Access to Justice in COVID-19 – Counterpoint

Access to justice? It is not controversial to say that there have been long standing issues with access to justice within our court system for clients. Even before COVID-19, the justice system was facing challenges for quite some time. 

What is access to justice? There are a lot of variations and interpretations to what this means. Simply put- access to justice is an equal right to understand and participate in every situation where law is debated, created, found, organized, administered, interpreted and applied.  

Having access to justice consists of having available options to prevent, address and resolve the legal problems and challenges that people face in their daily lives.

I recently did an interview last month on a series called “ Justice in Pieces” hosted by John Paul Rodrigues, where I had stated that while having the courts go completely virtual is something that needed to be done because of the pandemic, some aspects of the legal justice system in my opinion, simply cannot be done virtually. 

Some quick points about some of the downsides to having courts go virtual:

• Not everyone is computer savvy or digitally literate.

This, in my opinion, is the number one issue. It’s great for people who can navigate a computer or online meeting platform, but for people who did not grow up or grow into this computer technology generation, this is a downside. This may be easy for most – but not easy for all.

Even with the access to technology, there’`s still a handful of technical issues and difficulties both lawyers, judges, parties and court staff have to deal with- ultimately, computers are just not reliable. 

• Being online causes less of an “in person” “feel. 

Having duty counsel or a newly appointed lawyer, a client would need to feel some sort of rapport, this is hard to do virtually. Even when discussing or speaking in court, there are fewer fluid discussions.  The loss of face to face contact has potentially devastating consequences. Virtual set up put’s clients a t a disadvantage as there is a lot of emotional investment lost when they are speaking through a screen. When online, it is hard to observe someone`’s body language which- in the art of conversation, is important. 

Also, some parties including at times the judge,stice is not on camera., a Although this is a choice in online video applications, this might also cause some distance between the parties in the virtual courtroom. 

• The feeling of being “rushed”. 

Let`’s face it. There was a delay on court dates before, there`’s a definitely a delay now. When the pandemic struck initially, the courts across Canada found itself without sufficient conference call lines to accommodate even the urgent matters. 

On the bright side, some cases may proceed a bit more smoothly and currently some cases are being settled quickly out of court. Because of this, clients may feel their cases are being “pushed” “and not actually being heard, due to wanting to move cases along.  

• Risks to confidentiality.

There have been a number of cyber breaeches recently in the online school platform as well as work VPN’`s and other cyber hits and attempts to many platforms. This does n`ot stop with the justice system’`s network. Zoom’`s services were unavailable to the courts for a several months period due to security concerns at the beginning of the pandemic, before the courts reopened. I have n’ot heard anything happening recently with the video conferencing network, but now the justice system may even be more of a target in my opinion, because of the cases brought to the court and sometimes people involved in the cases among other things.

Another aspect of the risk to confidentiality is having someone with a client in the room or in the house while you` are online. While I do n’ot mean kids, because being online does have its advantages (or disadvantages) as kids are home due to lockdown. I mean, someone can be listening to a witness or testimony or see documents that – in person they would not be privileged to.

• Inability for technology to handle the complexity of legal cases.

Pre COVID-19, there is a reason why there are paper versions of Book of Authorities’`, Case Conference Briefs, Volume 15 of book 1, etc. because they could easily be printed! To be able to have all of those documents available digitally and to send for all to have access to could be difficult, and at times not possible. Just before the lock down, lawyers were still giving judges USB’`s!.  Large documents, confidential photos of exhibits, all parties would need to have access to this while being in court online. With a self-represented client, this would be a lot to handle.

• Witnesses testifying virtually.

This speaks for itself. For some, to have to prep or be prepped as a witness is difficult – virtually is more difficult. In a family case where emotions are involved, it can be more complex. However, there is also a possibility of risk of someone other than the parties recording or making notes of the court session. While everyone should get the benefit of the doubt, there are some risks involved with virtual testimony.

• No jury trials/ Trial delays.

To appear before a judge? or to a appear before a jury? Well, that is the question. Whatever the choice, if there is a choice to appear before a jury, currently all jury trials are suspended until May 3, 2021, at the earliest. There is currently a backlog.

• Video Court – in the Jails. 

In my years at the Ontario courts, Video Remand Courts were my longest court days. So many difficulties; calling the different courts and making sure the (right) accused appears before the court, if the equipment was working. While back in 2015, I was amazed at how the video calling system worked, I had realized that technology was way behind. It has also been reported that the video conferencing technology in the jails have insufficient equipment in the institutions.

• Filing court documents/ paying fees.

At the beginning of the pandemic, there was very little information for self-represented clients to find online or anywhere about exactly how to file court documents, who to file them with, and for “emergency motions”, who decides if it goes before a judge and why. Clients have mentioned there would be no one picking up the phone lines in the Toronto courts to provide directions to clients. Now as we are further into the pandemic, it is a little easier for the self -represented party to navigate but not entirely accessible.

Paying court filing fees pre COVID-19, in person, was an option for clients who do n’ot have credit cards or access to a Visa/Mastercard to use. Some clients may not even have bank accounts.

While there are a few benefits to “virtual court ““such as; clients being able to attend court as opposed to going in person where it might be an issue for various reasons, Online Dispute Resolution (ODR), and being able to stay home with kids who are home from school. As well as a few others, there are some down sides, even to the points above.

Ontario’`s justice system is well served by judges, lawyers and administrators, but- we can do better. Access to justice continues to be a challenge for the justice system.  The cCourts were way behind on technology. A lot has changed and this push through COVID-19 is giving the virtual boost that the courts need, but there is still more work to do.