphasized.

“Maybe not with the same frequency, but they will definitely be ongoing legacies of this. You can’t help but build better relationships, think more actively about the concerns that are being raised, and better understand the different interests and priorities of the different stakeholders and the judiciary when you have regular calls like this.”