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Access to Justice: Visionary thinking to update a legacy system | Beverley McLachlin

Tuesday, May 12, 2020 @ 8:31 AM | By Beverley McLachlin

Beverley McLachlin %>
Beverley McLachlin
In my last column, I wrote about the need to use the pandemic in which we find ourselves to rethink how we can improve the justice system.

A strong and efficient justice system is central to democratic governance and to social stability. We have a good justice system. But we have known for a long time that the system, modelled on Victorian modes of doing business, was under stress.

Courts, lawyers, academics and groups committed to access to justice have been working in the past decade to reduce delays and improve access and delivery models. We believed that we could make things better gradually.

COVID-19 has punctured our complacency. It has compelled courts to reduce their operations to emergency functions. Existing backlogs are growing exponentially. Courtrooms don’t work anymore because people can’t be together. And we don’t know how long this is going to go on.

Around the country, people who care about justice are working to find solutions. Solutions, as Richard Susskind (Online Courts and the Future of Justice) writes, are of two forms. They can be what he calls “legacy based” — find new ways to make the systems we already have more efficient. Or they can be “vision based” — conceive entirely new ways to meet the problems of people seeking justice.  

No one wants to throw away the system we have — a system that has served us well over the decades. But with vision, we can bring it into the 21st century. Perhaps the answer is to proceed on both fronts — preserve the values that underlie the legacy, while developing imaginative modern ways to help people find justice — what former Supreme Court Justice Thomas Cromwell has labelled “transformative justice.” Visionary thinking to update a legacy system.

Here are three thoughts as we move forward with this endeavour.

Number one: Portals to justice

People can’t access justice if they can’t find the door.

In the old days, there was only one door to justice — the courthouse door. Today — and this is a good thing — there are many doors to justice. Dispute resolution tribunals. Legal clinics. Government programs. The Internet, hosting a plethora of programs and information sites. And an overarching fact — the law is often downright complex, making it hard to know where to go.

In the old days, people went to lawyers to find the right solution for their legal problem. Today, they often do it themselves. Systems are more and more user-friendly to the in-person litigant. But how does she find the right place to go? Confusion reigns and justice is denied.

We need centralized portals to justice — places where people can go to find out where they should go. This idea has been around for a while — they are called hubs. We should build and expand on hubs to make it simple for people to find out where to go to deal with their legal problem.  

To repeat: People can’t access justice if they can’t find the door.

Number two: Smart technology

More and more we are using technology to make our justice system function better. Many matters that formerly took place in courtrooms are now being heard by judges by teleconference and audioconference, increasing accessibility and reducing expense and delay. Apps and programs are helping courts schedule more effectively. Documents are more and more filed electronically.

We have learned that while technology is invaluable, we need to be smart about how we use it. Technology can actually be an impediment to people getting justice if they don’t have a computer or the bandwidth to use it. Some things still are best done in a room with all the players face to face. Using video links can pose issues for privacy and press access to judicial proceedings.

We need to think through what needs to be done in real courtrooms, and what can be dealt with virtually. When we go virtual, we need to be careful that we are not creating new problems or undermining core principles of the justice system. We can’t just blindly digitize existing processes in the hope it will make things more efficient. We need to think through how it will work on the ground and what new problems it may create. Finally, we need to provide support for technology where it is needed.

Not just technology: smart technology.

Number three: Support the users 

People need support to access the justice system. Lawyers still provide this support for many. But others — the people who can’t afford lawyers or for whatever reason seek justice on their own — need other kinds of support. As we rethink existing procedures and devise new processes, we should not forget the support piece.

Here’s a rule to live by: no new processes without support. The support can come from many sources and be of many types. Lawyers are central. But paralegals and people from other disciplines can supply vital support. This requires drawing clear lines between giving legal advice — the job of lawyers — and giving information and other forms of support.  

The people who find themselves enmeshed in the justice system are first and foremost people, who may need a variety of support. Victims, people with mental health issues, the homeless and disadvantaged — all these may need support if they are to find justice. Too expensive, some will say. But in the end proper support may not only help individuals but help the justice system operate more efficiently.  

Without support for the people using the justice system, it cannot function as effectively as it should. Without support, we will never achieve real access to justice.

What is happening in your community?

The Action Committee is starting a list of innovations or changes to legal system operations, spurred by the COVID-19 crisis, that might offer improvements in access to justice in Canada. This list will help us to build a national picture, encourage collaboration and inspiration, support research and share activities across the country. Help us learn about what is happening where you are.

The Right Honourable Beverley McLachlin served as chief justice of Canada from 2000 to mid-December 2017. She now works as an arbitrator and mediator in Canada and internationally and also sits as a justice of Singapore’s International Commercial Court and the Hong Kong Final Court of Appeal. She chairs the Action Committee on Access to Justice in Civil and Family Matters.