Bonus Episode: Yves Faguy speaks with Karen Eltis, the author of “Courts, Litigants and the Digital Age,” about the pressing need to modernize our courts, the risks that come with it, and the precautions we should be taking.
Bonus Episode presented by CBA National and CBA Futures: After the pandemic: The future of justice, Ep 4:
In this fourth episode, Karen Eltis talks about the rush to digitalize our courts system, the justice system’s reliance on private platforms, and why we need to think about the security of our data.
Karen Eltis is a law professor at Ottawa U and a faculty member at its Centre for Law, Technology and Society. She specializes in artificial intelligence, innovation law and policy, and cybersecurity. She is a past director of the Human Rights Research & Education Centre at Ottawa U and she has also been invited as a subject matter expert to inform the work of the CBA Task Force on Justice Issues Arising from COVID-19.
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You're listening to the Canadian Bar Association National Magazine.
Yves Faguy: Hi, I'm Yves Faguy, the editor-in-chief of CBA National Magazine. Welcome to After The Pandemic, a conversation about the future of justice, produced with the support of CBA Futures. There's no question that Covid-19 has forced innovation on a scale and at a pace that our court system would never have contemplated just a few months ago. Some courts have gone as far as holding virtual trials across several jurisdictions. Litigant parties are at the very least expected to use available technology where they can to move matters along. And last week, the Supreme Court of Canada launched virtual hearings for the first time using Zoom.
For a justice system long characterized by its slow grinding wheels, this is no small thing. And for proponents of digitalization, it's an opportunity to radically re-design our courts for the 21st century. We can also expect pressure to grow on governments to fund technological solutions that will help bring down the courts' backlog and improve access to justice. But, with accelerated change comes a few asterisks. Can the justice system really keep up with this pace of change post-Covid? Are we overlooking the disadvantages of moving large parts of the court system online? And what precautions should we be taking? To discuss these questions, my guest today is the author of Courts, Litigants and the Digital Age.
Karen Eltis is a law professor at Ottawa U and a faculty member at its Centre for Law Technology in Society. She specializes in artificial intelligence, innovation law and policy and cybersecurity. She's a past director of the University of Ottawa Human Rights Centre and she has also been invited as a subject matter expert to inform the work of the CBA task force on justice issues arising from Covid-19. Welcome to the program Karen. Thanks for being here.
Karen Eltis: Thank you so much. It's my pleasure to be here.
Yves Faguy: OK so my first question to you to get this conversation started is, how has Covid-19 changed our commitment in the justice system to really get with the times, to modernize? And I guess my follow-up question to that is, how is that a good thing and how is it a risky thing?
Karen Eltis: I think that's a very important question. First of all, a few introductory points. I think it's important to note that Covid simply exacerbated pre-existing issues, both with access and with accelerating the pace of digital familiarity and competence and ethics on the context of the digital age, that's both judicial ethics and ethics within the profession. So this kind of fast-tracked courts into the digital age practically overnight and now I have to say, there's no turning back. It's just a question of how do we move forward and at what pace? Courts, needless to say, but I think it must be said, are a key pillar of our democracy and it is crucial that we understand that justice can't be halted.
So a situation where either courts are significantly slowed or stopped is extremely detrimental to society and to long term public trust. Now this access was an issue as the former chief justice of Canada noted way before Covid. This again brings it to the forefront. There are tremendous challenges which we can discuss, but also tremendous opportunity. I think at this point, courts and the profession had no choice but to embrace technology and we could talk about this later, but there has been some resistance. So the opportunity is the swift adaptation.
The challenges are many, but the challenges mirror the opportunities which is we don't want to go from one extreme where we were entirely or largely perhaps resistant or very slow to adaptation and technology, even in the face of tremendous backlogs, to the other extreme where embracing technologies is being done too quickly so we are reshaping the landscape but courts are not in a position to move too fast and break things. We need to be mindful and that's a quote from Facebook, but we need to be mindful of public trust and it's not a panacea.
Yves Faguy: So just to back a little bit, how come our courts have had such a hard time modernizing and such a hard time introducing technology into their process pre-Covid?
Karen Eltis: One answer is a very simple one I think. Ours is a very traditional profession. There's some elements of conservative and some with very good reason. Justice, as I mentioned, cannot move fast and break things. It needs to preserve public confidence but preserving public confidence also means moving forward. So there is some general aversion that may be cultural. There are some technical and procedural challenges. There's the need, of course, to ensure proper competence as we're dealing with very delicate matters. That said, I don't want to paint a picture where courts were entirely unaware or insensitive to technological change and technological advances because that's not the case.
I'll give one very quick example. I've been working with the IOJT which is the International Organization for Judicial Training, and previous to that and also during that time, I had a stint, so to put it, with the NJI, the National Judicial Institute, and I've worked with the Victoria Judicial Colleges and judicial colleges around the world, and probably since 2007, when I came on as a senior advisor to the NJI, we were already talking about bringing courts into the digital age and judicial ethics in the judicial age and that's true, as I said, for the IOJT. So courts have not been insensitive to the need to move forward but, as I say, Covid has kind of fast-tracked us somewhat overnight.
Yves Faguy: So you've been pretty clear here that the Covid has fast-tracked this move towards adopting technology, but you've also expressed concern that we're ill-prepared to use technology and so that there is a risk of rushing a little too quickly into things, without thinking through some of the unintended consequences. So what are some of those possible negative side effects that you have in mind? Can you give us some examples?
Karen Eltis: Sure and I think you put your finger on it when you said, unintended consequences. The thing to remember, and I say this often about technology, is the famous [unintelligible 00:07:07], what we don't know, we don't know. And few of us could have predicted Covid and yet that has ramifications for data and how we use technology and for privacy and for other human rights. So the idea is to safeguard against the unintended consequences and I'll give you some examples in a second. I just want to say, I don't think though that we are ill-prepared. I simply want to caution against moving in a way that is panacea, all embracing, moving from one extreme to another.
I think we can be extremely prepared if we do it in a mindful way. I think one concern is one that was explored and acknowledged by the Supreme Court of Canada in AB versus Bragg, the question of access to justice, the idea that when court documents are propulsed into the public arena despite certain safeguards that may be inefficient, litigants or potential litigants may be deterred from accessing courts and their legal rights for fear that they'll be thrust into the public eye.
Yves Faguy: Sorry. Just let me cut in here. So AB versus Bragg is a 2012 Supreme Court of Canada decision that held that victims of cyberbullying are entitled to remain anonymous in court applications, right?
Karen Eltis: Yes, it was a realization that in the past, courts attempted to strike a balance between [publicite des audiences] having publicity of courts having open courts and privacy. And in Bragg, the Supreme Court of Canada recognized that in the digital age, it's not just about privacy but it's about access and that vulnerable litigants in particular may not show up to court for fear that their private details will be all over the internet, so even if they win, they lose. And what best illustrates this is a European case where a man sued Google to de-index a detail of his financial dealings that he considered humiliating and he won against Google.
But now these dealings that he wanted to mask are known by absolutely everyone worldwide. So the idea that the unintended consequences we go back to. People seeking justice may be dissuaded from accessing the courts because they don't want their information to be all over the internet. So that is one very simple but very important recognition that's exacerbated by the permanence of data online. Right? So we talked about courts losing control over data, de-contextualized information, losing control because courts are thrust into an unfamiliar role, that of publisher rather than custodian of sensitive data, that may lead to identity theft, right.
There's a whole industry, and that's explored in my book, of people using court information in order to gain access to very sensitive data, this digital trail, this potential of re-victimization. A person goes to court to get remedies and they may receive those remedies but then they're re-victimized online. It can be witness intimidation. There are immigration cases where people sought refugee status on the basis of their, for instance, sexual orientation or HIV status, and the tribunals had posted the information online in order to be open and transparent, which is a good thing, but suddenly the individual's sent back to their home country where they may face potential recriminations.
Yves Faguy: And we saw a good example of this also a couple of years ago with the case of the Romanian website, gluv24h.com that had republished Canadian legal decisions. Those were published on [Canley] and I think they were trying to charge individuals for their removal online somehow. I realize that's not the court system there, but this is the type of risk that we're running with digitalization of court information.
Karen Eltis: Right. And that's not to say … because all human activity, I may be getting ahead of myself, but at least most human activity is fraught with risk. So that's not to say that we shouldn't harness the benefits of technology. Quite the contrary. That's just an example of what I mean by doing so mindfully. In that case, I think many individuals with ill intentions realized what a wealth of information is available from court documents and now court recordings and so on and there's facial recognition. So we need to be particularly cautious in safeguarding information for too many reasons if I boil it down. The first reason, as I've said and as is recognized by AB, is access to justice.
We don't want people saying, look I know that I have a case against my landlord, my employer, whatever it may be, and that I can win in court, but I shouldn't go because anybody's going to find that information and at the least humiliate me or prevent me from having another job or not failing to rent an apartment to me or, on the other end of the spectrum, they'll use that to intimidate my family members, they'll use that to steal my data and you mentioned the sort of … I don't know if it rose to the level of blackmail, but certainly people who are fearful of being exposed to humiliation only because they’ve claimed their rightful rights before the justice system. So access is the first.
The second, and they're related, is confidence in the justice system. As I say, as courts move from simply being publishers to being custodians of this very sensitive data, it's very important to understand that this must reflect in a positive manner on the judiciary and there are precautions that can be taken for this and other problems that arise and this is where there should be important resources dedicated to the courts for collaboration for cybersecurity and so on, because these matters are preventable so they shouldn't stop us from going digital but the example of AB versus Bragg is an example where we just go digital wholesale trying to catch up and say, hey let's put all court records online without realizing that there might be an issue and that decision made us realize that we need to do so mindfully.
Yves Faguy: So what are the kind of precautions we can take?
Karen Eltis: Yeah, so I think, and I go into detail on this in some of the publications, but for instance in Europe, there is a tendency, and particularly in Belgium, to anonymize decisions, not that these cannot be de-anonymized, but it's a first level of protection. So people often say, well why should I encrypt? Why should I use a password? A hacker can get through it anyway. You kind of want to make it more difficult for these. The gluv24's an example. It's not particularly sophisticated hacking. But courts don't want to become a target. So there's general anonymization which was unheard of in Canada for non-family cases which makes it easier to avoid that type of scenario.
There is the idea which has also been explored in Europe which is reminiscent of the charter of the least restrictive means or proportionality in terms of disclosing only that information that is required. There are, of course, very technical cybersecurity measures and systems if we look at, for instance, Germany. They created a system, I think, called … the abbreviation's BEA, which is a secure system of E communications and E filing for lawyers to ensure that only those were entitled to receive that access and I believe they have draft legislation in place. In the UK as well, there's a publication of best practices. I mentioned ethics, which is really important, and that is the basis is through judicial education and education the profession.
Very often the unintended consequences, and I'll finish my answer on this, the unintended consequences that you referred to you in your previous question, I think, result from near inattention. So it's not something that can't be remedied and that, I think is the bottom line of education with regards to the technical precautions that are beyond the scope of this interview to spell out. But if there's proper education as to the technical precautions, then these type of slips that can bring justice into disrepute are by and large prevented.
Yves Faguy: So there are a couple of things in here that I'd like to unpack. I guess the first one is, what we're talking here is about courts relying on private technological platforms and data sharing platforms and that's one part of the equation. The other part is the users who are using it and the lawyers and the judges and all who are using these systems and whether they're using these systems properly. But let's go to the first part of my comment so how much are we worried about courts using these private platforms? Do we need to be taking these into more serious consideration?
Karen Eltis: Yes. I think in fact and this is an issue that can be discussed for a very long time so I won't go into the meat of it, but I will say that this ambiguity in terms of the framework for public and private partnerships and collaborations are tremendous issues for the courts in particular because this is the justice system and here we're talking about judicial independence. So at the onset, the parameters for these sorts of collaborations, explicit parameters, are by and large absent and in the absence of a centralized platform which, by the way, others such as the Australian Judiciary have entertained, private companies, so you can think of Drop Box and others, have sort of taken up this empty space and filled the market, for obvious reasons, cloud solution, document solutions.
Now these can be extremely helpful but they are fraught with issues because the parameters are unclear. So it's extremely important to have an over-arching framework and guidelines and [unintelligible 00:17:12] to frame this private public relationship when we're dealing with, again, not only very delicate matters that by the way the storing of the data is often located outside of Canada, so we were talking earlier about courts maintaining control. That may be an issue too. There is always this tension on the one hand in that we see and I think courts can perhaps turn to the experience not only of other jurisdictions but also financial institutions and other institutions.
In the business world, there was a tension, who's better equipped to safeguard the data, right? Companies struggle with that. Should it be a large company? You could think of the large US platforms who do have means and the knowledge to deal with this? Or should it be done in house which, on the one hand, you have greater control over but you may not have the resources. And that's why I should say other jurisdictions are looking at developing centralized government platforms that are unique to the courts so they're isolated, so they maintain independence.
That is a tremendous project but it's one that is important to look at, because the reliance or over-reliance on private platforms or data sharing platforms or even cloud technology when it is not properly structured with the correct parameters, is an issue that we need to grapple with, I think in a very sober and serious manner.
Yves Faguy: You know, it's interesting because we were talking about the case of the Romanian website and you were discussing the right to be forgotten case which all these internet cases cross international boundaries and so I'm wondering how much these issues surrounding the modernization of our courts and their use of technology and their digitalization need to be approached as a global concern at this time when obviously the internet has no borders?
Karen Eltis: Yes. I think this falls into a larger question which many of us have dealt with and certainly in my research that I like to call the impact of the digital age on democratic governance. So this is a component of this larger issue of where law was traditionally anchored in territory, cyberspace challenges that tremendously. So that is a great affront to our legal system more generally. Courts don't have the luxury to wait for these larger issues to be settled. So courts must move forward in order to allow for justice to advance and that's true also with concerns that preceded Covid but also with the potential multiplication of backlog post-Covid. So courts don't have the luxury. They must move forward.
That said, because of the essential preoccupation with confidence in the judiciary, when courts move forward they must do so, as I say, in a particularly mindful manner.
Yves Faguy: However, adoption of technology is not something that happens particularly quickly in the legal sector and it’s not something that is particularly present in curricula at law schools. And I'm just wondering how important it is for us to start turning our attention to properly forming professionals, be they practicing lawyers, judges and also graduating law schools to develop basic tech competence and what should we be doing to achieve that?
Karen Eltis: I think a few things. It is essential. Just as there's been a recognition lately of the importance, and I'm not involved with the establishment of the curriculum on an administrative level, but I know in our law school and any other law school, there's been lately greater attention to legal ethics, right, and it's become a pillar of legal education, so too must there be education with regard to lawyer ethic in the digital courtroom. So you can have incidents such as a lawyer not answering the client because whoops oh the message went into my junk, or these type of very, very basic matters that I hear that surprise me and on the one hand, at conferences most of us are talking about, we could talk about this if time permits, way beyond answering emails.
We're talking about artificial intelligence in the courtroom and what sort of decisions and this is before Covid, what sort of decisions in light of the backlog can artificial intelligence resolve as opposed to a human judge. So we're there but lawyers are struggling, or some lawyers are struggling, with managing emails. So that needs to be certainly dealt with and I think that is probably an opportunity of Covid, bringing to the forefront the importance of legal education in the area of legal ethics and technology in the area of technological competence. And I have to say, we don't need to master technology per se.
That's what often dissuades some of us. It's understanding how technology affects the legal profession, affects legal ethics, rather than understanding the technology per se. There are many far more well versed in the workings of technology per se who can assist us and law firms have the proper resources. It's a question of availing ourselves of these resources. That's something that certainly needs to go hand in hand with moving forward with the technology itself. So moving forward with the technology and moving forward with the education, with the training, will go a long way towards doing away with really what is a bit of fear. So it's doing away with that fear and empowering courts, empowering attorneys, to harness technology towards the betterment of justice, the betterment of access to justice and confidence in the legal system.
Yves Faguy: And what about empowering the litigants because they're computer literacy is also an issue and I think this has revealed itself to be a bit of problem as courts have tried to move to certain virtual hearings?
Karen Eltis: Yeah. That's true and the litigant is at the centre of the process. We can't forget that and I think ... and first of us, and we could talk about this a little bit later because that's a long topic, but there's a distinction to be drawn between criminal law and the criminal justice process and other types of dispute resolution, because criminal law has its own thorny issues that become all the more thorny potentially with technology, apprehensions about due process and problems of equality. So those can't be lumped together. That's extremely important. In terms of the litigants, I think we need to be very mindful of specific challenges, inequality, socioeconomic inequalities.
We can't take for granted that everyone has access to certain technologies. We have to take a very inclusive approach. We've seen courts struggle with self-represented litigants. We need to import these struggles in the context of the digital courts. There are, of course, the elderly, there are people with disability, litigants with other impairments and needs for accommodation, so fairness is a tremendously important component as we modernize courts and as we move forward. So it's about fairness, efficiency and ethics so that we don't undermine these systems. So we really need to balance.
On the one hand, yes we want to be effective and we want to move forward but we need to move forward in an inclusive manner so that … in fact technology, I think, has the potential to help us with some of the issues faced by self-represented litigants in the past because it does make justice more accessible if it is done properly. Particularly during Covid, a litigant who is at home with children and that is family status, for instance, is one of the enumerated grounds for potential discrimination in accordance with the Quebec charter. So what do you do with that, right? What type of mindfulness is needed in order to allow a litigant to move forward who may not have the circumstances that allow them to have that space?
There's also discussion that I read in a report issued by I'm not sure which agency in the UK in online courts in Covid, the concern that members of the junior bar, so younger lawyers, do not have the workspace to navigate, to properly represent their litigants, and that some litigants may be particularly fearful about exposing themselves via video or telephone, what accommodations need to be in place to ensure a proper level of comfort.
Yves Faguy: That's interesting because that brings up the issue about concerns among judges over losing decorum in their courtroom which is conducted online. I've heard stories of counsel showing up shirtless, for example, during a hearing. How do we manage those concerns?
Karen Eltis: Yeah, it's funny. I thought you were going to mention the alleged bathroom issue related to one of a US Supreme Court hearing and there have been many versions of the story. So without pointing fingers, yeah I think that mishaps will be mishaps. We all need to be more clement and understanding in the digital age. That said decorum must be maintained and that too has to do with education and best practices and I've seen documents and it's somewhere in one of my tabs but I'm on full screen mode, that the Ontario courts that have, I think, the OJA has issued best practices. I think it's really important to simplify guidelines. Very often it's merely like many of the unintended consequences, it's simply that we're not used to it and we haven't given it proper thought.
So having a little capsule that familiarizes litigants and there's different levels of course. There's one that may be intended for the attorney, one for the litigants. I can't say it's kind of like check your junk folder. One needs to be told, wear a shirt. It seems too obvious to say. It needs to be said but it needs to be said in a simple way, right. You can't have pages and pages of decorum, otherwise … on the internet, and that ties into the greater question that you mentioned about the greater change. It's kind of like in the past when we used to conclude contracts and the like on paper, we used to think that as lawyers that more is better. So, you know, have all the details.
On the internet, on these I agree, I agree, and my tangent, I hope, is relevant, there's no way we're reading this because we're doing things quickly on the internet. So the more you put, the more confusing it is and the more counterproductive it is. So with these types of things, less is more. So I think there we need a switch because that's going to get people's attention. Less is more and again tying into my previous comment, decorum is of the essence but it needs to be balanced with the needs of marginalized population and we have to think about how we can have decorum but not at the expense of excluding those who, particularly in confinement, simply can't comply with certain requirements. I'm talking about the litigants in particular.
Yves Faguy: How do you view online dispute resolution, private ODR in particular, as a competing and complimentary tool to traditional state run courts? I guess what I'm getting at here is, might we seen an acceleration towards that to sort of open up access to justice to litigants who normally wouldn't be able to afford the long process of going through a trial? And are there any concerns here that our public courts are abdicating their own responsibility in overseeing that some of these cases are carried out the right way?
Karen Eltis: Yeah I think a few points, and I especially like this topic because early on in my career I was a lawyer at a New York law firm and working in international arbitration, so alternative dispute resolution mechanisms. A few points here. First bringing us back to an earlier question, I think we need to be extremely mindful in addressing the issue of courts partnering with private platforms as [unintelligible 00:29:54] said, who is a scholar, the powers of rule-making enforcement and review are all concentrated in the same hat. So that's one issue that we flagged before that I think we have to be careful. With regard to online dispute resolution, private dispute resolution, it's a very positive development obviously and it's complimentary.
But having practiced in this area and perhaps that's having practiced in the [unintelligible 00:30:19] was these mechanisms are very well suited as the Supreme Court itself has noted in [Duess] versus Facebook but very well suited for parties that are on par, so to speak, in terms of their status, in terms of their capacities, in terms of their sophistication. So it's a wonderful way to unclog and it has been for a long time, to unclog, to speak, the public system which is [unintelligible 00:30:51]. They lend themselves very well to that type of situation where you have two parties that are relatively on equal footing.
They lend themselves very well to potential settlement rather than to perhaps binary outcomes, right, with a win-lose and particularly, and that's where I refer to that same case, [Duess] versus Facebook, where you have a party that is either just [unintelligible 00:31:17] just anybody, you and I or someone without legal knowledge versus a very sophisticated party. Nothing is a panacea. Just like online courts are not a panacea and sometimes you do have to meet in person, so to ODR is extremely important and can play a very helpful role, but it's often better suited as opposed to a replacement in certain circumstances rather than others.
So it's really important in terms of access to justice that public courts, you use the word abdicate, really important to understand that there are certain scenarios where these types of mechanisms may not be the ideal form. So really, I think as we move forward, we're looking at a hybrid system which is good, that is to say we will have increasing use of technology again mindfully harnessing technology. We will have use of ODR but again that will be for specific cases rather than others and I've mentioned some criteria.
And then we will also have some very traditional courtroom sittings as they are permitted, all with the goals of increasing access to justice and doing it in a way that is not a one size fits all but in a way that comports with increasing confidence in the justice system and availing ourselves of the benefits of technology, all while minimizing the drawbacks.
Yves Faguy: So you mentioned earlier artificial intelligence and it's an interesting question because I sometimes get the sense that artificial intelligence is going through a little bit of a … it's suddenly become a little bit uncool again because perhaps it hasn't made the advances that people were quite expecting of it just yet. But it seems to have made some progress in the legal profession, particularly in terms of data analytics and using machine learning to get a better sense of patterns that we're seeing in the population. We've seen it used, to some extent, maybe not artificial intelligence, but machine learning at any rate, for bail hearings in some cases and in other scenarios as well.
Karen Eltis: So people, in the legal community certainly, were already turning their minds due to the tremendous backlog, again pre-Covid, the proper role of enhanced decision making in the justice system and my particular preoccupation was how can we make sure that this enhanced algorithmic decision making is again used to better access, all while protecting constitutional rights in the digital age. So now, with Corona and the cancelling and postponing of so many so-called non-urgent matters which are certainly urgent for those who are concerned, the prospect of harnessing AI in the justice context becomes more intriguing than ever.
And I want to mention one of the pioneers and my colleague, Ian Kerr, who passed away, a blessed memory, and he used to caution being a robotics lawyer that what is important about AI and we'll see how it's relevant to the justice system, is that it's "unpredictable by design", that it's volatile, right. So it's kind of like we're talking kids kind of like our offspring proverbially whose actions escape the parent's control, you create AI and it becomes this, we've all heard about it, this black box. AI by definition evolves beyond its initial programming and you could think of the [Tay] incident, if that resonates for some of us. So we have to revisit how does that relate to the legal system.
We have to revisit certain pillars of the legal system if we are to use AI and I think we will use AI. The question again, the same as with technology more generally, is how to use AI in the justice system in respect of constitutional rights. So we'll have to revisit certain things. We talked about consent. We talked about borders and how the law operates within these territorial borders in the cyber age. Foreseeability as a legal pillar, if AI is unpredictable by design, how do we deal with that?
Yves Faguy: I'd like to ask you what it is that you would like our ministers of justice, our provincial governments and our courts to … if there's one thing that they should really, really focus on and maybe different people have to focus on different things, what should it be as we move beyond this pandemic?
Karen Eltis: Yeah, I think, as we've said, the pillars of access to justice and confidence in the legal system are those that should guide us. So moving forward is crucial but we can't move forward in a manner that is simply moving forward for the sake of appearing to be progressive. True progress and true modernization requires awareness of the particular situation of the justice system. As I've said, fairness, efficiency and legal ethics, assuring competence, assuring that the proper education and the proper framework is in place. The greater danger, and you've mentioned the tie in to the larger issues of the digital age … the greater dangers are not necessarily these little unintended consequences that maybe of course disastrous, such as identity theft and others.
The greatest danger is operating in a vacuum, right, where these very basic, fragile and crucial human interaction are allowed to progress in the absence of parameters where these empty spaces are filled, be it by private platforms, in an unregulated manner and in the absence of proper guidelines. So education and frameworks, I think, are the two keys in order to allow us to move forward in a mindful manner rather than simply being propulsed forward by the forces around us.
Yves Faguy: That being said, the governance in the legal sector is sometimes a little bit diffuse and what I'm getting at is we have law societies, we have elected representatives, we have the courts themselves. How are they going to have to work together to get through this? Who is going to be responsible for making these rules? And does that raise issues of cutting in on the independence of judiciary in some cases? Do we need the judiciary to work with the governments? I saw actually, there was an interesting thing that came out the other day which was the chief justice making certain recommendations about changes to the criminal code which is interesting because you don't hear someone in his position do that very often when that seems to be of the purview of the legislator.
So how do we get these different parties, these key stakeholders, working together to ensure that we can move a little more seamlessly to a digital era in our courts?
Karen Eltis: Yeah, so good question. But I think if I had that answer [unintelligible 00:38:55] then I would be extremely proud of myself. But I'll just say two things. I think, first of all, it's clear that this needs to be done. There's some level of collaboration with respect to these matters, bearing in mind independence as well. So yes there needs to be some collaboration. I do want to say though that this is not unprecedented. Most issues that need to be properly broached do raise these questions of the law societies, of the courts, of the federal government, of the provincial government. So in a democracy, this is often how decisions are reached.
What I'm more concerned about, so this is not the idea of who makes the decisions when you have all these different, factions is not the correct word, but when you have all these different institutions that you name, that's a problem that arises. It's not unique to technology, right. My concern is not how to overcome those impediments because those are inherent to the functions of our system and are always matters that are dealt with. My concern is more that there be paralysis and earlier on we were talking about, you mentioned, and I think that word is a good one, you were mentioning abdication, and I think what's unique about technology is not that we have law societies and federal governments and provincial governments and court.
We always have that for most of the issues that are relevant to our conversation, right. That's not unique to the digital age and that's something that's dealt with in a democratic society and has always been dealt with in Canada, for better or worse. But what I'm concerned is is abdication. Technology seems to have, and I'd say technology generically, this effect on some of us and in the legal profession and beyond, this paralyzing effect and that's why we're, I think, in this conundrum to begin with. Because for all these years, before Covid reared its ugly head, if you will, these issues were haunting us. The issues of private public collaboration.
The issues of electronic documents. The issues of technological competence for lawyers. These didn't just suddenly come up with Covid. But just like the larger context that surrounds it, meaning the fact that law is suited to territory. Now we have cyberspace, how do like-minded democracies deal with these issues which include tax, which include customs, which include issues that are way beyond the scope. They are scary because they involve change and they need to be rethought and some legal concepts need to be rethought but it was always kind of left.
We always kind of dealt with it hoping that they will somehow resolve or left it to more experienced parties and I've said elsewhere and in a recent report that I shared with you, the purpose of democratic governments is to protect human rights and that cannot be abdicated, right. That's not something that we can leave to a party that's more specialized. It needs to be addressed. So perhaps the opportunity of Covid is that we address it now and that we overcome the paralysis and fear. I think the how, the technical how, is something that we normally deal with in a democracy, right.
It's not an easy decision making process and with good reason. I think getting over the fear and there's a Talmudic saying that I really like which is that, and I'm paraphrasing, it is not up to us to complete the task which may seem gargantuan, nor can we refrain from beginning, so we must begin. As judges say in their writing courses, the most important thing is to begin and not to be paralyzed by the seemingly gargantuan of it because if Covid has taught us anything, if we waited, we waited before, we can't wait anymore. And then it just gets increasingly intricate and what we don't want to do is play catch.
Yves Faguy: Well that concludes our interview. I've been talking with Karen Eltis, the author of Courts, Litigants and the Digital Age. Definitely worth picking up given all the discussion we're having today about modernizing our courts. Karen, of course, is also a law professor at Ottawa U and a faculty member at its Centre for Law Technology in Society. Thank you for joining us today Karen and to our listeners, please join us for our next episode of After The Pandemic, A Conversation About The Future Of Justice.