Use of Technology at the Supreme Court of Canada

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1 Use of Technology at the Supreme Court of Canada Improving Services to the Judges of the Court and to the Public Barbara Kincaid, General Counsel, Supreme Court of Canada 9/25/2014 The Office of the Registrar of the Supreme Court of Canada is responsible for the administration of the Supreme Court of Canada, Canada s final court of appeal. Its role is to provide all the necessary services and support to the Judges of the Supreme Court of Canada, so that they can process, hear and decide cases, in an independent and impartial manner. In that role, the Registrar has placed a high priority on improving electronic access to the Court s case files and information, thereby making the Office more efficient, and able to better serve the Judges, and litigants in all parts of Canada. This paper will look at the progress that the Office of the Registrar has made towards its five-year goal to make the Court a fully-functioning electronic court with reduced reliance on paper based processes. It will also discuss the challenges that the Office has faced in working towards that goal and discuss future projects aimed at meeting this goal within a five-year timeline.

2 The Use of Technology at the Supreme Court of Canada: Improving Services to the Judges of the Court and to the Public 1. Introduction Every weekend, Supreme Court of Canada appeal hearings are broadcast nationwide on the Cable Public Affairs Channel. Law students can watch webcasts of hearings in real time. Landmark cases are brought into Canadians homes. What they see is the traditional debate of legal principles between litigants, with piercing questions from the Bench. What they also see is the result of decades of technological advances a fully electronic courtroom in a heritage setting. This is unique in Canada. The Supreme Court of Canada has been a leader and early adopter of automated tools that enable the Court and staff to reduce the amount of time spent on routine tasks, freeing up time to focus on the substantive aspects of the proceedings. Technology has allowed the Court to provide open access to case information, through the Web and on television. Technological improvement is an ongoing process. What we now call business transformation is really a change management approach which aims to align people, process and technology with the Court s vision and priorities. Business transformation is a key priority of the Office of the Registrar. Between 2014 and 2019, the goal is to update our case management system, expand the use of our document management system and implement an electronic records management system. At the same time, we will change our processes to reduce our reliance on paper and make better use of our electronic resources. This paper will look at the role of the Office of the Registrar and how it supports the work of the Court through technology. The history of technology at the Court will be reviewed, and our current projects outlined. Along the way, the following questions will be addressed: What did we learn? How have innovations supported the judges? What are the ongoing challenges?

3 2. Role of the Office of the Registrar of the Supreme Court of Canada The Office of the Registrar of the Supreme Court of Canada is responsible for the administration of the Supreme Court of Canada, Canada s final court of appeal. The Office provides all the necessary services and support to the Judges of the Court, so that the Court can process, hear and decide cases in an independent and impartial manner. In addition to this important mandate, the Office of the Registrar provides Registry services to the litigants appearing before the Court and ensures that accurate, timely and comprehensive information about the Court and its decisions is made available to the public. The Registrar is appointed by the Governor in Council, and answers directly to the Chief Justice. Neither the Chief Justice nor any of the other eight judges have any financial signing authority; this rests with the Registrar. The Chief Justice and Registrar work closely together to identify priorities for the administration of the Court, including the implementation of process and technological changes. The Registrar has divided the administration of the Court into three sectors, each of which provides different support services to the Judges. Chambers staff judicial executive assistants, court attendants and law clerks are part of the Judicial Support and Protocol Services Sector. This includes the Executive Legal Officer who works with the Chief Justice, and serves as the Court s media spokesperson. The Corporate Services Sector comprises finance, human resources and information technology. Within IT, a dedicated technical support team services the judges and chambers staff exclusively. The Court Operations Sector comprises the Registry Branch, the Library and Information Branch, the Law Branch, and the Reports Branch. The Registry is the link between the Court and the litigants, through the case management process and management of the court hearings. The Library and Information Management Branch provides research services to the Court, and maintains the Records Centre. Information management is a key component of effective case management in the digital age, as electronic document and records management are integral to processing cases. The Law Branch provides research services to the Court, legal support to the Office of the Registrar as well as legal editing and headnote - 3 -

4 drafting of the judgments. The Reports Branch is responsible for translation, editing and publishing of the judgments. 3. Using Technology to Support Case Management The impetus for introducing technology was efficiency. Over the last thirty years, the work of the Supreme Court of Canada changed significantly, not only in the number of cases brought to the Court, but the complexity of the issues in those cases. Through the establishment and maintenance of efficient case management processes and through the use of technology, the Office of the Registrar is able to provide support to the Judges, to provide effective services and accurate and timely information to litigants, the legal profession, the media and the general public. Technology in the 1980s and 1990s Major constitutional changes in the early 1980s, the repatriation of the Constitution and enactment of the Canadian Charter of Rights and Freedoms, led to a significant change in the Court s role and a significant increase in the Court s caseload. There were changes in the way the Court worked as a result of amendments to the Supreme Court Act, 1 and this led to the introduction of changes to the Court s rules of practice. Prior to 1988, all applications for leave to appeal were decided after a brief court hearing; now leave applications are routinely dealt with on the basis of written submissions. The new leave application process, by written submission only, led to a spike in the number of leave applications being filed. By the end of the 1980s, there were significant backlogs in appeal hearings and increased delays in the leave application process. In response to concerns about delay and public demand for more information about the cases heard by the Court, the Court reviewed and reformed its processes, with extensive reliance on technology to facilitate efficiency. Process improvements continue to this day. Although backlogs and delays have been eliminated, budgetary challenges mean that the Court continually has to find more efficient ways to process cases. The Supreme Court of Canada was an early adopter of technology. Although commonplace now, it seemed revolutionary when the personal computer, local area networks and word processing software were introduced to the work environment at the Court. And even now, when 1 R.S.C., 1985, c. C-26, as am

5 the pace of change has escalated exponentially, a software upgrade to our Microsoft Office suite can seem momentous. All change is carefully introduced and supported to ensure user acceptance. Here are some examples of other technological advances that now form the basis of operational case management at the Court: The Court installed video conferencing facilities in the Main Courtroom in Used on appeals, and on Court motions, including the now rare personal appearance on applications for leave to appeal, the Court s video-conferencing service allows parties to make submissions on a case without having to travel to Ottawa. There is no cost to the parties for this service. Although less popular with counsel for appeal hearings, video conferencing is particularly appreciated by counsel from the western provinces and British Columbia when arguing motions in Court. As already noted, proceedings in the Main Court Room have been audio and video recorded since the 1980s, and, since 2009, are now digitally webcast simultaneously with the hearing. Simultaneous interpretation in English and French is available for all hearings. An automated case management system (CMS) was developed in the 1980s, and came into use in January This provided an electronic docket. Time limits for filing documents based on the rules of the Court, automated letters to counsel and parties, and statistical and other reports were hard coded into the case management system. Although the transition from paper to electronic dockets was initially challenging, the benefits were immediately evident. Case information was available on the network to anyone who needed it, as opposed to the one person who had the docket book. Now public case docket information is available to the world on the Internet. A database of internal research and case related documents was developed, and an automated library management system was launched. The Library began to augment its digital research capacity as more resources became available

6 In the early 1990s a pilot project to televise the Court s hearings was undertaken in a joint arrangement with the Cable Public Affairs Channel (CPAC). This proved successful, and now hearings are routinely televised. In 1993, the SCC, in concert with Lexum and the University of Montreal, began to offer free public access to a database that now includes all judgments published in the Supreme Court Reports since The Electronic Courtroom The 2000s saw the development of a fully electronic courtroom. The modernization of the main Courtroom began in 2006, after years of planning, and was completed in When the project ended, we had new wiring, new counsel tables with laptops, computers embedded in the judge s desks, a new audio-visual system and a document management system for the electronic version of appeal documents. The technology is discreet with design elements that reflect the heritage of the Courtroom. The Court upgraded its audio-visual technologies to meet standards for optimal broadcasting and digital recording. Focus was put on the redundancy and sustainability of systems, to minimize the risk of disruption to hearings. This upgrade enabled the introduction of webcasting of SCC proceedings, provided a better image quality, improved translation outputs, and allowed for the Courtroom environment to be ready for closed captioning. New digital audio-visual technologies also provide benefits at the corporate level in that videoconferencing technology can now be used in support of general SCC operations. To support the use of electronic documents during hearings, we had new laptops embedded in the judges Bench and counsel tables, enabled wireless Internet access in the Courtroom; implemented a secure, dedicated network for the Courtroom; deployed an instant messaging function for Judges and the Court s staff; developed a document management system for the Courtroom and Press Room (referred to as the Courtroom Documents Display Tool (CDDT)); and enabled Judges and Law Clerks to search electronic resources such as LexisNexis and Westlaw via a secure connection from the Courtroom

7 4. The Current Business Transformation Program: Towards the Less Paper Court After a few years experience making electronic documents available in the courtroom, we began our current Business Transformation Program to improve workflows and enhance our document management and records management capacity. In other words, we had the tools in place in the Courtroom, but we were not using the technology to full advantage because we had not changed the way we worked with documents outside the courtroom. We had electronic documents, but we processed them the same way that we processed paper documents. We had also not reduced our dependency on paper documents. Managing both electronic and print documents has only increased the workload of Court staff. We were also faced with increasing demands from litigants, the public, and the media for more information to be posted on-line and for the capacity to do business with the Court via the Internet. Counsel were obliged by the 2009 change to the Rules to file appeal documents in both print and electronic format. At the same time, we recognize that we could not immediately, and perhaps will never eliminate print documents entirely. Users prefer the print copy of certain documents, such as appeal factums, while other documents, such as the appeal record, are more efficiently used in electronic form. By 2009, there was general agreement that there was a need for the Court to modernize its processes as the evolution of client needs was outpacing the Court s ability to modernize. It was decided that the transformation of the Court s business had to be approached in a strategic and organized fashion, with the establishment of clear and common transformation goals. The challenges faced by the various operational units at the Court had to be understood and taken into consideration during the planning for any of the transformation initiatives. Apart from the lack of a records management system (as opposed to a document management system), we agreed that the Court already had the requisite hardware and software development tools necessary to meet its clients needs. We simply needed to focus on how the Court could leverage our existing technology to better meet its client business requirements. We set up a Program Office, bringing together a diverse team comprised of operational staff, business analysts, information technology and information management employees. This group has developed an approach and - 7 -

8 ultimately a plan for the transformation of the Court s business. Project management practices are followed, with a formal process for establishing charters for each project and project plans. Crucial to the success of the program is effective governance. There is a Steering Committee that includes members of the Executive Committee, a Judge, and the head of the Program Office. The Registrar s Executive Committee has the final say in the approval and resourcing of the projects. An important aspect of the Program Office is the use of internal expertise. No outside consultants are being used to define business requirements or do process analysis and we plan to do systems development in-house. Court staff has been challenged to think about working differently and to contribute their intimate knowledge of the Court, its rules and culture, to the design of the Registry of the future. Business Transformation: The Vision One of the first priorities of the Program Office was to set out the vision for the future of case management and processing. By 2019, we would like to have electronic processes in place for leave applications, chambers motions and appeals. At this point in 2014, we are well on the way with respect to motions and appeals, and are starting to work on the leave application process. We identified five major milestones along the way to fully electronic processes. These are a reference point for the Program Office, and each project identified fits within one of these outcomes. They are: i. Parties to proceedings can access the complete case file, data and related information online. ii. iii. iv. Parties can file documents electronically through a secure web portal. Public can access court information online; though not necessarily the complete case file. Historical information is protected and preserved in electronic format. v. Cases are processed electronically with business processes that are optimized and eliminate duplication of data entry. The Court s - 8 -

9 document management, records management and case management systems are integrated with a single point of access. Project planning and change management have also been identified as critical elements to the overall success of e-filing and the introduction of new technology. Change must be imcremental and not overwhelm the Court and its staffs ability to accommodate new ways of working. Old processes need to be phased out slowly over time. Our vision has evolved to acknowledge a smarter, less paper intensive process, not a paperless Court. The Current Projects We are currently working on developing our third generation CMS to enable seamless re-use of docket information and metadata and hyperlinking between the docket, and the document and records management systems. There will be links to the on-line e-filing portal when it is developed. The interoperability of these systems will allow us to achieve our goals of being a less paper Court, one with efficient processes to support the work of the Judges and to provide efficient access to litigants, media and the public to Court information. Two of the projects have broader public interest and impact on litigants. Electronic filing Several years ago, the Supreme Court of Canada piloted an electronic filing project, with some limited funding from the federal government s Government Online initiative. We wanted to evaluate options for the transition from our paper-based to digital case files. We developed a prototype for filing documents on leave applications via the Web. Four digital files worked their way through the system. The lessons learned were somewhat painful. The scanned documents resulted in digital files that were too big to be transmitted through to our network. And once received, we had no system in which to store and retrieve the documents. Our analysis determined that the failure of this project largely related to the attempt to duplicate a paper based process. Thus, the current project will see the development of the e-filing portal as one of the last pieces of the puzzle. We are putting in place the appropriate repositories for the documents, and adjusting our rules and procedures before we design the e

10 filing portal. Time is our friend we hope that by the time the portal is ready for use most of the documentation that is required to be filed in proceedings (which is often still photocopied or handwritten) will be available in digital form. When a litigant electronically files a proceeding through the Web, the data entered by the litigant will populate our Case Management System. Documents submitted will populate our document management system automatically. These efficiencies will enable Court staff to concentrate their efforts on problem solving and not data entry. There are also broader public policy issues that need to be resolved before the Court can fully transition to electronic case files. The Court is committed to keeping the cost of coming to Court reasonable. Technology can be costly, and there are concerns that some litigants may not have access to the necessary technology for electronic filing. Of particular concern are those self-represented litigants who may not have the resources or inclination to hire a lawyer. Access to court documents One of the most intriguing policy issues arises in relation to public access to electronic files. Supreme Court of Canada cases are often of great interest to the public. Should digital case files be made accessible through the Web, in the same way that a paper file is accessible in the Court Records Office? The open court principle militates in favour of Web access, but privacy concerns must be taken into account. While privacy is most significant in family law matters, criminal cases, and cases subject to publication bans, the appeal record in any Court case can potentially contain sensitive or proprietary information, for example, a taxpayer s Social Insurance Number included in the record in an income tax case or a patent in an intellectual property matter. Currently, privacy concerns are dealt with through the practice of sealing records and imposing publication bans on a case-by-case basis. Where there is a publication ban or order sealing all or part of a file, clearly, the file should not be Web accessible to the public. However, the question remains of what to do with files that contain sensitive information but are not subject to such orders. The Court has a policy governing access to its court records, and pursuant to that policy we provide free Web access to factums and public docket information. These documents and the docket data are subject to prior scrutiny to ensure that only non-sensitive information is

11 released. We hope to expand the Web access to the full file to parties through the Web and in this; security of the digital files will be paramount. 5. The Challenges The challenges fall into two areas. The first is ensuring that we have sufficient resources both financial and human. Like every other public sector organization, the Supreme Court of Canada has faced budgetary restrictions in recent years, and must manage the change initiatives within a tight budget. The second challenge is managing change while maintaining excellent service to judges, litigants, media and the public. Change management also means engaging employees and ensuring that they will participate in change initiatives, hopefully seeing the benefits for their work. From past experience, we know that it is important to have sufficient resources to allow operations to continue while employees who are involved in operations take the time they need to work on the identification of requirements for new systems, to analyze workflows and identify opportunities for changes to processes and workflows. In a small organization, this can be a real challenge. 6. Use of electronic documents by the Court The foregoing has discussed the use of the digital documents by court staff, the public and litigants. What of the judges themselves? The members of the Court tend not to discuss their work methods, but it is clear that the electronic records are very useful to them. For the regular Court conferences, the judges use IPads to replace heavy binders of case-related documents which they previously consulted. New workflows for motions have seamlessly integrated the digital documents. Paper documents are now circulated internally only on demand. The Court has been able to deal efficiently with extremely urgent appeals because we have electronic documents available to the Court. Working securely anywhere and anytime is a real possibility for our judges and staff. 7. Business Transformation Next Steps The time consuming task of mapping our current case management processes and the process for drafting reasons for judgment are now largely

12 concluded. What remains is to identify where we can make changes to the processes using technology. Once we have optimized the existing workflows, we will refine the requirements for the new case management system and the document management system. There are policy issues to be dealt with, such as authentication and security of e-filed documents and the long term preservation and accessibility of the digital files. There will be extensive revisions to the rules of Court. We are looking at separating documents, like the appeal record, into discrete components that can be filed separately. This will work better in the digital world than scanned copies of appeal books. A successful transition to the digital file requires rigorous project management and close attention to change management. The Office of the Registrar looks forward to a successful implementation of its transformed business, by having learned from the past and by keeping the future vision in constant view. The goals of the current business transformation program are the same as the goals for previous initiatives. We want to provide a modern alternative to traditional paper filing and establish the means for the Court to process the electronic case files from initiation to archiving. Most importantly, we want to ensure that the Supreme Court of Canada remains a leader in excellence

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