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COVID-19 is modernizing courtrooms — but for whom? | Kendra Landry

Friday, August 21, 2020 @ 3:45 PM | By Kendra Landry

Kendra Landry %>
Kendra Landry
Over the past few months, the COVID-19 pandemic has fundamentally changed our lives and work practices. Courtrooms, for instance, have begun to operate remotely — integrating technology into a system that is regularly faulted for being out of date. While technology is often posited as a solution to the justice system’s inefficiency, costliness and outmodedness, it may introduce additional barriers for self-represented litigants and those of limited means.

In its report “Reaching Equal Justice,” the Canadian Bar Association writes about the deplorable state of access to justice in Canada; Canadians are losing faith in the justice system, widely perceived as inaccessible to ordinary people and as solely protecting the interests of those with financial capital.

The barriers and impediments inherent in Canada’s justice gap have only been exacerbated by the COVID-19 pandemic, as vulnerabilities and inequalities have escalated and institutional delays have skyrocketed. Accessible justice must be prioritized as we move forward, especially when we consider the increased need for legal services caused by the pandemic.

Despite technology’s predominance in our everyday lives, the court system has been resistant to change. Many in the legal community have called upon our court systems to modernize and implement technology into daily practice. Justice Rosalie Silberman Abella criticizes the Canadian justice system for its outdatedness. In an article in The Globe and Mail, she writes: “I cannot for the life of me understand why we still resolve civil disputes the way we did more than a century ago,” despite all of the profound societal changes that have permeated recent history.

Since the beginning of the pandemic, both national and global actors have praised the use of technology in courtrooms. Family law lawyer and mediator Marcus Sixta, for instance, in a CBC article, praises remote access and online processes as positive developments for the courts, which could allow for the physical space of the court to be reserved for urgent matters. In a Globe and Mail article, criminal lawyer Danielle Robitaille showcases that Zoom hearings can be fair and timely, and are an effective avenue to address the backlog of cases in an overburdened system.

Likewise, former chief justice Beverley McLachlin is confident that technology will increase the system’s fairness and efficiency, and pleads for its continued use after the pandemic. On a global scale, the United Nations Development Programme and United Nations Office on Drugs and Crime call for the embracing of information and communications technology in courtrooms, as well as for the establishment of policies and procedures for remote hearings.

Despite the many advantages resulting from increased technology in our legal processes, an issue that has been largely ignored is whether these will equally benefit litigants of limited means. Self-represented litigants in particular will face tremendous challenges moving forward.

The Lawyer’s Daily Digital Reporter John Schofield writes about the fears that self-represented litigants are being “left behind” in the COVID-19 pandemic, which has caused a significant drop in judicial participation of those socioeconomically vulnerable.

While technology can be beneficial and can streamline the court process for some, it proves challenging for others — especially those without access to a computer or Internet connection. Further, many have limited computer skills, as well as limited English (and French) reading comprehension and writing skills.

Poverty or rurality, for instance, can completely bar meaningful access to these resources, which are especially fundamental in the era of COVID-19 for those preparing cases and pleading them via Zoom and other online platforms. Over three million Canadians lived in poverty at the outset of the pandemic; many cannot afford Internet access (or must forgo food and other necessities to pay for it), though most of the information and resources for self-represented litigants is found online.  

Additionally, some litigants will be unable to adapt and navigate complex and quickly evolving systems while socially isolated. Self-represented parties are confronted with processes and legal jargon that can confuse even those with legal training. Now, litigants affected by computer illiteracy or illiteracy in both official languages cannot reasonably be expected to complete legal forms, communicate via e-mail correspondence, navigate relevant legislation and jurisprudence and prepare their own arguments and defences.

If processes are not implemented systematically to ensure that everyone can use them, many parties will be left unsure of where to turn, unable to advance their valid claims or confused about their ongoing cases.

Though technology and remote hearings can help mitigate access to justice problems and institutional delays for some, it can exacerbate issues for others — and cannot be viewed as the golden solution to the problems that have long plagued the justice system.

Technology can be exclusionary; while embracing its usefulness, courts must be wary of its drawbacks, especially as it relates to those who are self-represented. Our access to justice crisis requires an intersectional attack plan to truly address all inequalities faced by self-represented litigants. We must keep the lived realities of low-income litigants in mind as we navigate the COVID-19 pandemic and the legal landscape in its aftermath.

This article is the third of a series on self-representation. The first article: Law schools must teach about self-represented litigants | Cassandra Richards; second article: Immigration detention: Lack of legal representation | Madeleine Andrew-Gee.

Kendra Landry is a second-year law student at McGill University. She will focus on human rights law, family law and torts law as she continues her studies.

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