E-Hearings on the Federal Court of Canada’s Radar

E-Hearings were on the agenda at the Federal Court of Canada’s Aboriginal Law Liaison Committee’s June meeting. The Committee focussed on what we can learn from E-Trials already underway, what we can do better, and specific concerns in the Aboriginal Law context. I was grateful to be asked to present to the Committee on these issues.

The Committee met in Banff on June 19

We started by canvassing the Committee’s knowledge of E-Trials that are already underway. Everyone knew of the recent decision in Jim Shot Both Sides v. Canada (2019 FC 789), and – since that was run as an e-trial – we started with the happy knowledge that everyone knew at least one e-trial. Then, after a quick video of the E-Trial platform used in West Moberly v. BC (2017 BCSC 1700), we began surveying what we can learn from what has been done so far.

What can we learn? E-Hearings (i.e. electronic applications, judicial reviews, trials etc) save time and space. That means cash savings and, ultimately, better access to justice. We are also seeing that E-Trials and E-Hearings can level the playing field between parties. I took the Committee through the spectrum of E-trials that are running across Canada: moving from something a little less than an “E-trial” (at least to me) – where the parties use the digital environment to ensure everyone is looking at the same document at the same time, through the West Moberly E-Trial Platform, to recent E-trials in the Ontario Superior Court of Justice and the British Columbia Supreme Court that ran on E-trial software.

What can we do better? Here we had a good discussion about how the court and the judiciary can help with E-Hearings. I also took a moment to describe how judicial reviews – which have a defined (but still voluminous) record of documents – are uniquely well-suited to being heard electronically.

What are the specific issues in the Aboriginal law context? I shared a story where an elder giving evidence using the Smartboard to mark trails her people use, commented: “I love this Smartboard, I’m going to get one.” This is my way of suggesting that we have to be careful not to assume anyone will miss the processes we are currently using in litigation. We also discussed how running hearing digitally facilitates holding them (or parts of them) remotely. For example, parts of Jim Shot Both Sides v. Canada were held on reserve, and the first two weeks of Saugeen Ojibway Nation v. AG Canada et al were held on reserve.

Why this matters: Aboriginal Law hearings are generally very document-heavy. To get into court, that means a lot of photocopying, a lot of paper, and a lot of binders. Justice Johnston, at the end of West Moberly v. BC, commented favourably on being able to review all the evidence and write his decision using only a laptop computer less than an inch thick. Thus, both the parties and the judiciary can benefit from hearings being held in the digital environment. The FCC Aboriginal Liaison Committee has a history of turning its mind to practical improvements to court processes: it is also responsible for the FCC’s “Practise Guidelines for Aboriginal Law Proceedings“.