As courts use new technology during COVID-19, some clients are being left behind, lawyers warn
Courts and tribunals have been using audio and video conferences to replace in-person hearings
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.
While many applaud the courts' move away from in-person hearings and paper filing, others warn that the newer technology is a double-edged sword that is likely to negatively impact people with low incomes 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, 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," Hildebrand said. "No one believes that someone doesn't have a phone, but it happens."
On a payphone, in the rain
Lawyers in all parts of the justice system, from tribunals to family and criminal law, admit there are cases where new technology has helped their clients, but also times where it's been a hindrance to justice.
For example, Hildebrand recently listened in on a hearing during which a person was being evicted.
"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," said Hildebrand, who was there to offer legal advice if needed.
The client ended up calling into the hearing from 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 payphone, 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 other clients, newer technology has been beneficial, lawyers said, but using it takes a lot of planning.
Duty counsel lawyers, for example, are available to provide legal advice about what will happen at a court appearance and what rights a person has. 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 people 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 Harrison Pensa in London, Ont., who handles a lot of legal aid clients.
Self-represented parties don't have a handle on all of the new technology, don't know how to navigate the legal system and need to be informed along the way about what is happening, often by lawyers working for the opposing side.
Pre-planning is key
In London, everything but the most urgent cases were postponed during the early stages of the pandemic. Those emergency motions were handled by teleconference until two weeks ago, when Ontario started allowing video calls.
"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."
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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 payphone," 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 Wi-Fi connections in rural areas have also led to problems with video-conferencing, she said.
"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 payphone or a friend's or family member's phone."
'We work off non-verbal cues a lot'
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 only going to last a few 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," said Katie Heathcote, a criminal defence lawyer in London, Ont.
"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."
Heathcote said that so 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, she said it has 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.
She said that clients who in the past may not have had the resources to make it back and forth to court are happier with teleconferencing.
"Overall, clients are satisfied, but we're not dealing with complex matters right now, nothing that involves possible jail time."
Verifying ID tricky right now
Heathcote said she had one client who was couch surfing or homeless whose social worker ended up helping him get to a phone at the appropriate time.
"It requires sometimes a little bit more legwork 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 [court] date."
If someone wants to be a surety for an accused person, for example, 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," Heathcote said.
She said holding simple adjournments by audio or video should continue, but won't likely replace in-person court appearances. Hildebrand agrees.
"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."