"Modernization is no longer an option; it is critical," Chief Justice Richard Wagner tells CBA AGM
A significant investment in technology and training in the correct use of that technology, funded by government, are both needed to improve access to justice, a Canadian Bar Association task force said in a report released at its annual general meeting on Wednesday.
The recommendations in “No Turning Back: CBA Task Force Report on Justice Issues Arising from COVID-19” focus on modernizing the justice system and calls on governments to provide the necessary funding.
“Modernization is no longer an option; it is critical,” said Chief Justice of Canada Richard Wagner, a judicial member of the Task Force, in a recorded address to the CBA’s 103rd AGM. “Our justice system was not prepared for this global health emergency,” but the use of technological innovations developed to cope with pandemic restrictions “must continue,” he added.
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The CBA Task Force on Justice Issues Arising from COVID-19 was launched in April in response to the pandemic; co-chaired by CBA president Brad Regehr and past-president Vivene Salmon, the task force included four chief justices and representatives of Justice Canada, law societies and law deans.
Its report makes 18 recommendations “for moving forward on innovative, efficient and effective modernization that put people seeking justice at the centre, to increase access to justice and confidence in the justice systems,” Salmon said in a news release.
The first recommendation is that all dispute resolution bodies such as courts, tribunals, boards “should permanently implement” remote proceedings for settlement conferences, examinations for discovery, various hearings, motions, trials and appeals, along with electronic filings, and enabling hearings, trials or motions to be viewed via an online platform such as Zoom or YouTube.
Other recommendations include:
- establishing a working group of justice system partners, including court and tribunal administrators, government officials and the CBA, to share information on best practices on the security of videoconferencing and evaluate all videoconferencing platforms;
- establishing sound practices and procedures to safeguard sensitive data;
- consideration by justice system stakeholders of the implications on access to justice of AI and other emerging technologies used in the courts for marginalized groups, and to remove any negative impact
- preparing a tip sheet on best practices to ensure public and media access to courts in a way that respects open courts and privacy principles;
- technological and virtual platform training for judges, members of administrative tribunals and boards, mediators, as well as for self-represented, marginalized and other litigants who require support.
- appointing a federal Justice Innovation Champion to work with provincial and territorial governments to lead the implementation of new measures, procedures and technologies to deliver justice remotely;
- collaboration with domestic and international agencies to establish best practices.
In preparing its report the task force considered the types of disputes that lend themselves best to certain technologies. A common concern expressed by the bar was that “complex, sensitive matters with many witnesses and experts are more difficult to conduct remotely,” according to the report, as counsel cannot support clients in person and credibility may be harder to assess in online proceedings.
The Immigration Law Section, for example, “raised security, privacy and confidentiality concerns with the web-based document delivery system to communicate with the Immigration and Refugee Board,” and “the Family Law Section commented on the risk that informal remote proceedings can create a lack of appreciation for the seriousness and decorum of the justice system,” and can make it more difficult for bullied, abused or intimidated individuals to speak up.
“The experience in Belgium is instructive with its recognition that only personal details directly connected to the principle and purpose of open courts should be published,” wrote the report’s authors, “to attain equipoise between that important value (la publicité des audiences) and privacy of litigants, who might otherwise fear accessing justice if information superfluous to public consumption but sensitive to process participants were divulged.”
To that end, the task force recommended that dispute resolution bodies establish robust practices and procedures to safeguard sensitive data, and to “ensure that publishing sensitive data is done purposefully and guided by the atteinte minimale principle.”
“The pandemic kick-started a modernization of the way the legal profession and the justice system provide services – something the CBA has been advocating for a long time,” said CBA President and task force Co-Chair Brad Regehr in the news release.
“We now need to make sure these changes are sustainable and that they are properly implemented to enhance access to justice.”
