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Navigating the modern courtroom: Ontario steps up | Karen Heath

Wednesday, September 02, 2020 @ 1:18 PM | By Karen Heath

Karen Heath %>
Karen Heath
In the first two articles in this series, it would be fair to say that my musings on modernizing Canadian courts have carried somewhat of a disparaging tone. It is true, I rode in from The Hague on a high horse, armed with technology best practices from the International Criminal Court I thought were sorely lacking in our justice system. While I do stand by my previous convictions, I offer something different today: a rosier outlook.

Pessimist no more, I can now shout from the rooftops: Ontario has taken a major step in welcoming innovation into the courtroom. The new optimist in me hopes this represents a shift in thinking in the right direction.

In early August, the Ontario Superior Court of Justice announced it was rolling out a pilot program for the use of the “CaseLines” platform in select civil matters in Toronto. The plan is to incrementally expand to other practice areas and jurisdictions. By year’s end, the platform will be used provincewide in all practice areas in the Superior Court. The technology is a cloud-based document sharing and storage platform. It can be used both for remote and in-person court proceedings. Its functionalities include: uploading materials of any size or file format; making private notes and highlighting on documents; searching terms in all uploaded documents; and navigating documents and redirecting opposing counsel and the court to specific sections of a document.

Prior to this roll-out, I may have written a different article. One lamenting about the singularly awful task of reviewing a poorly organized hard drive just to find the information to confirm when the charges against your client were laid (note: it is problematic when it is faster to call the court than actually search your own disclosure). One admonishing the ancient practice of receiving a dozen banker’s boxes in the exchange of productions. One kvetching about the seemingly constant non-billable work of organizing and reorganizing my office to accommodate said banker’s boxes. I think I speak for everyone when I say if I never again see a stack of banker’s boxes teetering and towering between me and the door to my office, no tears will be shed.

As it goes, I would have then pointed to the International Criminal Court (ICC) as a shining example of a court which electronically manages all evidence. The ICC has used an electronic evidence sharing and storage platform since its inception. This is likely out of necessity given the volume of evidence in any given case — I’m talking trials that span five years. Outside of court, evidence can be stored, reviewed, disclosed and viewed through the platform. During a hearing, any party can access the system to pull up evidence in court and mark up exhibits. Each piece of evidence has an “ERN” — an evidence registration number — a unique numerical identifier and a code denoting prosecution or defence evidence.

The custody of the original prosecution evidence goes as follows. The physical piece of evidence is sealed and stored in a vault at the Office of the Prosecution (OTP) and registered with the evidence unit of the court. The item is scanned or a photo is taken of the physical evidence. Once the evidence is disclosed via the evidence platform, the custody transfers from the OTP to the registry. Either party is entitled at any time to view the evidence in its original form, however for the purpose of the hearing, the saved scanned image is treated as an original. This is a court that sits in a jurisdiction far away from the locale of the crimes; as expected, there is not a lot of physical evidence proffered during a case.

This is in contrast to cases in the domestic context, many of which still rely heavily on physical evidence. Here, the Crown may want to flash the smoking gun, so to speak, in front of the jury to drive home its case. A defendant may want to bring a jar of vermiculite into court to demonstrate its physical properties to the judge that just don’t translate from a photograph. The use of this evidence sharing and storage platform in Ontario therefore still necessitates a physical repository for evidence. As evidence is entered as exhibits, courts will still have to be the physical custodian for the duration of the matter. But, instead of banker’s boxes upon banker’s boxes of exhibits, the physical storage will be limited to only those items whose physical presence in court is required.

In response to the pandemic, this technology obviously enables exchange of disclosure or productions without requiring any physical interaction. It facilitates a more organized storage of evidence. Most importantly, it allows for hearings, both remote and in person, to proceed with greater fluidity.

In a post-pandemic world, it will mean that lawyers can live a more uncluttered life. I for one fully embrace the clear workspace, clear mind belief. And I may just get back some of those non-billable hours.

This is the third article in a three-part series. Read part one: Navigating the modern courtroom; part two: Navigating the modern courtroom: Embracing the change.

Karen Heath is an associate at Ruby Shiller Enenajor DiGiuseppe in Toronto with a practice that focuses mainly on criminal appeals. She self-identifies as technologically inept.

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