Canada’s national legal organization says the judicial system should take into account the technological modernization forced on it by the COVID-19 pandemic and calls for more investment to support the transition to online justice in a post-pandemic world.
These calls to action are contained in a new report released today by a Canadian Bar Association (CBA) task force formed last year to investigate judicial issues emerging during the pandemic.
As of March 2020, lawyers, judges, and court officials across the country have had to change the way they operate to accommodate the demands of physical distancing. Many Canadian courts and other legal entities are now conducting proceedings remotely over the phone, video, or online. Some allow electronic filing of documents or use other technologies such as mobile apps to resolve disputes between parties.
The CBA report, titled No Turning Back, concludes that many of these overdue changes have improved access to justice and resulted in more efficient dispute resolution in backward court systems, but posed some privacy, access and fairness challenges remain .
“The pandemic has pushed the judicial system into a long-awaited modernization,” the report said. “We need to keep moving forward and building on the policies, procedures and innovations implemented in response to the pandemic and focusing on the needs of the users of the justice system.”
Advantages and disadvantages of remote justice
The task force has consulted a number of experts and legal practitioners since its inception in June 2020. Members concluded that the move to remote litigation has been effective in most simple legal matters – such as procedural hearings and appeals – but has fewer witnesses and credibility issues in complex cases.
According to the report, remote working has reduced the financial and geographic barriers facing people seeking justice by lowering travel expenses and income foregone caused by non-working days for attending face-to-face trials.
Electronic filing of court documents, payment of court fees by phone, and virtual testimony and power of attorney are seen as welcome changes by attorneys, the report said.
Courts across Canada have had to adapt to physical distancing requirements since March 2020. (Filed / Collection to the Supreme Court of Canada)
But the online shift didn’t work all along the line.
According to the report, it is difficult to deal with complex and delicate judicial matters remotely, especially in family, immigration and criminal matters. In such cases, the report says, attorneys’ ability to build rapport and assist their clients online is limited, while it is difficult to assess the credibility of those involved in a case.
Everyday challenges – like learning how to properly use web applications for video conferencing or ensuring wireless access – have also proven to be obstacles for some people, the report said.
Justice Secretary David Lametti praised the task force’s work today as he addressed a virtual CBA meeting ahead of the report’s release.
“Many of the traditional touchstones of our profession look very different. Paperless processes are shrinking the familiar stacks of books and files, while Plexiglas and video screens have changed the traditional look of a courtroom,” said Lametti.
Lametti works with the Chief Justice of the Supreme Court, Richard Wagner, on a separate committee that looks at the longer-term effects of the pandemic and how to manage it.
Investment is required to go online, report says
The task force’s report calls on federal, state, and territorial governments to invest in technologies such as virtual platforms for courts and training for lawyers, judges, and staff so that more legal activity can be conducted online.
However, the task force says technology should only be incorporated into public court systems because it improves access or fairness – not just for its own sake.
“To improve access – rather than inadvertently hinder it – new measures and technologies must be used in ways that reduce their adverse and unintended effects on access to justice, self-represented persons, the independence of the judiciary and the principle of open courts “says the report. “To this end, technology is best understood as a targeted helper – not as a crutch that you can rely on thoughtlessly.”
Further investigation is recommended in the report to determine which areas of law are best suited to moving online. It warns that courts using various online technologies must ensure that they take steps to protect privacy and data.
Rebecca Bromwich, an associate law professor at Carleton University, says the judicial system’s adoption of the technology has been a “silver lining” in the COVID-19 pandemic. (Je M’adore Photography)
Rebecca Bromwich, attorney and associate professor of law at Carleton University in Ottawa, said legal system adoption of the technology has been one of the “silver linings” of the pandemic.
“The pandemic forced us to actually use technology that was actually possible 10-15 years ago, but now we are actually doing it,” said Bromwich, who also works as a diversity and inclusion manager at law firm Gowling WLG.
Bromwich said moving online some tasks that were traditionally done in person – like accessing court documents or scheduling appointments to hear a motion – has the potential to significantly reduce delays in overburdened court systems.
“There is no panacea and some things are treated better personally, but there are many things we can do well electronically,” said Bromwich.
Michael Lesage, a civil attorney practicing in the greater Toronto area, said the challenges facing Canada’s judicial system cannot be solved simply through the use of technology.
He said Canada needs more judges.
“This is the biggest area we need to see more investment in,” said Lesage.
In New York state, Lesage said, an injury case can take two years to resolve, but it can take six to eight years in Ontario.
He fears cases could be pushed back even further due to delays due to the pandemic.
