Modernizing the Justice System Requires a Tailored Approach

CBA COVID-19 Task Force
Author: Brad Regehr and Vivene Salmon, CBA Co-Chairs

One size does not fit all.

A simple survey of the measures put in place so that the justice system may continue operating in spite of restrictive measures to mitigate the spread of COVID-19 will bear that out.

Virtual hearings have been a lifesaver for some proceedings. But while they may have increased opportunities for some individuals – making it easier to attend court, for example, by reducing travel time, costs and need for childcare – for others they presented more challenges.

When the pandemic was declared and physical-distancing measures instituted, Canadian courts, administrative tribunals and other dispute resolution bodies immediately suspended proceedings. Since then they have come back slowly – offering services via teleconference, videoconference, online/virtual hearings, modified in-person proceedings, and various online dispute resolution mechanisms.

The COVID-19 task force polled CBA Sections and Subcommittees about how it was all working. The response was generally that remote proceedings have been quite successful in certain areas: for appeals where there are no witnesses to contend with, matters that aren’t terribly complex, and matters with lesser monetary value at stake.

Where they haven’t worked as well is with more complex matters involving many witnesses and experts, and for criminal matters.

There is value for judges, lawyers and parties to be in the same room – it’s difficult to read body language or detect witness-intimidating influences online and there is no opportunity for a quick, private discussion with a client when the other party offers up late disclosure. The physical setting of a courtroom or tribunal also encourages decorum and respect for the rules which are important to ensure fairness and trust in the process.

It’s clear that Zoom or other online platforms won’t be a panacea. Any solution will have to be tailored to fit the problem.

CBA President Brad Regehr and Past President Vivene Salmon are co-chairs of the Canadian Bar Association Task Force on Justice Issues Arising from COVID-19.

 

Comments

  1. The Brennan Centre for Justice (USA) published a great report in 2020 about “Principles for Continued Use of Remote Court Proceedings”: https://www.brennancenter.org/sites/default/files/2020-09/Principles%20for%20Continued%20Use%20of%20Remote%20Court%20Proceedings%20final_0.pdf

    “A Brennan Center review of the existing scholarship around the use of remote video proceedings found that, at least in some circumstances, remote proceedings can undermine the attorney-client relationship, alter the perceived credibility of witnesses, lead participants to disengage with the judicial process, and ultimately result in changed outcomes in cases. At the same time, remote proceedings implemented well may have substantial benefits, including expanding access to legal services. Based on this research — and drawing on conversations with legal services providers, judges, scholars, and advocates for expanding access to justice — the Brennan Center has identified the following principles to help inform future policymaking about the use of remote court proceedings:

    • Engage a diverse array of justice system stakeholders
    • Tailor plans to the type of proceeding
    • Bolster the attorney-client relationship
    • Provide extra support for self-represented litigants
    • Provide technical support and adopt technology standards to ensure quality
    • Appreciate the persistent digital divide and ensure meaningful participation by marginalized populations
    • Seek the consent of parties before proceeding remotely
    • Meet all legal and constitutional requirements when using remote proceedings
    • Embrace the benefits of remote proceedings when they are clear
    • Study remote proceedings to better understand their impact”

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