Written by Baneet Braich

 

For litigator Kamleh Nicola, some new priorities are appearing on her agenda. The lawyer who often spends her time practicing intellectual property law in the Federal Court now finds herself asking: how is the background? Is the lighting okay? What about the angles? She says a new virtual shift in the legal sector has her feeling like a video production company and a determined litigator in a 2D world.

These are a few of the new realities many lawyers are facing through COVID-19, and the pandemic is setting precedence on modernizing the legal sector to become more virtual.

Kamleh J. Nicola, partner at Baker & McKenzie LLP.

The novel coronavirus has hastily influenced Canadian courts to use Zoom, Microsoft Teams, and the good old telephone, says Ontario Chief Justice Lise Maisonneuve. So far Zoom has been the go-to platform in the legal sector for family and criminal proceedings, she says. This also includes the Supreme Court of Canada.

Recently the Supreme Court of Canada held its first-ever virtual hearing via Zoom. The platform was selected, “to provide channels for simultaneous interpretation which enables the court to provide access to hearings in both of Canada’s official languages,” Rémi Samson, the Supreme Court of Canada’s senior legal officer, wrote in an email. Privacy remains a key priority as the court has also put extra security measures in place, he added.

Nicola, who is a partner at Baker McKenzie says Zoom is becoming quite intuitive for lawyers and judges. For instance, the virtual spaces allow moderation by the judge who can decide to control whose cameras are on and off at a particular time she says.

Nicola says confidential boundaries are also possible with Zoom’s breakout rooms. If counsel needs to have a conversation between them to discuss the admission of evidence, they can easily be admitted to a breakout room to have an exclusive conversation, she says. “Those are very important technological requirements for running a hearing in a virtual format,” says Nicola. These new uses of tech are allowing lawyers to see what hearings can be prioritized with virtual court as well.

New conveniences

Criminal defence lawyer Alison Craig recalls a recent virtual guilty plea where a judge said, “Counsel, remember, put some pants on, this is on video!”

Despite hearing a reminder for pants, virtual court has so far proved successful to Craig. She recognizes that there are certainly going to be cases where virtual trials are not practical. However, “for so many other things it’s just not necessary such as bail hearings,” she says.

During the COVID shut down, Craig did a full two-day bail hearing on a first-degree murder case. While the accused was in Cornwall, she was in Toronto, court staff in Bellville, and the judge in Ottawa. “It was fabulous, we did the whole thing like a full cross-examination. It was two full days in court it was all done virtually,” she says. “He would have probably been in custody for an extra three months otherwise.”

There are many steps in criminal proceedings that take place before the matter goes to trial. However, the virtual shift is allowing courts to have more appearances over video such as pre-trials. “Being able to do those remotely or to the virtual world is permitting us to do much more work than we could otherwise not do,” says Maisonneuve. “That’s a huge benefit.” As these systems get up and running she says it is likely the public will see an increase in the efficiency of the legal sector as well.

One example of increased efficiency is the greater use of electronic trial systems. The e-Trial Toolkit is an Ottawa-based company helping courts go digital with electronic trial systems. The company is seeing increasing interest due to the pandemic, says Martin Crossman, the developer of e-Trial Toolkit.

The shared document platform allows parties to ditch the thick binders and store their documents in one place while simultaneously using platforms like Zoom and Microsoft Teams. “You might have seven people in the courtroom trying to find these binders. Get to the right tab, right page before you ask the witness the question, and now you just put in SE. 27, open it, and all that time that is wasted is removed,” says Crossman. The toolkit has various security and privacy boundaries in place so notes can remain exclusive to the judge, parties, and the clerk.

Tech accessibility

However, despite new virtual opportunities, courts remain cognizant that not everyone has easy access to technology. “That there are a lot of families and clients who just don’t have access to computers and wifi,” Craig says. This barrier to technology has people struggling to show up on video conference calls or even email documents.

Maisonneuve says another challenge is in jails. There is a lack of video capacity in the provincial institution for inmates to be present to a judge online. For family cases, not everyone can meet statutory timelines due to challenges to access technology.

Ontario Chief Justice Lise Maisonneuve.

The importance lies in finding a balance between proceedings that can go online and what is still best suited for physical court. “The people who do appear before court are sometimes very vulnerable individuals who may not have access to a computer, iPhone, or iPad or the technology to work remotely or participate remotely, ” Maisonneuve says. “That’s why we need both avenues available as much as possible.”

Litigator Nicola remains hopeful that new digital opportunities will address the challenges that the legal sector is experiencing in the virtual format. In a trial, she describes sitting close with her team, there are maybe whispers in the air of, “don’t forget this”, there are passing notes, there are breaks. Now despite being remote from the team, Nicola says we are learning to overcome challenges and it’s amazing we, “are using different communications, chat rooms from WhatsApp to messenger to communicate.”

Courts are now working under immense pressure to deal with the backlog that has been created due to COVID-19 but Maisonneuve says the legal sector should not lose the momentum to modernize. “We presently have an opportunity to pull ourselves 40-50 years forward and just to be up to date or be even further behind,” she says.” The next two months are critical to modernizing to serve the public better.”

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