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Access to Justice: Justice in the time of social distancing | Beverley McLachlin

Tuesday, March 31, 2020 @ 8:43 AM | By Beverley McLachlin

Beverley McLachlin %>
Beverley McLachlin
The COVID-19 virus has changed our world. It is unprecedented, impacting every aspect of our daily lives, keeping us apart from each other and shutting down most of our conventional ways of interacting in society, save for essential services.

Courts are an essential service, especially important right now. In difficult times, people often experience spiralling family, housing, employment, debt and criminal concerns. Individual liberty and safety must always be considered essential considerations.

Times like these require an institutional ability to “pivot” — to be able to nimbly find alternate means to providing essential services to people in need. We have seen academic, financial and medical institutions pivoting quickly in response to COVID-19.

I am writing to lend my voice to the growing list of practitioners, judges, academics and court users who are beseeching governments across Canada to see COVID-19 and the courts’ woeful inability to pivot as a wake-up call.

Many processes inside the justice system have only one primary mode — physically in-person. There has been minimal investment by governments across Canada in the infrastructure required to provide these in-person services remotely or alternatively. As a result, across Canada, courts have shut down to all but the smallest number of cases.

COVID-19 is highlighting for us what we already knew — that the justice system needs to be revamped and reformed. The system has been running on the edge of viability for years, struggling to maintain backlogs and reasonable hearing times. Now, with courts shutting down, things will only get worse. People will have even less opportunity to find support for their life challenges and cases will either be foregone or pile up. If we care about accessible justice, we must stop living on the edge and make our procedures and hearings more efficient.

Our reliance on only one mode of dispensing justice is wholly and woefully inadequate. It is incumbent on governments to prioritize justice as a critical and essential part of the functioning of our society and ensure that the people at the heart of the system have the tools to meet the demand. Our court system must be sufficiently funded to be able to function in a modern fashion — no longer reliant on paper, a bricks-and-mortar-only approach to the courthouse and a mode of interaction that requires people to be physically in the same space.

While governments will need to assess their funding priorities in a manner that accelerates this improvement, all of us — in the judiciary, legal profession and its regulators, and academia — need to play our part. We must review our processes and requirements, with a meaningful and calculated assessment of what is redundant, no longer necessary in the age of technology, not essential to the functioning of justice, or anachronistic.

We know what needs to be done. We have excellent models, such as the Civil Resolution Tribunal in B.C., which continues to operate during the current crisis. Remote appearances from detention centres and penitentiaries, out-of-jurisdiction witnesses, and fly-in communities are part of the normal course of business for courts. The legal profession has innovated practice away from paper dependence.

We are working with what we have. Our current reality is speeding innovation and creativity in the profession:

  • Law schools and law professors are offering online learning and a wide array of ways to engage;
  • A trial fully conducted over Skype happened in the U.K. this week and the judiciary in the U.K. are urging continuity in family court processes through the use of remote technology;
  • In some provinces, the rules on in-person verification of identity for commissioning affidavits have been shifted to allow for remote verification;
  • Lawyers and law firms are using technology to meet with clients, conduct negotiations and finalize important business and legal agreements;
  • Mediation and arbitration are occurring creatively and remotely to support families, workplaces, businesses and other important relationships;
  • Courts and the staff that support them are working diligently to find as many ways as possible to stay open and support the administration of justice.

It will be absolutely critical that we all learn the difficult lessons from COVID-19. I urge us all to document these lessons as they are occurring — measure impact, make notes of useful innovations — and be prepared to advocate for the will and the means to make change.

A personal note to all of you: These are difficult times for all of us. I admire the resilience and good humour I have seen across Canada as we find ways to cope with isolation and support each other. I appreciate the small acts of kindness that I see between neighbours, family and friends. I especially appreciate the large collective act of kindness and social responsibility that we are all engaged in through social distancing and self-isolation. We can do this. Together.

The Right Honourable Beverley McLachlin served as chief justice of Canada from 2000 to mid-December 2017. She now works as an arbitrator and mediator in Canada and internationally and also sits as a justice of Singapore’s International Commercial Court and the Hong Kong Final Court of Appeal. She chairs the Action Committee on Access to Justice in Civil and Family Matters.