Virus could change courts per­ma­nently

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.”


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