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based on research conducted as of May 2012
12
2.
Public internet access in courtrooms
Provision of public internet access in courtrooms and court buildings appears to vary
from jurisdiction to jurisdiction in Canada. In Nova Scotia courts, internet access has
been available at counsel tables, as well as on the bench since 2005.
52
Province-wide
internet connectivity for court staff and counsel within Ontario courtrooms was
reportedly an ongoing project in Ontario as of 2009-2010,
53
and as of 2010 court staff
were able to schedule Court of Appeal matters from the courtroom using wireless
technology and tablets.
54
Free wireless internet access is available to the public in the
Supreme Court of Canada.
55
3.
E-mail communication with lawyers/litigants
E-mail communication between Canadian courts and counsel or self-represented litigants
appears fairly common, although the formal purposes for which e-mail is used vary. For
example, litigants can use e-mail to file various types of documents with the Nunavut
Court of Justice,
56
the Ontario Court of Appeal,
57
the Ontario Superior Court of Justice,
58
the Ontario Family Court,
59
the Alberta Provincial Court,
60
and the New Brunswick Court
of Appeal,
61
and to make hearing-date related requests from the Quebec Court of
Appeal
62
and the Newfoundland & Labrador Court of Appeal.
63
The Courts of Appeal in
Ontario, Quebec and BC use e-mail to transmit their reasons for decision to the parties.
64
In PEI, Alberta and BC, registered media outlets receive notification of applications for
discretionary publication bans by e-mail from the court.
65
4.
Internal communications and training
Canadian courts use a variety of technological tools for internal communication purposes,
including e-mail, telephones and fax. Internal communications technologies also include
those relating to separating and securing judicial information, as well as those related to
staff training/internal knowledge management.
In order to ensure that the judicial independence mandated by the Constitution is
protected, certain technological solutions have been employed to secure and separate
judicial information (e.g. judge’s e-mails, draft judgments, etc) from government
information. For example, JUDICOM is used by over “800 federal judges in Canada”,
and “more than 900 other members of the judicial community including judicial
assistants, provincial judges and law librarians.”
66
JUDICOM is described as a
communications system “designed to facilitate and enhance communication,
collaboration and knowledge sharing by connecting all members within a trusted online
environment.”
67
It was developed by the Office of the Commissioner for Federal Judicial
Affairs and is powered by FirstClass v9.1 software, which “integrates a suite of
applications, including: e-mail, calendars, contacts, instant messaging, workgroup
collaboration, and file or document storage”.
68
Access to and use of JUDICOM is limited
to 10 judicially-related membership groups and court IT technicians. All users must first
apply to use the system by faxing in a completed application. The JUDICOM portal
online includes a help centre which, inter alia features “awareness” videos relating to the
102
23 October 2012 (amended 11 June 2014)
based on research conducted as of May 2012
13
newest version of FirstClass, as well as software and installation instructions. The courts
of Quebec,
69
Ontario,
70
and Alberta,
71
also appear to have their own intranets, although
we have found little information relating to them online.
As of 2008, the Ontario Ministry of the Attorney General used the content management
system Plone
72
to maintain its Court Forms online. In addition, Plone was used to house
training materials related to various other information management systems and
applications to create a “knowledge environment for remote learning for staff.”
73
In
addition, the Ontario Ministry of the Attorney General has used MicroSoft Live
Meeting
74
and videoconferencing to convene remote training sessions, and used local
shared training folders to provide materials for remote training on various information
management systems.
75
5.
Webstreaming
As noted above, Supreme Court of Canada hearings are webcast live and the recordings
archived online. Hearings or aspects of hearings have also been webcast in Ontario, BC
and Nova Scotia.
76
6.
Audioconferencing
While teleconferencing seems likely to soon be eclipsed by videoconferencing in many
jurisdictions, it is available (usually on request to the court) in courts across Canada for a
wide variety of purposes, including:
1. applications for search warrants in circumstances where it is impracticable for a
peace officer to appear in person before a justice;
77
2. certain preliminary motions/applications (e.g. Alberta,
78
British Columbia,
79
Manitoba,
80
New Brunswick,
81
Northwest Territories,
82
Nunavut,
83
Ontario,
84
Québec,
85
Yukon
86
);
3. family mediations (e.g. Nunavut
87
);
4. case management and pretrial conferences (e.g. Newfoundland,
88
Prince Edward
Island,
89
Québec,
90
Yukon
91
);
5. bail applications (often outside of regular court hours or where the accused is in a
remote community) (e.g. Nova Scotia,
92
Nunavut,
93
Saskatchewan
94
);
6. the whole or any part of a hearing in the Federal Court of Canada,
95
and the Tax
Court of Canada;
96
and
7. oral submissions in the Supreme Court of Canada.
97
Audioconferencing is specifically available for use in the transmission of testimony and
for purposes of cross examination in some jurisdictions (e.g. Nova Scotia,
98
Yukon
99
), but
is explicitly not for use in delivering vive voce evidence under the civil procedural rules
in Nunavut.
100
Appearance of an accused by telephone is explicitly permitted in the
context of judicial interim release (bail) hearings by s. 515(2.2) of the Criminal Code.
However, if the evidence of a witness is to be taken during the bail hearing, the consent
of the prosecutor and the accused is required “if the accused cannot appear by closed
119
23 October 2012 (amended 11 June 2014)
based on research conducted as of May 2012
14
circuit television or any other means that allow the court and the accused to engage in
simultaneous visual and oral communication” (s. 515(2.3)).
Additionally, use of audioconferencing for providing remote interpretation is under
consideration in Ontario.
101
Teleconferenced oral submissions in the Supreme Court of Canada are transmitted by
satellite, while in New Brunswick and Newfoundland teleconferences are convened using
CourtCall.
102
7.
Videoconferencing
Videoconferencing is available in courts across Canada, for a wide variety of purposes,
although (like teleconferencing) the reported nature and extent of its use and availability
varies from jurisdiction to jurisdiction. While videoconferencing is undoubtedly used for
internal meetings and training, our focus here is on the information we have obtained
relating to its uses in legal processes involving members of the public (as opposed to
internal staff, the judiciary, etc.), which include:
1. bail hearings/remote first appearances (e.g. Alberta,
103
BC
104
Manitoba,
105
Newfoundland,
106
N.S.,
107
Ontario,
108
Saskatchewan,
109
);
2. witness testimony from remote locations (e.g. Alberta,
110
New Brunswick,
111
N.S.,
112
Nunavut,
113
Saskatchewan,
114
Yukon
115
);
3. solicitors’ meetings with clients in remote locations (e.g. Alberta,
116
BC
117
N.S.
118
);
4. attendance by accused persons on the hearing of appeals (e.g. Alberta,
119
Saskatchewan
120
);
5. search warrant applications (e.g. BC
121
);
6. arguing applications/motions or appeals (e.g. BC ,
122
New Brunswick,
123
NWT,
124
N.S.,
125
Nunavut,
126
Ontario,
127
PEI,
128
Quebec,
129
Saskatchewan,
130
Yukon
131
);
7. conducting mental fitness assessments of inmates in custody in non-urban
locations (e.g. Ontario
132
);
8. as an assistive technology to allow an in-hospital witness to testify (e.g.
Ontario
133
);
9. conducting solicitor/client assessments for clients in remote regions (e.g.
Ontario
134
);
10. entry of guilty pleas by in-custody accused persons (e.g. Ontario
135
);
11. sentencing of accused persons in remote locations (e.g. Ontario
136
);
12. case conferences/pretrial conferences (e.g. Ontario,
137
Yukon
138
);
13. return applications under the Hague Convention on International Child
Abduction (e.g. PEI
139
); and
14. the whole or any part of a hearing in the Federal Court of Canada,
140
and the
Tax Court of Canada;
141
and
15. oral submissions in the Supreme Court of Canada.
142
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23 October 2012 (amended 11 June 2014)
based on research conducted as of May 2012
15
Additionally, use of videoconferencing for providing remote interpretation is in use by
the Immigration and Refugee Board of Canada,
143
and is under consideration in
Ontario.
144
CCTV is also used to allow vulnerable witnesses (e.g. child witnesses and witnesses in
high security trials) to testify from secure locations outside of the courtroom.
145
(i)
Configuring and paying videoconferencing
As noted above, videoconferencing technology is frequently used in Canada to allow an
accused person who is in custody to appear before a judicial officer for purposes such as
a bail hearing. A typical configuration is for the accused to be located in a correctional
facility or holding centre, while a judge or justice of the peace, a crown attorney and a
defence lawyer are located in a courtroom. In addition to a camera in the courtroom and
in the correctional facility, there may also be a camera in a courthouse interview room
that allows defence counsel to meet privately with their client.
146
In Saskatchewan by 2011, video court suites were available in some 39 locations
(including provincial courts, circuit courts, correctional centres and RCMP detachments)
and 6 “victim services soft rooms”, of which approximately 11 had ISDN phone
numbers, while others relied upon the GOS network. A bridge has to be set up in order to
facilitate communication between locations with different types of installed video
lines.
147
Videoconferencing, fax and phone equipment were also used to establish a
“Northern Hub” for Justices of the Peace in 2010-2011, allowing for access to high level
expertise during extended hours to serve 8 northern communities on matters such as
remand and release hearings, telewarrant and search warrant applications.
148
The party
that would normally bear the costs of an appearance would also be responsible for paying
videoconferencing charges relating to private facilities or equipment other than the
equipment available in the courts, but (as of 2011) no charges were payable for use of the
courts’ equipment or communications system.
149
In BC, the costs of court-initiated videoconferences (for purposes such as appearances by
persons in-custody and family cases) are absorbed by the Court Services Branch of the
Ministry of Justice, but counsel and parties pay for use of videoconferencing technology
“when they would have paid the costs for an in-person appearance”.
150
Counsel must
file an application to request use of the technology (e.g. for remote witness testimony)
and agree to pay the charges associated with use of the equipment, but the judge must
approve use of the technology “in each specific court proceeding”.
151
In addition, the
requesting party must undertake to make the necessary arrangements and pay the costs
associated with use of any private facilities (eg at the remote location of the witness)
outside of the BC Courts’ Network, which as of October 2010 included 106
videoconferencing systems in court locations, 11 in police locations, 17 in judiciary
locations, 38 correctional and penitentiary locations, as well as 31 CCTV witness
testimony systems located throughout the province.
152
58
23 October 2012 (amended 11 June 2014)
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16
(ii) Goals underlying use of videoconferencing technology
Videoconferencing technology is consistently described as a way of offering more timely
access to justice for those in remote communities. Distance mediation is a particularly
important feature of videoconferencing technology for communities within provinces and
territories that are only served by circuit courts that may only physically convene in those
communities monthly (or which may not be accessible at certain points in the year due to
weather).
153
In 2007, the Northern Access to Justice Committee in Saskatchewan
recommended the expanded use of remote appearances as a means to:
• reduce the need to transport prisoners for routine court appearances;
• allow prisoners in RCMP cells to be dealt with on a more timely basis;
• reduce the length of dockets at busy circuit point locations;
• allow court at circuit point locations to proceed during bad weather days; and
• allow counsel to appear by telephone where appropriate.
154
Similarly, the National Council of Welfare joined with the Manitoba Aboriginal Justice
Inquiry in recommending that “provincial and territorial governments use whatever
means are necessary, including video conferencing, to conduct bail hearings with the
accused remaining in the community where the offence was committed” in order to
reduce the number of Aboriginal persons (including mothers and youths) who were jailed
in southern detention centres, cutting them off from their homes, families and community
support systems.
155
For similar reasons, the Nunavut Court of Justice has directed that
bail hearings should take place in the community in which the arrest occurs either before
a local Justice of the Peace or by teleconference (in the absence of videoconferencing
equipment), rather than transporting arrested persons to the Iqaluit remand centre (which
results in over-crowding, unnecessary expense and pre-hearing delay).
156
Additionally, videoconferencing is viewed as a way of reducing costs and security risks
by obviating the need to transport persons in-custody to and from detention facilities in
the criminal context. Similarly, it may also reduce the expense of witness and counsel
travel to courts in the context of both criminal and civil cases.
157
However, for civil
litigants requesting use of court videoconferencing facilities, the associated equipment,
telecommunications charges,
158
any charges for use of other videoconferencing
equipment and any costs associated with bridging external systems with court systems
must also be taken into account.
In Ontario, videoconferencing is often used in the NE and NW regions where the distance
between court sites can be 100-600 km, using the 2005-award-winning Criminal Justice
Video Network developed in collaboration with CGI Group to link criminal courts,
correction facilities and police stations.
159
Although by 2010 the project had not met its
target of 50% of remand hearings by videoconference,
160
it has been credited with both
access to justice and cost reduction successes. For example, videoconferencing allowed
for a judge in Kenora to pass sentence on an Aboriginal person located in Keewaywin,
which permitted the community and its Chief to participate in the sentencing process.
The process was enabled by the establishment of linkages between the courts’ video
45
23 October 2012 (amended 11 June 2014)
based on research conducted as of May 2012
17
network and the Northern Ontario Network (developed through a federal/First Nations
partnership).
161
Roll out of a more robust Video Over IP platform was planned for
Ontario in 2008-2009.
162
(iii) Protocols for use of videoconferencing
Guidelines and protocols relating to videoconferencing can perhaps best be understood in
relation to the type of proceeding in which the technology is proposed for use, with
significant distinctions between civil and criminal proceedings. Examples relating to
both kinds of proceedings are set out below.
Civil – Rule 1.08 of Ontario’s Rules of Civil Procedure provides that where telephone or
videoconference facilities are available “all or part” of any motion, application, status
hearing, trial (including oral evidence and argument), reference, appeal or motion for
leave to appeal, proceeding for judicial review or pre-trial or case conference can be
conducted using phone or videoconferencing either on consent of the parties with court
approval or by order of the court. Under R. 1.08(5) in deciding whether these
technologies should be used for any particular matter, courts are instructed to consider:
“(a) the general principle that evidence and argument should be presented orally
in open court;
(b) the importance of the evidence to the determination of the issues in the case;
(c) the effect of the telephone or video conference on the court’s ability to make
findings, including determinations about the credibility of witnesses;
(d) the importance in the circumstances of the case of observing the demeanour of
a witness;
(e) whether a party, witness or lawyer for a party is unable to attend because of
infirmity, illness or any other reason;
(f) the balance of convenience between the party wishing the telephone or video
conference and the party or parties opposing; and
(g) any other relevant matter. O. Reg. 288/99, s. 2; O. Reg. 575/07, s. 1.”
Criminal - Remote appearances by convicted and/or accused persons in criminal matters
are specifically provided for in the Criminal Code of Canada, although more specific
requirements are mandated in relation to certain kinds of appearances. For example
appearances by accused or convicted persons using CCTV or “other means” relating to
the following kinds of issues are only permitted so long as the technology “allows the
court and the person to engage in simultaneous visual and oral communication”:
1. orders authorizing the taking of bodily substances on the imposition of
sentencing (ss. 487.053 and 487.055);
2. appearances relating to preliminary inquiries (s.537);
3. appearances relating to trial (s. 650(1.1));
4. fitness hearings (s. 672.5(13)); and
5. appearances relating to appeals (s. 688(2.1))
53
23 October 2012 (amended 11 June 2014)
based on research conducted as of May 2012
18
In these situations, equipment must be set up to ensure the “simultaneous visual and oral
communication” required by the Code, including ensuring that the accused can always
see the judge or justice as well as the party who is speaking. Additionally, remote
appearances relating to some of these situations are also governed by other requirements,
such as:
1. allowing for private communication between the accused/convicted person and
their counsel (e.g. 487.053(2) and 487.055(3.01)); and
2. requiring advance agreement by the crown and the accused to the accused
person’s appearance by video, rather than in person (e.g. s. 537(1)(f) and (k), s.
650(1.1) and (1.2)).
163
Further, a child witness or a witness under a disability in a criminal trial may testify
outside of the courtroom provided that “arrangements are made for the accused, the judge
or justice and the jury to watch the testimony of the witness by closed circuit television or
otherwise and the accused is permitted to communicate with counsel while watching the
testimony” (s. 486.2(7)).
Once any procedural or statutory requirements have been satisfied, practical
considerations also come into play whether in criminal or civil proceedings. We
understand that court staff members are trained in relation to equipment set-up (a part of
which is obviously guided by any procedural or statutory requirements). Where the
equipment in use is portable, the configuration of the rooms involved may change from
time to time and the positioning of cameras may also vary. A typical requirement is to
ensure that the person appearing remotely has no distinct advantage over participants in
the courtroom (e.g. by being able to read material on the bench, or at the clerk’s or
counsel’s table).
8.
Assistive devices for persons with disabilities
Assistive devices for persons with disabilities are available in (or in connection with the
services of) a number of Canadian courts. In addition to adjustable equipment such as
desks and lecterns, these include:
1. FM and infrared listening devices (e.g. Ontario);
164
2. use of teletypewriter (TTY) equipment and software and Braille printers (e.g.
Ontario);
165
3. use of text reader technology and using proportionality on websites to allow for
magnification and shrinkage of text (e.g. Ontario,
166
Supreme Court of Canada,
167
Federal Court of Canada
168
);
4. use of client-side cascading style sheet files to permit website users to configure
visual elements to meet accessibility needs (e.g. Supreme Court of Canada
169
);
and
5. efiling requirements specifying use of PDFs to ensure translatability into Braille
(e.g. Supreme Court of Canada).
57
23 October 2012 (amended 11 June 2014)
based on research conducted as of May 2012
19
D.
Electronic Case Administration and Management
1.
Case management systems
Our research indicates that electronic case management systems are at various stages of
study, development, piloting and use in numerous courts across Canada, including:
1. Supreme Court of Canada – the current Case Management System is slated to be
overhauled, with an enterprise architecture planned to permit an e-filing portal
planned for the future, as well as an Electronic Records Management System;
170
2. Federal Court – a 2-year plan is underway to upgrade aging IT equipment and
strengthen information security in order to pave the way for development of a
Court Records Management System, and digital audio recording.
171
3. Alberta Provincial Court – the Court Case Management Program, led by judges,
is intended to better manage cases in the Edmonton and Calgary adult provincial
criminal court system. Components of that Program are technology-based. Phase
I of the program extended from February 2010-November 2011 and involved a
related initiative in the Criminal Justice Division called “crown file ownership”,
which assigned a file to one prosecutor “cradle-to-grave” to allow for tracking.
Phase I included introduction of a remote courtroom scheduling system (RCS),
allowing registered users to book matters online at
http://www.albertacourts.ca/ProvincialCourt/CourtCaseManagement/RemoteCour
troomScheduling/tabid/351/Default.aspx. Phase II of the Program ran from July
2010-March 2011 and involved migration of the Prosecutor Information System
Manager (PRISM), creating a User Portal and deactivating the subpoenas and
scheduling sub-system of the old scheduling system Justice Online Information
Network and expansion of the RCS to courts in Wetaskiwin and Okotoks. The
case management system operates on Microsoft’s Dynamics Customer
Relationship Management System and a key goal appears to be establishing a
“single source of truth” for provincial court scheduling.
172
The close-out report
for Phase I identified a number of successes, but also areas for improvement,
including: creation of more realistic time lines for IT aspects of delivery,
importance of creating up-front awareness and early staff training around related
processes, need for sensitivity to the potential limitations of videoconference
meetings to address “the people side of change”, and the importance of procuring
involvement of external stakeholders (including compensation or honoraria for
participating).
173
4. British Columbia Provincial Court and Superior Court – JUSTIN is the BC
Justice information system developed by Sierra Systems.
174
It provides “a single
integrated database comprising almost every aspect of a criminal case, including:
police reports to Crown counsel, Crown case assessment and approval, Crown
victim and witness notification, court scheduling, recording results, document
production and trial scheduling.”
175
The system, among other things, allows law
enforcement real time access to an accused’s criminal court file history, real time
access to court scheduling information, requires data entry only once and then is
available to all authorized users, can produce standard format documents and
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