Security, privacy must guide justice modernization, legal profession task force says

OTTAWA — The voice of Canada’s legal profession says security, privacy and access to justice should be preserved as the courts modernize through expanded use of technology.

In a report released Wednesday, a Canadian Bar Association task force says the legal system must build on innovations — such as virtual hearings and electronic filing of documents — adopted in response to the COVID-19 pandemic.

But it stresses that new measures and technology must be rolled out in a way that enhances access to justice and does not unintentionally inhibit it.

Canada’s justice system was already wrestling with case backlogs in the courts when the pandemic hit last year, closing courthouses and pausing many trials. 

Courts were forced to look at different ways of working and accelerate steps toward modernization that many felt were long overdue. 

Hearings are now commonly held via video conference to help prevent the spread of the novel coronavirus.

The task force report, “No Turning Back,” recommends courts and tribunals permanently implement video or telephone proceedings for a wide variety of hearings — especially procedural, uncontested, shorter and less complex matters.

It says the public should be able to remotely view hearings, trials and motions through internet video platforms.

The task force also urges continued use of electronic means, such as online portals and email, to file court documents 

Remote proceedings, electronic filing, payment of fees by telephone and virtual witnessing of wills have generally been welcomed.

However, a common concern is that complex, sensitive matters with many witnesses and experts are more difficult to conduct remotely, the report says.

“This is largely because counsel cannot support their client in person and credibility assessments can be less amenable to online proceedings.”

Enthusiasm for the proliferation of electronic court documents, recordings and webcasts must be balanced with “sober thought about their implications,” particularly the unintended disclosure of personal information in unanticipated ways, the report adds.

While such information has always been formally public, in keeping with the open-court principle, the internet now allows “an audience of incalculable numbers” unprecedented and indiscriminate access to bits and pieces of sensitive and personal information, it says.

“In this context, unrestrained disclosure can chill access to justice as individuals hesitate to forward their claims for fear of eternal shaming, being denied housing or employment and other unintended but common side-effects of online posting.”

The report also recommends:

— Justice-system partners, including court and tribunal administrators, government officials and the bar association, establish a working group to share information on best practices on the security of video conferencing;

— Courts, tribunals and other dispute-resolution bodies carefully examine whether and how justice system data can be made available in a controlled and secure environment to enhance access and improve the system;

— That these bodies establish robust practices and procedures to safeguard sensitive data. 

Addressing the bar association’s annual meeting Wednesday, Justice Minister David Lametti applauded the legal community’s efforts to innovate.

But he noted some obstacles, saying many people have trouble using technology to take part in hearings because they’re simply not used to it. 

Lametti serves with Supreme Court Chief Justice Richard Wagner on a committee looking at the longer-term effects of the pandemic and how to address them.

In pre-recorded remarks, Wagner told the bar association meeting that many of the recent technical solutions have brought the added benefits of increased flexibility, efficiency, lower cost and better access.

“This is a reckoning it is possible to modernize our justice system. And it would be irresponsible to not seize this opportunity,” Wagner said.

A lack of access to justice has profound effects on people’s lives, erodes trust in the legal system and reinforces existing inequities, he said.

“As leaders, we can encourage our community to be proactive and creative, pitch in and try new things to change our justice system for the better.”

This report by The Canadian Press was first published Feb. 17, 2021. 

Jim Bronskill, The Canadian Press