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Courts can learn to modernize through COVID-19 crisis, experts say

Friday, March 20, 2020 @ 12:20 PM | By Terry Davidson

Courts relying on the news media to provide openness after barring the general public from proceedings during the COVID-19 outbreak has cast light on the justice system’s lack of progress in using social media and technology to stay accessible, legal minds say.

This comment comes after a handful of Canadian courthouses operating in limited capacity barred the general public from entering as part of ongoing efforts to slow the COVID-19 outbreak. However, in most of these cases, the courts are allowing members of the news media entry in a bid to maintain the justice system’s open courts principle.

As of mid-March, the Supreme Court of Canada, Alberta’s Appeal Court, the Supreme Court of Yukon and the courts of Manitoba are some that had started doing this.

Trevor Farrow, Osgoode Hall Law School professor

But Trevor Farrow, a professor at Toronto’s Osgoode Hall Law School, says the current crisis has shined a spotlight on the fact that the courts, having lagged when it comes to modernization, have little choice but to turn to the news media to keep proceedings publicly accessible during this crisis.

“I think the broader conversation is to talk about whether the justice system, generally, and courts, in particular, are anywhere near responsive enough [to] current demands around transparency; to social media; to the ability for people to access the building; the process and the results, both in-person and virtually,” said Farrow. “And I think everyone would agree — court staff and judges included — that courts have a long way to go to modernize in terms of not just electronic process, not just electronic trials and hearings, but, overall, an attentiveness to modern technology. That’s not a controversial statement, but I think it’s a true statement. And I think that it applies notwithstanding the current crisis.”

Farrow went on to say that while these courts are doing the best they can, a better grip on technology and social media would have helped.

“Now, we find ourselves in a crisis, and we’re dealing with the hand we’ve been dealt, which is a court system that, although trying to modernize, is significantly behind from a technological perspective. So, we’re starting from a deficit, and it’s hard to catch up during a crisis. So, what does that mean? Do I think courts are striking an appropriate balance today, this week, in the early stages of this crisis? Probably. I think everyone is trying their best to balance the obvious competing factors. As a general matter, I think courts need to be more open, more accessible on a number of fronts, and that would help us in these sorts of times of crisis.”

But Farrow stressed that Canada’s justice system, generally, has lagged in modernizing.

“I put the whole legal community in that same boat,” he said. “I think all of us — educators, lawyers and judges and tribunals — can do a lot better to modernize. The whole issue comes into sharp relief when you’re facing a pandemic like this because you’re now at the stage where you’ve only got the tools you’ve got, so it’s putting a spotlight on what we can and can’t do, and I think at the moment the courts are doing the best they can within the current justice system, that, if we’re all honest, is significantly behind when it comes to modernization, and that includes technology.”

Ashley Avery, Coverdale Courtwork Society executive director

Ashley Avery, executive director of the Coverdale Courtwork Society in Nova Scotia, calls it problematic for courts to rely strictly on news media to uphold open courts.

She has seen it in her own community.

“Using digital media such as Twitter and live blogging to publicize information from inside the courtroom strengthens the open court principle and improves access to justice,” said Avery. “It is problematic to rely solely on existing news media to uphold the open court policy, as there is an ever-declining number of reporters present in courtrooms with a noticeable drop in court reporting in this province. Additionally, their reporting is often limited. As a community-based organization serving marginalized populations we strongly maintain that the community does and should play a vital role in monitoring and advocating for access to justice. … Innovative technologies provide an unparalleled ability to distribute large amounts of material to the public — this surpasses the capabilities of traditional media.”

But Farrow remains optimistic the justice system will see the COVID-19 crisis as an opportunity to move forward.

“My sense is there are going to be numbers of sectors of society, including universities, including law firms and including courthouses that are going to learn significant lessons from responses to this pandemic. And I think we’re going to learn that it’s easier than we think to address privacy concerns and open up virtually and to do stuff virtually. I’m not resigned to the fact that we need to have second-class transparency. I think, as a society, we need to protect and cherish the open court process, and I think we’re going to get better at that as we move forward, and it’s going to include things like social media, it’s going to include things like video, et cetera, to help augment what they’ve currently got.”

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