Access to Justice and the Promise of Virtual Proceedings

Written by Jennifer Leitch, NSRLP Executive Director; originally published on Slaw, Canada’s online legal magazine.

The Canadian justice system experienced an unprecedented transformation during the Covid pandemic, when court and administrative proceedings across the country moved from in-person to remote hearings. Much discussion ensued on the implications of this transformation for the judiciary, the legal profession and their clients, as well as access to justice more broadly. However, self-represented litigants were not directly engaged in most of these discussions and as such, their perspectives and experiences respecting remote proceedings did not form part of the access to justice assessment. Early on in this process shift the NSRLP started hearing from SRLs anecdotally about their experiences with virtual hearings: while some expressed positivity about things like greater flexibility and ease of access, others told us of new barriers posed by the virtual processes, on top of the struggles they inherently face as self-represented litigants.

The NSRLP is seeking (via a generous grant from the McLachlin Fund) to formally introduce the SRL voice into this national conversation by systematically gathering information from SRLs on their experiences with remote proceedings of all types. In part, the concern is that while court systems, the judiciary, and the legal profession shifted online with various technical supports as well as personnel assistance, the same may not be said of individual self-represented litigants, who struggle alone to navigate legal processes, and now may be struggling alone to adapt to virtual processes. In these cases, SRLs might have negative experiences with remote hearings and in so doing, harbour concerns about the fairness and justness of the legal process in which they are engaged. Our preliminary research results suggest, unsurprisingly, that SRLs’ experiences with virtual hearings had both positive and negative aspects. This has led the NSRLP to conclude that in terms of access to justice, virtual hearings hold both promise and pitfalls.

Positives

Many of the (nearly 200) SRLs who filled out the NSRLP’s research survey and participated in focus groups indicated that they were generally comfortable participating online and navigating the technology (mostly Zoom) being deployed. The general sense from these respondents was that virtual hearings appeared less formal than in-person hearings, and that was seen as an advantage to the SRLs. However, while SRLs may feel more comfortable with some informality within a proceeding, there is a concern that the informality may serve to mask the seriousness of the proceeding and its consequences, thereby ultimately undermining the SRLs’ participation in their legal matter. On the other hand, there was an observation by certain SRLs that everyone tends to behave better when they can see themselves reflected on a screen. While this may not change the outcomes for SRLs from a legal perspective, it does have interesting implications for how SRLs perceive how they are treated in adjudicative proceedings. Along a similar theme, a significant number of SRLs were critical of telephone conferences, mainly because they could not see who was involved and/or identify who was participating in the hearing. One SRL described telephone hearings as, “de-stabilizing decisions made by dis-embodied voices.” While virtual meetings hold the promise of potentially equalizing everyone and possibly checking bad behaviour, telephone proceedings (and virtual hearings where not all attendees are visible/identified) tend to disempower SRLs who are feel disconnected to the proceeding. In the context of power dynamics between lawyers, judges, and SRLs, the most significant power imbalance is reflected in the case where the lawyer and judge as insiders are online via virtual meeting software, and the SRL as an outsider is calling in to the hearing via telephone.

In addition to being more comfortable online, a significant number of SRLs identified certain practical advantages to participating virtually. These included a reduction in time travelling to and from court, as well as time spent waiting in court for their matter to be heard. Unlike lawyers, for whom travelling to court or waiting to be called is part of the job description, SRLs must often balance their participation in the case as both client and advocate, while also managing the other aspects of their life. Thus, the benefit associated with remote hearings was particularly significant for employed individuals (who may not easily secure time off from work) and for individuals with family responsibilities. Additionally, it was noted that if individuals were able to participate from their homes they had better access to resources not otherwise available to them in the courthouse, such as extra screens, printers/scanners, paper, documents, etc. Another advantage noted was the fact that individuals with disabilities were better able to participate from home using their own technology and supports rather than those that may or may not be available in courtrooms. This supports other data that the NSRLP has gathered respecting the scope and availability of accommodations offered to individuals with disabilities attending in-person hearings.

Our focus group with frontline legal workers also acknowledged a benefit to being able to cover more cases by participating virtually in different hearings in different courts. The legal clinic workers spent less time travelling between courthouses to represent different clients and thus were able to be present for more clients. This was viewed as a benefit; however, it was also noted by this same group that the poor administration of certain online hearings undermined the benefits associated with less travel.

Negatives

While the conveniences of virtual meetings are important and can assist an SRL in conducting their case, it is important to identify the socio-economic divide that is likely to accompany access to these resources for certain SRLs. For those situated at the lowest socio-economic levels, it is less likely that they will have access to safe and private locations from which to participate in their hearing, nor are they likely to have the necessary resources in their private dwelling to conduct their case effectively. The availability of resources or access to appropriate settings is consistent with another divide present among SRLs, the digital divide. A majority of individuals surveyed indicated that they had access to secure and stable internet connections; however, 13% (a significant minority) of the SRLs surveyed said they did not have this access. And while, more broadly, recent statistics suggest that approximately 93% of Canadians have access to the internet, approximately 600,000 individuals have access through mobile plans that include internet but do not have internet at home. For individuals like these participating in virtual hearings, this would require them to participate through their phones, an obviously less than ideal way of participating in a hearing.

In addition to the affordability of reliable internet access, there remain serious issues with stable internet access in remote communities across Canada. The reality is that an individual does not have to be too far from a municipal centre in Canada to lose or have spotty access to the internet. Again, it is important to note the intersection of vulnerable and/or marginalized individuals living in remote communities where there is inadequate access to the internet. For such individuals, the ability to participate in virtual court proceedings will be extremely limited. As a partial response to some of the challenges associated with the digital divide, the Ontario government has provided centres to which people may travel to access the internet for the purpose of proceeding in virtual court proceedings. However, some of the challenges that might prevent someone from being able to participate in person may continue to prohibit someone from also reaching these computer centres in larger communities. As such, any promise associated with the accessibility of virtual hearings to those living in a variety of different communities must also take account the intersecting challenges that remote community members may experience. In certain communities, the development of virtual hearings does not necessarily serve to improve accessibility, but may in fact entrench existing disparities and inequalities in access to justice.

In terms of those who may face additional or compounding challenges accessing justice online, it is also important to take account of individuals who struggle with computer literacy. Those who face barriers in this regard may be older individuals, those who have not had access to appropriate training, or those for whom English or French is not a first language and may need additional assistance accessing virtual hearings. Unfortunately, what is apparent from the NSRLP’s preliminary findings is that there appears to be significant discrepancy in terms of the instructions or guidelines given to participants either in advance of or during a hearing. In some instances, there appears to have been no technological instructions or supports available, while in others, there were dry-runs of a hearing undertaken to ensure everyone was ready and able to participate. This marked discrepancy in technological guidance and support may serve to undermine the ability of the most vulnerable to participate effectively. Moreover, from a practical standpoint, technological problems either logging on to a hearing or participating in one impacts the efficiency and timeliness of court proceedings. Should we continue to explore how virtual proceedings might overall improve access to justice, it will be necessary to develop and strengthen some best practices in this regard.

Stay tuned for our full report

While the NSRLP is currently in the process of sifting through and analyzing the data gathered via our survey and focus groups, the above-identified themes and issues represent some of the preliminary findings of our study on SRL experiences with virtual hearings. The information we have gathered certainly suggests that virtual proceedings offer potential in terms of improving access for certain SRLs. However, it is clear that, as with other aspects of access to justice, virtual hearings must be implemented with thoughtfulness and care, acknowledging and addressing limitations, and adopting best practices in order to avoid creating additional barriers and inequities.

We will be publishing our final report and recommendations on virtual hearings for self-represented litigants in early 2024.