ARTICLE ● Post-COVID courts could see less oral advocacy, more paper-based and remote adjudication: SCC’s WAGNER ● May 21, 2020
Post-COVID courts could see less oral advocacy, more paper-based and remote adjudication: SCC’s Wagner
Thursday, May 21, 2020 @ 3:12 PM | By Cristin Schmitz
Canada’s top judge says the demands of a post-pandemic world will require an openness to innovation and the creation of a “new normal” in the justice system — one which could feature fewer opportunities for oral advocacy by lawyers, particularly in physical courtrooms and appellate courts; more frequent remote hearings and paper-based adjudication; and even the reduction or elimination of the civil jury trial in those provinces where it still exists.
Those were some of the potential reforms canvassed during a May 20 webinar titled, “Will COVID-19 be the catalyst we were waiting for to modernize the courts?” — sponsored by the Canadian Institute for the Administration of Justice — which featured presentations from Supreme Court of Canada Chief Justice Richard Wagner, and British law professor and legal futurist Richard Susskind, who advocates for extensive use of “on-line” paper-based courts which eschew oral advocacy.
Chief Justice Richard Wagner
As courts and tribunals grapple with overwhelming case backlogs caused by the COVID-19 hiatus in their normal operations, “we must see this as an opportunity to critically reflect on the status quo,” Chief Justice Wagner urged.
He noted that the chronically underfunded Canadian justice system was already “in crisis” long before the COVID-19 pandemic physically shut courtrooms last March, compelling the judiciary to organize alternatives for delivering justice, such as remote hearings via Zoom and other online platforms.
“I believe that this health crisis we are facing now is one more reason to change our way of releasing justice in this country,” the chief justice said, speaking from his Old Montreal home against the backdrop of a stone fireplace.
“This means that we cannot simply view the changes to date as temporary measures to bridge us back to normal,” he advised. “They must be seen as opening the door to imagining a new normal. Indeed many of the challenges that were present in the status quo have now been compounded with increased backlogs resulting from adjournments and adjustments of filing deadlines.”
The chief justice said Canadians expect courts to find ways to swiftly address the case backlogs. “Further, Canadians have now come to see that effective alternatives to in-person hearings are possible — and I would endeavour to guess that justifying removing them as an option will become increasingly difficult,” he remarked.
Richard Susskind, British law professor and legal futurist
The chief justice asked lawyers and judges to keep an open mind when considering reforms to improve the system, including those recommended by Susskind.
Commented Chief Justice Wagner, Susskind “has suggested some of the ways we can transform the manner in which we deliver justice, including online judging that leans on paper-based adjudication and asynchronous means to communicate with parties. I agree that we must be open to considering such alternatives.”
However, the chief justice stipulated, “we must remember that confidence in our justice system relies not only on justice being done, but also on justice being seen to be done. To me this means that we must take concerns that are raised by litigants and other members of civil society about transparency, privacy and procedural fairness seriously, and we must critically reflect on the broader function that certain features of our current system carry out. This means letting go of some traditional ways of working which do not serve us well. This also means recognizing that sometimes efficiency and accessibility may not be perfectly aligned.”
The chief justice remarked that he sees within the bar and bench “a lot of resistance to changes” — for example to any idea of limiting the use of oral advocacy in court.
He cited rarely used and long-standing provisions which enable parties and lawyers to submit their cases in writing to the Quebec Court of Appeal, without oral submissions. “Apparently, rightly or wrongly, lawyers and some parties believe that they need their day in court — in other words that they have to get the chance to convince the judges that they should win their case.”
Chief Justice Wagner, who with federal Attorney General David Lametti is leading a national action committee to help the courts across Canada eventually resume full operations, suggested oral advocacy, and in-person hearings, are not always necessary, particularly in appellate courts.
Driving any permanent changes in that regard “will be a long-term exercise,” requiring the gathering of empirical information to determine the effects, he agreed with Susskind.
“I think, just like professor Susskind mentioned … that innovation will prevail because of necessity — and oral arguments are not that needed to succeed,” the chief justice suggested. “I think that lawyers will react positively eventually. Judges will react positively, and will realize that we don’t need to be present in court … at the appeal level. It’s a different story at the trial division level where witnesses come to … court. They are examined. They are cross-examined. Judges have to assess their credibility. That’s a different story, and it’s a new challenge now for the future. But for the appeal courts, whether it be at the court of appeal or the Supreme Court [of Canada] you can decide cases on the [written] material that is before you.”
The chief justice, whose own court will begin conducting appeal hearings via Zoom next month, added “sometimes, of course, oral argument is relevant.”
“But everybody should realize that in the majority of cases [appellate judges] have a pretty good idea where a case will lead us, even before hearing the parties,” he said. “So I think that’s reality. But [oral advocacy] is also part of our DNA in the legal system, and we have to convince the stakeholders — lawyers and judges — that we may not need this time in court in order to make sure that the system works.”
Chief Justice Wagner said the most immediate and pressing problem facing superior courts across Canada is the necessity to get jury trials going again. All jury trials have been postponed and courts are facing large backlogs in the fall. “It’s a great, great challenge,” he emphasized, noting the national action committee he co-chairs with Lametti “will attack this problem.”
“There are several solutions that will be put forward [to maintain the jury trial], but it’s a matter of remedy on the short term,” he explained. “We have to find a way to hold those trials, and the superior court judges throughout the country are struggling on that issue. This is probably the most urgent issue in the legal system right now because of the pandemic, because you cannot have 12 people together in the same room, and all the other problems that follow that, so it is a very important problem. It’s a very important challenge that may bring eventually some changes to our way of doing things, bring changes to our laws as well.”
The chief justice remarked that the pandemic may bring some people to reflect “on the opportunity eventually to change” the jury system. “But in Canada of course it’s a constitutional right for some people to have a jury trial. So it’s not tomorrow that that will be changed.”
He also pointed to Quebec where civil jury trials were abolished after 1978, whereas jury trials for civil matters continue to be available in other provinces. “So maybe eventually that will be one option to change it, but for the time being we are trying to find ways to accommodate,” the chief justice remarked.
Justice James O’Reilly
The moderator of the webinar watched by about 700 people, Federal Court Justice James O’Reilly, a former executive legal officer of the Supreme Court, noted that the top court has had the technical capability to hear appeals remotely for decades — yet the bar has not seized that opportunity.
“The response that was given, when [I] asked why lawyers did not want to use it, was because [lawyers feel] ‘I’m not giving up my chance to travel to Ottawa and stand in that beautiful courtroom on Wellington Street in Ottawa and look the judges in the eye,” Justice O’Reilly said. He suggested lawyers may be somewhat addicted to the pageantry, or even the romance, of advocating in person at the Supreme Court or other appellate courts.
Susskind, who last year published a book titled Online Courts and the Future of Justice, noted that when it comes to evaluating whether a justice system will inspire confidence and trust in the public “we tend, as lawyers and judges ... to think about a system in which we have confidence and trust.”
“And it seems to me, for example, for a younger generation, for our children, they may well have more confidence and trust in an efficient online service than they would in what they may regard as a rather antiquated traditional service,” Susskind suggested.
He said studies must be done to evaluate whether court users have lost or gained trust or confidence in the justice system as a result of the use of remote hearings during the pandemic.
He also noted that the way that litigation is traditionally conducted — and the fees it generates — “works rather nicely” for some lawyers. “Anyone who reads about change theory knows that the first step to change is creating a sense of urgency” and this is what the pandemic has done, Susskind said. “How do we maintain this sense of urgency? How, when the storm passes, as we hope it will, do we discourage the profession from reverting to type? How do we motivate them to continue … to deliver us a service that is more accessible, more sustainable, better regarded? And that takes us into the realms of psychology, as well as economic incentive.”
Conveying questions posed in writing by the webinar audience, Justice O’Reilly asked Susskind whether the use of remote hearings will enhance or detract from courts’ ability to determine difficult evidentiary or credibility issues — particularly since the ability of judges to accurately determine credibility at in-person hearings is already in question.
“I think we have to concede that there will be some cases that turn on questions of facts, that turn on credibility, where no one will be comfortable about conducting this electronically, and which will be open to directing these cases back to the physical courtroom,” Susskind replied. “We also have to concede that it is really widely debated the extent to which human beings are actually very good at determining ... the truth or falsity of statements made by people.”
He noted that videoconferencing can actually enable closer scrutiny of a person during a remote hearing, than would be possible if one were physically present in the courtroom. He said some judges have told him that there are many cases they handle, including low-value civil cases, which don’t turn on fine issues of evidence or on credibility, and which could be appropriately handled by paper-based adjudication.
However, Susskind noted he is not in favour of virtual jury trials, particularly in criminal cases. “I still feel that most criminal trials, of a serious nature, should be held in the traditional way.”
However, if pandemic-caused court closures drag on and lead to “absurd delays in hearings, we may need to think differently,” he suggested.