The Pandemic and Access to Justice in Canada by CLA Council member Laurie Pawlitza

The March 2020 onset of the pandemic in Canada and the resulting ‘lock downs’ affected  almost every part of Canadian life.  Schools were empty.  Office buildings were unoccupied. And of course, throughout most of Canada, courthouses were shuttered.  Much of the population retreated to their homes and, oddly--stocked up on toilet paper. Within two weeks of the lockdown, schools started to operate remotely. In cities, grocery stores pivoted to online orders and delivery. But the judicial system, which has always relied on in person court attendances and paper filings, was faced with a significant challenge. In Canada,  judges of the Superior Courts are appointed federally, but court services are a provincial responsibility:  the federal government pays salaries and benefits, but the province must fund court houses, court staff and court infrastructure. As the majority of both the federal and provincial  government budgets go to education and healthcare, the Canadian justice system, like many others worldwide, have been chronically underfunded. Most provinces have not  modernized court filing systems,  and despite the remoteness of many Canadian communities, have not funded the necessary technology to allow greater access to the system. Compounding this issue has been the perpetual tension between federal and provincial government funding. As it became clearer that Canada would be ‘locked down’ for months, and not merely a few weeks, the judicial system was forced to confront rapid change. Depending on the province, hearings shifted to phone conferences or more commonly, video conferences on Microsoft Teams or Zoom.  In person court appearances disappeared, and were replaced with  hearings by video conference.  Lawyers, clients and judges alike were soon spending their days with their eyes locked on  computer screens. New protocols had to be developed. If it is a phone conference, how does the judge know who is speaking? When a witness is testifying, how do we know that she is not being coached by someone just off-screen? Given the inability to hear conversations when two people speak at once, how does counsel make a timely objection  to a question ? What happens when there is an internet connectivity issue? Other more mundane issues were also debated: Would the judge gown? When does counsel gown?  If a client or a lawyer is zooming from a bedroom—the only available private place at home,--should he use a virtual background? All of these issues—and others—took time to resolve.  But as one Superior Court Justice said:  “We did our best to keep the wheels of justice turning”. The pivot to delivering justice online has been warmly embraced by many.  Lawyers who have spent the last two years working at home most often talk about the time saved by simply being able to open Zoom and be in court without travelling to the courthouse. Clients in remote areas can access legal help a from a lawyer who is otherwise five hours’ drive away. Witnesses lose less time away from work. But online justice has its detractors. Judges express concern about not having the ‘full dimension’ when hearing evidence or listening to counsel.  Another judge says that ‘never a day goes by’ without a connectivity glitch, where the court ‘loses’ a lawyer or a witness ‘freezes’ during important evidence. The early days of the pandemic meant that curious family pets and children struggling with online school also often made a court appearance.   And throughout the pandemic, proceedings are interrupted by the  family dog barking at the  latest DHL delivery. Other problems arose with the quick adoption of an  electronic document filing system, introduced by some courts. For many, and especially for  self-represented litigants, systems are difficult to navigate.  Many jurisdictions, even within the same province, do not have a common electronic filing system. Materials filed with the court electronically do not always find their way to the judge hearing the matter. Canada is now in the ‘sixth wave’ of the pandemic. Notwithstanding that, children have returned to school and much of Canada has lifted its mask mandate.  Over 80% of Canadians have had two doses of the Covid vaccine, and about 50% have had a third shot. Like a bear coming out of hibernation, Canadians are venturing out of their homes, and most of the country is also returning to in person court attendances. There is little doubt that many of the pandemic changes have improved access to justice for the public. Despite that, many judges feel that the quality of justice being delivered online is not all it could be. Law is an experiential profession. Junior counsel have not been able to watch more senior counsel arguing a matter in court while waiting for their own matter to be heard. And the informal collegiality and advice gleaned in the robing room and in courthouse hallways  has entirely disappeared. Lawyers and judges in Canada do agree: the pandemic changes to the justice system mean that much has been gained. But much has also been lost. Laurie Pawlitza CLA Council member