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A time to think about justice system — and to act | Brad Regehr and Vivene Salmon

Monday, February 22, 2021 @ 8:28 AM | By Brad Regehr and Vivene Salmon

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Brad Regehr
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Vivene Salmon
Innovation, collaboration and studied but determined steps forward will be key to the evolving modernization of the justice system kick-started by the COVID-19 pandemic.

No one was prepared for the pandemic when it hit almost a year ago, and not because we did not know a global pandemic was possible. History shows that humans as a species respond better to crisis conditions than to warnings in the absence of an active threat.

That’s why the pandemic and the physical distancing measures that accompanied it caught our justice system — courts, administrative tribunals, registries and the legal profession itself — on the back foot.  

The Canadian Bar Association has for years called for the justice system to modernize. While there have been slow, incremental changes, it seemed there was never the time, will or political appetite to take large-scale action, or the money to invest to make it happen. When COVID-19 struck, leaving no time to worry over the details, action came with lightning speed.

The CBA established a task force last April to look at the changes that were implemented in response to COVID-19 — to study what works and what doesn’t; which changes are sustainable and which aren’t.

The Task Force on Justice Issues Arising from COVID-19 released its report at the CBA’s annual general meeting on Feb. 17. The title of the report, No Turning Back, encapsulates its message: now that it’s been proved justice can be delivered remotely, further changes start from here, not from where we were in February 2020.

That said, virtual hearings don’t work for everyone — they’re best for less complex matters, and not as successful for criminal or family matters where being able to confer with a client, or to “read” a witness, are particularly important. But clients and lawyers both like the convenience: being able to dial in to a hearing from home or office; filing corporate documents or pleadings online; and not having to travel to a courthouse or registry office is an access to justice benefit.

While the justice system is now eager to embrace technology, we must be careful not to overlook some of its perils and potential unintended negative side effects. For example, commercial videoconferencing platforms can raise privacy issues that must be carefully considered.  

As courts, tribunals and registries evolve they’ll need to do so in a way that is user-friendly. Not everyone has the necessary technology — or the literacy to use it effectively. Courthouse and registry staff are important sources of information for self-represented litigants and others trying to navigate their way around the system. If we are going to move a significant portion of our legal system online, we’ll need to ensure that everyone across the country has access to high-speed Internet, which means an investment in education and technology infrastructure outside the physical parameters of the courthouse.

Money changes everything, the song goes, and it’s the truth. Currently justice spending — excluding policing and corrections — comprises about one per cent of government budgets. If we are going to address the access to justice problem in Canada, which existed long before the pandemic and was only exacerbated by it, we are going to have to stop considering justice spending as a luxury and start seeing it as a necessary investment. We appreciate the financial challenges governments face, especially amid the pandemic. In weighing the social and economic costs of an ill-resourced justice system against a clear return on investment of an accessible and modern justice system, we suggest investment in this area is more than justified.

The justice system has come a long way in a difficult year. With the vaccine being rolled out we can hope that we will soon move out of crisis mode and start taking the time to think about what comes next. The CBA task force report has some ideas. Let’s talk about them.

Canadian Bar Association president Brad Regehr and past president Vivene Salmon are co-chairs of the CBA Task Force on Justice Issues Arising from COVID-19.

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