COVID, Tech, and the Legal System
Philippe ThompsonThursday, September 16, 2021
Before the Covid-19 pandemic, the court system in Canada was plagued by long wait times and constant delays.[1] The pandemic brought new public health orders discouraging in-person proceedings, and so much of the Canadian court system moved online. Different courts reacted to the pandemic in different ways, but there is no court for which the pandemic has not been a learning experience. The initial shock of moving proceedings and documentation online initially exacerbated the delays. However, with the pandemic potentially slowing down, it is worth asking: What can (and should) the court system learn from the pandemic?
- Virtual courts do not work for everything
One of the most visible adaptations made by court systems was a move to video conferencing technology for hearings. This move had the advantage of not requiring people to be physically present in the courtroom, but the evidence is mixed as to whether virtual hearings have been good for procedural fairness or access to justice.[2]
For example, a recent review of the Landlord and Tenant Board’s shift to online hearings revealed that tenants do not necessarily have access to the internet or are unable to access the hearings. In fact, tenants are less likely to attend virtual hearings than in person hearings.[3] Those tenants that do attend are more likely to be on the phone than on video, potentially putting them at a disadvantage compared to landlords who are more likely to be able to show their faces and see the board, thereby increasing the perception of their credibility.[4] Similarly, in criminal contexts, there is evidence that bail is set significantly higher for defendants who appeared at bail hearings virtually over those who attended in-person. In this way, the shift to virtual court rooms is less of a venue change as it is a factor affecting access to justice.
Online court could conceivably be an improvement for people who live in rural or remote communities, far from courthouses since they can attend court from their home. However, not all internet is created equal. In remote communities, internet upload and download speeds can make videoconferencing for court impossible.[5]
Despite concerns, many courts and tribunals in Canada and the United States are seeking to make remote hearings more common. For example, in Ontario, the Landlord and Tenant Board has said it will conduct as many hearings remotely as it can, even after pandemic restrictions have ended.[6]
- Many technological adoptions were overdue
On the other hand, many technological changes have been in the works for a long time and have finally been adopted. The legal system is understandably slow to change. Any change could potentially have drastic unforeseen consequences. However, the pandemic has forced the adoption of many technologies that might otherwise have taken many more years to be implemented. For example, In the Ontario Superior Court of Justice, only the most critical and urgent family and criminal matters were heard up to May 2021. All other matters have been heard virtually. To help cope with additional delays caused by the shift, the Superior Court introduced the “CaseLines Pilot Project” for online filings along with an expansion of services on the Ministry’s Justice Services Online Portal. That pilot project is now expected to be standard throughout the Superior Court system by end of summer, 2021.[7]
On May 12th, 2020, the Ontario legislature passed the COVID-19 Response and Reforms to Modernize Ontario Act 2020 which makes permanent many temporary changes to the justice system that were implemented due to COVID-19. For example, the law codifies the process for remote commissioning and notarization of documents in Ontario. This change may be especially beneficial to people living in remote communities or people who may face challenges to accessing in-person notary services.[8]
The push to modernize courts and adopt new technologies is old; before the pandemic there was already a need for more efficient, more technologically informed judiciaries. Covid-19 has presented an opportunity for the legal system to embrace appropriate technology. As Justice Pringle of the Ontario Court of Justice has said “One of the silver linings… we feel that we have been booted into the 21st century of technology by this crisis.”[9]
- People are interested in justice
Courtroom dramas like Judge Judy have been popular for years, but the pandemic has also spurred a reimagining of public engagement with the courts. For example, 20,000 people are said to have watched the trial of a Toronto police officer convicted of assault in a case involving a Black teen in Oshawa, Ontario.[10] Virtual court made the news when images of proceedings surrounding well-known rappers’ criminal proceedings were illegally shared on social media. The problem is not purely formal; illegal sharing of court proceedings can intimidate witnesses and delay proceedings. In the US, a judge in Michigan, for example, made international news by livestreaming his virtual courtroom.[11] Whether renewed interest is a result of extra time spent at home during lockdowns or whether availability of streamed courtrooms was simply capturing an audience that always had an interest, these stories suggest that people are interested in what is happening in the justice system.
The Supreme Court of Canada has been streaming court proceedings for years with archived webcasts going back to 2009.[12] Many other courts in Canada already livestream their proceedings. Maybe it is time for all courts to be livestreamed with recordings available indefinitely, barring only when privacy necessitates otherwise. A Winnipeg judge has recently ruled that fashion designer Peter Nygard’s extradition hearing could be livestreamed. The judge specifically cited the open court principle as guiding his decision. It is currently possible to “sit in” on many Zoom courts such as the Ontario Superior Court of Justice. After all, it is usually possible for the public to sit in the gallery at most court hearings. However, it is not currently possible to obtain a recording of those court hearings.[13]
Professor Amy Salyzyn recently discussed the possibility of expanding the open court principle to online streaming such that even in-person court be streamed in a responsible way.[14] Her column discusses possible setbacks such as privacy concerns for witnesses, but for many cases, the expansion of the open court principle to online availability of court proceedings could play a part in growing public interest in the court system.
Professor Trevor Farrow argues that a key part of initiating change in the judicial system is public interest.[15] The current access to justice crisis, whereby the justice system is no longer affordable and therefore useful to the average Canadian, has been acknowledged for many years.[16] A key part of building the political will for reform is public interest. Though YouTube live streams of the Ontario Superior Court will not solve the access to justice crisis, they may play a part in generating that interest.
- The justice system needed a cultural shift
In an address to the Action Committee on Access to Justice in Civil and Family Matters, former Chief Justice of Canada Beverly McLachlin discussed some of the impacts of the pandemic for the justice community, as well as lessons learned.[17] Her comments are worth reading in full, but I want to highlight her focus on people-centred justice. A move to people-centred justice is not a new concept, but as Justice McLachlin points out, the pandemic has made the move necessary rather than optional. A people-centred approach to justice means more than simply acknowledging that the civil justice system exists – at least to an important extent – to serve the users. There is a need to rethink how justice infrastructure is designed to make it more user-friendly. As Justice McLachlin explains, it requires expanding our understanding of justice and embracing making justice more accessible by putting resources online for everyone.[18] With an increasing number of self-represented litigants in the system, the ongoing shift to online resources is an encouraging development, but there is a need to increase the number resources and availability thereof. People-centred justice requires that the user be the focus of legal programs and initiatives.
On June 9th of 2021, the Canadian Judicial Council published a new edition of the Ethical Principles for Judges which states that “Judges should develop and maintain proficiency with technology relevant to the nature and performance of their judicial duties”.[19] This change sends the message that judges are expected to be familiar with new technologies being used in their courts.
Conclusion
The long-term effects of the pandemic on the justice system will not be known for many years. However, in the meantime, it is worth reflecting on the past year and a half worth of changes brought on by the pandemic to gain a clearer picture on what is here to stay and what isn’t worth holding on to. Certainly, the heuristic of adapting to change should be retained into the future, but the pandemic has also taught the legal system that many technological adaptations do not work and that doing away with what does not work is as important as adopting what does.
By Philippe Thompson
CFCJ Research Assistant
Osgoode Hall Law School Juris Doctor Candidate
[1] Bob Runciman, George Baker, “Report of the Standing Senate Committee on Legal and Constitutional Affairs” (Standing Senate Committee on Legal and Constitutional Affairs, 2016) at 1, Online: https://sencanada.ca/content/sen/committee/421/LCJC/Reports/CourtDelaysStudyInterimReport_e.pdf.
[3] Advocacy Centre for Tenants Ontario, “Digital Evictions: The landlord and Tenant Board’s Experiment in Online Hearings”, (2021), Online: https://www.acto.ca/production/wp-content/uploads/2021/06/Digital-Evictions-ACTO.pdf at p 3.
[4] Ibid at p 5.
[5] Koren Lightning-Earle, “We need access to justice and the internet”, (CBA National, April 29, 2021), Online: https://www.nationalmagazine.ca/en-ca/articles/law/access-to-justice/2021/access-to-the-internet-for-access-to-justice.
[6] Supra note 3 at p 1.
[7] Ontario Superior Court of Justice, “Supplementary Notice to the Profession and Litigants in Civil and Family Matters Regarding the Caselines Pilot, E-Filing, and Fee Payment” (September 2, 2020; updated April 16, 2021) Online: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/supplementary-notice-september-2-2020/.
[8] Nicole Park, Rachel Wong, “ The Government Of Ontario Passes Bill 190, The COVID-19 Response And Reforms To Modernize Ontario Act, 2020” (Mondaq, June 9, 2020) Online: https://www.mondaq.com/canada/directors-and-officers/949852/the-government-of-ontario-passes-bill-190-the-covid-19-response-and-reforms-to-modernize-ontario-act-2020.
[9] Betsy Powell, “’We Have Been Booted into the 21st Century’: What COVID-19 Could Mean for Ontario’s Strained and Outdated Courts.” (Toronto Star, May 5, 2020) Online: https://www.thestar.com/news/canada/2020/05/05/we-have-been-booted-into-the-21st-century-what-covid-19-could-mean-for-ontarios-strained-and-outdated-courts.html.
[10] John Chidley-Hill, “Ontario’s attorney general says coronavirus pandemic has jumpstarted justice system modernization” (Global News, December 3, 2020), Online: https://globalnews.ca/news/7499808/justice-system-modernization-ontario-coronavirus/.
[11] Todd Heywood, “Michigan judge reverses course, will restart YouTube livestream” (CityPulse, May 20, 2021) Online: https://www.lansingcitypulse.com/stories/michigan-judge-reverses-course-will-restart-youtube-livestream,17138.
[12] Supreme Court of Canada, Archived Webcasts (2009) Online: https://www.scc-csc.ca/case-dossier/info/webcasts-webdiffusions-eng.aspx?ya=2009&mo=0&submit=Search.
[13] Certain people including reporters from designated organisations and court staff are able to access most audio recordings of court proceedings.
[14] Amy Salyzyn, “’Trial by Zoom’: What Virtual Hearings Might Mean for Open Courts, Participant Privacy and the Integrity of Court Proceedings” (Slaw, April 17, 2020) Online: http://www.slaw.ca/2020/04/17/trial-by-zoom-what-virtual-hearings-might-mean-for-open-courts-participant-privacy-and-the-integrity-of-court-proceedings/.
[15] Trevor Farrow, “Ten Steps Forward on the Way to Justice for All”, (Pathfinders, October 20, 2020), Online: https://medium.com/sdg16plus/ten-steps-forward-on-the-way-to-justice-for-all-c84cae998e1d.
[16] See for example: Action Committee on Access to Justice in Civil and Family Matters, “Access to Civil & Family Justice: A Roadmap for Change” (Action Committee on Access to Justice in Civil and Family Matters, October 2013) Online: https://stage.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf.
[17] Beverly McLachlin “Access to Justice: When life gives you lemons” (19 May 2021) The Lawyer’s Daily, online: https://www.thelawyersdaily.ca/articles/26825/access-to-justice-when-life-gives-you-lemons-beverley-mclachlin.
[18] Ibid.
[19] Ethical Principles for Judges (Canadian Judicial Council, June 9, 2021), Online: https://cjc-ccm.ca/sites/default/files/documents/2021/CJC_20-301_Ethical-Principles_Bilingual%20FINAL.pdf.