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Alison Craig, Posner Craig Stein LLP

‘Chaos’ in court during Rogers outage, contingency plan needed, lawyers say

Tuesday, July 12, 2022 @ 2:52 PM | By Amanda Jerome

Last Updated: Tuesday, July 12, 2022 @ 3:14 PM


As the federal government directs Canada’s major telecommunications companies to come to “a formal agreement within 60 days” to ensure resiliency of Canada’s networks, lawyers are speaking out about their experiences in the justice system as millions of Rogers users, including the courts, were without Internet on July 8.

“It was chaos,” said Alison Craig, founding partner of Posner Craig Stein LLP in Toronto.

Craig, who was in the Newmarket courthouse when the Rogers outage occurred, noted that “it wasn’t just the inability for people to Zoom in” for court matters, but the “Internet was down in the entire courthouse.”

Alison Craig, Posner Craig Stein LLP

Alison Craig, Posner Craig Stein LLP

“Crowns couldn’t access their files; the court couldn’t access their files, so it was a complete nightmare, actually. Most things now are done by Zoom in terms of set day courts and bail courts, so none of that could happen,” explained Craig.

The criminal defence lawyer noted that in Newmarket “everything was presumptively adjourned” until the following week, which will “cause some chaos because they’re going to have twice as many matters on all the dockets.” 

She explained that the court was “able to get up and running one or two bail courts, so they could deal with a couple of consent releases, but anything that required sureties” couldn’t happen. Craig expects that due to the outage there “will be a backlog in the bail courts.”

“I’m not a techie,” Craig admitted, but “there’s got to be some sort of backup system that they can rely on …”

David Quayat, a Crown with the Public Prosecution Service of Canada’s Ontario Regional Office, also believes a contingency plan is needed. 

Quayat was working from home on Friday on a “lengthy bail hearing” that was scheduled to proceed in the Brampton courthouse when the outage occurred.

The first issue, he noted, was “just how little information was getting out of the courthouse because” its “computer systems were not connected to the Internet.”

“The big problem was we had no way of getting information out of the Brampton courthouse other than random people with Bell phones, or people on non-Rogers networks, they could get information out. But that’s a heck of a random way to get info. There was no ability for the court as an institution to really effectively transmit information to anybody because they had no e-mail servers,” he explained.

One of the “interesting consequences of the pandemic,” Quayat said is “everyone’s pushed to digitize court operations.”

“We’ve got to go online, we’ve got to make it virtual because that’s the environment we’re in,” he said, recalling, however, that early in the pandemic a lot of matters had been done via conference call lines used by the Ministry of the Attorney General (MAG).

“MAG had set up these conference call lines, so bail courts, pretrials with judges, et cetera, were all happening on this phone environment for a while. Some of the earliest bail hearings I did during the pandemic were all by telephone. And then, at some point, everyone said, ‘well, let’s switch to Zoom,’ ” he explained, noting that when the move to Zoom happened, all the dial-in information moved to that platform as well.

“All those old conference call lines were not being used anymore. So even the technology to call the court was Internet dependent because the court had pivoted 100 per cent to Zoom,” he said.

During the Rogers outage, a few courtrooms, one “in Superior Court with Justice [Bruce] Durno” and “some of the bail courts at Brampton,” pivoted back to “those old conference call line numbers and had to fire that back up,” explained Quayat, noting that the vast majority of matters were subject to bulk remands.  

However, he noted as an example, that even if the bail court was able to use the MAG conference call number, the defence lawyer and the sureties on the bail hearing he was working on were Rogers customers, so important participants were unable to connect.

“Much of what is done at the courthouse is still done remotely, particularly the administrative courts where we check in with the courts on the status of a matter,” he said, also noting that “proceedings have to be recorded,” which was also impacted.

“Whether it’s a provincial court or a superior court, court reporters have to be able to log in and operate the recording software. Guess what? All that is Internet enabled too. There’s no part of the normal operation of a courthouse that wasn’t effected in Brampton on Friday because, whether you’re talking about participants, the actual staff in the courthouse who were operating the courtrooms, virtual or otherwise, the participants who have to dial in or log in, the public who has to dial in or log in, all of them were independently affected by the outage, and it made Friday quite chaotic and difficult to manage,” Quayat said.

Quayat, who is a Bell customer, was tweeting Brampton courthouse updates during the outage and letting people know that matters had been remanded to August or even September.

“The very practical reality is there were at least, to my knowledge, three lengthy bail hearings scheduled for the Brampton courthouse on Friday. We’re trying to now find new dates for that and that involves making sure the lawyers are available, the sureties or other participants in those hearings have to rearrange their days and be available,” he told The Lawyer’s Daily, noting that the “the courts are trying to cope with that as best they can.”

“Some of it will be very short-term pressure to deal with people who are on bail or in detention,” he said, adding that “for matters that were not in custody, you’re talking about stacking up appearances on other days that are already loaded with people.”

“Those courts are going to have to work longer days and process more cases on those days. I know in the grander scheme of the pandemic, maybe a month or two doesn’t seem like that much, but for cases that have probably already experienced some pandemic related effects this is one more layer of administrative delay that is on top of a system that is already trying its very mightiest to cope with two years of pandemic backlogs,” he stressed.

Although it runs against the grain of the pandemic’s shift to an online world, Quayat believes low-tech solutions are needed as a backup.

The Crown recalled that early in the pandemic he had an appeal at the Ontario Court of Appeal and “one of the judges made it known that she was calling in on a landline.”

“We were having trouble getting the audio working and she said, ‘I’m on a landline, so I’m OK.’ And she goes, ‘I’m kind of glad I have a landline.’ And on Friday it made me think, well, maybe we need a few more landlines,” he said.

“I know that sounds kind of counter-technological because a lot of phones are VoIP or Internet enabled phone systems. I think, realistically, we still have to have some kind of contingency plan to be able to pivot to in the event of a broader digital interruption. Technology is always advancing, and I don’t want to sound like a dinosaur, but there is an element to this that perhaps sometimes low-tech solutions are the best solutions,” he said.

“We made bail courts and other administrative courts work via phone early in the pandemic. That was impeded on Friday because everyone had gotten swept up in the move to Zoom technology movement of the last year or so,” he added, noting that he’s “not being critical because that’s what we had to do in the face of the pandemic.”

However, he explained, courthouses and the legal profession “need to consider contingency planning because if anything, the pandemic has taught us we need to be ready for contingencies.”

“Having some kind of contingency system that is not necessarily Internet dependent might be a prudent thing to consider going forward. Don’t throw out your landlines. Don’t abandon those just yet. I’ll be the first to admit, I don’t have a landline in my house, but I can tell you that after Friday I’m seriously thinking about enabling it because maybe that’s what we need to give ourselves the option,” he added.

Quayat stressed that “if we’re talking about the administration of justice, we need some lower-tech solutions that can be pivoted to.”

Craig, who had to return to the Newmarket court on Monday, noted there were “a couple of women who were in bail court who had been arrested on the Thursday of last week late in the day, with shoplifting charges. And because the Crown wanted to have a bail hearing rather than just consent to their release, they spent five days in custody for shoplifting charges; two women with no criminal records.”

“That’s more time than they could get if they were convicted of minor charges like that. So, there’s got to be some sort of backup system,” she also stressed.

Both Quayat and Craig noted that despite the disruption of the Rogers outage, the legal profession pulled together to try and keep matters moving.

“In the hallways of the courthouse, it was kind of neat, justices of the peace, and judges and Crowns, and duty counsel, everyone was standing in the hallway discussing what to do. It was really nice to see. It really was everyone working together on a solution,” said Craig, noting that people were doing the best “they could, getting a couple of bail courts up and running at the very least.”

Quayat noted that the lawyers he interacted with during the outage were “all accommodating and understanding.”

“Everyone was in good faith on Friday, and everyone did their best. I do think it’s a credit to the bar that there seemed to be, at least from my perspective, nothing but co-operation and an attempt to help each other throughout. I had defence lawyers calling me about, ‘hey do you know where I might go to get this?’ or ‘How we’re going to manage that?’ We all did the best we could and that’s what, as professionals, should be expected of us,” he added, noting that he was “quite heartened” by the experience.

“The bar did try and come together and manage files as best they can, and we’re still managing the effects and, hopefully, we’ll stay kind to each other,” he explained, suggesting that the “master contingency plan is just to be kind to each other; we’re all doing the best we can.”

According to a statement made by Tony Staffieri, Rogers’ president and CEO, on July 9, the company believes it’s “narrowed the cause” of the outage to “a network system failure following a maintenance update” in its “core network, which caused some” of its “routers to malfunction early Friday morning.”

“We disconnected the specific equipment and redirected traffic, which allowed our network and services to come back online over time as we managed traffic volumes returning to normal levels,” he explained.

Staffieri said Rogers knows “how much our customers rely on our networks” and he “sincerely” apologized.

“We’re particularly troubled that some customers could not reach emergency services, and we are addressing the issue as an urgent priority,” he added, noting that the company will “proactively credit all customers automatically” for the outage.

“This credit will be automatically applied to your account and no action is required from you,” the statement explained.

François-Philippe Champagne, minister of innovation, science and industry

François-Philippe Champagne, minister of innovation, science and industry

In a press conference on July 11, François-Philippe Champagne, the minister of innovation, science and industry, said he’d met with the leaders of Rogers, Telus, Bell, Shaw, Videotron, SaskTel and Eastlink via conference call to discuss the situation.

Champagne said he expressed “the frustration of more than 12 million Canadians that were affected for hours by the national outage” of Rogers and the frustration of “emergency services, like 911, that were down for hours.”

“I did say to the CEO of Rogers that I expect them to proactively and fully compensate their customers. I told them, in a sense, that this was unacceptable. Full stop,” he added in his comments to the press.

The minister then noted that the focus of his call with the CEOs moved to the “resiliency” of networks across Canada.

“I’ve demanded that they take immediate initial steps to improve the resiliency of our network. This will be in addition to the CRTC inquiry to investigate the root cause of the failure and make additional recommendations about what we can do to improve the network resiliency in Canada,” he explained.

“In essence,” he added, he’s directed that the telecom companies in Canada to “enter into a formal agreement within 60 days of today, at maximum.”

He noted that the agreement would be “similar to what the Federal Communication Commission did in the United States, which was enacted on the 6th of July, to improve resiliency during disasters.”

“The first thing that I want the formal agreement to cover is mutual assistance during an outage. The second thing is emergency roaming, particularly during the times of emergencies. And communication protocol to better inform the public and the authorities during these times of crisis,” Champagne explained.

“All these measures taken together will add resilience to our network and make sure we are better prepared if anything similar will ever happen in Canada,” he concluded.

On July 12, Ian Scott, chairperson and CEO of the Canadian Radio-television and Telecommunications Commission (CRTC), said the commission has “ordered Rogers Communications Canada Inc.” to “respond to detailed questions and provide a comprehensive explanation regarding the national service outage millions of Canadians experienced on Friday July 8, 2022.”

“The CRTC is requesting a detailed account from Rogers as to ‘why’ and ‘how’ this happened, as well as what measures Rogers is putting in place to prevent future outages,” he added, in a statement, noting that the CRTC takes “the safety, security, and wellness of Canadians very seriously, and we are responsible for ensuring that Canadians have access at all times to a reliable and efficient communications system.”

“This is the first step the CRTC is taking to improve network resiliency for all Canadians in response to this significant outage. Events of this magnitude paralyzing portions of our country’s economy and jeopardizing the safety of Canadians are simply unacceptable,” Scott stressed.

Scott also acknowledged the “actions taken by Minister Champagne” on July 11 “to direct the major telecommunications companies to reach agreements on (i) emergency roaming, (ii) mutual assistance during outages, and (iii) a communication protocol to better inform the public and authorities during telecommunications emergencies.”

“Once we are satisfied with Rogers’ response to our questions, we will determine what additional measures need to be taken,” he added, noting that “Rogers has until 22 July 2022 to provide its responses” to the inquiry.

The Lawyer’s Daily reached out to the Ontario courts for comment during the outage on July 8 and received responses from the Court of Appeal and the Ministry of the Attorney General.

The Court of Appeal registrar responded via e-mail and said, “it’s business as usual at the Court of Appeal (at the Osgoode Hall courthouse).”

Emilie Smith, a spokesperson for the Ministry of the Attorney General, told The Lawyer’s Daily that the Ministry was “aware of the widespread Internet outage.”

“Many courthouses are still operating as usual today,” she said in an e-mail sent on July 8, noting that in “cases where matters are affected, we are working with justice participants to ensure as many scheduled hearings as possible continue to be heard in the courts, both in person and where possible, on Zoom.”

 “As for the rescheduling of matters delayed or postponed by the outage, the judiciary has exclusive authority over the scheduling of court proceedings including the method of proceeding,” she added.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Amanda Jerome at Amanda.Jerome@lexisnexis.ca or call 416-524-2152.