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jeudi 13 août 2020

Chronique du CTI - COVID-19 and the Courts: An Opportunity for Modernization?

By: Emmett Bisbee, Student, McGill University


 

 

With: Katarina Daniels, Lawyer, Liaison Librarian at Nahum Gelber Law Library, McGill University

 

 

The COVID-19 pandemic

The COVID-19 pandemic has been a significant shock to the administration of justice in Canada. Concerns about the spread of the virus, coupled with provincial emergency management orders limiting public gatherings and travel, have made it impossible for courts and tribunals to conduct business as usual. Law firms across Canada were already making extensive use of technology to facilitate their practice prior to the pandemic, so the transition to remote work was fairly seamless. The same cannot be said for courts and tribunals. Fortunately, the judiciary has been able to leverage various technological solutions to maintain some limited operations, though the timeliness of responses varies.

This article will consider some of the technological ways that Canadian courts and tribunals have reacted to the pandemic and will then highlight some of the challenges and considerations associated with these solutions.

 

How Canadian courts and tribunals have adapted

            One way that courts and tribunals have responded to the pandemic is by allowing for electronic filing of documents, in order to eliminate the need for in-person submission at courthouses. Though some courts have permitted electronic filing for quite some time – the Saskatchewan Court of Appeal for instance implemented its eCourt software in 2012, allowing it to “barely [miss] a beat” once the pandemic hit – most have changed its practices as a result of the pandemic. In the early stages of the pandemic, federal, Ontario, and Quebec courts, among others, either required parties to file documents with the court’s registry office by email or through an e-submission portal. With the gradual return to “normal,” this temporary requirement has turned into a permanent option for increasing numbers of courts and tribunals across the country. This simple change could have a big impact on the efficiency of the justice system going forward; Marshall notes that in Canadian courts today, “[a]lmost everything is done in-person or by paper… Lawyers, this one included, regularly attend courthouses dragging boxes of documents behind them.” Reliance on paper could be phased out permanently as a result of these measures.

            Beyond filing, many courts and tribunals are conducting virtual hearings, either in tele-conference or video-conference format. This involves the active participation of counsel and the presiding judge in a live hearing. Though there was a delay implementing virtual hearings after news of the pandemic broke in March, during which all hearings were largely suspended, most Canadian jurisdictions have temporarily implemented some form of virtual hearings for certain urgent and significant cases. Most notably, the Supreme Court of Canada conducted its first ever hearing by Zoom on June 9, 2020. Despite the technical glitches that participants encountered, Chief Justice Richard Wagner described the Court’s experience with video hearings as a “resounding success,” noting that “hearing from and interacting with counsel [was] almost as natural as it would be in the courtroom.”

            Additionally, several courts and tribunals, including the federal and Ontario courts, have begun extraordinarily adjudicating certain matters in writing. Provisions of Ontario’s Rules of Civil Procedure that required a court order or parties’ consent for alternative means of hearing were waived. Quebec’s Court of Appeal already allowed for cases to be submitted without oral arguments under article 384 of the Code of Civil Procedure. This move to set aside oral advocacy is in line with some recent developments in some provincial tribunals; online tribunals facilitate dispute resolution without formal hearings. Chief Justice Wagner, in discussing justice reforms that could spur from the COVID-19 pandemic, noted that the legal community should be open to “some of the ways we can transform the manner in which we deliver justice, including online judging that leans on paper-based adjudication and asynchronous means to communicate with parties.”

Challenges and considerations

            The COVID-19 pandemic presents an opportunity to modernize the justice system through the permanent retention of technological solutions. Ontario Attorney General Doug Downey suggested that routine matters should continue to be adjudicated online even after the pandemic. Citing courts’ reliance on paper, he noted that the current situation provides “an opportunity to look at not just how we do things but why we do things.” Chief Justice Wagner claimed that it would be “irresponsible” to not take this opportunity to look at how “chronic” delays in the justice system can be reduced. However, there are several considerations related to these technological solutions that policy makers should bear in mind.

            First, any change should respect the open court principle, which the Supreme Court has described as of “crucial importance in a democratic society.” Canadian courts are open by default, with limited exceptions, such as in certain cases involving youth or other sensitive matters. The Supreme Court of Canada’s recent virtual hearings permitted both a limited number of formal observers, who joined the Zoom call, as well as the public at-large to livestream the proceedings. In a sense, this level of access is similar to what is usually available, with limited space in the physical courtroom. However, virtual access has not previously been the norm at lower courts. Those courts should ensure that all virtual hearings be accessible to the public, either by interested persons requesting access to a video/audio feed or through an open online streaming service (for matters of broader public interest), to preserve the legitimacy and public scrutiny of the justice system. Safeyeni has proposed how courts and tribunals could implement this. Conversely, consideration should also be given to the fact that courtrooms’ physical arrangement and ceremonial trappings reflect the seriousness of the proceedings. Particularly serious matters – such as handing down sentences of imprisonment to criminal accused persons – should perhaps not be accessible to the public through an open live stream online and should instead continue to be conducted at courthouses or shared via a limited or protected stream.

            Second, potential privacy issues must be considered. Electronic public access to hearings would require cameras or other recording devices in the courtroom – the subject of a long-standing debate in Canadian legal discourse. Salyzyn notes that this amounts to a loss of “practical obscurity” – where privacy was guarded through the effort required to obtain information or view proceedings (physically attending court). Albert Fox Cahn and Melissa Giddings, in their recent report for The Surveillance Technology Oversight Project, highlight additional privacy concerns relating to online courts, including:

·       the questionable use of Zoom breakout rooms to create “private spaces” for lawyers to speak with clients, despite the risk of unauthorized recording;

·       the lack of a tool to allow for an effective “sidebar”, leading to unwanted parties listening in on what is normally a private conversation between counsel and the court during a hearing;

·       the use of ‘deepfake’ technology which creates a problem in verifying the identities of participants;

·       discomfort with sharing sensitive data via court websites “run both by government agencies and an opaque web of private vendors,”

among other concerns. Additionally, many have become familiar with Zoom-bombing following the increased use of virtual meeting software; traditional security and privacy concerns associated with technology are especially relevant in the context of in camera court hearings. An assessment of the trade-offs involved with electronic public access must take place and a balance between access and privacy needs to be struck.

            Third, changes could impact the hearings themselves. Salyzyn refers to studies that show how accused persons who appear in court remotely in detention are more likely to have cash bail amounts set at higher amounts and receive longer sentences than those who attend court in person, among other similar findings. Hearings often involve the assessment of witness credibility, something that Ottawa defence lawyer Michael Spratt claims would be inappropriate to conduct in an online format. Furthermore, it is possible that without the traditional vestiges and “strict rituals” of the courtroom setting, participants in legal proceedings might treat hearings less seriously, a concern which has been bolstered by media reports of parties appearing in inappropriate attire or from their own beds at home.

Conclusion

The COVID-19 pandemic has forced courts to adapt various technological solutions to their regular operations. It presents a unique opportunity for modernizing Canada’s justice system. None of these above concerns should be viewed as bars to technological change but should be thoroughly considered and adverse effects mitigated against.  

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Les chroniques du CTI sont rédigées par un ou plusieurs membres du Comité Technologies de l’information (CTI) dans le but de susciter les discussions et de soulever les réflexions au sein de la communauté juridique à propos des nouvelles technologies et le droit. Les auteurs sont donc seuls responsables du contenu des articles et l’opinion qui y est véhiculée n’est pas celle du JBM, mais bien celle des auteurs. Si vous désirez rédiger une chronique, envoyez un courriel au cti@ajbm.qc.ca.


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