“Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.” - Winston Churchill.
Yes, in the title of this article I wrote that law practice has – and will – change thanks to the Covid-19 pandemic. Churchill’s words above rang true in 1942 during a conflict that required as much societal and economic effort as Covid-19 now demands from all of us. Churchill’s words also ring true today, particularly for pushing law practice and technology forward. It is not “even the beginning of the end” of how technology and Covid-19 are changing the practice of law, but it is “perhaps, the end of the beginning” of the changes that are needed to improve access to justice and make law practice more cost-effective and accessible to everyone.
As lawyers, change is upon us whether or not we wanted it. “Normal” life as we knew it before Covid-19 is likely forever changed, even after social distancing ends. The end of World War II ushered in a different world than the one that came before, an unprecedented era of peace and prosperity for most of the world. Similarly, the pandemic will likely bring with it a better legal system for practitioners, clients, stakeholders, and courts alike.
Covid-19 is forcing us to use videoconferencing, teleconferencing, and teleworking technologies more than ever before. This is allowing urgent matters to proceed virtually before provincial and federal courts alike despite social distancing.
The Ontario Superior Court of Justice issued directives on April 2, 2020, to have its criminal, family, and civil matters proceed by telephone or videoconference where possible. The Court initially only allowed urgent proceedings to move forward, but wisely decided to allow more matters to proceed during the pandemic. While this relies heavily on members of the bar and their clients working cooperatively, Chief Justice Morawetz recently confirmed that the measures are working well so far.
Meanwhile, the Federal Court of Canada is also allowing certain cases to proceed by telephone or videoconference if they are deemed urgent or if the parties consent. The Court is also currently allowing remote commissioning of affidavits and service of documents by email.
These changes are some examples of how government and courts are ensuring that access to justice is maintained using technology. While the measures are temporary, some of them ought not to be.
In practice, a colleague of mine recently successfully completed a cross-examination by video link, showing that the Court’s procedures for remote trials and other litigation steps are working.
The Government of Ontario is also ensuring that non-litigation legal services continue during the pandemic. The Government issued an Emergency Order-in-Council on April 7, 2020, allowing virtual witnessing of wills pursuant to section 7.0.2(4) of the Emergency Management and Civil Protection Act.
Some of the temporary measures put in place by courts and provincial governments could – and should – be made permanently available to improve access-to-justice. This includes procedures allowing remote video testimony, remote affidavit commissioning, electronic service of documents, and remote witnessing of wills and powers of attorney.
These measures do not have to come at a diminished quality. Further, they would make aspects of our system more efficient by reducing costs and increasing availability for participation in trials, discoveries, and other judicial processes. Being able to testify by videoconference in more situations would reduce or eliminate travel costs, making litigation less expensive. Moreover, remote testimony would likely allow participants to attend proceedings on more convenient dates, making trials and discoveries easier to schedule. This in turn would help with courts and tribunals’ scheduling. Fine-tuning of these processes will be required, something that legislatures and regulators can undertake under less urgent circumstances.
Having some of these emergency procedures as options in the future will never preclude traditional, in-person advocacy in a courtroom or before a tribunal, which is rightly the preferred method of conducting hearings. However, in circumstances that require the legal system to be more flexible — not just during international health crises such as this one — the options described above should be available to those who need access to our justice system.
Let’s look at the evidence. The evidence shows that remote trials and remote commissioning of affidavits can work. The evidence shows that remote witnessing of wills can work when required. And the evidence shows that more than 20 years after its invention, email should be available for service of documents in the same manner as faxes. In short, the evidence shows that some of these temporary measures should not just be temporary; that they ensure access to justice during this pandemic; and that they can enhance that access during normal circumstances as well.
We have the technology, we know how much it can help, and we are living and working through the perfect set of difficult circumstances to prove that it works. Post-Covid-19, our legal system could be faster, more efficient, and more accessible. It could (and should) be different and improved. It could be better because of Covid-19 and the technology at our disposal. There is no good reason that it ought not to be.
About the author
Sébastien Budd is counsel with the Department of Justice of Canada, whose practice focuses on tax litigation and dispute resolution.
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