Court tech lessons from those who’ve been conducting remote trials for years
This post originally appeared in The Lawyer's Daily in May 2020.
Circuit courts are the norm in northern or rural regions across Canada. These courts travel to different regions where there is no local courthouse. I was first introduced to circuit courts when I lived and worked in Northern Alberta, working with Indigenous youth. The closest courthouse was in High Level, Alta., which sat on certain days and you needed a vehicle to get to and from High Level. This same community, Chateh (formerly Assumption), had its own RCMP detachment in the community. Prior to 1990, Chateh was the only First Nation with its own RCMP detachment in Alberta.
The reasons for a community having its own detachment include increasing community-based policing to addressing high crime rates. Safety and security of a community is important but equally and if not more important is access to justice. These circuit courts sit only on certain days and use resources in the community to host court, ranging from school classrooms, gyms or other buildings in the community if possible. By 2019, Chateh opened its first courthouse.
Earlier in 2020, I was called to the Alberta bar. When I was called, I remembered these experiences, living and working with these youth and communities. It is also the lack of courts or justice resources present in these communities, in contrast to the overabundance of policing resources that I remembered. By late February and early March, the global pandemic was impacting my practice and I feared about my travel home. The Alberta bar call required my in-person presence. Soon, by mid-March 2020, others started to take COVID-19 concerns seriously. I was home by that time and working quickly to resolve and close certain matters.
My home is based in Algoma District and I had matters in another small town with a circuit court. Often times, the court would hear matters via audioconferencing. This was not my first interaction with circuit courts. Previously working in-house with a major corporation meant that I sometimes had carriage of files all over Ontario, including in jurisdictions with circuit courts. I argued motions and attended settlement conferences, both important matters in civil proceedings, over the phone.
Yet, once COVID-19 hit, suddenly courts and other justice participants including bar associations became engrossed on modernizing the courts. Modernizing the courts is a welcomed approach; however, the erasure of the realities facing some regions for many years may result in some regions and population groups continuing to be left behind.
The discussions around modernization of courts largely focus on urban centres, who do have their own courts with largely outdated procedures. Everything from relying on compact discs to provide disclosure in criminal proceedings, a constitutional right for individuals, even when counsel requests it via USB key (a portable hard drive, if you will, which can be formatted and encrypted) to the requirement to attend in person for simple matters like adjournments.
These modernization discussions all assume that a party has easy access to a courthouse and assumes that other jurisdictions do not already use modernized procedures, like audioconferencing. Except, these procedures are not called modernization elsewhere; they are called access to justice.
Ultimately, the discussion around modernizing the courts makes two dangerous assumptions. First, these discussions assume that everyone, including non-legal parties, have the necessary and required access to technology including simple telephones to access any and all proceedings if the latest Zoom background or hottest laptop is not available.
Second, these discussions assume that modernization is something new, when in fact others have been utilizing different technology to ensure that not only must justice be done, it must also be seen to be done.
Big city lawyers who never left the GTA throw their arms up in the air and allege their clients’ rights are being unjustifiably infringed when courts do not return to their normal proceedings; normal meaning in-person and likely in a courtroom, sooner or later. The privilege to have several courthouses accessible in your city! Elsewhere in the country, some matters are not even proceeding because the court cannot sit because it only sits on certain days and those days are presumptively adjourned in alignment with the emergency orders.
When I lived and worked in Chateh, my work partner did not have a cellphone with a certain carrier. This meant that he could not make phone calls from his cellphone, on contract with another carrier, without an extra attachment that he luckily had in the house. Now, I live in a community that does not have reliable access to the Internet.
I am left sometimes calling into all the Zoom meetings I am reluctantly invited to and join by way of my phone, or do not receive any updates delivered by Toronto-centric bar associations. Failing to join by audio only means I lose my connection several times if I join exclusively using my Internet connection. Another lawyer asked me, puzzlingly, “So you don’t do Zoom hearings?”
The fact is that many matters rarely make it to the courtroom and many matters are readily resolved over the phone in an audioconference. Just like they have been for years in other jurisdictions, without a global pandemic.
Yet, during COVID-19 I am unable to leave my home to attend workspaces in the city in which I have access to with higher speed Internet, fearing that I may put others in my household and community at risk. Dare I talk about the flooding that is affecting many homes in my community including my family home.
Flooding that is likely caused as a result of the community’s failure to maintain proper infrastructure, including properly allocating funds to repair long-standing issues and hiring properly qualified individuals; many lawyers rarely living the issues, only engaging them theoretically and some claiming connection to community without having ever lived in community.
The reality is, however, that many individuals are stuck without reliable Internet throughout our country and for many years, but phones have existed for decades. The answers to modernization are sometimes the simplest when we take a moment to pause and ask, who is not at the table but who can help create solutions? I respect and understand the independence of the courts, but independence does not mean indifferent, inefficient nor inequitable.
If the courts want to truly see justice done, then there must be larger conversations about how certain regions rarely see a courthouse and conversations about what justice looks like for them. I am certain it is these regions that will provide many creative solutions to those in the Big Smoke and others similarly situated. I trust the system will come out better but not without learning from people who have been doing justice differently before COVID-19.