Annex B: Use of Technology in Canadian Courts during Covid-19 Media Scan

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The first section of the media scan includes Canadian media articles from the initial three months of the pandemic (March to May), which focus on using technology as a temporary solution to keep Canadian courts open. The second section includes articles from the summer (June to August), which focus on testing and implementing new technologies with the shift from seeing technology as a temporary solution. The third section includes articles from the last four months of the year (September to December) and focuses on what a modern court system could look like post-pandemic. Within each section, the articles are organized alphabetically. Most of the articles pertain to the family and civil justice systems, however, some articles about the criminal justice system were also included as they provided examples or commentary that could be applicable to the family justice system. The following provides an overview of the 28 media articles that were included in the scan.

March to May 2020

Carolino, B. April 9, 2020. “COVID-19 and the courts: April 9 update.” Canadian Lawyer Magazine. Available at: https://www.canadianlawyermag.com/news/general/covid-19-and-the-courts-april-9-update/328509

Courts are exploring remote and virtual options (i.e. telephone and videoconferencing) to ensure there is the right level of security and that it is possible to generate reliable court records. Other considerations discussed are bans on recording and rebroadcasting virtual hearings and the types of search warrants that can be obtained through a tele-warrant process.

Harnick, C. May 27, 2020. “Opinion: Use the COVID-19 pandemic gains to continue modernizing Ontario courts.” Toronto Star. Available at: https://www.thestar.com/opinion/contributors/2020/05/27/use-the-covid-19-pandemic-gains-to-continue-modernizing-ontario-courts.html

The response to the pandemic has underlined how slow the process for modernizing the courts has been. Financial and human costs of the system are high and the demand for services has outgrown the system. As change occurs, it is important that modernizing the system does not mean simply digitalizing the same centuries-old processes and practices.

Ibrahim, H. April 16, 2020. “Top trial judge says COVID-19 reveals value of remote justice.” CBC News. Available at: https://www.cbc.ca/news/canada/new-brunswick/remote-appearances-new-brunswick-court-of-queens-bench-tracey-deware-1.5535054

Although New Brunswick courts have had the ability to allow people to call in or appear by video link for a while it was not seen as a valuable option, until the pandemic pushed the courts to hear cases over telephone and videoconference. Now that the value of technology is realized, there is hope that people will use it more to include those who cannot physically be in court.

Kirwin, L. March 30, 2020. “Wake-up Call – Covid-19: Now’s the time to use technology in the Ontario Family courts.” Ontario Family Law Blog. Available at: https://www.ontariofamilylawblog.com/2020/03/articles/children-custody-and-access/wake-up-call-covid-19-nows-the-time-to-use-technology-in-the-ontario-family-courts/

The pandemic has shut down family law courts even though there are virtual options available (i.e., Skype and Zoom) to deal with cases and the risks to families are too high not to proceed. COVID-19 is a wake-up call to the legal profession as the justice system has been propelled into the future and can no longer wait for the use of technology to be accepted.

Loriggio, P. March 20, 2020. “Criminal and Family trials on hold as Ontario court takes new steps on COVID-19.” Global News. Available at: https://globalnews.ca/news/6708739/criminal-family-court-ontario-coronavirus/

Only urgent criminal and civil matters will be heard until June. The courts are reducing in-person appearances, implementing social distancing, and looking into audio and video technology capacity to further minimize in-person contact.

Marshall, K. April 8, 2020. “Opinion: Maybe COVID-19 is what it will take to modernize Canada’s antiquated courts.” National Post. Available at: https://nationalpost.com/opinion/opinion-maybe-covid-19-is-what-it-will-take-to-modernize-canadas-antiquated-courts

The pandemic highlighted real access to justice issues within the Canadian court system that was already riddled with lengthy delays. Courts have very little capability to function outside of the physical courthouse given that there is a lack of modern technology to support remote hearings and for court staff and Judges to work remotely. Although the cost of modernizing the justice system would be substantial, access to justice depends on technology that has not yet been adopted.

Mulgrew, I. April 19, 2020. “Ian Mulgrew: Law Society of B.C. trying to Zoom into 21st Century.” Vancouver Sun. Available at: https://vancouversun.com/news/ian-mulgrew-law-society-of-b-c-trying-to-zoom-into-21st-century/

There is an opportunity to use the pandemic to not only modernize the court system by embracing technology but also to reform the entire justice system to reduce inefficiencies and increase access to justice.

Pazzano, S. May 23, 2020. “Family lawyers, pandemic jump-start ‘technological revolution’ in criminal courts.” Toronto Sun. Available at: https://torontosun.com/news/crime/family-lawyers-pandemic-jump-start-technological-revolution-in-criminal-courts

The pandemic has led to an increase use of technology, but some family law lawyers have been involved in electronic trials and working paperless for years, as well as holding arbitrator and mediator conferences by teleconferences.

Salyzyn, A. April 17, 2020. “‘Trial by Zoom’: What virtual hearings might mean for open courts, participant privacy and the integrity of court proceedings.” Slaw: Canada’s Online Legal Magazine. Available at: 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/

With in-person hearings being moved online, questions about what open courts should look like are being raised. These include questions about public access, privacy, unintentional impacts on participant experiences and case outcomes.

Sixta, M. April 15, 2020. “Opinion: How COVID-19 could force changes to family courts, modernize access to the justice system.” CBC News Opinion. Available at: https://www.cbc.ca/news/opinion/opinion-family-law-courts-access-corononavirus-1.5516067

With the closure of courts to all but urgent matters, the promotion and public education of online alternative dispute resolution options (i.e., mediation, arbitration and collaborative family law) are important. Courts are forced to make long overdue changes to procedures to allow for more remote access and online processes (e.g., rules around notarizing affidavits, e-mail filing system). These changes could help unclog the courts of needless litigation, modernize procedures, and change the mindset of divorcing couples.

Stefanovich, O. March 31, 2020. “Courts scramble to modernize to keep the system working in a pandemic.” CBC News.Available at: https://www.cbc.ca/news/politics/stefanovich-covid19-exposes-court-shortcomings-1.5502077?cmp=newsletter_CBC%20News%20Morning%20Brief_879_14259

The pandemic has forced the courts to modernize yet they are scrambling to try to accommodate the flow through the system using technology that is outdated. The civil courts are also faced with backlogs due to a lack of rules and procedures to work virtually. There is concern that public confidence in the justice system could be tested due to all of the delays.

June to August 2020

Burns, I. July 22, 2020. “Alberta Court of Appeal launching public portal of e-filing system Aug. 31.” The Lawyer’s Daily. Available at: https://www.thelawyersdaily.ca/articles/20190/alberta-court-of-appeal-launching-public-portal-of-e-filing-system-aug-31?category=access-to-justice

The Alberta Court of Appeal Management System (CAMS), launched at the end of August, is a comprehensive system that enables users to electronically initiate an appeal, file materials, pay applicable fees and more. All case materials and other information about their appeals including the full text of all filed documents, deadlines, hearing dates, outcomes and more would be accessible online.

Chaudhri, S. August 22, 2020. “Chaudhri: Workers wronged amid COVID crisis can now seek justice virtually.” Toronto Sun. Available at: https://torontosun.com/opinion/columnists/chaudhri-workers-wronged-amid-covid-crisis-can-now-seek-justice-virtually

The use of virtual platforms for litigation and mediation is seen as being less disruptive to a person’s life, costs less and is more efficient. The increased use of technology raises questions about what will happen post-pandemic.

Crawford, B. June 18, 2020. “Zoom your divorce? Virtual family law group takes dispute resolution online.” Ottawa Citizen. Available at: https://ottawacitizen.com/news/local-news/zoom-your-divorce-virtual-family-law-group-helps-couples-bypass-backlogged-court-system

The Ottawa Virtual Family Law Project was privately launched to offer virtual mediation and arbitration as alternatives to court during the pandemic.

Davidson, T. July 6, 2020. “Experts weigh in on Manitoba’s step toward modernizing courts.” The Lawyer’s Daily. Available at: https://www.thelawyersdaily.ca/articles/19901/experts-weigh-in-on-manitoba-s-step-toward-modernizing-courts?category=access-to-justice

Development of an Integrated Case Management System in Manitoba would consolidate systems from the province’s three levels of courts into a single system that provides real time information. The system has the potential to also reduce in-person appearances at courthouses for filing documents, scheduling hearings and paying fines and fees.

Davidson, T. July 9, 2020. “Nova Scotia small claims court expands services.” The Lawyer’s Daily. Available at: https://www.thelawyersdaily.ca/articles/20020/nova-scotia-small-claims-court-expands-services?category=access-to-justice

Nova Scotia’s small claims court started accepting non-urgent filings and hearing more matters by telephone. Adjudicators will complete preliminary hearings by teleconference and will determine whether the matter will proceed by telephone or be adjourned until the matter can be heard in-person.

Dubinksi, K. July 20, 2020. “As courts use technology during COVID-19, some clients are being left behind, lawyers warn.” CBC News. Available at: https://www.cbc.ca/news/canada/london/ontario-court-technology-1.5655619

There are benefits to courts embracing video and audio conference calls, e-mail exchanges and electronic documents in response to the pandemic. However, the article identifies concerns over negative impacts on vulnerable and low-income people (i.e., limited access to internet and phone plans) and the need for additional planning and logistics.

Halsham, A. 2020. July 5, 2020. “Thousands watched the Theriault decision and city council’s police debate online. Is livestreaming the future of democracy?” OurWindsor. Available at: https://www.ourwindsor.ca/news-story/10058965-thousands-watched-the-theriault-decision-and-city-council-s-police-debate-online-is-livestreaming-the-future-of-democracy-/

Adopting new ways to enable public access and openness can have positive impacts by breaking down barriers to participation, facilitating accountability and educating voters about the workings of public institutions. However, online participation should not be seen as a replacement for in-person access and comes with its own barriers including access to Wi-Fi, cellphones and computers. Other barriers that prevent marginalized groups from being heard and consulted include the need for childcare; Black and Indigenous people feeling unsafe at courthouses, city hall or police headquarters; and time and expense of travelling from socially and economically disadvantaged neighbourhoods. Public livestreaming, which differs from limited remote access available through the court teleconference lines and Zoom platforms, advances the principle of open courts, a crucial element of access to justice.

McLachlin, B. July 17, 2020. “Access to Justice; A plea for technology in the justice system: Beverley McLachlin.” The Lawyer’s Daily. Available at: https://www.thelawyersdaily.ca/articles/20104/access-to-justice-a-plea-for-technology-in-the-justice-system-beverley-mclachlin-?category=access-to-justice

The pandemic has confirmed that many of the in-person activities of courts can be done virtually and that procedures can be more efficiently accomplished online. However, to modernize the justice system we cannot just plug technology into existing systems and expect it to solve all of the issues with the system. A systemic approach is required rather than tinkering with discrete parts of the justice system. There is a need for data to identify where the problems are in the justice system and regulations are needed to ensure that solutions are secure and that the vulnerable are protected.

Millán, L. July 3, 2020. “Quebec justice makes ‘giant strides’ with additional of Digital Court Office, bar president says.” The Lawyer’s Daily. Available at: https://www.thelawyersdaily.ca/articles/19904/quebec-justice-makes-giant-strides-with-addition-of-digital-court-office-bar-president-says-?category=access-to-justice

Quebec launched the Digital Court office of Quebec in mid-June, which allows e-filing pleadings and the payment of Judicial fees online. Legal experts view this as a move in the right direction in modernizing the Quebec Courts. However, there are some hurdles to the use of these types of systems, including preserving the legitimacy of the court process.

Mulgrew, I. August 11, 2020. “Ian Mulgrew: Two chief judges facing very different pandemics.” Vancouver Sun. Available at: https://vancouversun.com/news/ian-mulgrew-two-chief-judges-facing-very-different-pandemics

Challenges with using technology to help keep courts open during the pandemic have included delays due to videoconferencing glitches (i.e., people disappearing on camera), access issues for self-represented litigants, concerns over credibility and insufficient equipment. In addition, the electronic filing systems are not connected and there are limitations to working with electronic documents.

Parsons, P. August 25, 2020. “Court Documents e-filing system falls flat with Edmonton Lawyers.” CBC News. Available at: https://www.cbc.ca/news/canada/edmonton/edmonton-lawyers-criticize-e-file-system-for-alberta-courts-1.5698453

The new Alberta e-filing system for court documents, launched to reduce the number of people going into courthouses due to the pandemic, is causing delays and extra costs for lawyers and clients.

Robitaille, D. July 17, 2020. “Opinion: Participating in Ontario’s first Zoom trial showed me its value for our overburdened justice system.” The Globe and Mail. Available at: https://www.theglobeandmail.com/opinion/article-participating-in-ontarios-first-zoom-trial-showed-me-its-value-for/

Although the use of videoconferencing was a real alternative to appearing in-person during the pandemic, this article highlights some lessons learned from the first criminal trial held in Ontario by Zoom. Virtual trials are more intense as participants are “always on” and some of the more human aspects are gone. They are also not appropriate for some accused. However, virtual trials are in some ways more democratic by being more accessible and exchanged solemnity for a business-like approach to the task.

Schofield, J. July 24, 2020. “Toronto announces remote court services in wake of COVID-19 case at Brampton courthouse.” The Lawyer’s Daily. Available at:

https://www.thelawyersdaily.ca/articles/20251/toronto-announces-remote-court-services-in-wake-of-covid-19-case-at-brampton-courthouse?category=access-to-justice

Toronto Court Services launched new remote services that include online early resolution meetings for people who want to dispute a ticket. The feasibility of virtual hearings is also being explored, when requested.

Schofield, J. August 12, 2020. “Consultant’s study seeks complete technology solution for Ontario Superior Court.” The Lawyer’s Daily. Available at: https://www.thelawyersdaily.ca/articles/20493/consultant-s-study-seeks-complete-technology-solution-for-ontario-superior-court-?category=access-to-justice

A study is being undertaken to identify a comprehensive end-to-end technology solution to meet the needs of the Superior Court in Ontario. Currently a patchwork of technological solutions is being used including CaseLines, a cloud-based document sharing and storage platform; Justice Services Online Portal; the Frank case inventory system; and Zoom. These different technology platforms do not speak to each other, they are not user friendly and they were not developed with a judicial user in mind.

September to December 2020

Groia, J. November 26, 2020. “Rule of law in era of virtual hearings: Doing justice?” The Lawyer’s Daily. Available at: https://www.thelawyersdaily.ca/articles/22671/rule-of-law-in-era-of-virtual-hearings-doing-justice-joseph-groia?category=covid-19

In certain cases, the use of videoconferencing as a substitute for in-person testimony can have deleterious effects on the rule of law. Videoconferencing raises issues about non-verbal communication and the credibility of witnesses for record creation. The lack of a human connection in videoconference hearings is an issue when examining witnesses and can lead to real problems when the videoconferencing platform breaks down in the middle of testimony. The use of videoconferencing against the wishes of one party could violate traditional notions of fundamental justice and procedural fairness.

Kirschbaum, A. December 7, 2020. “Kirschbaum: Lessons from the pandemic on how to modernize family court.” Ottawa Citizen. Available at: https://ottawacitizen.com/opinion/kirschbaum-lessons-from-the-pandemic-on-how-to-modernize-family-court

Post-pandemic, a well-funded hybrid online and in-person family justice system will enable the benefits gained through technology to be retained while also preserving the integrity of the previous system.

Pawlitza, L.H. September 9, 2020. “Pandemic has forced Ontario courts to embrace the future, but questions over technology use remain.” Financial Post. Available at: https://financialpost.com/personal-finance/pandemic-has-forced-ontario-courts-to-embrace-the-future-but-questions-over-technology-use-remain

The increased use of videoconferencing during the pandemic has led to “Zoom fatigue.” A recent National Geographic study found that fatigue occurs due to the need for the brain to fully concentrate on what others are saying rather than being able to rely on other non-verbal cues. Depending on the view used, the brain also needs to either decode many people at once (i.e., “gallery view”) or it misses non-verbal cues if a participant only views one speaker at a time. This can further be exasperated when images “freeze” as not only are gestures and facial expressions lost but also words themselves.

Further concerns with using videoconferencing in a legal context include the inability to know whether a witness is alone in the room, inability to assess a witness’s demeanor, and moving from a neutral courtroom impacts the solemnity of the occasion.

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