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Access to Justice: A plea for technology in the justice system | Beverley McLachlin

Friday, July 17, 2020 @ 8:52 AM | By Beverley McLachlin

Beverley McLachlin %>
Beverley McLachlin
Our justice delivery systems are built on a 19th century model of paper filings, when all hearings were held in person, all documents were filed at the courthouse counter and clerks spent long hours toiling over handwritten schedules.

The problem is, our 21st century world doesn’t operate this way anymore. People communicate and do business electronically, by iPhone and through audio platforms, and organize their lives and businesses by electronic calendars. They do things this way because it’s more efficient and cheaper. Business and government have adapted to the world of electronic tools and virtual communications. If the justice system wants to serve the people, it has no choice but to follow suit.

The COVID-19 crisis has given the justice system a muscular nudge in the right direction. Unable to sit physically in courtrooms, courts are conducting urgent business by telephone or platforms like Zoom. With courthouse counters closed, documents are being filed electronically. Some courts of appeal have been conducting most if not all of their hearings virtually.

The COVID-19 crisis has confirmed that many of the in-person activities of courts, litigants and lawyers can be done virtually, and that procedures that once required masses of paper can be more efficiently accomplished online. This was happening in a minor way before COVID-19 — the Supreme Court of Canada introduced e-filing and electronic appearances long ago — but COVID-19 has now carried new technologies into courtrooms and tribunals from coast to coast to coast.   

There is a danger that once things return to normal, the legal system will go back to its old ways. This would be to squander the opportunity the current crisis has given us to rethink the way we do justice in Canada. Instead of returning to the “old normal” we need to build on what we have learned to bring the justice system into the 21st century.

What will a 21st century justice system look like? We don’t know for sure. Here’s one person’s prediction. We will retain much of what we do now. In-person hearings will always be important. Juries are a permanent part of our criminal justice system. Judges will still sit on benches and lawyers will still gown up to plead their cases.

At the same time, we will use technology where it helps us deliver justice more fairly and efficiently. Documents will be filed electronically. Schedules will be managed with the help of computer programming. Many interlocutory and chambers matters will be done virtually. It may be, as British law professor and legal futurist Richard Susskind predicts, that peoples’ civil legal problems will be dealt with in a pyramidal approach. At the entry level, computer programs supplemented by trained support staff will identify problems and potential solutions. Mediation techniques, again aided by technology, will follow. Most cases will be resolved at this stage. Those that do not resolve in these early stages, will proceed seamlessly into the court system, to be dealt with as cases now are, but with efficiencies enabled by technology.

We can’t just plug technology into existing systems and expect it to miraculously fix what ails the justice system. We need to ask questions, and plan. We need to look at each function and ask whether it could be more efficiently and effectively accomplished with this or that technology. At the same time, we need to look at systems as a whole with the same questions. Tinkering with discrete parts of the justice system will not succeed — a systemic approach is required. The systemic approach needs to take place at the level of individual courts, tribunals and agencies. But it can’t stop there — it has to focus on how different aspects of the justice system, viewed as a whole, function to provide seamless solutions to the legal needs of the people who use it and are impacted by it. 

Technology means better data. We need data to tell us where the problems are in our justice system. A user-based justice system, which is what we need, presupposes that we know what users need. Data is a two-way street. Technology can help us get data, and data can drive technologies that will help us schedule and plan judicial proceedings more effectively. Algorithms are essentially complex predictive models based on data — that data foundation must be reliable, transparent and consistent.

Technology also requires regulation. The justice system does not lend itself to a “free market” approach to technology service provision — it must have protections to ensure that providers are reliable, verifiable and secure and that the vulnerable are protected. The challenge of meaningful regulation has frequently served as a barrier to tech innovation in justice.  

Finally, as we embrace technology in our justice system, we must take great care not to create new barriers to justice. Vast swathes of this country are not covered by broadband. There are too many people for whom tech access is simply not possible either because of personal barriers such as poverty or language or because our Internet infrastructure does not reach all areas of Canada equally. Justice must still reach these people where they are.

Justice will always be a human endeavour. The problems that occupy the justice system are people problems, and they are difficult, diverse and deeply serious. Using technology is not an end in itself, but a means to better justice.

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.