The pandemic has propelled Ontario’s justice system into the 21st century, with video and audio conference calls, email exchanges and electronic documents replacing many antiquated systems, but it’s also leaving certain portions of the population out of the loop, some lawyers warn.
While many are applauding the courts’ foray away from in-person hearings and paper filing, others warn that the technology is a double-edged sword that is most likely to negatively impact people with a low income, who don’t have access to reliable internet or phone minutes.
“We’re all doing the best that we can right now, but my main concern is that eventually someone will say, ‘This phone thing hasn’t been going so badly, all you need is a cell phone, let’s hold all hearings this way,'” said Jamie Hildebrand, the executive director of the Huron-Perth Community Legal Clinic, which helps low income residents with legal help, including many disputes before the Landlord Tenant Board.
“There are people who don’t have access to basic technology and we can’t assume that they do.”
Lawyers in all parts of the justice system, from tribunals to family and criminal law, admit that there are cases where technology has helped their clients, but also times where it’s been a hindrance to justice.
“No one believes that someone doesn’t have a phone, but it happens,” Hildebrand said.
On a payphone, in the rain
Recently, he was listening in on a hearing during which a person was getting evicted. Hildebrand was there to offer legal advice if needed.
“This gentleman has some emotional and psychological issues where he doesn’t have a cell phone. It’s difficult for him to navigate using it, he’s very suspicious, he has privacy concerns, so he has a mistrust of cell phones,” Hildebrand said.
The client ended up calling into the hearing in a phone booth, with trucks whizzing by, in the rain. He was whimpering, soaking wet, and ended up hanging up the phone.
“Here’s a guy standing outside at a pay phone, there are people walking by and he’s basically pleading, in his mind at least, for a place to live. He’s begging for his life. How humiliating and frustrating and aggravating,” Hildebrand said. “We have to recognize that there are people who don’t have the most basic technology that we presume.”
For some clients, technology has been beneficial, lawyers said, but it takes a lot of planning.
Duty counsel lawyers, for example, are available to provide legal advice. They often look at people’s paperwork to see what solution might be useful, but that can’t happen over the phone, unless someone has kept a lot of documentation and is willing to read it to a lawyer over the phone.
Video and audio hearings have been especially problematic in family court, where at least half of those involved are self-represented.
“For my clients, at least they have a lawyer that has the technology if they don’t, but the self-represented parties are a big concern for the court system right now,” said Bayly Guslits, a family law lawyer at London Ont., firm Harrison Pensa. She handles a lot of legal aid clients.
Pre-planning is key
In London, everything but the most urgent matters were postponed, and those emergency motions were handled by teleconference until two weeks ago, when video calls started.
“You don’t get to see the person, you don’t get to see the judge, and you do lose something without being able to read the facial expressions and make eye contact,” Guslits said.
“I did have at least one conference call where we had to go ahead because no one could reach one of the parties and you just don’t know whether they’re going to be participating or not.”
Another time, a self-represented person tried to call in for 45 minutes and couldn’t connect.
“The judge allowed us to wait it out, told him to get to a payphone and he ended up participating from a pay phone,” Guslits said. “We were fortunate in that situation because it was the only thing on the judge’s docket that day. When the courts are fully reopened and they’re scheduling 10, 20 cases in a day, I don’t think there will be that kind of flexibility.”
Spotty wifi connections in rural areas have also led to problems with video-conferencing, she added.
“I think it requires some advance planning, lawyers getting in touch with clients ahead of time making sure that the technology works,” Guslits said.
“You have to make sure people have access to a phone, whether it’s a pay phone or a friend’s or family member’s phone. You definitely have to plan in advance.”
The technology has allowed clients to participate in court appearances or conferences without having to find child care or figure out how to get to the courthouse, lawyers said.
That’s especially true in criminal court, where in the past, accused people or their lawyers had to appear in court every few weeks to check in, even if their appearance was going to last mere minutes.
“Everything in criminal court is being done by audio right now, and there have been some challenges, for example, having private conversations with your client. When you’re in the same room and your client needs a clarification, you can just address that, but right now everyone has to hang up, then we re-dial and talk privately, and then dial back in,” said Katie Heathcote, a criminal defence lawyer.
“Thus far everyone has been pretty accommodating, with some judges making it a habit to tell people, if you need a private conversation with your counsel, please feel free to interrupt the proceedings.”
Still, it’s been strange to question witnesses during bail hearings by audio, because you can’t see their demeanour.
“We work off non-verbal cues a lot, so credibility assessments for the court can be a challenge,” Heathcote said.
Clients, who in the past didn’t have the resources to make it back and forth to court, are now happier with the teleconferencing, she added.
“Overall clients are satisfied, but we’re not dealing with complex matters right now, nothing that involves possible jail time. For example, we’re only dealing with guilty pleas for non-custodial matters.”
Heathcote said she had one client who was couch surfing or homeless whose social worker helped get him to a phone at the appropriate time.
“It requires sometimes a little bit more leg work on our end,” she said. “We’ve got to put all the pieces together and ensure that our client is going to be ready to go on that date.”
Getting identification to court staff or for a police background check can also be a challenge, Heathcote said.
Now, if someone wants to be a surety for an accused person, they’re asked to take a close-up picture of their ID, then take a selfie with the ID next to their face. “That way, the police can ensure they’ve got the right person when they conduct the background check.”
She said continuing simple adjournments by audio or video should continue, but won’t likely replace in-person court appearances.
“We need to keep in-person hearings,” he said. “It’s a fundamental fact of human interaction. We can’t replace human relationships with a telephone or a Zoom call. Those are virtual attempts that, in my opinion, don’t replace the millions of years we’ve had of evolution producing the way we relate to each other.”