“Innovation” and the Criminal Justice System

As someone who is interested in criminal law, and prosecution in particular, I often feel as though I am on a different playing field completely than most of my peers in the Designing Legal Expert Systems course. As the government is not exactly known for spearheading innovation, the kinds of advancements I imagine myself creating in my career are very different than the kinds of advancements my classmates can expect in private practice or the type of innovation discussed in this class.

It is not a secret that the criminal justice system is steeped in patriarchy and racism. Canadian state institutions were created by White men, for White men. This reality is evident in, one, the historical formal exclusion of women, Indigenous peoples, and other racialized and minoritized individuals. And two, the patriarchal legacy that has generated continued oppression and marginalization for the women and people of colour who attempt to take up space in these institutions. Some examples of this legacy are the extreme hierarchies in our court systems, the hostility towards brightly coloured clothing, and the overrepresentation of Indigenous people in our prisons, among many others.

This past summer I attended a Canada Bar Association webinar titled Women in Criminal Law. My expectations for these types of discussions tend to be quite low, as many I have attended in the past tend to focus on topics such as “work-life balance” and other topics that men never get asked about. However, I was pleasantly surprised by the types of things the panelists discussed – everything from what to do if you get your period in court to how not to get pressured into specializing in a “women’s issue” area, such as sexual assault.

Although the panelists’ advice and calls for action were inspiring, I was left with the impression that the court system is even more hostile to anyone other than White-cis men than I had previously thought. And this panel was only focused on how the criminal justice system treats female lawyers – how the criminal justice system treats women and minoritized individuals going through the system is an even bigger can of worms.

I recently began reading Progressive Prosecutions: Race and Reform in Criminal Justice, which represents the type of ‘innovations’ I imagine myself advocating for in my career as a prosecutor. The book’s thesis is that prosecutors play a key role in either enabling change within our criminal justice system or continuing to uphold the status quo. Although I do not imagine myself being able to make any major changes to the criminal justice system on my own, I hope to see many advancements in the field within my lifetime.

The structures that give way to our technological realities in law

Ben Turner | DLES Fall 2022

Since starting law school, I have been particularly interested in the “structure” of the law. By structure, I mean the kind of imagined scaffolding of legal information and knowledge, whether in the academy, the profession, in business or beyond. Whether in flowcharting our apps’ processes, mindmapping legal topics in preparing for a final or even just doodling what I think court structures are, I keep coming back to thinking about how we have the structures we do. Our class together in DLES has made me question some of my underlying beliefs (and even some myths) about what law is, what it ought to be and how we might be a part of bridging the two.

In preparing work for another commitment, I came across an article from The Advocates’ Quarterly called “Legal Research, Legal Reasoning and Precedent in Canada in the Digital Age” by Jonathan de Vries. What struck me about the article was the author’s observation of some of the structural differences in case reporting between Canada, the United States and England, especially as this process has transitioned into the digital age. Core to de Vries’ analysis is a concept that I have been somewhat obsessed with for a number of years, which is a kind of McLuhan-esque “the medium is the message” – the ways in which we think and talk about and perhaps even practice the law are informed by the structures in which we operate. To somewhat bastardize de Vries’ points, I was lit up by the idea that how we report and distribute caselaw is deeply a part of how we think about and use caselaw, and in turn form the law itself. In a recent research series talk, Professor Chambers discussed how tools like CanLII and AustLII were essential in his work writing large books on broad areas of law, and that he simply could not have written some of his books if he were researching in the “old way”. De Vries also articulates a broader possibility in terms of how access to caselaw could inform trends in judicial decision-making. For instance, “The increased volume of case law made available by the digital system also has the potential to alter the idea of precedent.”[1] In other words, by having a resource like CanLII to draw upon countless cases, the very means by which “lawyering” is done changes. With near-instant and boundless access to caselaw, lawyers can stockpile decisions that align with their clients’ interests, judges have to consume and process so much more information and we all have to adapt to how the law shifts and changes.

Separately, but relatedly, I have seen a lot of parallels Sarah Sutherland’s mapping out of the ways in which legal information can be better understood, codified and put to use in her book Legal Data and Information in Practice: How Data and the Law Interact. Her taxonomizing different forms of legal data, especially across not just the common law, but also other large swaths of the world, feels like a further expansion of the possibilities of a more technologically informed approach to law.

Part of the core thesis of Designing Legal Expert Systems that spoke to me was Professor Sykes’ challenging some of those base assumptions many of us have about law and legal education. Who’s to say that lawyers can’t build or design legal applications? Do we not owe it to our clients, firms, organizations or even our fellow citizens to innovate and push the envelope when it comes to giving access to legal information or advice? In building out our app, I feel this sense of pride that our team (and the other teams, too!) are wrestling the law into a digestible, sensible form – we’re giving structure to something that wouldn’t otherwise have it, for those that wouldn’t otherwise be able to access it.

Without getting too “meta”, it took me stepping outside of our DLES class to realize how important these challenges to preconceived notions of the legal system are to my own values and beliefs, and that I want to be a part of helping change the legal profession to be a more innovative, dynamic and welcoming environment, no matter what the “structure”.

[1] Jonathan de Vries, “Legal Research, Legal Reasoning and Precedent in Canada in the Digital Age” (2018) 48:1 Advoc Q 1, page 21

COVID-19: The catalyst of emerging technology in the legal profession

The COVID-19 pandemic was a catalyst for emerging technology in the legal arena. Specifically, it encouraged the legal workforce to develop efficient research strategies to search for, organize, and evaluate legal information for their clients while working virtually. The nature of proceedings also shifted during COVID-19, with virtual proceedings and electronic document filing becoming the norm. Although some of the changes are now being reversed in British Columbia (i.e., online hearings), there are important lessons to draw from the digitization of workflows during the pandemic.

Litigation and Technology

As a result of the pandemic, pre-litigation and litigation steps were proceeding online on platforms such as Zoom or MS teams, and chambers proceedings were taking place online up until recently. While some of these virtual proceedings are returning to in-person appearances, online workflows have important implications for creating a more accessible legal system.

The benefit of digitization in law is that an online workflow can provide an overview of the analytical process that has led to a particular result or outcome. In a paper-based system, individuals can only see the product of their work rather than how it interacts with other cases or tasks of a similar nature.[1] There would be a great benefit in shifting many of the legal processes completed by paper to an online platform as it would give individuals an idea of the logic underlying a particular result and streamline the resolution of simpler cases. For instance, the Online Divorce Assistant[2] by the Ministry of Justice in BC can assist individuals with filling out the forms necessary to file for divorce. If eligible, the assistant can streamline the resolution of more straightforward cases by automatically populating the documents on your behalf based on your answers.

An online workflow that maps out the tasks and procedures required to resolve specific legal issues will create a more accessible justice system for the public. For instance, the solution explorer[3] at the Civil Resolution Tribunal (“CRT”) has digitized the process for making a CRT claim. This online workflow allows you to visualize the different steps that need to be completed to reach a particular outcome. As such, the process is easier to understand and navigate for individuals who find themselves overwhelmed by the legal system and the process of making a claim.

Technology and Legal Research

According to Thomson Reuters, one of the leading legal research engines, “online research databases have replaced law books, digital contracts have replaced physical copies, and countless other advancements have transformed the legal industry.”[4] Research databases such as Lexis Nexis, WestlawNext, CanLII, and Google Scholar allow legal professionals to find cases and statutes efficiently and quickly without having to flip through hundreds of pages to locate the answer to a legal issue.

After completing advanced legal research and writing, I recognized the importance of online search databases in legal practice. Online research platforms allow you to track your previous research, access reliable and up to date case-law and information, reduce overhead costs through free online legal information, and draw inferences by mapping out your research process. Adopting Boolean operators, citation searching, keyword searching, and truncated/wildcard searching is a cost and time-effective strategy for finding a resolution to a legal issue.

Online research databases can transform how professionals complete legal research. It is my experience and understanding that COVID-19 has led to developments in search databases such as Lexis Nexis and Westlaw. These platforms have introduced more user-friendly options to encourage lawyers to complete their research online (i.e., changes to Westlaw’s Practical Law or Lexis’ Practical Guidance). Although transitioning to a fully digital workflow may be difficult for lawyers who have developed their practice around a paper-based system, it can streamline the analytical process associated with resolving a case and build a more accessible legal system for the public [5].

[1] Thomson Reuters, “Lessons Learned in Courts Digitisation” (2015), online: <https://static.legalsolutions.thomsonreuters.com/index/pdf/lessons-learned-in-courts-digitisation-whitepaper.pdf>

[2] See generally Ministry of Justice, “e-Divorce: Intro,” online: <https://justice.gov.bc.ca/divorce>

[3] See generally Civil Resolution Tribunal, “Solution Explorer,” online: <https://civilresolutionbc.ca/solution-explorer/>

[4] Thomson Reuters, “Technology in law is the new norm” (2021) at para. 1, online: <https://legal.thomsonreuters.com/blog/technology-in-law-is-the-new-norm/>

[5] Thomson Reuters, supra note 1, at pp. 4-5.

Indigenous Digital Equity: The barriers Indigenous communities face accessing internet

I spent most of my 2L year back on my home reserve in Southern Alberta. It’s about a 45-minute drive to Lethbridge. My internet connection was a challenge when trying to listen to lectures or have a strong connection for a zoom call. Internet connectivity for Indigenous Peoples in Canada has long been difficult to implement due to many environmental and socio-economic factors such as remoteness of communities, difficulty gaining first-mile access, unreliable networks, slow speeds, expensive equipment, and high data costs.

Compared to the other infrastructure problems faced by Indigenous communities, the internet might not seem like a big problem. But COVID-19 has shown that when people don’t have equal access, they lose the same opportunities. Remote learning is now crucial to getting a quality education, but poor internet connections or a lack of a connection in the first place are holding many Indigenous children behind their peers.

A lack of internet also affects those looking for work. COVID-19 has led to many layoffs, and the internet had become one of the only reliable sources to find emplpoyment. This lack of resources is one of the reasons why unemployment is already higher in Indigenous communities than in the population at large. Even the transition to working from home means a greater need for high-speed internet, but this poses another disadvantage for rural homes that cannot access a connection to telecommute. The province says 61 percent of B.C. Indigenous communities lack access that meets the standard, although the council notes that number may count communities with just one broadband access point, meaning there is one place in town with adequate Internet, but it’s not in every home, school, or office. [1]

The geography of remote and northern Canadian communities implies transportation access problems, long cable builds, and harsh climate. Building sustainable broadband infrastructure capable of telehealth delivery in northern and remote Indigenous communities is and will continue to be costly. [2] The economic situation combined with the high cost of connectivity suggests that that many remote and northern Indigenous communities and community members may be struggling to pay the high costs of using digital technologies. At the same time, Indigenous community members and Indigenous communities have demonstrated that they are eager users of digital technologies and they will adopt them when they are affordable, reliable, and meet their needs. [3]

The UN has declared access to the internet a human right. This declaration is formed on the basis that having access to the internet means being able to exercise other fundamental human rights and freedoms (e.g. right to freedom of speech). For Indigenous people, the internet is a tool for cultural survival, acting as a hub for Indigenous languages and traditional stories. Without leaving their community, Indigenous youth and adults are able to learn skills, meet Indigenous role models, obtain a degree/diploma, access healthcare, and share their stories with the world. [4]

The inclusion of Indigenous voices on important issues can’t be accomplished if Canada doesn’t work to close the connectivity gap. The plans must be done in coordination with Indigenous governments, letting them lead any project or policy that may affect their communities or land. Without access to broadband, Indigenous peoples will continue to be left behind.

[1] Katie Hyslop, “Closing BC’s Indigenous Internet Gap” The Tyee (12 December 2019) online: https://thetyee.ca/News/2019/12/12/Closing-BC-Indigenous-Internet-Gap/

[2] O’Donnell, Susan “Digital technology adoption in remote and northern Indigenous communities in Canada.” Canadian Sociological Association 2016 Annual Conference. University of Calgary, Calgary, Canada. 2016.

[3] ibid 

[4] Emma Greenfield, “Digital Equity for Indigenous Communities” Social Connectedness (7 July 2020) online: https://www.socialconnectedness.org/digital-equity-for-indigenous-communities/

Litigation & the Integration of Blockchain Technology

In my first summer of articling at a litigation focused firm, it became apparent to me how slow, tedious, and outdated the litigation process in British Columbia is. Every summer student has had to suffer through sprinting to the registry to file an application in time or ensuring the opposition is served before the 4:00pm deadline. In addition to these two examples provided, there is also a separate issue of the lack of modernization within legal practice. Tasks, procedures, and practices can become obsolete and much more efficient with the adoption of blockchain technology. We live in an age where technology is exponentially growing, so, why has the legal community been slow to adopt and accept this revolution?

It takes time to learn and integrate new technology into a legal practice. I believe senior lawyers think that they can wait out the changes that are inevitably coming. This suggests they assume that they will retire before these systems are implemented. Furthermore, they hold the belief that adopting this new technology will impact their bottom line. This demonstrates lackadaisical thinking. Ultimately, a lawyer’s focus should be to provide the highest quality service to their client, at a price that is akin to the market. Therefore, if the market price of a service is under cut or reduced, the end user will likely seek change. Clients pay thousands of dollars during litigation, but with the adoption of blockchain, lawyers can reduce the costs to the client, allowing for more access to legal services. But, what is blockchain technology and how can it work within the legal sector?

Simply put, blockchain technology is a decentralized system that utilizes individual computers as data storage nodes, creating distinct “blocks” of data.[1] This storage will take place on multiple computers and create a “chain”. The blocks in this chain act to verify the integrity of the documents.[2] Traditionally when storing data, the documents would be stored on a centralized server. This server could be owned by google, apple, etc. Blockchain creates a chain of transactions, using individual blocks. When changes to a document are made, the blocks in the chain will verify the legitimacy of the new data. Further, there are different types of access that can be granted to blockchain technology. These are: public vs. private & permissioned vs. permissionless.[3] Each of these can be used in a legal practice in their own capacity. These are some of the appealing benefits of the adoption of blockchain technology by the legal profession. By decentralizing the storage of data, it creates further accessibility to legal resources.

Blockchain technology creates higher accessibility. This means the barriers to acquire legal services are reduced. It allows for safe and secure digital signatures and a storage method secure from alteration or change.[4] An  example is the notarization of a document, using the verification system in block chain. It would be unnecessary for a lawyer or notary to witness said signatures. Something that would generally cost a few hundred dollars could now become free! This can also be applied to transactional work, such as real estate transactions or the transfer of shares in a business. It eliminates timely tasks associated with completing these transactions. Further, automated, scripted, and smart contracts can reduce costs to the client. These streamlined processes create more accessibility to legal services, by reducing hefty legal fees.[5]

There are further avenues to reduce the end cost to the client. For example, automation allows for several administrative tasks (i.e.; filing, formatting, grammar review, etc.) to be done using a simple algorithm.[6] Most technology can seamlessly integrate into existing management systems. Further, a cost-efficient algorithm can be used to manage escrow (trust) accounts. This can reduce the risk of lawyers in British Columbia violating trust accounting rules. The algorithm will significantly reduce the costs associated with the manual management of trust accounts.[7] Reducing costs to the end user will increase the size of the market for legal services. This will theoretically help to balance the losses that firms and individuals will face by adopting this new technology.

There are several methods that will allow for blockchain technology to both modernize and revolutionize the way that we practice law. Cost efficiency and accessibility are at the forefront. In many ways, the lack of technological innovation in the field of law could classify our profession as “prehistoric” when it comes to our use of technology. I am not suggesting that we allow computers to replace lawyers, nor do I believe that they will. I am suggesting that by mending the apparent inefficiencies, that it will both benefit the user, as well as the practitioner.

[1] Consensys, “Block Chain in the Legal Industry”: https://consensys.net/blockchain-use-cases/law/

[2] Ibid

[3] IBM, “Basic Blockchain Security”: https://www.ibm.com/topics/blockchain-security

[4] Supra note 1.

[5] Sascha Mehlase, “Legal Tech: How Blockchain Can Easily Transform the Legal Profession”: https://www.abclegal.com/blog/legal-tech-blockchain

[6] Ibid

[7] Ibid, and Supra note 1.