Courts scramble to modernize to keep the system working in a pandemic

The COVID-19 pandemic is forcing Canada's court system to operate as it never has before to adapt to the demands of physical distancing.

Paperwork is being replaced by electronic documents. Appearances are taking place over the phone or through video conferencing. Judges, lawyers and staff are trying to limit their time in the courthouse by working remotely from their offices or homes.

Chief Justice David Jenkins of the Prince Edward Island Court of Appeal said it's a learning experience.

"Nothing's really normal right now," Jenkins said. "Hopefully, the learning experience will produce longer term benefits and the ability to use technology in the courts."

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In most Canadian courtrooms, accused individuals typically appear in person and documents are filed on paper, not electronically. Many fear that the bottleneck being created by pandemic-driven postponements and cancellations will have a cascade effect on an already overburdened system, leaving lawyers and judges with an unworkable quagmire once courthouses themselves return to full service.

There is one silver lining, however: a justice system that has resisted the adoption of new technologies is now being forced to modernize. The result could be more efficient and streamlined operations once the pandemic emergency passes.

"Because of years of inaction and institutional reluctance to [modernize], the justice system is playing catch-up right now," said Michael Spratt, a criminal defence lawyer based out of Ottawa.

"We're really all scrambling to try to accommodate the flow through the justice system using technology that is decades out of date."

Only urgent and emergency matters being heard

In a 2019 report, Ontario's auditor general found the province's court system was still heavily paper-based and had done little to modernize since the turn of the century.

"There just really hasn't been political will to devote the resources to that," Spratt said. "There's been lots of institutional resistance."

Provinces and territories are responsible for the administration of justice and their own court systems. So far, Justice Canada has not received any requests from the provinces or territories for additional support to help the courts adapt to pandemic measures, said a department spokesperson.

Courts across the country have reduced their services to hearings on urgent and emergency matters — measures made necessary by physical distancing rules imposed by health authorities to slow the spread of the COVID-19 pandemic.

The definition of an "urgent" court matter is somewhat subjective, said Jenkins, adding it could range anywhere from a child welfare case or a bail hearing to a civil matter involving an injunction against a landlord looking to lock the doors of a small business.

"The range of things that could happen are beyond the imagination," Jenkins said.

Pandemic affecting judges' decisions

The Federal Court and the Federal Court of Appeal have closed their doors to the public. Court hearings have been cancelled until April 17, with the exception of urgent hearings that will proceed via teleconference or video conference.

The Federal Court is accepting filings by email and suspending the requirement to file paper copies, and is considering extending that suspension.

The Supreme Court of Canada building is closed to the public. All hearings before the high court scheduled for March, April or May have been tentatively postponed to June.

The Supreme Court of Canada will continue to issue judgments on applications for leave and on appeals for the time being. Court documents must be filed to the SCC via email. Media briefings on rulings are being conducted by teleconference until further notice.

Judges are also taking the impact of the virus into account in the sentencing hearings, bail hearings and family court cases that are still taking place.

An Ontario Superior Court justice granted bail to an accused on March 20, citing the "greatly elevated risk" posed by the novel coronavirus to those in pre-trial detention.

Increased reliance on technology in the courtroom

The sudden disruption has forced courts to rely more on technology — but the transition hasn't been problem-free.

Greater Toronto Area-based criminal defence lawyer Mitch Engel said he showed up to court in person last Monday instead of phoning in to make sure his client got bail.

"If I had not attended, he probably wouldn't have gotten out," Engel said.

Engel said coordinating video appearances between the jails and courts has proven to be difficult, but the process is starting to get a little smoother.

"We're all kind of learning on the fly," Engel said. "There's no template to go from. There's no precedent to work from."

Engel's brother Bruce, a criminal defence lawyer based in Ottawa, said the courts are trying to make the best of a "bad situation" — but the accused are the ones hurting the most.

"In the criminal justice system, the accused persons are feeling the stress," Bruce Engel said. "I'm telling people to bear with us."

While criminal defence work is adjusting, civil work is getting bogged down.

Civil work stalled

Greater Toronto Area-based civil lawyer Michael Lesage said COVID-19 has aggravated an already dire situation. 

"It certainly had a big impact on lawyers like me, who specialize in litigation," he said. "Because not only can we not go into court to do any sort of motions or trials, but we also can't do discoveries and take testimony of people.

"Once more, there are neither rules nor ... essentially any sort of established procedures, at least in Canada, for conducting virtual discoveries. That's a crucial step in most cases and it's just not currently possible."

In the meantime, Lesage said, he's concentrating on written work that he normally would be doing several weeks or months from now.

"Obviously, the longer this continues, the more hobbies I'm going to potentially need to take up," Lesage said.

"I think we're really jumping from really unreasonable to really, really unreasonable in terms of how long it takes to resolve average people's legal matters."

Canada lags far behind the U.S. and the U.K. — and is closer to Pakistan's standard — when it comes to the court time involved in enforcing a contract, said Lesage, citing World Bank data.

Looming crunch

Some lawyers say they worry that once the courts resume full service, there won't be enough resources available to deal with the backlog — especially in criminal court.

"We were already overburdened to begin with and stretched to the breaking point," Spratt said. 

"If we don't triage the system, if we don't take a look at the public interest in proceeding with minor cases, and if we can't streamline trials, we're looking at a backlog that could have a cascading effect for months or years to come."

The Supreme Court's Jordan decision, which set hard limits on the time that can elapse between the issuing of charges and the start of trial, is not expected to be an aggravating factor as courts move to reschedule cases after the pandemic ends because the decision takes into account illness and extraordinary events, Spratt said.

But if the courts don't take steps now to deal with a post-pandemic scheduling crunch, Spratt said, trial delays could violate the Jordan limits down the road.

"That's going to take a lot of triaging on the part of the judges and court managers to sort out the pent-up demand and which cases need to be dealt with first and more effectively," Jenkins said.

One of the core principles of the Canadian court system is openness and public access — but without video streaming, it's hard to keep court proceedings open to public view while physical distancing measures are in place.

Jenkins said one of his biggest concerns right now is assuring the public that the courts system is still accessible and functioning.

"We're never closed," he said. "People need to be assured that their matters of urgency or emergency can be heard."

He acknowledges, however, that the public's faith in the justice system could be tested by the pandemic.

"Nobody really knows how long public tolerance will be there, and good will.

"To have your case put off for a few days is one thing. To have put it off for a few months is quite a different thing."