The outbreak of the COVID-19 pandemic in 2020 upended the operations and practices of industries and institutions around the world almost overnight – and, in the realm of law, that includes the concept of open courts.
University of Toronto doctoral student Jérémy Boulanger-Bonnelly examined how the closure of courthouses during the early days of the pandemic impacted the public’s ability to witness justice being served. In a soon-to-be published paper, Boulanger-Bonnelly undertook a systematic review of the policies and directives of 53 courts in civil matters in Canada, the U.K., the U.S. and Australia.
He found that their approaches – which often involved moving activities online – were inconsistent. He argues that they should be improved for the future.
“The open court principle is that principle by which, as a member of the public, you can attend almost any hearing, sit in the courtroom, and listen to justice being made in real time,” says Boulanger-Bonnelly, a Pierre Elliott Trudeau Foundation and Vanier Canada Graduate scholar at U of T’s Faculty of Law.
“When the courts transitioned online, they each adopted very different approaches to preserving the open court principle in the online context.”
In his analysis, Boulanger-Bonnelly makes a distinction between trial hearings and appellate hearings.
He says trial hearings that are open to the public give rise more frequently to privacy and security concerns, but the risks are normally mitigated by the fact that most members of the public do not attend unless they have a personal interest in the case. Furthermore, judges can scrutinize those who do attend in-person if necessary.
By contrast, the shift to online hearings provided much greater ease of access, lifting this relative obscurity and exacerbating privacy and security risks.
“Some measures are required to balance the open court principle with the protection of privacy online – for example making sure that people have to register and give some information,” Boulanger-Bonnelly says. “One of the drivers of privacy risks is the anonymity of people online.
“Requiring attendees to fill out a basic form that can include personal information and an undertaking to abide by the rule of courts may help mitigate some of these risks.”
In appellate court, where appeals on the trial decision are heard, hearings tend to be focused on questions of law and its application as opposed to the facts and evidence of a case, meaning there are fewer privacy and security concerns.
“I argue that appellate hearings should be all broadcast very openly, save exceptions,” Boulanger-Bonnelly says. “This would enhance the open court principle and I see no principled basis to restrict the accessibility of appellate hearings.”
Boulanger-Bonnelly, who will join McGill’s Faculty of Law as an assistant professor in the fall of 2023, says it’s not a novel suggestion – the Supreme Court of Canada already livestreams its hearings – but most courts of appeal in Canada have work to do to make their hearings more accessible.
“The pandemic made public access to online hearings possible in many courts because they bought the equipment to be able to record and livestream in most circumstances,” he says. “But they have yet to take full advantage of these new possibilities.”
For example, Boulanger-Bonnelly says that, until recently, Quebec’s Court of Appeal allowed the public to access its online hearings by phone only.
“That’s not very 21st century, right? Why not allow individuals to be in the online hearing – mute them to make sure they don't intervene – but allow them to see the case as if they were there in-person. These policies really are not just temporary and for the pandemic. Courts should think ahead and make their policies for the future as well.”
Boulanger-Bonnelly also found that the information that the courts provide to the public regarding how to access their hearings is often inaccessible itself.
“Courts should be open about the procedure you have to follow to attend a hearing and make their links as accessible as possible,” he says. “To dig through policy directives that are targeted to lawyers – sometimes 100 pages long – to only find at the end that if a member of the public wants to access a hearing, they have to contact someone. Of course, no member of the public is going to go through that.”
Boulanger-Bonnelly says that public participation has the potential to improve access to justice, which is the focus of his graduate research.
“So far, the literature has focused a lot on costs and delays, which are important aspects of access to justice. My dissertation is focusing on the sense of alienation that people have when they go through the justice system, and the connection between our justice system and community at large.”
Boulanger-Bonnelly, who formerly practiced civil ligation, says there are dozens of examples around the world of institutions that allow ordinary citizens to contribute more actively to the administration of justice – not only as members of the public, but even as judges in some types of disputes. His dissertation explores three examples: the lay magistrates of England and Wales, the justices of the peace of Colombia and, historically, the former lay courts of East Germany.
“More public participation would build closer connections between the public and the justice system,” Boulanger-Bonnelly says. “Different countries have implemented courts which are staffed by laypeople instead of professional judges.
“Developing a system of lay courts here in Canada would transform the way in which people experience justice.”