No Internet, no BlackBerrys. Are Ontario’s courts the place technology forgot?

Imagine a workplace today in which paper documents, not electronic ones, are the norm, Internet connections are few and far between, information can’t be accessed remotely and BlackBerrys aren’t allowed.

It may seem archaic, but that’s the current reality in Ontario, home to Canada’s largest court system.

As the Internet, social media and any number of electronic devices are ever present in many Canadians’ personal and professional lives, critics are asking why the courts, such an important facet of democratic society, seem like the institution technology forgot.

Chris Bentley, attorney general of Ontario, says “in many ways that’s a fair assessment.”

“We have a system of justice that has operated in very much the same way for many, many years and infrastructure that was built around it to allow it to operate in those ways,” he said in an interview.

John Struthers, a director of the Criminal Lawyers’ Association, puts it more bluntly.

“They’re so far behind it’s really quite appalling,” he said.

Prime among the litany of court systems and infrastructure Struthers sees as outdated is the lack of Internet access in most courtrooms.

“As a result, we cannot do our immediate, on-the-ground research,” Struthers said.

“(With Internet access), an issue comes up, we could punch up a few keywords into our databases of Quicklaw and get an answer. That can’t happen in the courtroom.”

Instead, if lawyers want to look up a case, the court session must shut down, everyone leaves the courtroom, the lawyers go to the library, find a case, print it out, make copies, then go back to the courtroom and present it to the judge.

“It’s not just an inconvenience, because of course it’s an incredible delay and results in a waste of everybody’s time and resources.”

Only selected courtrooms in Ontario have Internet connectivity, according to an Ontario Bar Association committee on e-trials — trials conducted using computers that can display evidence, enter exhibits, digitally record oral testimony, create a real-time transcription and access the Internet.

A “very small number” of courtrooms are equipped with the hardware, networking and software required for an e-trial, the committee concluded.

David Outerbridge, a litigation lawyer and chairman of the bar association committee, said there are a number of judges interested in conducting e-trials, but for the most part one of the lawyers has to push for one in order for an e-trial to take place.

“It varies by jurisdiction, (but) I’d say the Ontario courts are relatively behind in adopting electronic technologies,” he said.

“In Toronto, for example, parties can have an electronic trial in a relatively primitive form, but only if they make it happen themselves.”

Even when the will is there, the infrastructure isn’t. In a recent e-trial he was involved in, Outerbridge said the lawyers brought everything into the courtroom, with wires duct-taped all over the floor.

“In our e-trial we did actually give the court clerk the software to allow them to mark the exhibits electronically, but my understanding is they then went back and marked them by hand,” he said.

There aren’t many fully electronic courtrooms, but one such example in Toronto is an “amazing piece of work,” said Superior Court Justice Fran Kiteley.

In an ongoing class action trial, the entire record has been electronic and there are several video monitors for the judge, jurors, registrar and lawyers, said Kiteley, who co-chairs the Canadian Centre for Court Technology board of directors.

In the eastern Ontario city of Kingston, a couple of judges have been incorporating email, BlackBerry Messenger and Facebook into their court proceedings.

In a paper presented to a legal conference in the fall, Superior Court Justice Cheryl Robertson extolled the benefits of using new media to serve court documents in family or civil cases.

“In a province where, for reasons of money and time, the judicial system is increasingly out of reach for many, e-service can be a useful and viable alternative, as long as its limitations are recognized,” Robertson wrote.

“It may soon be the case in Canada that many kinds of e-service will be the norm, from Facebook and email to SMS (text message).”

Cyber service could ease delays in a system often criticized as moving at a “snail’s pace,” and cut down on costs, she wrote.

More than 16 million Canadians are on Facebook. Trying to track someone down using a last known address may often be less effective than a quick search on that popular social networking site, Robertson argued.

Potential problems she cited include privacy concerns and questions about whether serving court documents would breach the site’s terms of use. It will take time for e-service to take off, but its advantages will eventually become clear, Roberston wrote.

“It will be foreign for some, and some will be uncomfortable using these electronic servers, but with time their advantages will likely win over even the greatest of skeptics.”

Court proceedings today generate mountains of paper. A new court information management system slated for release in Ontario in the summer of 2012 will consolidate existing case tracking systems, allow for more electronic documents to be used and introduce online court services both for people in the justice system and the public.

Such measures are part of what the attorney general identifies as the first step toward pushing Ontario’s courts into the electronic age: getting rid of as much paper as possible.

But, the courts of the near future that Bentley envisions haven’t done away with paper completely — at least not yet.

He would like to start with applying modern technology to a few essential steps, he said.

“It doesn’t deliver all the bells and whistles, but it delivers the basics and it delivers it well,” he said. “That’s where I’d like to get to. I don’t think we need to remake the entire system at once.”

From behind the bench, Kiteley said some judges are “very enthusiastic” and others are “very unenthusiastic” about embracing the use of technology in their courtrooms, but there is a “critical mass” on the positive side.

She suggested funding may be a factor preventing the proliferation of technology in courts.

“As a general principle courts don’t get as much money as health and education,” she said.

Higher courts such as the Supreme Court of Canada and the Court of Appeal for Ontario require appeal factums to be filed electronically and both make information about decisions and court schedules available on their websites. The Supreme Court also webcasts its proceedings and posts factums online.

But in the lower Ontario courts, where most cases are heard, documents are not filed electronically, they are not available to lawyers or the public online and neither are schedules.

British Columbia is leading the way with electronic filing — not just attaching documents in email, but filing documents online with data digitally tagged so it doesn’t have to be manually entered by the court, said Kiteley. People can also view B.C. case information and schedules online.

“I would say right now B.C. is the lead province in the introduction of technology as it relates to electronic filing,” said Kiteley.

About 10 years ago Ontario was the first in Canada to have an electronic filing pilot project, Kiteley said. It ended and since then, Ontario has fallen to about the middle of the pack, she said.

“We were decades ahead of ourselves at that time,” Kiteley said. “But we’ll get it back.”