"This Court will never go back to the way it was when current judges were first appointed": chief justice
Canadian Lawyer has surveyed a number of chief justices of courts across Canada on how they are handling the COVID-19 crisis. Here, in the second of the series, Catherine Fraser, Chief Justice of Alberta and the Northwest Territories, answers Canadian Lawyer’s questions about COVID-19’s impact on the Court of Appeal of Alberta.
What is your greatest concern right now?
My greatest concern is to ensure that all the Alberta courts continue to function and be accessible during this pandemic. Life continues, people need help and the courts must be open to provide that help on a timely basis. The courts cannot shut down.
Functioning courts are key to preserving public confidence in the rule of law. Of course, this has to be balanced with health concerns for the public, lawyers, courts staff and judges.
Courts in this province have faced different challenges. The trial courts, which see the greatest number of members of the public and lawyers, are on the front lines. It is there that the risk to public health and safety has been the greatest.
Because of the nature of appellate work – hearing oral arguments by counsel without witnesses – and because we were already well down the digital records road, this Court has not found it necessary to restrict its work. We have been able to continue to hear all cases but not in person; instead, matters are heard by videoconference or audioconference or, if the parties agree, in writing only. Initially, there were a number of adjournments by request of the parties. But parties quickly shifted to available options for hearings, especially virtual hearings by videoconference.
What specific challenges have you been facing in the wake of COVID-19, and how are you overcoming/adapting to them?
One of the most difficult challenges was figuring out how to continue hearing all matters while at the same time being forced to change the way we actually hear them. This meant that, in addition to all the normal workload of managing and hearing appeals, court staff and judges had to reinvent on the fly how we conduct our work. That included:
And all while continuing to operate at full hearing capacity and hearing cases at nearly the same rate as prior to the pandemic.
Hearings/Sittings:
As of March 16, parties have been invited to choose whether to have the matter heard electronically (by audioconference or videoconference) or in writing or, alternatively, to adjourn by consent.
Overall, from March 16 to the present, 94 per cent of all matters have proceeded or been adjourned to a date certain. Only six per cent of matters adjourned have not been rescheduled.
Working Both On-site and from Remote Locations:
We have taken software, systems and equipment designed for in-office and meeting use and adapted them for virtual hearings. Doing this has pressured and strained our existing electronic gateways and bandwidth which we share with the trial courts.
We have also kept up to date daily on scientific and medical recommendations relating to COVID-19 to ensure a safe on-site workplace.
As of April 16, all clerks and judicial staff are eligible to work from home, and over 85 per cent are now working from remote locations.
What have your experiences been in operating a virtual courtroom?
We learned that this is theoretically doable from a systems point of view but we discovered technical challenges we did not know we had. For example, the need for a new video gateway to allow multiple courts to access the Internet at the same time from courthouses where hearings could be properly recorded.
We have also identified policy and practical issues relating to virtual hearings. Using passwords and other security measures are not necessarily consistent with open “attendance” by the public. But if virtual hearings are open to millions, if not tens of millions of people, that might well militate against people even coming to court. In other words, what constitutes an open court in the digital age and how do we balance legitimate privacy concerns with the open court principle?
We have had to adapt to a new way of listening and asking questions. So too have those appearing before the Court. To assist counsel and self-represented parties, we have published a Reference and Etiquette Guide for Electronic Hearings for Counsel/Self-Represented Parties.
What are your plans for further adaptations?
We are focussing on taking lessons learned from virtual hearings and applying them to improve the hearing of motions and appeals remotely. We are also considering what this Court needs to do to handle the expected additional influx of cases as restrictions ease and trial courts and tribunals/commissions/boards become fully operational.
We are participating in information sharing with other appellate courts across Canada regarding procedures around electronic hearings and online access, e-filing and privacy concerns, all within a robust open court principle.
Are there any technological successes and challenges you wish to highlight?
Over the past couple of years this Court has moved internally to a fully electronic environment. That allowed us to move quickly to virtual hearings. Documents filed electronically could be immediately uploaded into the Court’s electronic case management system (CAMS). All Court records were immediately accessible by the Court’s registry, case management officers, judges and judicial staff.
We are now moving to complete CAMS including a fully operational e-filing public portal. In the fall of 2019, the public e-filing portal was successfully piloted, with 30 participants of the criminal bar and Crown’s office. The target date for the launch of the public e-filing portal is August 31, 2020.
Policies and procedures must be set as part of this public launch. This will involve consultation with a working group from the bar to discuss the various policy issues this raises. For example, should all court files be accessible to everyone on the internet? What privacy issues are engaged and should be protected? How do we balance legitimate privacy concerns with the open court principle? How do we ensure that online access does not negatively impact on access to justice and the willingness of Canadians to seek recourse to the courts?
An online payment portal for filings fees has been launched. The Court is looking to expand that capability to include all fees.
CAMS has five modules in various stages of completion. The remaining modules of CAMS are targeted for completion within 12 to 18 months.
This Court will never go back to the way it was when current judges were first appointed.
Which processes, if any, will your court continue to adopt in the post-pandemic world?
Virtual hearings through videoconferencing will continue to be a useful option in some circumstances.
What are the most immediate changes that would be most helpful for your court to address these challenges?
The COVID-19 pandemic has exposed for all to see longstanding problems in the justice system across Canada. Implementation of technological and systemic changes must be supported by adequate government funding and administrative and operational independence for the courts to manage these changes.
As noted, this Court is moving forward with completion of its electronic case management system which includes a fully operational e-filing public portal. Once completed, this system will enhance public access to the Court.
The Alberta courts have been fortunate that, prior to the pandemic, the Alberta government committed millions to the Justice Digital Program to modernize the Alberta courts technologically. Work on this front is now underway. Implementing e-filing, including a case management system, for the trial courts is a priority.
What can lawyers do to help the courts overcome its challenges at this time?
