E-trials in Canada

By Luigi Benetton

E-discovery and technology may have changed the way we litigate. Fully equipped e-trials, however, continue to be the exception rather than the rule in Canada.

“We do about two e-trials a year,” says William Platt, managing partner at Platinum Legal Group, a litigation support services company. “There is no business in Canada for trial support alone.”

In this respect, Canada lags far behind its southern neighbour. According to Platt, many U.S. lawyers “use every bell and whistle that they can to advocate their client's position,” whereas Canadian courts are notoriously underfunded and under-equipped to handle e-trials.

Pressure to move the courts towards more e-trials has to come from the lawyers, says Ontario Superior Court Justice Arthur Gans. “Because many of my colleagues are reticent or do not fully appreciate the benefits of using adocument management system in a trial, and because the (Ontario) Ministry of the Attorney General has yet to get behind the initiative, the notion of an e-trial has to be counsel-driven.”

That may happen soon enough, if modern legal work trends are any indication. “In the civil litigation group, we work exclusively on a paperless basis,” says Graham Underwood, a lawyer with the BC Ministry of the Attorney General. “All incoming correspondence immediately gets scanned into our file management system. I rely exclusively on the electronic copies. I never see the paper.”

The paperless trend will only intensify as digital natives enter the profession and more lawyers get comfortable performing e-discovery. “When I started in this business it was all paper. Now it’s 40 per cent paper and 60 per cent electronic documents,” Platt says.

Meanwhile, governments are beginning to budget for e-trial equipment when courtrooms come due for renovations. And judges like Gans insist on e-documents when facing document-heavy trials.

In the past few years, the Supreme Court of Canada led the way by undertaking a major courtroom modernization initiative. It is now equipped with an electronic document and records management system as well as audiovisual and information technology. At the provincial level, British Columbia introduced electronic filing in 2004. Researchers at the Laboratoire sur la cyberjustice at the l’Université de Montréal are currently working on software that would allow litigants to negotiate online for small claims cases. The laboratory wants to usher the entire Quebec justice system into the digital age.
 

Ontario, however, is considered to have fallen behind in adopting electronic technologies, though a few courts are equipped and its Court of Appeal requires appeal factums to be filed electronically.

For litigants, the benefits of e-trials are clear as it boils down to a question of access to justice.

Properly applied, technology should cut trial times from a quarter to a half, argue Underwood and co-author Jonathan Penner in their book Electronic Evidence in Canada, just by switching from print to electronic documents.

It’s an opinion shared by other practitioners. “I examined a historical geographer for three full days, followed by two more days on cross-examination,” recalls John Ritchie, a partner in the Toronto-based firm Ritchie Ketcheson Hart & Biggart LLP. “If we didn’t have electronic documents, we would have taken at least two more days.”

Other cost savings can also be achieved by bringing in witnesses who reside far away through in-court teleconferences.

Perhaps more promising for the future of e-trials is that lawyers who take advantage of technology in court say it helps them make clearer arguments. BC counsel and PowerPoint proponent Nils Jensen says “it’s so much easier to knit all your evidence together in a seamless presentation — your documents, your videos, your images.”

Of course, there’s no discounting the competitive nature of the profession itself. “If you can show that you can be a better advocate for your client, there'll be greater uptake on e-trials,” Platt says.