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Exploring the Impact of Virtual Court Proceedings on Historically

Marginalized Individuals and Communities in Nova Scotia:
What We Heard

November 2022

Project Scope

Videoconferencing and teleconferencing, also referred to as “virtual” technology, have enabled

court proceedings globally to continue during the COVID-19 pandemic. This development comes
with benefits and challenges for court users, counsel and the community justice organizations
who support them. As the use of virtual court is likely to continue, understanding these impacts
is essential.

The All Courts Virtual Court Committee (ACVCC) was created in 2020 to oversee the launch of
fully virtual court proceedings in Nova Scotia. As part of their work, the judicial members of the
committee felt it was important to explore the impact of virtual court on historically marginalized
individuals and communities. The committee commissioned three law students — Enniael Stair,
Emily Stapleton and Olivia Feschuk — from Pro Bono Dalhousie at the Schulich School of Law to
assist. Pro Bono Dalhousie has operated continuously at the university since its inception in 2000,
and is among one of the first Pro Bono student programs founded at Canadian law schools.

For the purposes of this work, “historically marginalized” refers to persons who identify as a
member of a community that has been systemically excluded from full participation in social,
economic, and political life due to unequal treatment and a lack of access to rights, resources,
and opportunities. Virtual court refers to court proceedings conducted by videoconferencing,
teleconferencing or a combination of these technologies.

This work specifically sought out the experiences of Nova Scotians who identified as Indigenous,
African Nova Scotian, an individual of other racial or ethnic backgrounds, an immigrant, refugee
or new Canadian, 2SLGBTQQIA+, living with a mental illness and/or physical disability,
experiencing issues with substance abuse, or experiencing homelessness and/or poverty.

Methods

Two standardized surveys were developed: one for community leaders, including counsel, and
one for court users. Thirty-six individuals from 24 community justice organizations were
interviewed. Thirty-four indicated they were involved in assisting court users with virtual court
appearances since the beginning of the pandemic. Six court users were also interviewed. Of those
six, two self-identified as Indigenous, one as 2SLGBTQQIA+, four as living with mental illness, two
were experiencing issues with substance abuse, and one was experiencing homelessness. All six
court users reported having a lawyer at some point during their court process.
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The judicial members of the ACVCC and nine judicial assistants were also interviewed for this
project. The judicial assistants interviewed work across Nova Scotia, including in the Domestic
Violence Court Program, Provincial Court in Halifax, and the Supreme Court of Nova Scotia (both
the General and Family Divisions) in Bridgewater, Sydney, and Halifax.

Methodological Limitations

There were two main limitations related to the methods of this work. First, despite the request
of all lawyers and community leaders to provide suggestions and referrals to court users to
interview, few court users ultimately participated in interviews.

Second, most people interviewed for this project either work or live in urban centers, presenting
a potential skew in the data collected. Further research would be required to better understand
what court users in rural communities want and need from virtual court proceedings.

It is also worth noting that through these interviews, the Nova Scotia Court of Appeal was not
made aware of any issues for members of historically marginalized communities participating in
virtual appeal or Chambers proceedings. Many participants in the Court of Appeal have been
represented by counsel and self-represented litigants have been accommodated in person. Thus,
the feedback in this overview document focuses primarily on the trial courts in Nova Scotia.

Assistance for Court Users

The community leaders who were interviewed offered various types of assistance to court users
during the pandemic, including access to a telephone, computer or other mobile device; access
to a reliable Internet connection; IT support before or during court; and assistance with child care
or other family members. Other less frequent types of support for virtual court included:

• Encouraging court users to create their own email accounts, if possible

• Helping court users to create their own email accounts, if possible
• Helping court users to conduct test calls from their homes or meeting spaces
• Providing community members with a physical space in which to attend virtual court
• Coordinating with HRM libraries to provide court users with computers and private
rooms in which to attend virtual court
• Helping to navigate the virtual court system generally

Editor’s Note: This document provides an overview of the feedback and experiences of survey
participants that relates specifically to the impact of virtual court on historically marginalized
individuals. Feedback outside the scope of the project was not included in this overview. Thank
you to all the participants who took the time to share their experiences for this project.
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Advantages of Virtual Proceedings

Affordable Access

Virtual court proceedings remove the need for transportation. That means court users and other
participants do not have to navigate traffic and parking concerns, or alternatively, they do not
have to navigate bus schedules and routes. They also do not have to pay for transportation costs,
such as gas, bus tickets or taxi fares. Virtual court proceedings allow some individuals without
reliable transportation to attend court more easily. This is especially true for Indigenous court
users who live in First Nations communities with few public transportation options.

As well, virtual court proceedings often require less time for participants. Not having to physically
attend court cuts down on transportation time and can help when a user has parenting or other
family responsibilities, as they may not need to pay for child care. These advantages are especially
beneficial when the court appearance itself is short. Virtual court proceedings can also make it
easier for court users to fit court appearances into their schedule. For example, a person may not
have to take a day off work and lose out on their pay.

Less Expensive

Decreased travel time helps reduce costs. If lawyers spend less time traveling to and from court,
this reduces their time spent on a file, which reduces costs to their clients. Further, this can help
improve access to justice, as these lawyers can use that time to help serve more clients. This is
particularly impactful for legal aid lawyers.

Decreased Anxiety

Virtual court proceedings are often less stressful and anxiety-inducing than attending in-person
court proceedings. Some participants who were interviewed also reported that virtual court
proceedings can be less intimidating than attending court in person.

Increased Safety

Virtual court appearances can increase safety for court participants. Some courthouses are set
up in a way that accused individuals have to pass through public areas on their way to the
courtroom. This has the potential for confrontations to occur. Virtual court proceedings can help
reduce those risks.

Accessibility

Individuals with certain types of physical challenges, including elderly individuals, can more easily
participate in virtual court proceedings from their home. In some instances, virtual court
proceedings can also improve audibility. Some older courtrooms in the province are particularly
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difficult to hear in, even with handheld devices to increase audibility. Hearing matters virtually
allows participants to adjust the volume of the proceedings to tailor to their auditory needs.

Disadvantages of Virtual Proceedings

Access to Technology

Access to technology can be a significant challenge for some marginalized individuals, especially
those representing themselves. They may not have access to telephones or computers, or if they
do, they may not be able to afford minutes to call into court. Others may not have access to a
stable internet connection for videoconferencing.

Further to this, for court users from marginalized groups, limited access to hardware or
technology can mean missed court appearances and breaching release conditions. Breach
charges can further criminalize marginalized individuals, simply because they did not have the
same access to resources as others.

Access to technology was a particular concern for people experiencing homelessness or poverty,
as well as Indigenous people living in First Nations communities. Individuals living in shelters who
have no access to a phone, or who may have had their cell phone stolen, have no way to know
when their court appearance is and no means of contacting their lawyer or being contacted
themselves. Likewise, court users who do not have access to personal email or voicemail are
difficult to contact to share information about a virtual court appearance.

Technological Literacy

Even in situations where individuals have the necessary resources to access virtual court, some
court users do not understand how to use the technology. For individuals who experience these
difficulties, virtual court proceedings made it harder to get into the “courtroom” compared to in-
person proceedings.

Decreased Efficiency

Virtual court proceedings can decrease efficiency. Participants are given a specific time to call in,
but must make themselves available for an indeterminate amount of time before their matter is
dealt with. Some court participants also shared concerns about the consequences of connectivity
issues. Matters are often adjourned if someone has internet problems. That can prolong the
court process for marginalized individuals.

Receiving information in virtual court proceedings can also be a challenge. Service providers like
probation and victim services often receive information about files second-hand from court users
if they are not directly involved in the virtual court proceeding. These delays can also affect the
lawyers’ ability to review information with their clients before they meet with service providers.
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Communication with Counsel

Virtual court proceedings can make communication between lawyers and their clients more
difficult, especially during court. Clients are not able to ask what is happening, preventing them
from engaging fully in the proceedings. Counsel reported that the practice of meeting with their
clients in person prior to the proceedings is also not possible with virtual court. Clients often used
this opportunity to discuss what was going to happen and what to expect. This was reported to
be an even bigger issue in rural areas.

Accountability

Some participants expressed concerns about the perceived lack of accountability with virtual
court proceedings. Court users may be less likely to remember when their appearances are and
may forget to call into court. Participants explained that this is because virtual court appearances
are often not perceived as important or significant as an in-person appearance. The formality and
seriousness of the courtroom setting for in-person proceedings can actually improve participants’
understanding and trust in the justice system.

Comprehension Issues

Virtual court proceedings can present comprehension challenges. With multiple people calling
into court at the same time, it can be difficult to determine who is talking. In addition, court
participants often join the line and cause disruptions if they do not mute their telephone. These
constant interruptions can make it challenging to follow what is happening in court. Additionally,
court participants, including counsel, are less likely to know when to speak or if someone is
speaking to them.

For all these reasons, court users can easily misunderstand instructions or leave a virtual court
appearance unsure of what is expected of them. During in-person proceedings, court support
workers and other staff can help litigants understand what is happening, especially if someone
does not have a lawyer. That assistance is often lost with virtual court.

Translation Issues

Virtual court proceedings can impose further barriers for people who speak English as a second
language or who do not speak English at all. Access to translators during virtual court proceedings
was cited as an issue. Even when a translator is available, it is often difficult for them to keep
track of who they are supposed to be translating for in the multitude of voices on the telephone.

Privacy

There can be privacy concerns with virtual court proceedings. Court users may live in shared
residences that make it difficult to find a space to attend virtual court proceedings or meetings
with their lawyers.
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Emotional Toll

Survey respondents indicated that one of the most significant challenges with virtual court
proceedings was the lack of support available to court users. Many court users are left to navigate
the court process alone. Many community leaders who would typically accompany people to
court are not able to do so if they are not given the call-in information or the link for the virtual
appearance.

Survey respondents also indicated that virtual court proceedings sometimes increase the stress
involved with court appearances. There is often apprehension about using the technology and
skepticism about whether it will work.

Survey respondents also noted that some court users were uncomfortable speaking over a
webcam for video proceedings, especially when there were many cases on the docket and several
other parties in the virtual courtroom.

Human Interaction

Court users are often expected to speak about the most vulnerable parts of their lives in court.
When virtual court proceedings are conducted by telephone in particular, court users do not get
to see the individuals making decisions that affect their lives. Further to that, communication is
not merely about speech. Non-verbal cues are also crucial for effective communication, and
those cues can be lost in virtual court proceedings.

Identity Issues

Some participants reported instances where they were repeatedly misgendered during virtual
court proceedings, particularly when the proceedings were conducted by telephone. Proceedings
conducted by teleconference can also make it difficult to know a court user’s racial and cultural
identity.

Skin Tone

Participants in virtual court proceedings should be aware that video is known to neutralize skin
tone. A side effect of this is that it can be difficult for someone's features (depending on skin
tone) to be seen on the screen. Having sufficient background lighting can help address this issue.

Bail Hearings

Individuals interviewed reported that virtual bail hearings can make it more difficult to speak to
individuals in custody to develop bail plans that address their specific needs. Further to this,
virtual bail hearings can make it difficult to communicate with sureties, as those people are not
there in person.
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Habeas Corpus Applications

Some participants shared concerns about conducting habeas corpus applications by video. They
noted that habeas corpus means to “show the body” or “bring the body to court” but this is not
physically possible with virtual court proceedings. There can also be a significant power
imbalance with holding these hearings virtually. The individual making the application is forced
to speak about the unfair treatment they are allegedly experiencing in custody from the place
where that treatment is allegedly happening. It is significantly more challenging for the applicants
to bring this type of application when the proceeding is virtual.

Open Courts Principle

Participants expressed concerns about maintaining the openness of the courts when matters are
heard virtually. Telephone and video appearances can be more difficult to access, as call-in
information and video links are not always readily available to the public.

The open courts principle is a fundamental part of the justice system and helps maintain
confidence in the administration of justice. By this standard, any court that would be open to the
public to observe the proceedings in pre-COVID times should remain open even if the court
moves to a virtual format.

Conclusion

The COVID-19 pandemic, and the resulting adaptions undertaken by the Nova Scotia Courts, have
demonstrated that the justice system is capable of quickly adapting to meet the needs of society.
Although virtual court proceedings were instrumental in keeping the justice system operating
during a public health crisis, careful thought must be taken when considering the long-term
adoption of virtual court proceedings. It is crucial for decision-makers to consider which subsets
of the population virtual court best serves. It is also vital for decision-makers to bear in mind that
satisfying the majority could still be to the detriment of individuals from historically marginalized
communities.

In assessing when a matter should be heard virtually, the court, through the presiding judge,
should consider the type of proceeding, the length of the proceeding, the individual litigants’
specific circumstances, including their ability to access and adequately use technology, the
preferences of the litigants, and what type of proceeding best maintains the integrity of the
administration of justice in each circumstance.
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Further Reading on the Impact of Virtual Court Proceedings

Additional research was conducted through this study’s period into perspectives and reports
from other jurisdictions, both interprovincially and internationally. Now two years into the
pandemic, there is a wealth of information online with worldwide perspectives of virtual courts.
As such, this list of resources is not comprehensive but instead a summary of highlighted sources
reviewed or considered for this project. Notably, two Canadian databases already exist online,
which have compiled up-to-date resources regarding virtual court proceedings.

Queen’s University “COVID and the Courts”

https://conflictanalytics.queenslaw.ca/covid-and-the-courts
This database is updated with responses and changes made by courts across the country in
response to COVID-19 and provides links to relevant releases and procedures. It also has a short
section providing links to similar information from other jurisdictions.

Council of Canadian Administrative Tribunals, “COVID-19 Resource Repository”

https://www.ccat-ctac.org/covid-19-resource-repository/
This database holds many relevant articles and reports on the subject, both from Canadian and
international perspectives.

Reports

The Canadian Bar Association, “No Turning Back: CBA Task Force Report on Justice Issues
Arising from COVID-19”
https://www.cba.org/CBAMediaLibrary/cba_na/PDFs/Publications%20And%20Resources/2021
/CBATaskForce.pdf

Action Committee on Court Operations in Response to COVID-19, “Examining the

Disproportionate Impact of the COVID-19 Pandemic on Access to Justice for Marginalized
Individuals”
https://www.fja-cmf.gc.ca/COVID-19/Justice-for-Marginalized-Individuals-An-Overview-Acces-
a-la-justice-pour-les-personnes-marginalisees-vue-densemble-eng.html

https://www.fja-cmf.gc.ca/COVID-19/Case-Study-Nova-Scotia-Wellness-Courts-Etude-de-cas-
tribunaux-du-mieux-etre-Nouvelle-Ecosse-eng.html

Blogs

Millán, Luis. “Virtual justice in COVID era comes at a heavy cost, legal scholars say.” The
Lawyer’s Daily: 14 Sept 2020, LexisNexis Canada
https://www.thelawyersdaily.ca/articles/20827/virtual-justice-in-covid-era-comes-at-a-heavy-
cost-legal-scholars-say
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Mackenzie, Ian. “Hold the Phone: Telephone Hearings and Access to Justice.” SLAW: Canada’s
online legal magazine: 3 March 2017
http://www.slaw.ca/2017/03/03/hold-the-phone-telephone-hearings-and-access-to-justice/

Additional Blog Posts

McLachlin, Beverley. “Access to Justice: Visionary thinking to update a legacy system.” The
Lawyer’s Dailey: 12 May 2020, LexisNexis Canada
https://www.thelawyersdaily.ca/articles/19008/access-to-justice-visionary-thinking-to-update-
a-legacy-system-beverley-mclachlin

Holdsworth, Philip. “Virtual law post-COVID-19: Will justice thrive in a Zoom future?” The
Lawyer’s Daily: 12 June 2020
https://www.thelawyersdaily.ca/articles/19564

Joseph, Gordon. “No going back: Technology and court process.” The Lawyer’s Daily: 3 June
2020
https://www.thelawyersdaily.ca/articles/19344

Schmitz, Cristin. Courts Zoom ahead with remote hearings due to pandemic, despite concerns
of some lawyers, litigants”. The Lawyer’s Daily: 14 May 2020.
https://www.thelawyersdaily.ca/articles/19048

Schmitz, Cristin. “Post-COVID courts could see less oral advocacy, more paper-based and
remote adjudication: SCC’s Wagner.” The Lawyer’s Daily: 21 May 2020.
https://www.thelawyersdaily.ca/articles/19174/post-covid-courts-could-see-less-oral-
advocacy-more-paper-based-and-remote-adjudication-scc-s-wagner

In the Media

Law in the time of COVID: How the pandemic radically reoriented Ontario's justice system
(CBC News)
https://www.cbc.ca/news/canada/ottawa/legal-system-ontario-covid-19-pandemic-1.6278927

Access to justice still a problem as some Ontario family courts return to in-person hearings
(CBC News)
https://www.cbc.ca/news/canada/london/ontario-family-court-pandemic-1.6397469

Maybe COVID-19 is what it will take to modernize Canada's antiquated courts (National Post)
https://nationalpost.com/opinion/opinion-maybe-covid-19-is-what-it-will-take-to-modernize-
canadas-antiquated-courts
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Journal Articles

Naik: Technology will improve justice for some in the COVID-19 world – but not for all
(Ottawa Citizen)
https://ottawacitizen.com/opinion/naik-technology-will-improve-justice-for-some-in-the-covid-
19-world-but-not-for-all

Cody Rei-Anderson et al, “Access to Justice Online: Are Canadian Court Websites Accessible
for Users With Visual Impairments?”, 2018 55-3 Alberta Law Review 647
https://canlii.ca/t/7bb

Michelle I Bertrand et al, Dispensing Digital Justice: COVID-19, Courts, and the Potentially
Diminishing Role of Jury Trials, 2021 10 Annual Review of Interdisciplinary Justice Research
38, 2021 CanLIIDocs 1708,
https://canlii.ca/t/t9hp

International Reports and Surveys

[US] Jurva, Gina. “The Impacts of the COVID-19 Pandemic on State & Local Courts Study 2021:
A Look at Remote Hearings, Legal Technology, Case Backlogs and Access to Justice”.
Thompson Reuters: 2021.
https://legal.thomsonreuters.com/content/dam/ewp-m/documents/legal/en/pdf/white-
papers/covid-court-report_final.pdf

[US] Californa Commission on Access to Justice. “Remote Hearings and Access to Justice:
During COVID-19 and Beyond”
https://www.ncsc.org/__data/assets/pdf_file/0018/40365/RRT-Technology-ATJ-Remote-
Hearings-Guide.pdf

[US] Duhart Clarke, Sarah E. and Jessica Smith. “Virtual Court Proceedings in North Carolina:
Adapting to a Global Pandemic.” University of North Carolina: March 2021.
https://cjil.sog.unc.edu/wp-content/uploads/sites/19452/2021/03/Virtual-Courts-Findings-
Report-FINAL-3.15.2021docx.pdf

[US] Benniger, Taylor, Courtney Colwell, Debbie Mukamal, & Leah Plachinski. “Virtual Justice?
A National Study Analyzing the Transition to Remote Criminal Court”, Stanford Criminal
Justice Center, 5 August 2021.
https://www-cdn.law.stanford.edu/wp-content/uploads/2021/08/Virtual-Justice-Final-Aug-
2021.pdf

Other Online Content

https://www.brennancenter.org/our-work/research-reports/impact-video-proceedings-
fairness-and-access-justice-court
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https://www.lexisnexis.co.uk/research-and-reports/bar/digital-courts-during-covid19-italy-
edition.html?utm_source=content&utm_medium=FOL&utm_campaign=the-future-of-virtual-
justice-is-there-still-a-place-for-brick-mortar-courts

https://www.thelawyersdaily.ca/articles/21391/techniques-for-making-video-trials-
fair?article_related_content=1

https://www.cba.org/CBAMediaLibrary/cba_na/PDFs/Publications%20And%20Resources/2021
/CBATaskForce.pdf

https://sencanada.ca/content/sen/committee/421/LCJC/Reports/CourtDelaysStudyInterimRep
ort_e.pdf

https://www.cbabc.org/Publications-and-Resources/COVID-19-Resource-Hub/PD-
Programming/MS-Teams-and-Virtual-Hearings-in-the-Provincial-Co

https://www.americanbar.org/groups/family_law/publications/family-law-quarterly/

https://cjil.sog.unc.edu/wp-content/uploads/sites/19452/2021/03/Virtual-Courts-Findings-
Report-FINAL-3.15.2021docx.pdf

https://d2r2ijn7njrktv.cloudfront.net/IL/uploads/2020/09/11150617/103-Report-on-Virtual-
Courts.pdf

https://njdc.info/wp-content/uploads/Due-Process-in-the-Time-of-COVID-19.pdf

https://www.fja-cmf.gc.ca/COVID-19/index-eng.html

http://www.slaw.ca/2020/04/17/trial-by-zoom-what-virtual-hearings-might-mean-for-open-
courts-participant-privacy-and-the-integrity-of-court-proceedings/

Additional Articles

The (Astonishingly) Rapid Turn to Remote Hearings in Commercial Arbitration, (2021) 46:2
Queen's LJ 399 - 413 @4 SECTION: COVID-19 & the Law

The Court System in a Time of Crisis: COVID- 19 and Issues in Court Administration, (2020) 57
Osgoode Hall LJ 869 - 904

Ontario's Pandemic Procedure, (2021) 46:2 Queen's LJ 445 - 457 @4 SECTION: COVID-19 & the
Law
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Sossin, Lorne and Yetnikoff, Zimra, "I Can See Clearly Now: Videoconference Hearings and the
Legal Limit on how Tribunals Allocate Resources" Windsor Yearbook of Access to Justice 25.2
(2007): 247-272.

The Case for AI-Powered Legal Aid, (2021) 46:2 Queen's LJ 415 - 430 @4 SECTION: COVID-19 &
the Law

A New Lens: Reframing the Conversation about the Use of Video Conferencing in Civil Trials in
Ontario, (2012) 50 Osgoode Hall LJ 429 - 463

Ontario Civil Justice Reform in the Wake of COVID-19: Inspired or Institutionalized?, (2020) 57
Osgoode Hall LJ 801 - 833

Cases

Arconti v Smith, 2020 ONSC 2782

R. v. N.S., 2012 SCC 72

P.(D.) v. S.(C.) [1993] 4 S.C.R. 141

Scaffidi-Argentina v Tega Homes Developments Inc, 2020 ONSC 3232