COVID COULD LEAD TO PERMANENT CHANGES TO COURTS.

Lawyers cite ‘improved access to justice’

When coronavirus first started spreading in Canada earlier this year, everyone immediately felt the impacts as travel ceased, offices closed and child care paused.

One of the most dramatic impacts may be happening in courthouses, where hearings that have always occurred in person are instead being adjudicated through online video or even over the telephone.

The shift has caused the number of cases adjudicated across Canada to plummet and the backlog of cases to grow — at a time when societal disputes, such as domestic violence, are surging. But the pandemic is also forcing lawyers and judges into a debate about the merits of technology and access to justice.

In Corner Brook, N.L., Provincial Court Judge Wayne Gorman has been urging prosecutors to embrace the fact that more cases have to be adjudicated online or over the phone during the pandemic.

“Victims of intimate violence are often very vulnerable and the pandemic has increased their vulnerability,” Gorman wrote in a ruling on May 12. “Cases involving intimate violence should not be placed on hold when the court has the technology and has expressed a willingness to hear additional matters.”

In that case, Gorman held an online video hearing before deciding to sentence Sheldon Mitchell to 180 days in prison and 12 months of probation for a physical altercation with his former “intimate partner,” who he was legally not supposed to contact.

The judge wrote that the video conferencing system he used allowed all the participants to see each other, and one member of the press even witnessed the proceeding.

It “mirrored what would have occurred if the sentence hearing had been held in a courtroom with the participants present,” Gorman wrote.

Last week, in a separate case, after holding a telephonic conference he imposed a $1,000 fine on a defendant, Karen Gillingham, for driving while impaired.

In his ruling, Gorman called it “unfortunate” that the Crown has not embraced his willingness to hear more cases, “particularly trials.”

“Perhaps the court is going to have to take a more proactive approach,” he wrote. “It may have to consider hearing any matter scheduled, unless satisfied by one of the parties that it would be unsafe or unfair to do so.”

Eric Gillespie, a lawyer in Toronto, said in the past month he has participated in virtual hearings for two cases in Ontario’s Divisional Court, which he characterized as an unusually high number in the current setting.

In one case, he represented a community group that is challenging the permits for the construction of a multimillion-dollar wind turbine project located outside Ottawa.

Gillespie said that over 200 people tuned in online to observe the hearing, more than could fit in a courtroom under normal circumstances.

“You had people from literally one end of Ontario to the other that were able to be part of the process,” said Gillespie.

“It’s clearly much more accessible because travel is not required.”

He added about virtual hearings, “It’s something that one would hope the courts would consider even when we get back to in-person hearings because it clearly improved access to justice.”

Murray Klippenstein, a Toronto-based lawyer and Bencher of the Law Society of Ontario, said moving cases online creates a lot of changes.

On the one hand, he said, streaming cases online could open up access to courts because it would save some people the time and cost of travelling to a hearing.

But there could also be some subtle parts of communications that would be lost when people are not physically together in the same room, and it could prevent a lot of “frank discussions in the hallways,” he noted.

There are also many important questions that need to be sorted out, including whether hearings can be recorded, edited and reproduced; and what are the implications of having an audience of unknown size and unknown participants, he said.

Even as social distancing policies ease, many courts remain committed to virtual proceedings for the foreseeable future, according to a recent update in the Canadian Lawyer magazine.

“Some in the legal sector think that the forced virus shutdown of the court system will lead to significant long-term changes in how courts operate because lawyers, judges and administrators have been compelled to try new approaches, some of which might stick,” Klippenstein wrote in an email. “But others are not so sure.”

JUDGES ... HAVE BEEN COMPELLED TO TRY NEW APPROACHES, SOME OF WHICH MIGHT STICK.