The cracks are really showing

Engineers call it a "test to destruction" — the act of submitting a system or a piece of technology to conditions that force it to fail. The idea is to learn why things break to make them stronger.

The COVID-19 pandemic is putting all systems and institutions, public and private, through a collective test to destruction. In the case of Canada's court systems, however, there was never any mystery about where the weaknesses were, as former Chief Justice Beverley McLachlin pointed out yesterday, while lamenting “the courts’ woeful inability to pivot” during this crisis. For decades, lawyers and judges have been complaining about the courts' reliance on paper, in-person appearances and 1980s-era technology. All the pandemic did was prove them right.

"This is the perfect storm and the court system is a leaky boat," said Michael Lesage, a civil practitioner in southwestern Ontario. "The court system was barely functioning before. As far as I'm concerned, this is just a natural progression."

In response to physical distancing requirements, the courts have dramatically restricted access and slowed down their work. The Supreme Court of Canada has adjourned many hearings and is allowing email filing of documents, although lawyers are still expected to cough up paper "within a reasonable time." The federal courts are doing roughly the same things, while provincial courts are postponing or rebooking "non-urgent" hearings and using videoconferencing and teleconferencing for more pressing matters.

In the shorter term, it all promises to make the existing backlogs in the criminal and civil systems far worse. It's also creating what Ottawa-based criminal lawyer Michael Spratt calls a "dangerous, perverse incentive" for his clients to plead guilty in return for time-served.

"I've got clients who've insisted all along they're not guilty, whose cases present a very good chance of acquittal … who are seriously tempted to take plea deals just to avoid being locked up in some overcrowded facility where the chances of getting sick are much higher," he said.

In the longer term, the current crisis could push governments to get serious about using technology and online tribunals to stop squandering court time on low-priority or administrative matters. How serious they get, said one legal market analyst, depends in part on how long the crisis lasts.

"When you've been doing things basically the same way for 200 years, it's not just a habit of mind. You just don't think about it," said legal market analyst Jordan Furlong, principal at Law21 in Ottawa.

"This crisis should force a reckoning. Will it? If the lockdowns end after three or four weeks, it would be like waking someone from a drunken stupor but then leaving him alone — he'll fall right back asleep. The system would stagger on.

"But if this goes on for months, and it looks increasingly like it will, no one's going back to sleep."

That reckoning, if it comes, might do more than convince courts to embrace online options for sharing documents and holding hearings. It could even lead to a sea-change in the way justice is administered in this country, said Shannon Salter, chair of British Columbia's Civil Resolution Tribunal (CRT).

"I think the first step isn't technological. It's a change of mindset, away from serving institutions toward understanding the experience of the people who actually use the system," she said.

The CRT is Canada's first online tribunal. It started in July 2016 with jurisdiction over B.C.'s condo disputes, then expanded to cover small claims. Last year it was given jurisdiction over most motor vehicle personal injury disputes.

The CRT is widely cited as a model for turning lower-priority or less contentious disputes over to online tribunals that lean on mediation and negotiation to solve problems. Furlong said he thinks we could see CRTs set up in every province by the end of the year — and he thinks their approach should be used for family law as well.

"I don't think we could use CRTs for criminal law, but if you took some things out of the courts system, criminal trials would fly by. The backlog would evaporate," he said.

"Family law shouldn't even come anywhere near a court — it should be moved out of the system altogether. Nobody involved thinks these things are best settled with the involvement of judges and lawyers. They can move to mediation, arbitration or tribunals."

The CRT model is faster and less expensive to run than bricks-and-mortar court systems. It's also a lot easier and cheaper for its clients to access. And because B.C.'s CRT operates online, it hasn't missed a step due to pandemic measures.

"We're operating normally," said Salter. "We've extended some deadlines and pressed pause on some default orders to help parties affected by COVID-19. That's it. Anyone can resolve a dispute, file an application, negotiate, mediate and get a binding decision from us from their smartphone, from anywhere."

Nobody wants to hear about silver linings in the midst of a pandemic, of course. But for those who've been pushing the court system to modernize for decades, the experience of the past few weeks proves that it can be done, and quickly — once circumstances leave no other option.

"People like me have been asking for small fixes for ages," said Spratt. "Why do we have to pick up disclosure physically at the courthouse on a CD-ROM, instead of by email? Why does a judge have to physically sign consent forms on paper and in person?

"Institutional inertia is part of the explanation, because otherwise why would we suddenly see courthouses embracing options like allowing email disclosure — things they were telling us couldn't be done before all of this happened?"