The digital divide of justice: How much Internet is enough?

Bo Kruk

Bell, Rogers and Telus. The Canadian telecommunications industry is dominated by this group of powerful players. Smaller service providers struggle to compete against these giants in the battle to provide affordable and accessible Internet. The proposed merger between Rogers and Shaw would give Rogers “a nearly national monopoly on cable TV and Internet infrastructure” (OpenMedia press release) and gives cause to consider the implications of such a union.

When the world shifted online in March 2020 because of the pandemic, reliable Internet went from a luxury to a necessity. This new reality highlighted a topic that had long been the discussion of academic and policy circles: the digital divide — the inequality in access to affordable and reliable Internet. The developments in the Canadian telecommunications industry, such as the Rogers-Shaw merger, and the state of Canadian digital infrastructure must be considered if our goal is to provide equal access to our justice system.

In Canada, the divide between urban and rural Internet speeds is striking. According to a 2020 report from the Canadian Internet Registration Authority, median urban download speeds were 44.09 Mbps compared to only 3.78 Mbps in rural Canada. The CRTC has held that the minimum download speed in Canada should be at least 50 Mbps, a minimum 10 Mbps upload speed, with no limit on data (“What you should know about Internet speeds”). These statistics don’t even begin to consider remote communities in the territories and their high cost to access reliable Internet.

According to the most recent data from the CRTC, those in rural Saskatchewan paid the most for the minimum plan considered acceptable by the CRTC: $140/month. Of note, the CRTC excluded the northern territories from their calculations since the minimum Internet plan was not available at the time. However, according to data from the Northwest Territories government in 2021, the cost of the CRTC’s minimum standard for Internet ranged from $169.95/month in Yellowknife to $218/month in Inuvik: up to 1.5 times more than the cost in rural Saskatchewan.

The difference in Internet capabilities between geographic areas across Canada is an important consideration as virtual hearings, brought on by the pandemic, become a feature of our justice system. Without the adequate infrastructure to access virtual proceedings, gains from the shift online will be lost. I wrote an article in March about the state of the access to justice crisis one year from the start of the pandemic. That article left an important question unanswered: has the small claims court procedure across Canada developed to account for the deficiencies in digital infrastructure?

Jurisdictions across the country have taken different approaches to address the spectre of the digital divide in small claims courts. Many courts recognize the reality of the Canadian digital infrastructure, but without remedying the underlying issues, the problem will persist. In Nova Scotia, telephone hearings are the norm with in-person hearings only if deemed necessary. The Prairies continue to leave the use of virtual hearings to the discretion of the presiding judge (they do encourage parties to consider using virtual hearings). While the Alberta provincial court does mention that a minimum upload speed of 10 Mbps is sufficient (in line with the CRTC’s standards), British Columbia’s small claims court procedure is by far the most robust to account for digital difficulties. Trials are in-person in B.C.’s small claims court, but procedural steps are either via telephone conference or Microsoft Teams. In order to enable a smooth continuation of an appearance if a party is encountering difficulties, the B.C. provincial court includes a telephone conference link to allow participants to continue the hearing by phone.

The Canadian justice system currently sits at a crossroads. Some argue that we must return to in-person hearings in the interest of justice. After all, appearing in court is a solemn and serious occasion that cannot be replicated virtually. Others believe that this is the ideal time to develop methods to improve the state of the Canadian justice system to enable equal access for all.

With Access To Justice Week 2021 having recently passed, we cannot let access to justice become a legal buzzword. It behooves the legal profession to recognize the multitude of factors that have contributed to the current state of affairs — including the available digital infrastructure. Limiting the focus of novel initiatives to developed areas of the country with sufficient digital infrastructure means that many people will continue to face a crisis of access to justice. Those left behind will continue to ask: “Can you hear me now?”

Called to the bar of Ontario, Bo Kruk is an LLM student at the University of Ottawa. His current research interests focus on the power of technology in the legal centric world of today.

Photo credit / tutti-frutti ISTOCKPHOTO.COM

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