View from a Court During a Pandemic


View from a Court During a Pandemic

In early 2020, events unfolded that seriously challenged the courts’ ability to continue their core functions as the judicial branch of government. COVID-19 had spread to the point that public and private services were shutting down throughout the province. Amid the risk and uncertainty, the Court of Appeal (the “Court”), like other courts across Canada, suspended all but the most urgent operations.

Ten months later, the Court has learned a lot. Judges and staff have adjusted to working almost entirely remotely, primarily online but also by telephone for chambers. While able to offer in-person appeals if needed throughout the pandemic, the Court has endeavored to respond to fluctuating COVID rates and risks by offering parties the choice of in-person hearings while rates were low over the summer and early fall, and by conducting virtual hearings as the default when rates have been higher (earlier in the pandemic and presently).

In experimenting with technology, the Court has been mindful that the “digital revolution” does not mean everyone finds online processes accessible. It is essential that our institutions, while encouraging advancements through communication and education, are flexible enough to meet people where they are in order to ensure equal participation. Likewise, the Court has made ongoing assessments and adjustments that are responsive to participants’ experiences with new processes.

What has it been like to be a Court of Appeal judge these past several months?

I can speak only for myself, but it has definitely added a layer of difficulty to the already challenging task of adjudication. While many Court of Appeal judges were fairly accustomed to using video technology and digital documents pre-pandemic, I was not. It has been a steep learning curve familiarizing myself with computer applications, pulling up documents and navigating between screens. I currently conduct most of my appeal preparation online, although I still need some documents printed, like factums. I hope that I am the transition generation to the truly electronic court.

What keeps me up at night?

I worry about fairness — ensuring parties and lawyers feel able to fully present their best case, which for one person means a day in a physical courtroom whereas for another it means from the security of their home, as they may feel unsafe using transit or may have childcare responsibilities. There is unfortunately no one response to the pandemic that is “correct.” While its constitutional role is not negotiable, the Court has needed to make dozens of decisions, big and small, that make a difference to the public, to lawyers, to the media, and of course to judges as well.

Despite the many challenges, I am not alone when I say the pandemic has brought some hopeful signs. Courts, lawyers, and self-represented litigants have all considered this a time of opportunity to re-think some of the justice system’s basic assumptions and to make permanent changes that will improve accessibility. This change in mindset is consistent with the sector’s broad endorsement of the Access to Justice Triple Aim, three intertwined objectives for improving user experience, outcomes and costs. At the Court of Appeal the pandemic has led to fully electronic filing in civil appeals, and, coming soon, in criminal appeals as well. This is a cost-savings and convenience for many people, whether during the pandemic or not, although some still find physical filing more accessible.

When the vaccines have been widely administered and the virus is somewhat under control, will it be business as usual pre-pandemic?

I hardly think so. The positive aspects of applying sophisticated technological innovation to the appellate court experience have been amply demonstrated. Through these innovations we can offer the public efficiencies and convenience that, in my view, far outweigh perceived disadvantages. The appellate “courtroom” will always be with us (I hope!) but hereafter it will be a different place — more accessible, more efficient, more productive and indeed, sometimes when appropriate, virtual.

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