Ian Mulgrew: BC's David Eby hopes modern legal system can rise from the ashes of pandemic

  • April 05, 2020

This article was originally published in The Vancouver Sun

By Ian Mulgrew

Attorney General David Eby reflects on B.C.’s crippled court system and the collapse of access to justice across the country as a result of the COVID-19 pandemic and finds a reason to hope.

There are big challenges. He doesn’t have numbers or any modelling yet on the expected backlog in what were already clogged courtrooms. But he’s sure what doesn’t kill us, will make us stronger.

Last week, Beverley McLachlin, a former Supreme Court of Canada chief justice, called for a swift and massive transformation of the legal sector — insisting long necessary change, delayed by obstinacy for years, needed to occur within weeks.

Eby agreed — the closure of court except for urgent reasons, triggered by the coronavirus, has affected every person, company or legal entity in the justice system or trying to access it.

“People have been expecting court dates they have been waiting years for and we have certain obligations, especially for people in custody, to have matters heard in a timely way and it’s a matter of justice for people with civil claims or getting family matters resolved,” Eby said by telephone on Friday.

“The analysis we’re doing is looking at how we work with courts to triage some matters like family support variations or traffic ticket hearings and try to get those dealt with as quickly as we can and in a way that doesn’t add to the backlog.”

He said the system was being forced to confront questions that have been dodged for years — encouraged by a lack of government financial support for reform (no matter the party in office, Eby admitted) and a legal community unwilling to reform.

“When you put those two things together, it’s been possible for governments and various actors in the justice system to kick the ball down the road,” he said. “I’m hopeful given the tone of everybody right now — the courts, the law societies, the notaries, my office — we’re in a place where people are ready to do whatever is necessary to ensure access to justice is delivered.”

Eby sketched out what he saw as three stages the legal system would go through dealing with the novel coronavirus.

“We are still in Phase 1, which is getting as many services delivered to people as possible in a triage kind of manner, dealing with things like limitation periods, the liability of service providers and making sure the courts can receive urgent applications and hear them and that the tribunals continue to operate as normally as possible.”

Conversations that had begun with the federal government and other provinces are a prelude to Phase 2 — “how do we implement some pieces that may be able to last beyond this crisis and may be able to deliver services more efficiently in ways that we hadn’t thought of before that have been enabled by this crisis?”

A good example, he said was the foundering of previous attempts to set up video conferencing for people in custody.

In the past, discussions collapsed around the technical requirements in RCMP detachments. But because of the crisis, Eby said he was able to raise that with his federal counterpart and start to iron it out.

“So those Phase 2 pieces are as much triage, and may have lasting impacts are starting to take shape.”

Another bright spot was Civil Resolution Tribunal — which continues to operate with barely a cough and now more tribunals are adopting its software and online model.

Those are the kind of changes and adaptations Eby sees rolling out during Phase 2.

“Phase 3, which we are in the initial stages of planning for, is what do we do with this huge backlog that is going to be in place on the civil side and the criminal side, post-pandemic,” he said.

“We are in the very early stages of that conversation, of how do we alleviate the access to justice concerns that this will raise for us and for people across the country?”

The situation involving families has him particularly worried — family law is what he receives the most correspondence about.

“Part of that is the emotion and the personal relationships that are at stake and part of it is the fact that the court system is very ill-suited at resolving family disputes,” he said.

“It’s adversarial, it’s combative. One of the top movies on Netflix is this horrific film I watched for some reason called, Marriage Story. And it really encapsulates why the court system is so ill-suited to resolving family disputes. It’s one area that cries out for reform, and we’re doing work on it.”

Eby said he read with great interest McLachlin’s widely discussed critique of the legal system’s failure to pivot in response to the virus.

“There is no question that the chief justice is a thought leader and a sort of moral compass for the legal system in B.C. and likely in Canada, and maybe even beyond that now,” he noted.

“She’s certainly someone speaking with the freedom of someone who has retired from the system,” he added with a chuckle.

“I am on the ground, I am seeing remarkable willingness and co-operation to respond to the pandemic and put pieces into place that may last well past that. But I agree with the former chief justice that not enough of that is exposed to the public yet. It’s my hope that in the coming weeks and months people are going to really see a fairly substantial shift and some of the fruit from the discussions that are happening now.”