The COVID-19 pandemic has forced the justice system to adopt digital communication methods into everyday processes as never before. Brutal necessity has driven rapid innovation.
As a Canadian leader in family law since 1981 and among the first Canadian firms to implement digital record-keeping beginning in the early 1990s, Goldwater, Dubé has always advocated for the modernization of the courts. This evolution, however, cannot come at the expense of justice and the judiciary’s institutional authority.
We have identified three primary areas where courts should expand their use of video-conferencing and other remote access options: interim or provisional hearings, document filing, and case management.
It is also worth considering that, with the arrival of 5G wireless networks in Canadian cities like Montreal and Toronto, exponentially faster internet services will make arguments like this one for the modernization of the courts all the more pressing. Vigilance on cybersecurity will have to increase as well, due to the anticipated spike in the volume of data being transferred and risks that court-ordered or other legal restrictions on the publication of elements of proof may be disobeyed by malicious actors, particularly on the anonymized “Dark Web”.
Among activities that should continue to be conducted in person at the courts, outside of exceptional circumstances like the COVID-19 lockdown: trials, especially trials requiring the testimony of the parties and their witnesses.
Why in-person hearings are essential
As a general principle, all trials should be conducted in person. Guidelines published by the Ministry of Justice for the courts during the COVID-19 pandemic maintain this as the gold standard to assure justice is done, and is seen to be done.
“The concept of trial in an open court with a jury of one’s peers goes back to Magna Carta,” explained Goldwater, Dubé senior partner Anne-France Goldwater. “‘Justice could be attained by many methods, running from trial by combat (think Game of Thrones!) to trial on paper only. A trial based uniquely on affidavits prepared by professional sworn statement-preparers, i.e. the lawyers, does not favour discovering the truth any more than trial by combat. The winner should not be the one with the better affidavit preparer or better warrior.”
Common law came to Britain in 1066 with the Norman invasion of William the Conqueror, and with it the principle of open courts evolved as the Normans sought to consolidate that varied legal traditions found in Britain. Common law evolved not as a series of codified practices, but as an organic series of precedents. Open justice, and the Open Courts principle, can be traced to legal decisions rendered even before the signing of Magna Carta in 1215 which then enshrined them.
Since then, it has become an anchoring principle of the justice system, allowing for examination and cross-examination before a judge and jury. In the 18th century, Lord Blackstone put together his Commentaries on the Laws of England, one of the only large-scale publications on common law since the Middle Ages, and one that was written for a common audience.
It was Blackstone who made clear the importance of the concept of open courts. In studying the difference between the English and French systems—common and civil law—he rejected the French method of obtaining evidence through sworn affidavits prepared in advance. Instead, he wrote how to assess truth, you need to see and hear the person giving evidence.
This idea of receiving evidence viva voce—with a living voice—is crucial to the integrity of our legal system and the fulfilment of its mission. To be able to see and hear the parties involved in a courtroom, where the visual cues from every gesture can be seen and every word heard, is what gives the rule of law its social foundation.
It is inherently more difficult to assess the credibility of testimony over a video screen. Technology is a tool, but it is not a substitute for open hearings.
“If the Court’s mission is to uncover the truth, then the testimony of witnesses viva voce before a judge or judge and jury in an open courtroom—with the public attending the hearing—having testimony subject to cross-examination, that is the gold standard,” Goldwater added. “That human, community process is the greatest guarantor of getting to the truth of matters or exposing lies, depending on how one looks at it.”
It should be noted that with regard to family law specifically, hearings are not open to the public at large in order to respect the privacy of families and children in particular. This has the effect of keeping the public in the dark as to how divorce, custody and support hearings proceed. In the same vein, youth protection hearings are confidential, which also creates challenges with informing the citizenry on proper courtroom procedure and the legal system in general. Justice flourishes in the light of day, and withers in the dark.
The recent judgment rendered live on social media in the case of R. vs. Theriault is illustrative of the importance of public hearings. In that matter, Constable Michel Theriault, whilst off duty, along with his brother Christian Theriault, chased a black man, Dafonte Miller, in the early hours of December 28 2016, and beat him so badly with a metal pipe that his left eye burst (his nose, jaw and wrist were also broken). Ontario Superior Court Justice Joseph Di Luca rendered his verdict live on YouTube (the video recording has since been made private, which is noteworthy), out of concern that during the COVID pandemic, the public has not been in a position to attend court hearings and see justice being carried out. The fact that Constable Theriault was only convicted of assault (and not aggravated assault and obstruction of justice) can and must be a matter of public discussion.
But the fact that 18,000 people tuned in to listen to the judgment means that we can have a better public understanding and discussion about systemic racism in our society (it bears noting that the police officer and his brother, both white, had no visible injuries, but Mr. Miller lost his eye; needless to say, at first, criminal charges were laid against the victim, and it was only after further investigation that charges were dropped against him and laid against the two men who assaulted him).
Let us now look at the kinds of hearings that lend themselves to limited “virtual” access.
Provisional and interim hearings
In many cases, there are a series of administrative judicial tasks that should not require the physical presence of lawyers and judges, and could be better handled via video conference.
For example, when reviewing an interim agreement, a judge may need to ensure both parties have truly consented, or may need clarification on some of the text of the document. Appearing by video conference should suffice, because nobody’s credibility is being called into question.
Similarly, when a judge is called upon to render a temporary order, pending a hearing, it is already customary that such interim rulings are debated by the attorneys only, and sometimes the parties themselves are not even present. So proceeding by videoconference again may suffice, since no actual testimony is required.
This removes both the stress and the cost for the client of a courtroom appearance. It is also a better use of a lawyer’s time. Rather than having to bill their clients to wait in a courthouse to appear before a judge, lawyers are free to work on other files pending the availability of the judge to hear them at a fixed time. This should improve accessibility to justice.
Like provisional hearings, case management is an area where remote hearings would be a welcome addition to the judicial process.
Attending a case management hearing generally requires bringing an entire case file back and forth between the lawyer’s office and the courtroom. How much easier it is not to have to transport the file at all! If a document is missing, it can be securely emailed to the court or otherwise filed uploaded and filed digitally.
Case management does not require testimony and, in fact, decisions that are made do not directly impact on the lives of the parties. These are procedural steps that need to be agreed upon or adjudicated upon that relate to the production of documents, scheduling interim hearings and examinations, and other administrative tasks. It is already customary for lawyers to handle these hearings without the parties. Proceeding by video conference is far more effective, and parties can quietly participate without losing a day of work as they can dial in to the conference at a fixed time instead of waiting in a courthouse corridor. Making this standard kind of court hearing “virtual” will also improve accessibility to justice by driving down cost.
The court system requires an enormous amount of paper, much of it unnecessary. Our courts should move to accept filings by more modern means. It should no longer be necessary to file documents and proceedings physically.
Digital security and encryption have advanced a great deal since the widespread adoption of the internet. There are now many viable alternatives to the fax machine that should be embraced by the judicial system.
That said, courthouses will need to have high quality colour printers and desktop computers with large screens, or else digital filing will not be tolerated. Many documents filed on a day-to-day basis need to be printed in colour and at high resolution (1200 x 1200 or better), just as many documents are not of sufficient quality to be opened on a tiny laptop screen (keeping in mind that not everyone has the acuity of vision to scrutinize documents on a small screen).
In the context of the COVID-19 pandemic, the judicial system has shown us that innovation and adaptation is possible, and we must further explore how to best use these tools.
There are areas within our system that could be made more accessible and less time-consuming by embracing digital technologies that already exist and are broadly in use by most law firms. We should make use of these lessons and embrace remote justice for day-to-day procedures and administrative steps, but maintain the sacrosanct respect of in-person trials in open courts. Striking this balance will accomplish the goal of optimizing access to justice while retaining the institutional credibility essential for the proper delivery of justice.
Photo: Tingey Injury Law Firm // Unsplash