Canada’s national legal organization says the justice system should embrace the technological modernization forced upon it by the COVID-19 pandemic and is calling for more investment to support the move to online justice in a post-pandemic world.
Those calls to action are in a new report released today by a Canadian Bar Association (CBA) task force, which was formed last year to examine justice issues arising during the pandemic.
Since March 2020, lawyers, judges and court staff across the country have had to transform how they do things to adapt to the requirements of physical distancing. Many Canadian courts and other legal bodies now conduct proceedings remotely by telephone, video or online. Some allow electronic filing of documents or utilize other technologies such as mobile apps to resolve disputes between parties.
The CBA report, titled No Turning Back, concludes that many of these long-overdue changes have improved access to justice and resulted in more efficient resolution of disputes in backlogged court systems, but that some challenges remain when it comes to privacy, access and fairness.
“The pandemic propelled the justice system into a long-awaited modernization,” the report reads. “We must continue forward and build on the measures, procedures and innovations implemented in response to the pandemic and focus on the needs of the users of the justice system.”
Pros and cons of remote justice
The task force has consulted a range of experts and legal practitioners since it was formed in June 2020. Members concluded the move to remote proceedings has been effective in most simple legal matters — such as procedural hearings and appeals — but less so in complex cases that involve many witnesses and questions of credibility.
The report says working remotely has reduced financial and geographic barriers for people seeking justice by reducing travel costs and lost income caused by taking days off work to attend in-person proceedings.
Electronic filing of court documents, payment of court fees via telephone and virtual witnessing of wills and power-of-attorney are all seen as welcome changes by lawyers, the report says.
But the shift online hasn’t worked out across the board.
The report says complicated and sensitive court matters are difficult to conduct remotely, especially in family, immigration and criminal cases. In such cases, the report said, lawyers’ ability to build rapport and support their clients online is limited, while assessing the credibility of people involved in a case is difficult to do.
Everyday challenges — such as learning how to properly use video conferencing web applications or ensuring wireless access — have also proven to be barriers for some people, said the report.
Justice Minister David Lametti praised the work of the task force today while speaking to a virtual CBA meeting prior to the report’s release.
“Many of the traditional touchstones of our profession are looking very different. Paperless processes are shrinking those familiar stacks of books and files, while plexiglass and video screens have changed the traditional look of a courtroom,” said Lametti.
Lametti serves with Supreme Court Chief Justice Richard Wagner on a separate committee that is looking at the longer-term effects of the pandemic and how to address them.
Investment needed to move online, report says
The task force report calls on the federal, provincial and territorial governments to invest in technology such as virtual platforms for courts and training for lawyers, judges and staff so that more legal activities can be done online.
But the task force says technology should only be integrated into public court systems because it improves access or fairness — not just for its own sake.
“To enhance access— rather than unintentionally inhibit it — new measures and technology must be deployed in a manner that mitigates their adverse and unintended effects on access to justice, self-represented individuals, judicial independence and the open courts principle,” the report says. “To this end, technology is best construed as a targeted aide — not a crutch to defer to mindlessly.”
The report recommends further study to identify which specific areas of law are most amenable to moving online. It warns that as courts embrace various online technologies, they need to make sure they are taking steps to protect personal privacy and safeguard data.
Rebecca Bromwich, a lawyer and adjunct professor of law and legal studies at Carleton University in Ottawa, said the legal system’s embrace of technology has been one of the “silver linings” of the pandemic.
“What the pandemic has done is it’s forced us to actually engage in the use of technology that was actually possible 10 to 15 years ago, but now we’re actually doing it,” said Bromwich, who also works as a diversity and inclusion manager at the law firm Gowling WLG.
Bromwich said moving some tasks online that traditionally have been done in-person — such as accessing court documents or scheduling appointments to have a motion heard — has the potential to greatly reduce delays in overburdened court systems.
“There’s no panacea there and some things are going to be dealt with better in person, but there are a lot of things that we can actually do electronically well,” said Bromwich.
Michael Lesage, a civil lawyer who practices in the Greater Toronto Area, said the challenges with Canada’s justice system won’t be solved simply through the use of technology.
He said Canada needs more judges.
“That’s the biggest area where we need to see more investments,” Lesage said.
In New York state, Lesage said, it can take two years to resolve an injury case, but it can take between six to eight years to do the same case in Ontario.
He said he worries cases may be pushed back even further due to delays caused by the pandemic.