This is a letter that I wrote to the Hon. Lametti and others regarding the court modernization efforts taking place since approximately May 2020 as a result of COVID-19. You can access the PDF here. Text version is below with minor formatting changes to allow the text to be published in this space.
July 9, 2020
Via Email:
Minister of Attorney General & Justice Minister, Hon. David Lametti
Deputy Minister and Deputy Attorney General, Nathalie G. Drouin
284 Wellington Street
Ottawa, ON K1A 0A6
Supreme Court of Canada
General Counsel & Director General, Court Operations Sector
Supreme Court Building
301 Wellington St.
Ottawa, ON K1A 0J1
Attorney General (ON) – Court Services Division McMurtry-Scott Bldg 2nd Flr
Suite 204, 720 Bay St
Toronto, ON M7A 2S9
Dear Hon. Lametti and Ms. Drouin, Ms. B. Kincaid, General Counsel, Court Operations Sector & Mr. Robert Lecour, Executive Coordinator
Re: Court Modernization Initiatives
Introduction
I welcome the initiatives ensuring access to justice during the COVID-19 global pandemic and beyond. While I generally support the initiatives to date, I have concerns regarding the conversations that are happening or more appropriately, not happening. Particularly, I have concerns around the lack of transparency and the likely erasure of the realities facing equity-seeking groups, historically and currently facing barriers in the practice of law.
Context
While I am only one lawyer with a unique experience in and through law, I do not sit alone in my words. I also respect and understand the principles laid throughout this letter, including but not limited to judicial independence. Still, I believe that judicial independence must not respond to this global pandemic by creating initiatives at the expense of others, including others who may be hesitant to speak out, with potential consequences ranging from shaming and ostracization from the legal profession including from professional associations.
I do not take writing this letter lightly. I believe that I have a professional duty to speak out, namely, to uphold the duty to respect and to improve the administration of justice. In particular, the Law Society of Ontario’s Rules of Professional Responsibility state,
“[1] The obligation set out in the rule is not restricted to the lawyer's professional activities but is a general responsibility resulting from the lawyer's position in the community. A lawyer's responsibilities are greater than those of a private citizen. A lawyer should take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations. The lawyer in public life should be particularly careful in this regard because the mere fact of being a lawyer will lend weight and credibility to public statements. Yet for the same reason, a lawyer should not hesitate to speak out against an injustice.”
I am Indigenous feminist and lawyer writing with several years of experience advocating for change on behalf of marginalized groups and vulnerable parties, including those individuals who are often silenced and/or shamed for speaking out about their experiences. I am well-published and respected as a source on rights of Indigenous women and girls, having lived much of the injustices, including the fear of going missing and murdered today. My work on issues impacting vulnerable and marginalized groups, particularly Indigenous women and girls is well-respected. I know the injustices and the consequences because I have seen and felt them, including during the global pandemic. These include silencing of certain perspectives, dismissing concerns, to outright lack of accommodation. This is the context in which I speak/write from.
Recommendations
Below is a summary of the recommendations described herein. I recommend:
That any court modernization process allows for broader public consultation including the participation from those lawyers or law associations who may not be associated with urban-centric or urban-centred law associations. Rather, that sole practitioners who are practicing in rural, remote or northern regions or recently called lawyers and now facing career uncertainty and whose clients face region based access to justice issues are given a voice;
That the courts and justice participants ensure that there are multiple options for counsel to participate in court processes now and going forward in any modernization initiatives on behalf of their clients or self-represented individuals on their own, and that court modernization does not assume everyone including counsel and other parties has access to the same technology; and,
That any consultations make it possible for others to participate that respects their privacy; individuals, namely counsel, should not have to be forced to disclose their disadvantages or personal circumstances in order to justify their position on court modernization initiatives unless their privacy will be respected.
Any reference to courts or courthouses includes tribunals.
The reasons for these recommendations follow.
Justification for Recommendations
Open Court Principles & Respect for Democracy
The open court principle is well-established in Canadian law. The open court principle ensures public confidence in the court system, namely around ensuring that justice must be seen to be done. Much of the initiatives highlight the importance of the open court principle as key to the modernization initiatives. However, it is a concern when only certain kinds of people have access to open courts. Lawyers who provide care to others, whether their own children or other family members, and who do not have the social or financial capital to rely on others for child-care or support are disproportionately impacted by now having the courts in their own home without adequate supports. In particular, these groups are now faced with forcing to disclose their personal situation to acquire any accommodation from the courts (namely, lack of access to certain supports which imply absence of this social or financial capital). This forced and non-consensual disclosure will cause personal and professional embarrassment and inviting unwanted judgment from others. Such result would not encourage public confidence when only certain kinds of lawyers can participate in public court processes, thereby decreasing the access to counsel of choice which impacts the perceived fairness of the criminal justice system and our justice system more broadly (R v McCallen, [1999] O.J. No. 202 (C.A.), para 37). As such, I recommend that any court modernization process allows for broader public consultation including the participation from those lawyers or law associations who may not be associated with urban-centric or urban-centred law associations. Rather, that sole practitioners who are practicing in rural, remote or northern regions or recently called lawyers and now facing career uncertainty and whose clients face region based access to justice issues are given a voice.
Impact on Charter Rights & Administration of Justice
At the core of the open court principle is ensuring that individuals who experience criminal charges have choice of counsel including without delay. Case law establishes that the right to counsel is a Charter protected right. It is imperative that any court modernization efforts consider the impacts of their initiatives on particular class of counsel, low-income, marginalized and criminalized groups who worked tirelessly and overcame hurdles to now represent the same groups. Many court initiatives make dangerous assumptions about an individual’s access to certain privileges. Such privileges include the required technology to participate in Zoom hearings, to name an example, including but not limited to the infrastructure that supports this technology. I know that many groups, counsel or not, have inequitable access to internet bandwidth and despite commitments from governments over the years, many communities remain years behind, through no fault of their own. This kind of impact on technology negatively impacts the Charter protected right to have choice of counsel by assuming only certain kinds of lawyers can participate in these Zoom hearings. Further, this inequitable access to internet impacts the administration of justice in a negative way. Namely, the commentary in the Law Society of Ontario’s Rules of Professional Conduct state:
The admission to and continuance in the practice of law implies on the part of a lawyer a basic commitment to the concept of equal justice for all within an open, ordered, and impartial system. However, judicial institutions will not function effectively unless they command the respect of the public, and because of changes in human affairs and imperfections in human institutions, constant efforts must be made to improve the administration of justice and thereby maintain public respect for it.
I recommend that the courts and justice participants ensure that there are multiple options for counsel to participate in court processes now and going forward in any modernization initiative on behalf of their clients or self-represented individuals on their own, and that court modernization does not assume everyone including counsel or other parties has access to the same technology. This is not the same as technology competency which I agree is important and necessary as all processes change during court modernization efforts. Rather, this recommendation is about ensuring that any options to participate are available without assuming that everyone has the same access when that is not the case (through no fault of their own).
As an example only, I live and work on a First Nation whose internet access is serviced by one server location. This is something I cannot change because only certain companies service my region. Further, the company that does service my region has said there is no aims to update the infrastructure at that server location until the end of 2020. The server location is so old that on a good day, the internet connection is as bad as it can get and on a bad day, it means I do not get any access in my household. The bandwidth is so low that I am unable to participate in some processes and online events. When I raised this concern with some professional associations, some choose to outright dismiss my concern to outright ignoring the concerns I raised. This is a dangerous precedent to set in the courts, should they follow this similar pattern. Namely, I cannot change the fact that I will not be able to participate in some video conferencing unless I drive to a MacDonald’s parking lot, some thirty (30) minutes away from my home, and access public Wi-Fi (that’s if there is access there at that time). As such, my participation in some public processes is severely limited. I am not the worst off in Canada; there are many others who have it much worst. In fact, the Supreme Court of Canada itself has recognized that some communities have limited to no access to reliable internet in duty to consult and accommodate decisions (aboriginal law) and that parties must accommodate such communities, otherwise negating any consultation meaningless (Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40, para 49). This context should be at the top of the court’s minds when thinking through these court modernization processes, or risk leaving the court modernization process equally meaningless.
Open Minds & Judicial Impartiality
The Supreme Court of Canada has held that judicial impartiality and neutrality do not mean the same thing (Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 at para 35). The Supreme Court of Canada recognizes judicial impartiality and neutrality does not also mean that a judge has no prior conceptions, opinions and sensibilities; judicial impartiality and neutrality mean that judges must not close their minds to evidences or issues (Yukon, para 33). In the words of the Supreme Court of Canada, an open mind does not mean an empty one. As such, our judicial institutions, in the name of judicial independence, must recognize that the experiences of other parties before them will not be the same. This is the heart of an equitable discussion around court modernization. I recognize and support our country’s judicial independence; however, judicial independence does not mean that our institutions do not acknowledge the lived realities of others, including counsel or parties who may appear before them. I recommend on this point that any consultations make it possible for others to participate that respects their privacy; individuals, namely counsel, should not have to be forced to disclose their disadvantages or personal circumstances in order to justify their position on court modernization initiatives unless their privacy will be respected.
Our ability to serve our clients in our communities’ rests on our clients’ confidence in our reputation and disclosing such personal circumstances may negatively impact our clients’ confidence by negative biases or perceptions about counsel’s circumstances. Home, for some, is not safe and having to navigate such environments on top of professional responsibilities and courts in their living space creates a double or triple marginalization for already unrepresented groups or marginalized groups in the legal profession.
Thank you/chi-miigwetch for your time and consideration of this letter. I kindly ask that you forward this on to the Action Committee on Court Operations in Response to COVID-19 if possible.
Yours Truly,
Naomi Sayers
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