Justice for all is justice we should aspire to | Chris Bentley

Chris Bentley

My colleague, Guy Pratte, questions whether virtual justice is “real justice’’ in his recent opinion piece (The Lawyer’s Daily, Oct. 26, 2022). He argues that a return to the in-person proceeding is essential for “real justice,” with anything else apparently being of lesser worth.

Respectfully, I take a different view. The justice in individual cases to which we should aspire for Canadians is that measure of justice to which the law and facts entitle them. For all Canadians, we should aspire to a justice system that delivers the appropriate measure of justice to all. New approaches will be essential to achieving that goal.

Our justice system must provide a path that works for Canadians to achieve their right to justice — and it is their right. The suggestion that the only path to justice, or at least the path to justice worthy of the name, is through an in-person hearing is simply not consistent with our experience or the evidence.

Issues of rights have been resolved, successfully, for many years by many means in many cultures and societies. In Canada, for example, they have been resolved by discussion in person, over the phone, by email, by exchange of letter or document, as well as in courts and tribunals.

My colleague has elevated a preference for the in-person experience to a principle of justice. When he admits that: “No one will ever be able to demonstrate that the quality of justice is detrimentally affected by remote hearings,” that should be the beginning, and the end, of the discussion. A preference is not a principle of justice.

A preference based on tradition wrapped in the power (which is different than the right) to say no to change has, unfortunately, stood in the way of modernizing our legal institutions. It is interesting how we, as a profession, can hold the need for evidence to be so important in our cases, but completely discard that need when there is no evidence, or contrary evidence, to support the traditions we do not wish to change.

The Zoom moment

On March 11, 2020, the pandemic became real for most Canadians. Until that time, so many of our legal leaders had argued against and actively prevented the use of technology or new approaches in our justice system. We were told “no” because the services were special, that it “couldn’t be done,” or, “the result would not be just,” or “people can’t use it.” My favourite was the suggestion that using technology would diminish counsel’s ethical principles.

Then, the world changed overnight. Lawyers, and judges, were forced to look for a different way to achieve the same result — a just result. They had no choice. They found many new ways, and this journey has only just started.

So, few of the traditional reasons against the use of technology stood in the way of necessitated change. All of our ethics are, apparently, still intact — or at least where they were before the pandemic.  

Our legal leaders had left us unprepared for the modern world before the pandemic. The rate of social and technological change was accelerating long before the pandemic and continues to accelerate rapidly. The legal profession remains far behind where it needs to be in order to serve all in society, or even to serve those we now do as effectively as possible.

Should we move back to the past?

As the pandemic has moved into a new phase, some legal leaders, including some courts, have rushed back to the old ways. They ask why we should use technology and new approaches to achieve the necessary result when we can return to the old ways? The answer is simple: the existing, traditional ways were not and are not working for the overwhelming majority of Canadians.

Consider what the Access Report, 2013 found, echoing many similar conclusions over the decades. They concluded that the legal needs of four out of five Canadians are not being met by the legal profession, and that the justice system is too complex, too slow and too costly for those who need to use it. Almost no progress has been made on any of their key recommendations.

“Convenience” and approaches that are “too easy” have not been characteristics of our justice system. Countless Canadians and their rights are being systematically excluded. The human, financial and moral cost of this on a daily basis is incalculable. Virtual proceedings reduce the cost and increase the convenience for litigants and witnesses.

The quality of justice

There is no evidence that the quality of justice is either enhanced or diminished by the path used to achieve it. We do not need to grant a new trial to every case, or reconsider every decision, reached remotely during the pandemic now that we “can” do them in person, nor reconsider every decision reached by other means before the pandemic.

It is suggested that an in-person proceeding “promotes” communication. Compared to what? A courtroom is an artificial construct for most people. It is argued that they will “feel” its significance. Yes, I hope so. Can you therefore argue that it “promotes” communication? It must be intimidating and unnerving for all but the most experienced and seasoned witnesses. Numerous efforts have been made over the years to help witnesses give their evidence without feeling the pressure. Do we get the best evidence? When we wait years for a trial, is that the best evidence?

You will never be able to stare more deeply into the witness’ eyes than by looking directly at them on the screen. The parties have a front full view, not a side view. They can see every eyebrow raise and every blink of an eye — not that every twitch should or even can be used as the basis for determining credibility.  

As for the exchanges between judge and counsel, it is the argument, not the surroundings, on which we should focus. The suggestion that the losing party might wish that the proceeding had been “different” is the same type of argument losing parties often make — it must have been the process, because “it couldn’t have been my case or me.”

The institutional value of in-person hearings

We can celebrate the art of advocacy without the trappings of grandeur. My 23 years of criminal defence work (before I was elected) were occasionally spent in grand settings, usually in adequate facilities, and from time to time in interesting places such as community halls or the local legion. The issues and rights were just as important to the litigants, and the professionals conducted themselves with the respect and ability that the proceedings demanded. Justice is not a place.

The government lament

My colleague repeats an oft-heard lament that governments don’t take justice seriously. They don’t listen. It usually centres around the perceived failure of governments to provide a never-ending supply of additional money or people.

Governments of every stripe can point to the investments they have made in justice, often on receiving the promise that this will increase access to justice. The problem is getting worse, not better.

Governments are responsible to the people they serve. Our justice leaders do not appear to be listening to the peoples’ need for a simpler, faster, more affordable approach to justice. At least, the results do not reflect much evidence of listening. If you don’t listen to people for long enough, eventually, even the most respectful will stop listening to you. People lose faith in institutions that do not respond to their needs.

To government I simply say: Don’t own the past, own the future. Measurable evidence of progress comes first. Then have the talk about how best to support and advance progress.

The justice system leaders

I thank the legal leaders who continue to provide the necessary wisdom, guidance and example for the best conduct of individual cases. However, to build the justice system the people have a right to, we must urgently find the new justice system leaders who will embrace the right of every Canadian to justice, and not hesitate to adjust/amend or rethink those approaches or institutions that have not been able to provide it. The Zoom moment with virtual proceedings was only the beginning, one example of what new approaches and technology can do. We have only just started to see the advantages they can bring.

We can acknowledge the strengths, achievements and traditions of yesterday, but our systemic approach does not need to be restricted by them. We need leaders who will embrace the day, not those who question the coming of the dawn.

Justice for all. That is the justice we should aspire to.

Chris Bentley is the managing director, Legal Innovation Zone and Law Practice Program, Toronto Metropolitan University, former Ontario attorney general and criminal defence/labour lawyer.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, The Lawyer’s Daily, 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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