Post-pandemic access to justice | Thelson Desamour

Thelson Desamour

As we look back on the height of the pandemic, we can see that despite much hardship, the administration of justice was modernized and access to justice was enhanced in both criminal and civil law practice areas. However, although technology has had a positive impact on access to justice, unfortunately it is not a cure-all, and additional efforts will be required to ensure that the disadvantaged and vulnerable are able to access the legal system. 

An administrative bright spot in the midst of the pandemic was that the court system was able to enhance its modernization reasonably quickly and those with modest to meagre means benefited. 

Both criminal and civil practice courts in Canada and in the United States integrated technology, permitting the wheels of justice to roll again and pick up momentum, after the startling news in March 2020 that this thing called COVID-19 would cause a pause in our typical day-to-day business. As seen in the criminal bar and to a degree in the civil bar, modernization assisted in having matters proceed with reduced delay and chipped away at the backlog.  

In the civil realm where I practise, the integration of technology not only meant that discovery, motions, mediations and trials could proceed, but it helped the expense element of access to justice by lowering costs for clients who had less time billed to them for attendances, in particular if travel had been involved in the attendance.

Another benefit of technology, as seen in a U.S. study, was that its integration in the court system increased litigant participation rates. Although a small sample size, Maricopa, Arizona’s largest county, saw a decrease in failure to appear in eviction cases from 40 per cent in 2019 to 13 per cent in 2020, attributed to the availability of remote appearances. The same study also found a decrease in the rate of default/automatic judgments. 

As we cautiously put the pandemic further in the rearview mirror to take stock of how access to justice was enhanced, and what may be required going forward, we should consider that the new and lauded access to justice measures may not be accessible for everyone.

According to late 2020 Statistics Canada data, six per cent of Canadian households did not have broadband access to the Internet. As such, that six per cent would have been challenged to access courts during the pandemic, despite the court administration attempts to accommodate remote attendance. The same Statistics Canada data found that approximately 470,000 Canadians had mobile data plans but no home Internet access (see previous link).   

The current economic state may make broadband Internet access cost prohibitive for many. In 2022 Canadians had unusually higher inflation rates than we were used to experiencing, we had successive interest rate increases over 2022 and a record of 1.68 million people in Toronto using food banks (a 16-per-cent increase from the prior year’s record).

It was also reported that after accounting for basic household expenses, racialized food bank users have $7.75 as their daily median and newcomers to Canada had $3.81 their daily median (see previous link). Reflecting on Maslow’s hierarchy of needs, with inflation and other economic stressors one wonders whether the number of households without broadband access has increased since late 2020.    

Prior to inflation and interest rates making their stinging rise, there was already a noticeable uptick in the number of self-represented parties in the courts (see “The Rise of Self-Representation in Canada’s Family Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers and Litigants,” by Rachel Birnbaum, Nicholas Bala and Lorne Bertrand, Canadian Bar Review, 91: 1 (2013), 67-95), a trend that is unlikely to diminish in the current economic climate.

Although addressing economic concerns like inflation or a forecasted recession etc. are outside the sphere of influence for the legal community, there are items that are within its control that should be considered and acted upon, especially in these challenging times. Some suggestions include:

1. Streamlining legal processes and leveraging technology and technology hubs to increase access for more people;
2. Bolstering legal aid programs and funding (civil and criminal) as many are not able to qualify unless indigent;
3. Increasing pro bono efforts;
4. Continuing efforts to be reflective of the communities in which we serve. As this is done, be it in law firms, legal departments or administration, it will enhance our connectivity to the community, people and issues, leading to improved competencies and better outcomes for all who engage in the legal system.

As Chief Justice Richard Wagner of the Supreme Court of Canada pointed out at the 7th National Pro Bono Conference, access to justice is an individual rights issue which has implications for society. “Lack of access to justice reinforces existing inequities … A person who is denied justice is not going to be a positive and productive member of society … [which] affects us all.”

The legal community and justice system rose to the occasion to address the challenges produced by the pandemic. By continuing to work together we can improve access to justice for all.

Thelson Desamour was called to the bar in 2006. He is claims legal counsel for Fenchurch General Insurance Company. He has been a member of the Lakeridge Health Board of Trustees since 2015 and is a former board member/director of professional development for the Canadian Association of Black Lawyers (CABL).

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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