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

Par Emmett Bisbee, Student et Katarina Daniels, avocate

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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