Ottawa , May 29 2020

Pandemic will aid in use of more technology in future, says Canada’s chief justice

Article by Elizabeth Raymer

Published in Canadian Lawyer on May 29, 2020

The Supreme Court of Canada has adjourned hearings scheduled for its spring session for health and safety reasons in response to COVID-19. It has since rescheduled a number of these hearings, and on Friday the court announced the list of appeals that will be heard by videoconference from June 8 to June 19, 2020.

Here, Chief Justice of Canada Richard Wagner answers Canadian Lawyer’s questions about COVID-19’s effects on the Supreme Court and other courts across Canada.

What are some of the adjustments you’ve had to make since COVID-19 was declared a pandemic?

Back in March, we decided to postpone all the cases in March, April and May, and to … reschedule those cases [using] technology. A few of those cases will be heard starting on June 9 [via videoconference]. Other cases will be heard at the end of September, in a special session at the courts. Because of the number of interveners — it’s regarding the carbon tax [in which appeals were brought by the attorneys general of Saskatchewan, Ontario and British Columbia] — there are many people involved. It was preferable to schedule it in September in the hope that it could be done in person, maintaining simultaneous translation and the open-court principle so that media can look and hear.

Another case [to be heard in September] is concerning the jurisdiction of the Court of Quebec versus the Superior Court; so again, there are many interveners. Hopefully we will be able to do it in person, but while adjusting to the guidelines of the health authorities.

We gave instructions to all our staff to work from home -- many could -- and the judges are able to work from home. We have roughly 400 to 600 leave applications per year, so they are considered by the judges electronically. Probably one of the few good sides of this pandemic is that we'll be using more technology in the future. For the leave applications, [remote review] is working very well and that will stay after the crisis is over.

My feeling is that we'll have to use more technology [in future], so that we will not be back to the so-called ‘normal situation’ anymore.

What would more technology look like?

Parties can already file documents by email. The court was equipped with videoconferencing before, but lawyers prefer to come to Ottawa to argue cases. That may change in future.

What is special this year is that all the judges can hear a case from home or the court. The lawyers always prefer to have their day in court, but I have a feeling that that will change also; in the future [remote hearings] could be part of the new normal of working.

The real struggle right now [in Canada] is at the trial division. We were able, at the courts of appeal across the country, and the Supreme Court, to deal with the situation … with the use of technology. With the trial divisions it’s a much different story. And that’s my main concern at this time, especially for jury trials in criminal matters. By definition to have 12 people in one room to hear a case is quite a challenge. I co-chair the Action Committee on Court Operations in Response to COVID-19 with Justice Minister Lametti [launched in May]; it’s one of our priorities right now. We look at ways and remedies and means to support the trial courts in order that the jury trials can be heard as soon as possible.

I would hope that jury trials would resume within the next few weeks, before the fall.

What would be the accommodations for jury trials/jurists?

There are many scenarios on the table. One good thing I learned … is that judges across the country have been working hard to find new ways to manage situations, with the help of governments. To what extent can we hold jury trials outside the courthouse? There may be some amendments to the Criminal Code, for instance, [allowing] trials in hotels, which are empty right now, that could allow the distancing suggested by the health authorities.

The main struggle right now is to make sure that there is no backlog for criminal matters and family matters. It would be very sad to go back four years ago, before Jordan, and so we have to find a way to resume those trials, those hearings, as soon as possible; it’s urgent. Our justice system is based on the fact that people have trust and faith in the system, so we have to keep it that way, and one way is to make sure that the trials are set up as soon as possible.

Are you concerned that the Supreme Court’s fall session will be overburdened with hearings?

We assume we’ll be able to hear all cases that should have been heard in March, April, May in September, October, and June of this year. Starting in November, I think we'll be able to resume our usual calendar, and if for any reason we cannot hold hearings in person we'll do it electronically; we’ll do it a distance, using technology. But we will not accept any backlog.

How are you anticipating operating a virtual courtroom (as you will start to do in June)?

We decided to go with one platform [Zoom]. It will be the first usage of June; we’ve had a practice run, and it went well.

What can lawyers do to help the courts overcome its challenges in having the hearings conducted via videoconference?

They’ve been very cooperative [in the midst of the pandemic]; they are part of the justice system, and they understand that. They have to bring their best advocacy in a virtual courtroom, just like they do in the real courtroom, and be flexible, be patient. And I'm very hopeful, because I think everybody realizes that this pandemic is the opportunity to change things for good. So it will not be cosmetic, … the changes will be for the future and to become the ‘new normal.’

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