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No turning back

Covid-19 finally thrust the justice system into long-overdue modernization. But we must be careful that new technology works to enhance access to justice.

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The last year has been one of great change for the justice system. From moving proceedings online, to electronic filing of court documents and remote witnessing, there's been a massive pivot to respond to the challenges posed by the pandemic.

The fast-tracked adoption of new technologies has also dispelled the notion that the system couldn't engage with the fourth industrial revolution. Despite being conservative and risk-averse by nature, most legal professionals agree that the past year's changes are here to stay. That's the theme running through "No Turning Back," the CBA Task Force's report on Justice Issues Arising from COVID-19.

The task force gathered thought leaders from across Canada's federal justice system to take stock of what's been tried, what worked, and what hasn't over the last year. The report's 18 recommendations aim to build on innovations and seize opportunities to modernize, while focusing on the needs of system users. It calls for more collaboration among justice system partners across the country. It draws on the experience of other jurisdictions and lessons in previous CBA reports, including Reaching Equal Justice: An Invitation to Envision and Act and Futures: Transforming the Delivery of Legal Services in Canada.

According to CBA President Brad Regehr, the pandemic has been an opportunity to make long-overdue changes.

"It's a pivotal point in time. I don't think a year from now we can go back to everything being filed by paper, and everything requiring an in-person court appearance," he says. "We've learned we can adapt. We need to embrace these things and move them forward. If we have antiquated systems that can be changed, we need to change them."

The report makes clear that new measures and technology must enhance access to justice and protect open courts.

"I think in the last year, we've seen how we can do that," Regehr says.

The legal profession has shown that it can handle much of its business remotely, which has helped remove geographical and financial barriers for people trying to access the justice system. 

Yet some caution is in order. As the report acknowledges, virtual proceedings are not always suited to complex and sensitive criminal and family matters.

And while open courts are fundamental to the justice system, we must tread carefully in our embrace of electronic court documents, recordings and webcasts. We need to think about their implications, particularly the unintended disclosure of personal information in ways not anticipated by current rules.

We also need to be mindful of the independence of the judiciary, given its reliance on private platforms as essential infrastructure. These are owned by a handful of companies, new to the world, says Karen Eltis, who specializes in privacy and data security at the University of Ottawa. There are cybersecurity risks, as well as concerns around where information is stored.

She's quick to point out that failing to embrace digitization is not an option, however.

"We need to move forward, but we have to do so in a mindful and thoughtful way," says Eltis, who helped draft the report. "A lot of the pitfalls in the short-term can be addressed simply by becoming aware rather than taking things for granted."

A good start would be bringing together justice stakeholders from across the country to create a common platform, or examine existing ones to gauge the pros and cons of each. We might consider imposing a fiduciary duty on the companies that own the platforms to act in the best interest of those whose data they're gathering. To those ends, the report calls for judicial bodies across the country to collaborate and coordinate. Steeves Bujold, a partner at McCarthy Tétrault and chair of the CBA's policy committee, warns against duplicating reinvent a system 50 times across Canada.

"There's no one that can force the adoption of the same system, and there's no single system that will fit the needs of everyone, but there is a huge advantage to getting together to share best practice and to see how they can work together to improve their systems."

Of course, that takes money. Antoine Leduc, a partner at Lapointe Rosenstein Marchand Melançon in Montreal, who was not involved with the report, says that a lack of investment in the justice system has undermined any efforts or good ideas around how to transform it. One reason is that political parties don't win elections by promising to reform the justice system. Another is that the system lacks performance indicators and standards to illustrate the need for more investment. As it stands, neither the federal nor provincial government are spending more than 1% of their budgets on the justice system, which Leduc says is "totally insufficient."

That has an impact on how the system functions. But it also devalues justice in the eyes of the public. It's estimated that people look outside the judicial system to resolve 50% of their legal problems.

"I think governments have underestimated the importance of the judicial system," he says. "When people lack confidence and turn their back on the legal system to try and find other solutions, it's not to the benefit of society."

Users of the justice system want more from it, says Martine Boucher. The fact that people seek resolutions elsewhere jeopardizes the social contract the system and profession have to act in the public's interest. As the managing partner of Simplex Legal, a virtual firm since day one, and chair of the CBA's futures sub-committee, Boucher has long called for change and innovation, as "we're falling behind."

It's been a tough year for many, but Boucher is keen to make the most of positive changes that have come of it, particularly the opportunity for experimentation.

"All the hesitation and fear people may have had, and everything that stands in the way of innovation got pushed aside because there was a need to do things differently. COVID has brought a necessary shake-up."

Boucher fears some will want to go the easy route and return to the way things were once we emerge from the pandemic. The profession needs to guard against that. Investments must also follow, as unresolved legal problems that stem from a lack of access to justice can snowball into other health and social costs.

"We need to bring this to the forefront. It may not make the news the way the health care system is right now, but we need to find ways to bring this top of mind for the sake of our democracy."