Mr David Eby

Attorney General of BC

Dear Minister Eby:

Commissioning Affidavits during and after the COVID-19 pandemic is an unnecessary hurdle to access to justice.  

Amici Curiae Friendship Society (AC) helps users of the courts and tribunals in BC complete their forms.  AC’s services are provided on the principle of equal access to justice regardless of their means.   One of the most common legal forms we see are Affidavits of various kinds.  Under normal circumstances, many of the self-litigants we serve at Amici Curiae find the commissioning of Affidavits to be a confusing hurdle and a barrier in accessing justice. Under the new normal imposed by COVID-19, it has become a health risk as well. The Province’s courts have responded in two ways. First, in March, by instituting a 9 step process for virtual commissioning of Affidavits. More recently, the courts have, in various ways, provided for the possibility that a party might file an unsworn Affidavit in order to have their matter heard.

With respect to virtual commissioning of Affidavits, our experience is that this process - as currently instituted - places an undue hardship on affiants. For example,  a 10-page Affidavit recently required over an hour's attendance by a lawyer and a senior paralegal as well as the affiant, to complete.  A triage manager had to spend another hour to review and put together the final package before distributing it to the client and lawyer. This process required each volunteer to have a computer, printer, a scanner and Adobe Acrobat Professional. The client needed to have a computer, printer, a scanner and a lot of patience.

Another lawyer who volunteers with AC -  who is immunocompromised - has chosen to do in-person Affidavits commissioning despite the personal risk to their health because, from a user-perspective, the 9-step process is not doable. They work with low income clients in the Downtown Eastside, and have noted that the virtual process just isn’t workable for British Columbians without ready access to an office. 

While virtual commission is a promising idea, its implementation leaves many victims of gendered violence, Indigenous,  and self-litigants out in the cold. 

Let us trust self-litigants to sign a declaration that what they have written is true instead of adding such significant stress to them with this 9-step process. 

To support my submission, I attach the following petition signed by the public and members of the justice system. 

The petition:

When applying to a court in British Columbia - whether Supreme or Provincial, civil or family, applicants are often required to file a sworn statement - in legal terms, an Affidavit - setting out the facts that support their case. When seeking a Protection Order, survivors of Intimate Partner Violence describe their safety concerns and the history of violence in their relationship. Parties seeking orders for child support provide a sworn statement about their income and finances. The claimant suing their business partner tells their story first through an Affidavit.

Traditionally, Affidavits are sworn or affirmed before  a lawyer, notary public, or commissioner for taking Affidavits. This step has often served as a barrier for self- litigants. 

We suggest that not all Affidavits need be commissioned. Where possible, we believe the legal system, our courts and tribunals, should trust the public to sign a simple declaration that what they have written is true, and if necessary affirm this before a Judge, Master or Justice when appearing on their matter. 

The challenges brought about by the COVID-19 pandemic, and the legal system’s response, has shown us that traditional ways of doing law can be set aside to better serve British Columbians. . 

On March 20, 2020 and March 27, 2020 respectively,  the BC Court of Appeal and  Supreme Court of British Columbia , and the Provincial Court of British Columbia, gave notice that during the COVID-19 pandemic accommodation must be made regarding Affidavits for use in Civil and Family Proceedings, and until further notice allowed for a virtual 9-step process as an accommodation for affidavits.

The 9-step process, to be completed virtually, placed undue hardship on affiants, many of whom have difficulty finding the printer, scanner, and computer necessary to complete the process. Even so,  this first departure from legal tradition showed that the courts were hard at work trying to find inventive solutions to keep the wheels of justice turning with folks safely at home. 

The court’s second response has been much more encouraging. On April 15, 2020,. the Chief Judge of the Provincial Court advised  that the materials filed in support of urgent family hearing requests need not be sworn or affirmed during the period of reduced court operations due to COVID-19. 

Effective July 13, 2020, these unsworn and unaffirmed Affidavits may also be filed with requests for regular family hearings. However, the Court has indicated that the judge who hears the matter may attach whatever weight they consider appropriate to unsworn or unaffirmed documents. Respectfully, this addendum, though perhaps necessary, may have a chilling effect on parties who already feel that their voice is given little weight by our courts. We suggest that parties should have confidence that a Judge will respect their filed statements, and simply request that they affirm the contents before making submissions. 

We acknowledge that there are situations where information from third parties may require commissioning, but evidence submitted by the parties themselves - often self-litigants struggling to make their way through our complex legal system - ought to be submitted unsworn with applications or responses, and affirmed before the court or tribunal on an appearance. If this process is working for us now during COVID-19, let’s keep it around after the virus is gone. We note that other provinces have adopted similar approaches.

This petition is about an opportunity to remove this practice permanently. Long after the pandemic has gone.

We ask that you consider making the temporary rules waiving the commissioning in the Provincial Court of BC a permanent rule that can be applied to all courts and tribunals. This is one way the legal system can show that British Columbians are trusted - and that they are welcome. Let this be your legacy to us.