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| Anita Szigeti |
“As members of the justice system, we have a collective duty and responsibility to ensure that our justice system is relevant and meaningful, now and in the future. But how do we meet that challenge? I say to you today that we must work together and commit ourselves to three guiding principles. Our justice system must be responsive, accessible, and reflective of our society.”
The remarkable ways in which our legal proceedings were catapulted toward change by the pandemic have significantly enhanced access to justice, particularly for disabled or marginalized participants, and especially through the option of virtual participation in hearings. As Chief Justice Tulloch highlights:
“Embracing technological advancements can help streamline court processes, reduce delays, and ensure that justice is delivered in a timely manner. Our success in transitioning the courts to virtual hearings during the pandemic is a testament to our technological capacities. But we must not stop there.”
I am personally privileged to spend a lot of time in the Court of Appeal for Ontario, having argued more than 200 appeals there in my 30-year career. The court leads by example and certainly practises what it preaches. It is to be commended for example for allowing participants to simply select whether they will appear in the court by Zoom or in person, with no explanation required, and the ability to change their mind any time. This simple, practical counsel slip setup has massively increased access to justice for litigants, as their lawyers can appear virtually from anywhere in the province, public health concerns are addressed without having to delay the appeal hearings due to someone falling ill and costs associated with appearing in the court can be reduced. Most importantly, private health information need never be publicly disclosed or recorded. Not requiring an explanation for why counsel seek to appear remotely in court is an inclusive and thoughtful approach.
There can be no doubt that virtual access to legal proceedings in 2023 is necessary to ensure inclusive, barrier-free access to justice. This access is easily offered and consistent with the open courts principle while ensuring compliance with human rights legislation and also supports public health measures in the context of the ongoing COVID 19 pandemic.
Unfortunately, some Ontario tribunals have not caught up with the times. I appear before many administrative tribunals, which are currently in various stages of their development in relation to default mode of hearing, options for means of participation, and what information an application to appear remotely might require from participants. The Office of the Chief Coroner, for example, where inquests are held, has managed an entirely flexible and inclusive approach, holding most of its hearings virtually, but even where selected inquests are presumptively in person, accommodations are made where needed, in a responsive and non-intrusive manner. The Consent and Capacity Board employs Zoom video now as its default mode of hearing, but will make in person proceedings available where they are requested and make sense. Some other tribunals are rigidly refusing to offer in-person hearings, even where they would enhance access to justice and meaningful participation in the proceedings by vulnerable litigants.
Then there is the Ontario Review Board (ORB). Obtaining remote access to this tribunal’s currently presumptively in-person hearings is rapidly becoming an administrative burden that grossly impedes access to justice. Concerns about prejudicial impact on vulnerable individuals with serious mental health issues were raised by several lawyer organizations whose members represent those at the centre of the controversy at every hearing reviewing the situation of not criminally responsible accused. The board’s new chair recently released reasons for a ruling, providing direction on what may be required to obtain virtual access to its proceedings. Justice Michael Dambrot concludes that the ORB was not required to consult about returning to in person proceedings, as this move did not constitute the “adoption of a new policy or rule.” Rather: “It is simply a return to its pre-pandemic procedure.”
This is exactly right, at least this last part — the board has returned quite exactly to how it ran its hearings in 2019. Indeed, how it ran them back in 2002, when I was expecting my first child. I recall having to apply to the chair of the board for special permission not to travel to a hospital in Penetanguishene in my 10th month of pregnancy for fear I would go into labour on route. There was a discussion around this involving everyone and eventually, begrudgingly, I was granted special exemption to telephone in to the hearing. In the last month since the board returned to in person hearings presumptively, I have now heard about colleagues’ bad backs, dental surgeries, vertigo, their teenage kids’ COVID infections, mobility constraints, all manner of personal health and other sensitive information I have no right to, that I do not want to know. Because the board requires “exceptional circumstances” to justify a request to attend virtually. The board then arguably becomes the custodian of all this personal health information, but its records are public, so everyone is forced to disclose. Worrying.
In the last few weeks, I have also participated in mandatory in-person hearings where any remote access was only permitted, once again, by telephone. I’ve been tearing out my hair watching adjudicators throw up their hands in frustration as witnesses struggle to hear and be heard on an old landline. It’s been quite surreal to watch an entire corner of the justice system jointly manifest what feels like a shared delusion that Zoom is yet to be invented. It’s almost impossible to explain how we got here, because it's effectively impossible to understand. This is costing us all.
There are ways to accommodate choice in mode of appearance at any legal hearing. There is a way to do it that doesn’t compel disclosure of sensitive personal health information and make it a matter of public record. There is a way to adjudicate in a modern, flexible, inclusive way. Or to quote Justice Tulloch, to make our justice system “responsive, accessible and reflective.” I say let the Court of Appeal be our guide and let’s all follow their thoughtful lead toward genuine access to justice.
Anita Szigeti is the principal lawyer at Anita Szigeti Advocates, a boutique Toronto law firm specializing in mental health justice litigation. She is the founder of two national volunteer lawyer associations: the Law and Mental Disorder Association and Women in Canadian Criminal Defence and co-author of five textbooks on mental health law. Find her on LinkedIn, follow her on Twitter and on her blog.
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