by Sam Prette of Pro Bono Students Canada
"Although this pandemic was terrible, and is still terrible for every Canadian, we have to see some positive aspect to it and ... one positive aspect to it is the chance, or the opportunity, to use more technology for the justice system in Canada." Chief Justice Richard Wagner
Technology in the Courtroom During Covid-19
COVID-19 has had far-reaching impacts on our justice system here in BC. With the government’s implementation of social distancing restrictions, our courts have had to respond quickly in order to continue facilitating judicial processes in the face of this rapidly evolving situation. In the early months of the pandemic, BC courts reduced operations to help reduce and slow the transmission of the virus. As a result, many cases were postponed, creating backlogs and delays which in turn has inhibited access to justice for all. Additionally, many believe the pandemic will give rise to a significant increase in the number of people seeking legal help (unemployment, health care, housing, domestic violence, etc.).
One option the courts have had in managing this crisis is to temporarily do more legal work remotely. BC’s courts have decided to put more trust in technology and proceed with certain cases through the use of video and audio mediums like Microsoft Teams and Zoom. Remote systems that have been put in place during this pandemic may prove to be a valuable service to support courts even after the pandemic has passed. I believe the increased use of technology to support court services will significantly improve access to justice by improving efficiency, efficacy, and cutting back on costs and time.
How Technology Can Improve Access to Justice
The BC courts have all adopted the use of remote systems during the pandemic to combat their reduced in-person operations. The platforms, such as Zoom or Teams, aid access to justice in many ways. First, physically getting to courthouses is a significant barrier to many people who live in rural and remote communities. The opportunity for users to pursue their legal issues through online systems will improve rural and remote users’ access to justice by reducing the need to physically travel to the courts. In some circumstances, through these online services the legal system is now available and accessible to people from the comfort of their home.
Secondly, remote systems may allow for judges to potentially hear more matters as travel to remote areas of the province may be required less if the matters can be heard online. Judges hearing more cases will improve access to justice by increasing efficiency and reducing the courts backlog of cases. This will save people time and money as their files could be heard earlier and with less delay.
Finally, remote services may also have the potential to increase navigability for self-representation litigants. The use of technology for court services is an opportunity to help those who lack representation by providing clarity of legal procedures and increase accessibility to helpful resources. Digital “self-serve” access to court recordings, information and transcripts could reduce confusion on what a self-represented litigants next steps should be, as well as decreasing their costs and saving time. An online navigation system could let self-represented litigants know what needs to be done next, which would in turn speed up the court process.
Barriers to Legal Digitization
Although the use of technology has potential to speed up court services for users and in turn improve access to justice, there are still many barriers for individuals using these remote services. First, the online process can be stressful if the user does not have a quiet space, if they lack their own devices, or if they do not have access to a good internet connection. For example, people in some rural areas outside of the city may lack options to access good internet, and therefore are at a significant disadvantage if their legal issue is proceeding online. Technological malfunctions are another prevailing issue that the courts will have to be attuned to if they are to continue using these types of services.
Another disadvantage of online services includes the loss of non-verbal communication in the courtroom. In a trial setting, virtual hearings could make it difficult for judges to decipher noncommunication signals, as well as harder for individuals to persuade through live witness testimonies. Deciding what type of cases are acceptable to be decided online, and what should remain in person, is something that should be considered further.
The Post-Pandemic Era
Covid-19 has presented an opportunity for the courts to increase accessibility by providing users with the option to proceed with certain legal issues online. The courts are now regularly using telephone and videoconferencing services where applicable in order to help relieve delays and backlogged cases. I believe these remote systems put in place will prove to be worth keeping as we eventually transition past the pandemic. If the courts do decide to continue to utilize virtual proceedings, moving forward there needs to be a focus on ensuring sufficient access to those whom technology may present barriers (lack of internet, a quiet space, adequate devices, technological malfunctions).
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