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CBA president Brad Regehr

No turning back from pandemic’s changes to justice system: CBA report

Friday, February 19, 2021 @ 10:01 AM | By Ian Burns


When transmitting the first message to officially open the Baltimore to Washington telegraph line, Samuel Morse included a simple statement: “what hath God wrought?” The same question has likely passed through the minds of many people over the past year as the COVID-19 pandemic shuttered businesses and schools and forced many people into makeshift home offices.

Canada’s justice system has not been immune from that change, with trials moving online and lawyers filing their documents electronically. And now the Canadian Bar Association (CBA) says it is time to make many of those changes permanent.

The CBA’s task force report on justice issues arising from the COVID-19 pandemic was released as part of the CBA’s annual general meeting (AGM) Feb. 17. The months-long endeavour, which included input from lawyers, judges and academics across the nation, says all dispute resolution bodies in Canada should make remote options for proceedings such as settlement conferences, trials and appeals permanent, with that option being particularly important for uncontested, shorter and less complex matters.

The report says electronic filing of documents and acceptance of service by e-mail should also become a regular feature of court procedures, and courts and tribunals should be given the opportunity to explore the possibility of developing their own platforms. But the CBA is also warning it will take a significant investment in technology, and training in the proper use of that technology, to make effective change.

 CBA president Brad Regehr

CBA president Brad Regehr

“The pandemic kick-started a modernization of the way the legal profession and the justice system provide services — something the CBA has been advocating for a long time,” said CBA president Brad Regehr, who also served as task force co-chair. “We now need to make sure these changes are sustainable and that they are properly implemented to enhance access to justice.”

Regehr said the recommended changes have the ability to enhance access to justice but “we have to be careful we don’t inhibit access to justice.” The needs of self-represented litigants and marginalized communities need to be given special attention and it is also important to ensure there continues to be open access to courts for media and the public, he said.

“I had a hearing I did via teleconference to set dates, and we were done in about 10 minutes. Pre-pandemic, I would have had to make my way down the courthouse, go through security and sit in the courtroom waiting for the judge to come in, sat and waited my turn to get a date and then I would go back to my office, thus taking more than an hour,” he said. “Our legal system is viewed as too expensive, cumbersome and hard to understand, and so we have advocated for the changes to increase access to make it more affordable for people.”

The CBA will be advocating for the changes with government and justice system stakeholders over the coming months, said Regehr. He noted there has been a lot of talk about access to justice recently but the legal system remains very steeped in tradition.

“On the one hand it is very resistant to change, but on the other hand it has not properly resourced. I think the courts have adapted well, whether that is bringing in plexiglass screens or adapting to allow for e-filing,” he said. “These are things that when they were experimenting with before and they said we have to embrace this now. But this can’t be a Band-Aid solution — it has to be for the long term, and we have to look at what innovations are working.”

As part of its AGM, the CBA also passed a several resolutions, including adding religious groups to its definition of diversity, calling for improved standards of care at long-term care homes and to create a pan-Canadian abuse strategy and asking the government to eliminate mandatory minimum sentencing. A resolution calling for the CBA to create a definition of climate justice was voted down, with a number of members arguing that climate change is outside the association’s mandate.

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