News: Canadian Bar Association Report on the Impact of COVID-19

Written by Calvin Ediger

Recently the Canadian Bar Association released a report on the impact of COVID-19 on the legal profession in Canada. In general, the report found that the effect of the pandemic was to accelerate the adoption of technology in the legal field, while not necessarily considering the risks and drawbacks that came with such adoption. The headline of the report declared “there is no turning back. The pandemic propelled the justice system into a long-awaited modernization.”[1] According to the report, new technology was widely successful in improving access to justice, specifically there was a “recognition that remote proceedings [had] been successful — especially for appeals, matters with lesser monetary value and less complex matters.”[2]  Further, the open court principle had been served via the “easy access of court proceedings online (e.g. broadcast on YouTube or Zoom).”[3]

The report clearly highlights that new access to justice barriers arise with new technologies. Indeed, there is a “common concern  that complex, sensitive matters with many witnesses and experts are more difficult to conduct remotely.”[4] Further some groups, such as senior citizens, may struggle with the new technological methods of accessing the justice system. Further new technologies impose new security risks, revealing the “personal information of users of the justice system, potentially exposing them to shaming, doxing, identity theft, blackmail, ransomware and witness intimidation.” Moreover, the practice of “mass-scraping data” has additional, not yet fully understood, geo-political implications.”[5] Although the justice system has always collected such information, the new methods of distribution “thrusts courts into an unfamiliar role of publisher (rather than custodian) of sensitive data.”[6] The unprecedented accessibility provided by the internet creates “an audience of incalculable numbers [which] now has unprecedented and indiscriminate access to bits and pieces of sensitive and personal information.”[7] This problem has been exasperated by the fact that the justice system has had to rely on private third-party platforms, operated by for-profit corporations.[8]

The COVID-19 pandemic has also led to a rise in “self-represented parties, many of whom do not have the technology or the capacity to participate fully in a digital justice system.”[9] Overall, the report concluded that “new measures and technology must be deployed in a manner that mitigates their adverse and unintended effects on access to justice, self-represented individuals, judicial independence and the open courts principle.”[10]

[1] Canadian Bar Association, Report, “No Turning Back: CBA Task Force Report on Justice Issues Arising from COVID-19” (February 2021), at 8.

[2] Ibid.

[3] Ibid, at 20.

[4] Ibid, at 9.

[5] Ibid, at 11.

[6] Ibid, at 13.

[7] Ibid, at 12.

[8] Ibid, at 18.

[9] Ibid, at 18.

[10] Ibid, at 24.

The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.

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