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Focus: More tech investments needed, say lawyers

Focus on: Criminal Law
|Written By Shannon Kari

The criminal courts in Ontario may be one of the few workplaces in 2017 where a fax machine is still an important tool of the trade.

Advances in technology that are almost universally used in everyday life are not necessarily available in the administration of the criminal courts in this province.

Fax machines, incompatible police software, mountains of paper and in-person discussions for nearly every matter are common, while e-filing, Internet access and methods of accessing information, such as the cloud, are not.

Many defence lawyers say there is still too much reliance on in-person appearances in court for administrative issues and a lack of desire to use technology to make the process more efficient, as other provinces are starting to do.

“If you want to get to know people in the courts, Ontario is better. There is a lot of waiting around. It is very social,” says Alan Pearse, a lawyer who specializes in defending impaired driving cases in multiple provinces, including Ontario.

“It you want to get legal work done, Alberta is much better,” says Pearse.

A significant difference in the two provinces is that, in Alberta, the provincial government has implemented a practice where disclosure in criminal cases can be accessed by defence counsel from a secure online service.

“There is a record as to what happened, a record as to when it was ready and when it was downloaded,” Pearse explains.

“In Ontario, it is turned over on a disc or printed material,” he says.

Ottawa defence lawyer Michael Spratt says it would save court time and money to provide disclosure electronically.

“It could be on the cloud or a secure server. You should not have to attend court to pick up a CD,” says Spratt, a partner at Abergel Goldstein & Partners LLP.

Tyler Smith, a partner at Hicks Adams LLP in Toronto, says he has on occasion been able to download disclosure from a secure link sent by the Crown’s office in Oshawa, Ont.

The link expires after a certain number of days and Oshawa is the only Crown office where this way of accessing disclosure has been available, Smith says.

Video disclosure such as statements to police or surveillance images are normally copied on to a DVD and the enclosed player frequently does not work with certain types of computers, such as ones made by Apple.

“You have to buy software,” says Smith, who uses an Apple-made computer.

One exception is York region, where the police video disclosure “plays on all computers” and is much more user-friendly than that provided by other Toronto-area police forces, says Smith.

Along with making it easier to obtain disclosure, provinces such as Alberta and Saskatchewan have systems in place to deal with administrative matters leading up to a trial either online or by phone, rather than in court, says Pearse.

In Alberta, in most of his cases, “I never set foot into court until a trial date. You can set a trial date online,” explains Pearse.

In Ontario, even if dates for trial are arranged by email in co-ordination with the Crown and the trial co-ordinator, that is not the final step, Spratt explains.

“I still have to attend in court, pick up a piece of paper and file it with the court.

“It has not eliminated a step,” he says.

The same process exists for filing defence materials, such as a motion, with the court and the Crown.

Defence lawyers are usually asked to send a copy of these materials or any additional requests for disclosure by fax machine to the Crown’s office.

“That is the way they want it,” says Smith.

While Crown attorneys have discretion to accept filing electronically, as do judges, it depends on the individuals, says Heather Pringle, a member of the executive committee of the Criminal Lawyers’ Association and a lawyer at Pringle & Bottomley in Toronto.

“There is no formal policy in place for e-filing,” says Pringle.

Much of the documentation involved in purchasing a house can be done online, notes Spratt, so it should not be any more difficult in the courts.

“If you can buy a house without paper, there should not be a need to resort to paper to send a letter to the Crown,” he says.

Some of the newer courthouses in the province are better equipped for technology, but so far, it is more to the benefit of the Crown, suggests Smith.

The courthouse in Oshawa does permit all lawyers to plug into its audio and visual resources in a courtroom, although an adapter plug is necessary for those with Apple computers.

“The plugs fit the Crown’s computers,” says Smith.

He adds that while a Crown attorney can access its internal computer system in the newer courthouses, there is no Internet service available in courtrooms for the defence.

“You can create a hotspot, but you often can’t get reception,” notes Smith.

If an issue comes up in court during a trial that requires legal research, it is necessary to go outside or to a lawyer’s lounge in the building to do that work.

With online access in court, “I would be able to email the case to the judge and Crown with the relevant section highlighted. This would save a lot of time,” Smith says.

Pringle says she is not aware of Wi-Fi being available in any of the courtrooms in the Greater Toronto Area.

“There is Wi-Fi in some of the courthouse lounges,” she notes. In Ottawa, there is Wi-Fi access for defence lawyers in most courtrooms, if they are members of the local law association, says Spratt. Hard-wired access, though, is not available.

“The Crown can plug into the physical infrastructure of the court. Not the defence,” he says.

Other uses of technology, such as using a secure video link for defence counsel to speak with clients in custody, has been discussed in Ottawa, says Spratt.

But he says this stalled after the Ministry of the Attorney General suggested that most of the cost should be incurred by defence lawyers.

The Criminal Lawyers’ Association is “strongly in favour” of making increased use of new technologies in the criminal courts, says Pringle.

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