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Four COVID-19 changes we should keep after pandemic | Kyla Lee

Tuesday, June 22, 2021 @ 1:49 PM | By Kyla Lee

Kyla Lee %>
Kyla Lee
The COVID-19 pandemic has been a major time of transition for the legal profession. It may be the thing that has finally brought lawyers out of the stone age and into embracing digital technology for their cases. Some of the changes are less convenient, to be sure, but many of the changes to our court and practices should stick around after the pandemic ends.

Here is my list of the top changes I would like to see become permanent.

1. Remote commissioning of affidavits and other materials

The remote commissioning of affidavits has been a godsend for clients who are located in remote or rural areas, or who have limited access to public transit or vehicles. It allows lawyers to verify the identity of clients using video call technology, witness the signing of important legal documents, and take all the steps that would otherwise be taken in person.

Let’s be honest: the remote swearing of documents is not a new concept in Canadian law. Informations in criminal charges are often sworn remotely, even by fax, without the affiant appearing personally before the Commissioner. If this process has worked successfully for years, then there is no reason that the processes in place for the remote swearing of material developed during the pandemic should be ignored.

2. E-mail filing and service

The ability to file documents with the court registry by email has sped up the filing of documents, as has service by e-mail.

In British Columbia, service on the Attorney General may only be effected by registered mail or by personally leaving a copy with a lawyer at that office. This did not change during the pandemic, frustrating the ability of lawyers to serve the attorney general with important legal documents when offices were closed to the public. By contrast, other jurisdictions started accepting service by e-mail making the completion of steps much faster. Given that certain time periods start ticking upon service of documents, service by e-mail makes it feasible to clearly calculate when those time periods commence.

While some jurisdictions had e-filing before, this often came with an additional cost to the individual using e-filing. For example, in British Columbia there is an additional $7 fee levied for each e-filed document. In complex litigation that adds up. By removing the requirement to use expensive e-filing systems and using e-mail filing instead, the cost is eliminated and the records are kept in a central place.

E-mail filing in criminal matters has also made it easier for material to be delivered to a judge in a timely fashion. Rather than sending case books to a court registry, then hoping it makes it to the judge for the hearing, when materials are sent by e-mail they are then uploaded to a server and sorted by file number, allowing the court to access documents in almost-real time from when they were submitted.

3. Remote appearances for interim matters and increased use of phone and video technology for uncontested matters

As someone whose practice has a significant focus on the defence of driving matters, I find myself having a great number of files that are resolved in an uncontested fashion. During the pandemic, changes were made to allow me or my colleagues to appear over MS Teams for interim appearances, entering pleas, and conducting sentencing hearings where jail time was not being sought by Crown.

At the same time, my clients were permitted to appear on the telephone rather than taking a day off work to attend court. This was much more convenient for them, particularly where their case was adjourned for lack of court time. Similarly, clients who were going to face driving prohibitions as part of their sentences no longer needed to find a ride to and from court.

This process increased access to justice, cut down on the costs associated with appearing in court, and resulted in lower costs for lawyers who had to travel to get to courthouses. I recall one day in which I was able to appear on a matter in Alberta, a matter in northern British Columbia, a pre-trial conference, a matter in the Fraser Valley, and a case in downtown Vancouver all before I ate my lunch. Without remote appearances, those cases would have had to be scheduled separately increasing the length of time to resolve each file and the costs associated with the out-of-town matters.

4. British Columbia’s pre-trial conference system

When the pandemic began, the B.C. Provincial Court audited the criminal trials that were scheduled and conducted, noting that only four per cent of matters scheduled for trial actually proceeded on the trial date. These statistics were abysmal.

As a result, the B.C. Provincial Court introduced a pre-trial conference system. This is an off-the-record meeting between trial Crown, defence counsel, and a judge who will not preside over the trial in an effort to resolve the case. The number of cases that have been successfully resolved at pre-trial conferences is astounding.

These conferences force both sides to take a hard look at the issues they intend to advance and will face at trial and obtain a view from the bench about how these issues will play out. They have saved countless hours of trial time, significant expense for the accused, and freed up the schedules of trial counsel to book other matters more quickly. There is no negative about them. Indeed, they are my favourite change that has come out of the pandemic.

These are just four small changes that were made in the pandemic but that have had a profound impact on our justice system. It is my hope that our justice system keeps these changes and continues to adapt as we move out of the pandemic.

Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! and the author of Cross-Examination: The Pinpoint Method. She is called to the bar in Yukon and British Columbia. Follow her at @IRPLawyer.

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