Zooming ahead

courthouse

Canada’s court systems remain, procedurally and sometimes substantively, rooted in the past. Admittedly, judges and lawyers do not wear wigs, as do their counterparts in some countries. However, even here, judges robe, with different coloured sashes denoting which court they sit in, and lawyers gown for cases in superior courts and courts of appeal. Bowing (and scraping, depending on your perspective) continues, with all officials in the courtroom expected to stand when the judge enters and leaves the courtroom.

I am not against a certain amount of decorum – serious things happen in courtrooms, and no one needs a smart ass sitting there blowing bubbles, eating or sending and receiving text messages – but good manners are possible even in an environment that is not overly mired in history, especially when that history has no real bearing on what is taking place.

Change is comin’ on

In family court, there has been a tug of war about “modernization” for years. There seems little doubt that many matters – including scheduling, filing documents, issuing consent orders (meaning the two parties have agreed on what should happen and they simply require the judge to make an order to that effect), even hearing matters that are uncontested (when one party has started a proceeding and the other has not responded to oppose it) – could be handled as well or better with the use of technology.

The current pandemic has forced the courts to take some giant steps forward in terms of its use of technology. Courts have suspended regular operations and are, by and large, dealing only with urgent matters. Family courtrooms are closed, so anyone with an urgent matter for the court to deal with does so electronically.

Documents can now be served and filed via email. (In at least one case, the judge ordered that they could be served by text message.) Hearings are taking place by telephone or video conference.

Legal Aid Ontario is providing summary legal advice, but by telephone. Mediation is happening, via video conference.

Let’s keep our pants on

People with family law disputes, court staff, lawyers, mediators and judges are all to be commended for becoming sufficiently competent with the necessary technological tools to make these stopgap measures work, at least for now.

A number of legal associations, including the Ontario Bar Association and the Advocates Society, have produced a best practices and etiquette guide for those involved with remote hearings. Tips for lawyers, most of which would apply to litigants as well, include:

  • Wear business attire, including from the waist down, in case you have to get up unexpectedly (no more business on the top, party — or pyjamas — on the bottom)
  • “Be mindful of what is behind you” (the Thelma and Louise poster over my shoulder may have to go)
  • No eating or drinking, other than water in a clear glass (so much for those cocktails)
  • “Be wary of unwanted facial expressions,” if video is on ( uh oh)

The guide also suggests that standing for the judge is not necessary, “unless directed otherwise.” (Better make sure those pants are on.)

But what comes next?

Chief Justice Morawetz of the Superior Court of Justice said, in mid-April:

“If there’s one positive thing that is going to come out of this crisis, [it] is that we have been forced, and the Ministry has been forced, to accelerate its plans on moving to electronic hearings and also electronic filings and we cannot go back.”

He is right that we cannot go back, but this should not mean we now become hell bent on moving at the speed of light to unquestioningly embrace the increased use of technology. Just because something can be made to work in an emergency does not mean it is what we want in place for the long term.

Before the courts in this country leap into the arms of technology, we need to take the time for a fulsome consultation with a broad range of stakeholders, including members of the legal profession, the judiciary, litigants and advocates for vulnerable communities (including survivors of family violence) for the rich discussions that are necessary to think through the pros and cons of a massive modernization of the court system.

Let’s wade and not jump

A sudden move to permanently implement procedures just because they have allowed the courts to operate during a (we hope) relatively short-lived crisis is bound to lead to unanticipated negative consequences. Time is needed to see what the longer term implications of these emergency processes and procedures are.

While it is too early to make a definitive list of what those might be, my colleagues and I have already identified a few.

What electronic technology offers adequate privacy and security? Zoom, the platform to which we have turned in droves for staff meetings, webinars, conferences and cocktail parties, has proven to be less than trustworthy in delivering on its security promises. Other platforms that appear to offer better security don’t have the user friendliness that makes Zoom so attractive.

You just can’t get a feel for nuances of behaviour online the way you can in a physical courtroom. Especially in cases of coercively controlling family violence, there is great value in a judge being able to see the outbursts, glares, nasty tones of voice and threatening movements by one party and the frightened responses of the other. Even hearing yelling from the corridor can help a judge understand the dynamics in play.

There are potential safety issues when working electronically: how can the court be certain the abusive party is not in a position to intimidate or coerce the other party when everyone is in their own space, with no one watching over things?

More broadly, an increased reliance on technology can create barriers to justice: for those who find the rules and procedures overwhelmingly complex, for those who do not have access to the required technology, the skills to use it or the necessary bandwidth to make it work; for those without adequate legal representation or other supports; for those who don’t speak or write English or French.

Moving to incorporate increased use of technology may be one of the positives to come out of this terrible pandemic. However, it is too early to be making decisions about court procedures that will have long-term impacts.

Especially when the life of a woman or child is at stake, we need to ensure that parties have fulsome access to justice. That means we must take the time to think as well as ensure the voices of all those who will be affected are part of the discussion before we take steps that we cannot un-take.

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