The Canadian justice system, a cornerstone of our democracy, is primarily housed in an assembly of bricks-and-mortar buildings that are a central source of information and services, not all of which are easily – or successfully – transposed to an online environment.

You can’t just go online to order justice when the courts and tribunals close.

That’s not to say that justice is available only in a physical space. But the past year has shown us that we need to rethink access to justice – who needs what, and how best to provide it.

Last March, in the initial stages of the pandemic when businesses were ordered to close and put physical distancing guidelines into place, many of the country’s courts and tribunals shut their doors as well. Because the justice system continues to be largely paper-based and reliant on in-person hearings, there was no immediate solution to the question of how to deliver services to those in need.

It wasn’t just a lack of hearings, although that was a cause for concern in a system where dockets already featured significant backlogs.

Courthouses are complex environments in a much larger ecosystem. Along with space for civil, criminal and family hearings, they can house registry offices where people can register their property, or municipal offices where they can pay fines or get married. They serve the open-courts principle, by providing access for the public and the media to proceedings. People with questions about the justice system or legal aid can go there to get answers. They’re places to access alternative dispute resolution.

Eventually courts and tribunals across the country started using a hodgepodge of commercial meeting software to offer remote hearings. Where infrastructure permitted, they encouraged remote filing of documents. Some solutions worked better than others. For example, we’ve seen that remote hearings work well for less-complex matters with few witnesses. They work less well in complex matters.

Hearing rooms are designed to serve the needs of an adversarial system. Lawyers can have quick, private consultations with their clients, while participants can observe body language, reactions and behaviour in a way that is simply not possible in an online forum.

The justice system reached for the best solutions available in a crisis. Now we need to take what we’ve learned from those short-term solutions and apply them to a longer-term program of modernization.

That was the objective of the Canadian Bar Association’s Task Force on Justice Issues Arising from COVID-19. It drew together partners from the justice system (e.g. judges and administrators associated with courts and tribunals) and the legal profession (lawyers and paralegals) to explore why the justice system was so unprepared for the kinds of restrictions put in place due to the pandemic, and to discuss how to rectify the situation.

The final report – “No Turning Back” – contains 18 recommendations. As the name suggests, it recommends building on the changes instituted in the last year and not reverting to former practices. Here are a few highlights:

  • First, remote proceedings should be a permanent feature, especially for uncontested, shorter and procedurally less-complex matters. All courts and tribunals should have electronic filing. The federal government should appoint a justice innovation champion to work with provincial and territorial governments to lead the permanent implementation of new measures and technologies.
  • Second, as the justice system embraces technology, we must be careful not to overlook its perils and potential unintended consequences. Several recommendations address the importance of safeguarding personal information and other sensitive data in a digital world. Other recommendations consider the implications of changes on marginalized groups and those who represent themselves.
  • Third, to maximize new innovations and technologies – and not replicate inefficiencies by simply transposing existing “bricks and mortar” processes online – we should explore the best ways to triage matters that are more amenable to remote proceedings and look to the future for matters that are potentially suited for more-sophisticated online dispute-resolution platforms.

To make permanent changes to the fabric of the system and to ensure that they promote greater access to justice and truly serve the people who are seeking justice will take time and investment – time to move forward in a deliberate, systematic way and investment to ensure equitable access to services across the country.

COVID-19 has taught us many lessons. One of those lessons is that we can no longer afford to delay innovations and changes necessary to forge an accessible, modern and user-centred justice system.

This article is part of the Digital Connectivity in the COVID Era and Beyond special feature.

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Brad Regehr
Brad Regehr is a partner with Maurice Law in Winnipeg. He was the Canadian Bar Association president in 2020-21 and co-chair of the CBA’s Task Force on Justice Issues Arising from COVID-19. He is a member of the Peter Ballantyne Cree Nation.
Vivene Salmon
Vivene Salmon is vice-president, country compliance manager, global banking and markets compliance at Bank of America Merrill Lynch. She was the Canadian Bar Association president in 2019-20 and co-chair of the Task Force on Justice Issues Arising from COVID-19.

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