A legacy of the pandemic, virtual trials will now become the exception for many cases in the Superior Court. The latter will impose more trials in civil courtrooms, believing that the virtual experience can sometimes be detrimental to reaching settlements. However, the decision is contested by many lawyers, who deplore the loss of time saved.
“In virtual settings, interactions are more difficult and, as a result, it becomes more difficult for judges to adequately manage the courtroom,” notes Caroline St-Pierre, spokesperson for the Tribunals du Québec. “In certain cases, such as safeguard orders in family matters, the distance therefore hinders the conduct of hearings, and this makes them less productive.”
In an internal document, the Superior Court removed sections 86 to 88 of its directives from the Code of Civil Procedure over the summer. These provided, in particular, that a hearing could be held online if no witnesses were heard, or if the defence and the Crown had agreed beforehand.
The Court is unequivocal: “the parties must participate in a hearing in person, subject to authorization that can be obtained” by a magistrate. According to our information, this change began to be applied at the start of the fall, at a time when many lawyers, judges and clerks were returning from their vacations, creating surprise and indignation in the legal community.
Lots of worries
For lawyer Me Nada Boumeftah, “this risks slowing down the system even more.” “In addition to lawyers’ schedules which will become heavier, the entire judicial process could be affected. The lawyer will take on fewer cases, so fewer people will be represented, there will be more file submissions, and additions to an already significant volume in our courts,” she says.
I understand the argument about the importance of the courtroom. It is true that it is necessary in many cases. But such a directive will inevitably affect the productivity of our courts.
Me Nada Boumeftah, lawyer
Lawyer and general director of the Juripop legal clinic, Ms.e Sophie Gagnon believes that the situation will further weaken the most vulnerable.
“For people in financially precarious situations, each additional hour spent by the lawyer on the case represents a significant burden. We are talking about several hundred dollars per hour. And a virtual hearing is generally less long than in person,” she reasons.
Me Gagnon believes that “flexibility will therefore be lost by reducing virtual hearings to the exception.” “Requesting permission will mean additional costs, so there are people who will not have the means to request virtual hearings and who will be deprived of them. And that’s a shame.”
In cases of sexual violence, for example, we know that several elements – such as the perfume of the accused – can reactivate the trauma of victims in a courtroom. The virtual also serves to avoid this.
Me Sophie Gagnon, lawyer and general director of Juripop
A “reframed” use
Caroline St-Pierre, for her part, assures that virtual hearings will nevertheless be able to continue to be held. “The Superior Court is in no way eliminating this tool. It has only reframed the use of virtual hearings to allow for better use of resources and to provide quality justice,” she notes.
“Experience in the field forces us to note that virtual hearings do not promote settlements. For certain cases, especially in family matters, such as divorces, child custody, etc., there are fewer settlements and agreements when the hearings are virtual,” says the spokesperson.
Moreover, “virtual deprives the parties of the opportunity to clean up before the hearing, which complicates the hearings,” she continues. “When lawyers, their clients, the parties involved all meet physically at the courthouse, they see each other, they talk and often, this leads to settlements.”
At present, she adds, “the lack of technological means at the Superior Court does not allow for effective virtual hearings.” “Judges do not have digital platforms to receive all of the files transmitted by lawyers,” she says, noting however that the Ministry of Justice’s Lexius digital transformation project “should overcome these difficulties in the future.”
The Court of Quebec is finally concerned about what it calls “the systematic remote representation of citizens of the regions by bars in large centres”, a phenomenon that “harms the legal vitality of the regions”. “Ultimately, this convenience measure becomes a barrier to access to justice outside of large centres”, concludes Caroline St-Pierre.