Christmas wish list for British Columbia’s new attorney general | Kyla Lee

By Kyla Lee

Law360 Canada (December 14, 2022, 1:25 PM EST) --
Kyla Lee
With a new attorney general appointed in British Columbia last week, I thought I would take the time to publish my Christmas wish list for the attorney general’s priorities and changes that the attorney general should make to better the province.

1. Create legal directory app for police

Access to counsel and facilitating that has been a challenge in British Columbia. The recent Court of Appeal decision in Gordon v. British Columbia (Superintendent of Motor Vehicles) 2022 BCCA 260 has emphasized an ongoing issue in police facilitation of access to counsel in roadside investigations.

Development of an app, in conjunction with the Law Society of B.C., which can be installed on the police mobile data terminals (MDT) terminals or on police officer cell phones that can act as a legal directory would help to solve these issues.

Changes made in British Columbia with the installation of cell phone towers in more remote areas has vastly increased the level of cell phone coverage throughout the province, with more to come. As cell phone coverage increases the need to facilitate contact with counsel immediately is heightened.

The legal directory app could allow lawyers, through their member profile on the law society website, to update their hours available to take calls and practice area. This would enable people seeking legal advice to also locate a lawyer who is available to answer the phone outside regular business hours and who is able to advise in a specific practice area. As this would be lawyer-generated information, there would be less confusion than simply presenting a directory of lawyers to an individual without any indication of whether the lawyer is competent or willing to advise in a criminal investigation, and available to do so.

2. Review, overhaul of B.C. Evidence Act

The B.C. Evidence Act, like many evidence statutes in Canada, is in desperate need of an overhaul to bring it up to speed with modern methods of obtaining, delivering, and receiving evidence.

The attorney general should commission a study of the Act, ideally conducted by an expert in the law of evidence like Peter Sankoff, to determine where it may lead to injustice, where it does not achieve its goals, and where it may be modernized. This will allow for more streamlined trials and procedures in court, which will conserve judicial resources and allow for more effective use of court time.

3. Unified family court

With judicial shortages both at the federal and provincial level in British Columbia, coupled with struggles to obtain court time eliminating the strain on our court system for family law participants will allow for these justice system participants to more easily have their cases heard.

The Uniform Law Commission recommended a unified family court approach in 1974, and the federal government has been tracking the implementation of it in several provinces. The success of the approach is in its simplicity and the ability of the court to tailor its processes so that applications and issues can be streamlined, thereby reducing the strain on judicial resources. It will also decrease confusion of self-represented litigants about at which level of court various applications must be brought.

A unified family court will also have a corresponding effect on civil, non-family cases by freeing up judicial resources to address a major backlog of civil litigation files in British Columbia.

4. Reopen provincial court registries in smaller locations

As the court once again moves away from digital filing and remote appearances, reopening court registries in smaller locations can assist in increasing opportunities for access to justice. Along with my fifth wish on my wishlist, this step will also help to provide greater opportunities for family law cases, provincial small claims civil matters, traffic court and criminal cases to be heard in a timely manner while reducing costs to litigants by making court more accessible.

Not only will this create jobs and economic opportunities for sheriff, court staff and clerks in courthouse that are currently only operating as circuit points, but it will also increase the court’s presence in the community. This can then open the door for more community-led court initiatives, such as Indigenous courts and models like the Downtown Community Court, which have been lauded for their successes as non-traditional justice models.

5. Create more provincial court vacancies for judicial appointments to address trial backlog

According to the B.C. Provincial Court’s Provincial Court Judge Complement Report, as of Nov. 30, 2022, the B.C. Provincial Court had the equivalent of 141.23 full time judges sitting in the province. This is roughly two and a half judges short of the benchmark, set by the Justice Delayed report.

While there have been a number of excellent judicial appointments in British Columbia lately, it is clear that being below the benchmark takes a toll on access to justice. Further, to decrease delays and increase court opportunities, creating more vacancies and appointing more judges than the Justice Delayed report recommends is appropriate.

As trials and dispositions and bail hearings continue to be adjourned due to a lack of court time and a lack of judicial resources, the province cannot simply rest on the notion of what a 17-year-old report said was sufficient.

Cases that come before the court now are often more complex, involving more Charter litigation. Decisions that have come since the Justice Delayed report, such as the Supreme Court of Canada’s reformation of the 24(2) test have increased trial time by adding stages to the analysis. The changes to the sexual assault regime demand more pretrial applications. And judges in British Columbia are increasingly being called upon to make important decisions about 490 applications due to developing case law in the province. As the use of Gladue reports and other reporting in sentencing increases, the length of sentencing hearings will also increase.

Our courts are simply more complex, and there are more demands on judicial resources, than in 2005. Appointing judges beyond that benchmark is appropriate. It will also serve to provide greater court access opportunities in underserved communities.

While I have my doubts that the new attorney general in British Columbia will surprise me like Santa Claus on Christmas morning, this is my wish list. I hope that in the next year, some of what I desire will come to fruition.

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.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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