Counsel for the Debate

Stephen Hodgson and A.J. Brown have decided to test themselves by writing a series of ongoing debates for their Moot Times submissions. The content of these debates will relate to contemporary issues, with the sides of the arguments being determined by a coin toss. This week, they will be examining the arguments for and against picketing.

The Case For Digitization

As we enter the sixth month of the notorious period known as “COVID Times,” we are beginning to get a sense of how the legal profession might look in a society more willing to embrace digitization. Although there are certainly some areas in which digitization has had a negative impact, in this part of the column I am going to be arguing that digitization remains an overall positive step for the law, even though there remain some speed bumps in its implementation.

Legal processes have changed dramatically as a result of the presumptive adjournments of the Courts of Alberta, with Courts forced to change in order to function. No longer is the video or telephone appearance confined to those in custody but now lawyers and clients alike can make some appearances from the comfort of their own offices and homes. There are also a number of administrative courtroom processes, such as those conducted by the Case Management Office, that can now be dealt with by email in advance. The implementation of these changes has come with its own challenges, including (1) ensuring parties are present, (2) making sure that parties maintain court decorum, and (3) establishing consistency of connection for the technology used. The Court clerks have done a wonderful job overcoming these difficulties by creating check-in processes for each courtroom to facilitate digital appearances.

The long-term impact of these changes remain unclear because these processes are still relatively new. However, there are a number of clear positives that have already been derived from them. The efficiency savings in time and effort are huge for practitioners. Previously, counsel would have to make occasional appearances at the courthouse to file paperwork and speak to matters on their client’s behalf, doing their best to work remotely on emails where possible. Practitioners can now appear from the comfort of their own offices, working on other matters that require their attention until it is they are notified to appear. This cuts down on time that would ordinarily be wasted on commuting, paying for parking, and all the other trivial in-person costs that could be more effectively used addressing client needs.

Clients have also benefited from these changes. The courthouse can be a very unwelcoming place for a person who has little experience of being there. In some ways the courthouse experience is not too dissimilar to that of going through an airport: dehumanizing to enter, hard to navigate and unwelcoming and cold to those that are not accustomed to being there. The courthouse can be a tough place for people even before they make their appearance. The option of appearing by phone or WebEx gives the client the opportunity to focus their mental and emotional resources on the matter itself, not distracted by the grandeur and pomp of the in-person courthouse appearance. It is also very convenient for those that are not able to take time off of work or arrange childcare.

Overall, digitization of the administration of justice does come with it’s difficulties but the positives clearly outweigh the negatives for most court appearances, especially for Provincial docket appearances and reviews in the lower courts. Having the option to appear digitally makes the courts much more dynamic and welcoming to the majority of those that will have a legal issue to address. The option to appear digital does not undermine the in-person appearance. In fact, it frees up lawyer time to ensure that oral advocacy can be practiced in its fullest form when required. The times they are a changing, and it’s a good thing that the justice system has finally had to embrace digitization in some form.

The Case Against Digitization Sars-Cov-2 has served as a catalyst to bring the justice system into the 21st century, with courts increasingly relying on proprietary technologies like WebEx to provide socially distant access to the courts. This has allowed courts to open safely, providing an avenue to access the justice system. However, while on the surface this transition appears to open the door to a more efficient justice system long term, this ignores the unintended consequences that such measures have exposed.

Neither the judiciary, nor court staff members, have been prepared for the leap between in person sittings and remote hearings. This has led to a breakdown in court decorum at times, with members of the bar failing to mute themselves to permit orderly proceedings, clerks failing to utilize waiting rooms to reduce the interference of chatter, and representatives who have muted themselves finding themselves unmuted suddenly even though their matter has not been called. These issues are compounded by a non-standardization of equipment, resulting in some lawyers being present via video chat, while others are called in via phone for their appearance. This non-standardization extends beyond participants, as only a fraction of courtrooms are WebEx ready. Many courtrooms only permit remote appearances via telephone, resulting in a reduction in efficiency for those representatives that are set to appear for matters in docket courts. With time and investment these problems may be overcome, new norms may be established. However, no matter how efficient digital access becomes it is still subject to the law of unintended consequences. In theory, digitization should be of great assistance in simplifying the process for self represented individuals; having all necessary information made available online should make the courts more navigable. However, this is only an easy position to take when one starts from a position of privilege. In an age of computers, smart phones, self driving cars, and widespread social media access it becomes easy to forget that not everyone has the resources or knowledge to effectively use these tools. Members of disadvantaged groups struggled to interact with the system when it was enclosed in a physical space that they could travel too, never mind the new digital spaces that require both equipment and knowledge to access that they may be unable to either obtain or use. Adoption of digitization seems like an appropriate solution to the long-term problem of inefficiency in the justice system on the surface. Growing pains such as are being felt now may seem an acceptable cost to achieve this long-term goal. However, the unintended consequences of this adoption is the erecting of additional barriers for access to justice. Societies less fortunate are already susceptible to unrealistic funding models for legal aid, inadequate funding for social programs, social housing, and the impact of intergenerational trauma. Should we really be increasing the difficulty in accessing justice by implementing a technological firewall that unintentionally excludes societies less fortunate?