The judiciary across Canada is watching R v Dowdall et al., in which Fasken Martineau acts for two of the defendants. The ongoing criminal bid-rigging case in Ottawa is fascinating for many reasons – the 14 jurors, the eight months of ongoing trial, the many self-represented accused. But one of the most interesting aspects of this case is the novel use of technology in the courtroom. In many ways, this trial is a window into the future of oral advocacy.
When you walk into the courtroom the first thing you notice is the screens – screens are everywhere. Massive screens have been mounted on the walls of the courtroom to publicly show the documents as they are referenced. Each of the accused has at least one screen (usually in addition to a personal laptop), as does every lawyer; between the Fasken three-person legal team, there are seven screens. The witnesses, the jury members, the judge – everyone has a screen in front of them on which is projected whichever document is being discussed.
In a case like this, with about 4,000 documents entered as exhibits and over 25,000 documents in disclosure, totaling over one million pages of disclosure, having multiple paper copies is not realistic. Key documents that are frequently referenced are provided in hard copy, but largely, the documents are submitted and referenced only in electronic format.
Access to the documents, directing the jury's attention to a particular aspect of a document, and rapid searches for and within documents are much faster and easier than with paper. As is usual in litigation with many documents, the Fasken legal team uses specialized software to help organize electronic documents. However, as the self-represented co-accused in this trial are unfamiliar with this software, the documents are made available in court in Adobe PDF format.
The courtroom has been reconfigured and wired to accommodate all the digital technology. At all times, there are paralegals and computer experts available to the court for assistance. Even with a jury, numerous self-represented accused, and a mountain of documents, the case has proceeded relatively smoothly.
Participants in the trial have embraced this new approach. The judge is quite comfortable referring to the electronic documents, and has elected to take all her notes electronically. The jury has a separate room with computers to review any of the documents at their leisure. These computers are updated on a regular basis to ensure jurors have timely access. The accused themselves, all being members of the IT services industry, have had no issues.
The Fasken legal team has worked with the court and other counsel to design this new form of trial and has embraced the result. One of our lawyers has gone further and conducted examinations-in-chief and cross-examinations with his tablet. In addition, at the beginning of the trial, the Fasken team brought and set up a Wi-Fi hub. This provides online access to keep in touch with the office and look up information about case law and witnesses in real time.
In addition to general Internet functions, the Fasken team has had access to real-time transcription through the Court's reporter. This service has proved to be extremely useful; in addition to being able to go back to what was said just a few minutes ago, an unofficial transcript is sent at the end of each day to a secure Dropbox location.
Although it has not been without its bumps, the case has proceeded largely without any major issues. Years ago, the amount of disclosure would have resulted in a much lengthier and expensive trial. While this electronic-based litigation is currently used for cases with such an extraordinary amount of documentation, it may soon be used on a more regular basis as the legal world continues to employ new technology to facilitate proceedings.
Andrea VanderHeyden is a recent graduate of the Schulich School of Law with a specialization in Health Law and Policy. She is currently articling in Fasken's Ottawa office.