New court rules panned by lawyers and access to justice advocates
This column was published in Postmedia's Kenora Miner & News on March 31, 2022. It is available on the newspaper's website.
Recent edicts from Ontario’s judiciary about the format for post-pandemic court proceedings have been largely panned by lawyers and other justice participants. The new guidelines are viewed by many as a step backwards in the court’s long overdue modernization. But while lawyers may be frustrated, it is their clients, taxpayers, and those in smaller, remote communities that will pay the price.
While COVID-19 has taken a historic toll on all aspects of our lives, in the courtroom, it has been a catalyst for modernization, spurring courts to do more to keep up to their digitalized counterparts in other jurisdictions. Courts are an essential feature of a just society, and with the onset of the pandemic, they were finally forced to reckon with an antiquated, paper-based system. Prior to March 2020, courts were operating closer to the age of ink and quill than Microsoft and Zoom. They have since leapfrogged by 20 years in just over 20 months.
The results have been transformative: a new online document system replaced file boxes and copious printing and binding, online filing has replaced long queues at wickets, videoconferencing replaced in-person court appearances for most matters, and colonial gowns and tabs were cast aside in favour of conventional business attire (at least from the waist up).
For Ontario’s northern and rural communities, these changes hold great promise for access to justice. In satellite court locations, or courts without a local judge, no longer has it been necessary to wait for a judge to come to town. Parties could appear remotely from their own location or lawyer’s office on dates from an expanded calendar of virtual sittings.
Likewise, the need for northern and rural clients to pay costly lawyers’ disbursements for travel, couriers, and printing is gone too, with electronic documents and remote meetings and hearings becoming the norm. The expansion of broadband internet to more regions of the province holds promise for further gains, particularly for remote municipalities and First Nations.
Frankly, virtual court appearances have also helpfully reduced the need for a major cost to taxpayers too – courthouse real estate.
Above all, these modernization efforts have opened more choice to consumers of legal services, by reducing the need to hire a lawyer that is based close to home. This is made possible by virtual courts, the limited necessity of travel, and reduced requirements for hand-signatures on physical paper. This has been particularly important for rural and northern communities, where a “greying” and shrinking bar has led to issues finding appropriate counsel at competitive rates.
While it seems that some of these gains were here to stay, “guidelines” issued by the courts earlier this month have put on the brakes. These guidelines suggest a return to in-person attendance for many routine courtroom appearances, as well as for out-of-court processes, like civil mediations and witness examinations.
For courtroom lawyers, who had restructured their practices to appear in multiple locations across the province in a matter of minutes, their work is now impossible. A routine 15-minute appearance to adjourn a single matter may now take hours of travel and sunk productive time waiting in a courtroom. This is time that may ultimately be billed to clients or that will put upward pressure on rates due to lost efficiency. These measures serve no substantive purpose, nor is the increased travel environmentally sound.
If the court’s direction seems tone deaf, it also appears to have been reached with limited concern for the consequences for access to justice, especially for some of the most marginalized in our society. Legal Aid Ontario, which pays lawyers in private practice to represent low-income persons in criminal and family matters, has structured many of its policies around a virtual-first format.
For instance, LAO has directed its staff lawyers not to assist with routine adjournments on behalf of lawyers representing the clients they are funding. With the court’s requirement to attend far-flung courthouses in-person for more appearances, this means that lawyers will be less interested in taking Legal Aid clients, particularly in distant locations. All of this reduces choice and access for those needing representation.
The civility politics and deference of the Ontario bar often constrains its outrage, but the legal community’s frustration with the court system’s step backwards is palpable. Judges often sermonize other justice sector participants to do more to improve access to justice. What many of those stakeholders are now asking is why the court fails to see how the policies under its own control are becoming part of the problem.
Douglas W. Judson is a lawyer and community advocate based in Northwestern Ontario/Treaty #3 territory. In his new regular column for the Miner and News, he’ll be writing about law, government and politics with a regional perspective. It is his goal to inform readers about what new policies and legislation mean for the public. Connect with him at firstname.lastname@example.org or @dwjudson.