The pandemic has created chaos across the globe in almost every industry and profession. But one silver lining in Canada has been that, despite the turmoil, it has caused both the court system and the legal profession to embrace technology in a way that has not previously been seen.
The court system here has struggled for years to keep up with new technologies in large part because of its funding model. With the exception of the provincial courts and justices of the peace, which are entirely provincially funded, the superior courts in each jurisdiction ( 'Superior', 'Supreme' or 'Queen's Bench' courts in each province and their Courts of Appeal) are funded by both the provinces or territories and the federal government.
In these higher courts, the province is responsible for the infrastructure required for the courts' operations, including the courthouses themselves and the payment of court staff. The federal government is responsible for the appointment, and salaries and pensions of, the judges in these courts.
Both lawyers and judges agree that the judicial system is underfunded. The greatest criticism in recent years has been the lack of technology available in the courts, and funding discussions between the provinces and the federal government have often been conflictual.
In most jurisdictions, prior to the pandemic, the majority of court filings were still done by filing paper copies in person at the courthouse. Even brief appearances on scheduling matters were usually done in person, rather than on the phone. Video-conferencing was rare due to the scarcity of technological resources, and unheard of for substantive appearances.
When the pandemic struck, the Superior Court of Ontario, like others across Canada, found itself without sufficient conference-call lines to accommodate even the urgent matters the courts continued to hear. Zoom's services were unavailable to the courts in Ontario for a period of several months, due to security concerns. In a few short months, however, things have dramatically changed.
While there continue to be issues related to the availability of technology for all those needing to access the court system, the pandemic has been thrust into the use of 21st-century technology, which the profession believes would have otherwise taken decades to implement.
Judges have been regularly ordering that parties and their lawyers move ahead with their litigation, despite that the COVID-19 restrictions did not permit in-person contact. In cases from Newfoundland to British Columbia, judges have required that litigants and their counsel hold examinations for discovery (out-of-court examinations under oath which occur during litigation) and trials by video-conference or simply submit their evidence and argument in writing. Administrative tribunals, including the Law Society of Ontario, are holding hearings by video conference, and even issues relating to custody of or issues related to children are being heard by video or teleconference.
While the profession agrees that 'remote' access to the courts is here to stay, there is little doubt that it is not without its associated problems.
National Geographic recently published some of the reasons why those participating in video-conferencing experience 'Zoom fatigue'. While Zoom and similar platforms mean that there are no obvious distractions, research confirms that during an in-person interaction, the human brain focuses partly on the words being spoken, and partly on dozens of non-verbal cues, including whether a person is fidgeting or if they inhale quickly in preparation to interrupt.
During a video conference, on the other hand, the speakers are framed only from the shoulders up, largely eliminating hand gestures and other body language and leaving the listener paying more intense attention to words.
A 'gallery view,' it seems, challenges the brain's central vision, requiring the brain to decode many people at once, so that even information from the speaker is lost. If a participant only views one speaker at a time, that person can't see how the other participants are reacting — cues normally picked up by her peripheral vision.
There are, of course, other more obvious problems in a litigation context. Images 'freeze.' Not only are gestures and facial expressions lost, but words themselves can be entirely obliterated.
There is no guarantee that a party to the litigation has access to the required technology, or that they can manage the voluminous documents that often accompany the litigation.
Further concerns include that others could be in the room with the witness, assisting him. Video-conferencing fails to allow the judge or the lawyer examining the witness out of court to assess the witness's demeanour. Still other objections include that the inability to be in a neutral setting such as a court house, means the witness is not exposed to the solemnity of the occasion, nor the morally persuasive environment.
In an Ontario case, Arconi v. Smith, Justice Fred Myers considered all of these concerns before ordering that out-of-court examinations for discovery proceed by videoconference.
His Honour responded to the arguments referred to, saying "the simplest answer to (these concerns) is 'It's 2020'. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools any more. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back."
Many other judges in Canada have followed suit.
In the Alberta case of Sandhu v. Siri Guru Nanak Sikh Gurdwara of Alberta, a lawsuit involving a large number of witnesses and a translator, Justice M. J. Lema quoted Justice Myers' words, reiterating that "in my view, in 2020, use of readily available technology is part of the basic skill set required of civil litigators and the courts.... As things stand at present, I do not doubt that there are perceived, and possibly very real shortcomings associated with proceeding remotely rather than in person. However in this case at least, the benefits outweigh the risks. The most obvious benefit is that litigation will not be stopped in its tracks."
There are continuing challenges for both the profession and the court as use of virtual platforms become more common.
For example, prisons have very limited video conference technology. Accused people held in jail pending trial are unlikely to be able to have their trial held by remote access, as there is simply insufficient equipment in the institution.
Self-represented family law litigants (estimated to comprise 50 per cent or more of all family litigants in Ontario) have also found it difficult to obtain court orders during the pandemic.
Before a judge can make an order, and unless it is made on consent, a judge requires sworn evidence.
In Jones v. Jones, when considering a self-represented litigant's written application for divorce, Justice Cheryl Robertson observed "Many adjustments to court practices were implemented quickly. Process gaps may need to be patched. Apparently, there is no free way for self-represented litigants of modest means to commission affidavits.... This results in an access to justice barrier for poor litigants."
While the pandemic has pushed the courts into the 21st century, it seems clear that it will take time for many parts of the system to catch up.
This article originally appeared in the National Post.
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