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Sustaining our justice system in pandemic times | Roger Bilodeau

Friday, September 25, 2020 @ 2:03 PM | By Roger Bilodeau


Roger Bilodeau %>
Roger Bilodeau
In recent months, several judges, court officials and observers have stated that the pandemic has thrust the justice system further along into the 21st century with the push to use all available technologies to maintain court operations. Many of them have also rightly pointed out that access to justice is still a challenge for a great number of Canadians. As courts take steps to resume regular operations, what does the future hold in terms of sustaining our justice system? Here are a few points to consider as governments, courts and other interested parties move forward to map out the future.

The work done in recent months by various courts to leverage more technology in their processes and procedures is to be commended and must continue. If not yet the case, the use of technology should not always consist of replicating in electronic format the existing court processes and procedures. Now is the time to put in place electronic processes which are as simple and efficient as possible, especially for cases involving self-represented litigants in areas such as family law, small claims, housing or financial issues, minor infractions, etc. Ideally, electronic tools which are as easy to use as for online banking, should be the norm in all jurisdictions to inform the public about past or ongoing cases and to file new proceedings, as well as to schedule regular activities such as hearings and appearances by litigants or witnesses.

Recent experience has shown that actual trials and hearings can be conducted by videoconference in appropriate cases. Where there are witnesses whose credibility must be weighed and assessed by a judge, courts and judges as well as others will have to determine if this matter requires further study. The Supreme Court of Canada and other courts of appeal have shown that videoconferencing is a viable option to hear appeals. However, some believe that there is still a lot to be said for appeals being heard in the actual courtroom environment (with appropriate distancing measures), especially for judges and counsel to have an in-person appreciation of the facial and body language of all participants. This will also likely require further assessment by the affected courts and other parties.

Continuing on this theme, this would be an opportune time for federal-provincial-territorial ministers of justice to lead a federally funded, one-time investment in infrastructure to install uniform technologies that can ideally be connected to each other, throughout all courts in Canada. Of course, there are factors to be considered in setting up such an interconnected system, such as jurisdictional issues, differences in how various courts process similar types of documents and cases, the specificities of civil procedure in Quebec’s civil law system, as well as having systems that can accommodate proceedings in both French and English throughout Canada. But these could surely be addressed in a practical manner.

We have seen that this is a time when governments are making money available to repair or fix various issues related to, or flowing from, the pandemic. Given that the justice system has an impact on the lives of so many people, with the potential to help so many more, this is a good time for that type of investment.

Research by the Canadian Forum on Civil Justice has shown the negative consequences which beset the significant number of Canadians who cannot get the advice or help they need to resolve various legal problems. That research also shows the high cost to governments and society for legal issues which are left unaddressed and which often lead to other problems, namely homelessness, unemployment, drug addiction or incarceration, all of which have been magnified by the pandemic. This phenomenon is, in fact, consistent with what struck me during my time in government in New Brunswick, namely that if problems are not addressed at the “front end,” we almost inevitably end up paying for them at the “back end.” I have therefore often wondered if there are cases brought by self-represented litigants which could be dealt with otherwise than via a court proceeding.

The considerable number of self-represented litigants in all trial courts, the appeal courts and even in the Supreme Court of Canada begs the question of whether courts and governments should invest in a triage system for all matters which self-represented litigants seek to bring in any trial court, before legal proceedings are initiated. In many cases brought by self-represented litigants, the answer to a problem or issue may not always be the court system. Having such a triage mechanism might help ensure that parties have a greater chance of getting the help which they really need, whether it be legal, social or professional services of one type or another, as well as help reduce the caseload of many overloaded courts. This is not to say that self-represented litigants should not be allowed to file a proceeding in court but is simply meant to ensure that other options are properly considered before doing so. In addition, governments would do well to increase funding for public legal education, in particular for new Canadians, as well as for legal aid.

There is also a need for federal, provincial and territorial justice ministers and officials to determine, in consultation with chief judges and senior court officials, what can be done to reinforce court staffing and training, as well as to reduce staff turnover. Court staff are the front-line workers of the justice system who act as “bridges” between litigants, lawyers and judges. They are often called on to deal with all sorts of difficult situations and members of the public who sometimes vent their frustrations on them. We therefore need to ensure that all courts are properly staffed, with appropriate training, resources and job classifications. This would go a long way to better assist judges and members of the public alike, as well as helping to ensure that all cases are processed as efficiently as possible.

We know that the pandemic has brought about financial pressures on all levels of government. However, the types of investments suggested here are not massive, especially considering that current funding levels of any government for the justice sector are in fact quite minuscule in the context of a government’s total annual spending. It may be surprising to some but in most provinces and for the federal government, the money allocated to the justice system is less than one per cent of the total annual budget.

We all owe a debt of gratitude to the Canadian Judicial Council (led by Chief Justice of Canada Richard Wagner), the chief justices of many courts across the country, the federal, provincial and territorial ministers of justice as well as organizations such as the Canadian Bar Association, for their concerted efforts in guiding the justice system in the face of new challenges posed by the pandemic. As we continue to adapt to the significant impact of a pandemic in all areas of society, the institutions which serve us well must be properly supported. As the third pillar of government, besides the legislature and the executive, the justice system is one of those institutions. Governments must not lose sight of the importance of that system and of access to justice for the good health of our society and of our constitutional democracy, even in pandemic times.

Roger Bilodeau, rbilodeau@rogers.com, is a lawyer and former deputy minister of justice for New Brunswick. More recently he served as registrar of the Supreme Court of Canada.

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