Focus On
Guy Pratte

Task force aims to help modernize justice system and role of advocates

Wednesday, June 17, 2020 @ 9:36 AM | By John Schofield

Some of Canada’s greatest legal minds are coming together to contemplate the future of the country’s justice system beyond COVID-19.

The Modern Advocacy Task Force, officially launched June 9 by The Advocates’ Society, will be made up of members from across the country and guided by a blue-ribbon advisory panel that will include former chief justice of Canada Beverley McLachlin and former Supreme Court of Canada justices Ian Binnie, Thomas Cromwell, Marie Deschamps, Clément Gascon, John C. Major and Marshall Rothstein. The advisory group will also include current and former senior provincial appellate court justices Eleanore Cronk, Constance Hunt, John Hunter, Kathryn Neilson, Dennis O’Connor, Jamie Saunders, Robert Sharpe and John I. Laskin. Eminent Canadian counsel Sheila Block and Gérald Tremblay will round out the advisory panel.

It will deliver its final report by April 2021.

Guy Pratte, president of The Advocates’ Society

“This is a pivotal moment for the Canadian justice system,” Guy Pratte, the new president of the Toronto-based, national organization, said in a news release, referring to the challenges and changes the pandemic has precipitated.

“We have a unique opportunity to reflect on this experience and use it to enhance the efficiency and quality of the justice system,” added the senior partner at Borden Ladner Gervais LLP. “We must do that while preserving the fundamental right of litigants to have their cases put forward in a meaningful and direct way before courts and other decision-makers.”

In an interview with The Lawyer’s Daily, Pratte, task force chair Peter Osborne and vice-chair Katherine Kay said the initiative was also spurred, in part, by concerns before the pandemic about the declining role of oral advocacy in Canada, mirroring trends in the United States. They pointed to a push by some Canadian courts to move to written submissions only.

“Then, of course, COVID happened, which is forcing us to reconsider the role of the courts,” said Pratte. “But we didn’t want to assume we should throw out the baby with the bath water, so we created this task force.

“Our goal,” he added, “is to make a constructive contribution to modernizing the justice system and the role of advocates in it, taking into account every interest in an open hearing process.”

Peter Osborne, chair of the task force

The scope of the Modern Advocacy Task Force will go beyond the recent E-Hearings Task Force, which was spearheaded by the Ontario Bar Association, The Advocates’ Society and other legal organizations and delivered its report May 13. Since then, said Osborne, those findings have been consulted by courts and lawyers in Canada, the U.S. and the U.K.

“COVID-19 has provided a challenge, but also an opportunity,” said the partner at Toronto-based Lenczner Slaght. “Our goal is to look at the administration of justice from that lens, but also a broader lens. We can’t just throw out 200 years of common law jurisprudence without thinking of what’s worked and what can be improved.”

Efficiency can’t be the only measure of success, he added. Ensuring public confidence in the justice system and improving access to justice will be paramount considerations for the task force. But it will also strive to come up with recommendations that are “meaningful and manageable,” especially from a cost perspective. They could also have some impact on legal education, including training in “Zoom advocacy.”

Katherine Kay, vice-chair of the Modern Advocacy Task Force

“I think that training will have to go down to law schools,” said Osborne. “We’re all learning it’s completely different dealing with witnesses when everyone’s in different places.

“Change is coming,” he added. “Let’s be part of this discourse and ensure we end up with the best possible system.”

As the initial panic of the pandemic starts to settle, observed Kay, it’s time to survey where Canada’s justice system stands and where it should go. “We have adapted when we needed to adapt,” said the partner with Stikeman Elliot LLP. “Now let’s take a breath and figure out what it will look like years from now.

“People say never let a good crisis go to waste, and we’re up for that,” she added. “I personally think there’s not a lawyer who would not say there’s room for improvement.”

Pratte said that public confidence will be difficult to maintain, however, if a meaningful role for in-person oral advocacy is not preserved. “It’s the only chance that any litigant has to interact with a system that will determine important issues in their lives,” he argued. “Do I really want to be judged by somebody I’ve never seen?”

Still, he added, “we will have to be committed to challenging our own assumptions, and not just resisting change for the sake of it.”

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