Sys­tem Up­date

Cana­dian courts lag so far be­hind in soft­ware and in­fra­struc­ture, crim­i­nals are run­ning free

The Walrus - - CONTENTS - By Paul Gal­lant

Cana­dian courts lag so far be­hind in soft­ware and in­fra­struc­ture, crim­i­nals are run­ning free

In jan­uary 2009, Ken­neth Gavin Williamson was charged with a se­ries of sex­ual of­fences he had com­mit­ted decades ear­lier against a twelve-yearold boy in Kingston. Three days be­fore the pre­lim­i­nary in­quiry was set to be­gin in Novem­ber, the Crown learned that the judge pre­sid­ing over the trial had been dou­ble-booked. Gov­ern­ment at­tor­neys can­celled their wit­nesses but didn’t in­form the plain­tiff, lead­ing to fur­ther sched­ul­ing de­lays. The case was then post­poned again, be­cause of a mix-up over the avail­abil­ity of the judge and an in­ves­ti­gat­ing of­fi­cer, and then held up once more as lawyers waited to be as­signed a court­room.

Williamson, a school­teacher who had been on suspension since the charges were laid, was largely out on bail un­til his trial ended in De­cem­ber 2011, a pe­riod of nearly three years. While the jury found him guilty of bug­gery, in­de­cent as­sault, and gross in­de­cency, an ap­peal judge stayed the con­vic­tion. The de­lays, he wrote, had vi­o­lated Williamson’s Char­ter right to be tried “within a rea­son­able time” — a de­ci­sion the Supreme Court up­held on July 8, 2016.

Le­gal ob­servers were out­raged to see a con­victed child mo­lester’s charges set aside, but the Supreme Court jus­tices had de­cided to take a tough stance on court de­lays. Ear­lier that day, they had es­tab­lished strict time lim­its in order to com­bat what they called a “cul­ture of com­pla­cency”: pro­vin­cial-court tri­als with­out a pre­lim­i­nary in­quiry must now be wrapped up within eigh­teen months, and those with a pre­lim­i­nary in­quiry, as well as su­pe­rior-court tri­als, can’t ex­ceed thirty months.

The dead­lines left ju­ris­dic­tions across the coun­try scram­bling to free up log­jams in a bid to avert a surge of un­rea­son­able-de­lay ap­pli­ca­tions. By De­cem­ber 2017, Cana­dian courts heard more than 650 ap­peals that ar­gued for charges to be tossed out due to the new time­lines; more than 200 were suc­cess­ful. This ac­tiv­ity has set the stage for a jus­tice sys­tem that, vic­tim ad­vo­cates warn, could find it­self rou­tinely re­leas­ing ac­cused drug deal­ers, sex­ual preda­tors, and killers.

Court de­lays are caused by many fac­tors. Along with a short­age of judges and le­gal-aid lawyers, the jus­tice sys­tem is also ham­pered by a grow­ing back­log of ev­i­dence and pa­per­work to file and track, sched­ul­ing con­flicts, cler­i­cal work­loads, and poor plan­ning. “It’s an ar­chaic sys­tem,” says Heidi Illing­worth, ex­ec­u­tive di­rec­tor of the Cana­dian Re­source Cen­tre for Vic­tims of Crime. Re­cently, she was in court sup­port­ing the fam­ily of a mur­dered man, and she watched a judge flip through his agenda while the Crown and de­fence called around, co­or­di­nat­ing dates with var­i­ous par­ties, as the court­room sat wait­ing. It’s not un­com­mon to see lawyers, some charg­ing up to $300 an hour, wheel­ing dol­lies loaded with doc­u­ments to court, where another per­son will then cart the boxes to the right judge.

Our mod­ern world is filled with tools for smooth­ing out these sorts of speed bumps. In­deed, dig­i­tal doc­u­men­ta­tion, shared data­bases, cloud-based ser­vices, and sched­ul­ing apps have helped stream­line pro­cesses in no­to­ri­ously com­plex sec­tors, such as bank­ing, in­sur­ance, and tax­a­tion. But be­cause of an in­sti­tu­tional struc­ture too set in

its ways, Canada’s jus­tice sys­tem has been slow to em­brace tech­no­log­i­cal re­forms. “If you can sched­ule ten­nis games on­line, why can’t you sched­ule your motion?” says Colin Steven­son, who served as chair of the On­tario Bar As­so­ci­a­tion’s jus­tice sys­tem tech­nol­ogy com­mit­tee. Dur­ing his time on the com­mit­tee, Wi-fi was not avail­able in most of the prov­ince’s court­rooms.

A new “su­per court” in Toronto, sched­uled to open in 2021 at an es­ti­mated cost of $1 bil­lion, will be one of the first Cana­dian court­houses with “con­nec­tiv­ity” built right into its struc­ture. But sim­i­lar plans to mod­ern­ize in the past have been mostly dis­as­trous. On­tario spent $10 mil­lion over sev­eral years de­sign­ing an on­line court man­age­ment sys­tem, which the prov­ince then aban­doned in 2013; Que­bec in­vested about $60 mil­lion be­tween 2010 and 2013 on a sim­i­lar sys­tem with lit­tle to show for it. There’s lots of blame to go around. Be­cause of ju­di­cial in­de­pen­dence, judges must will­ingly adapt to tech­nol­ogy, rather than have sys­tems forced on them. And with each court­house do­ing things its own way, the sys­tem has be­come too frag­mented for top­down changes to take hold quickly—no mat­ter how many IT con­sul­tants are brought in. “In North Amer­ica, these huge projects al­ways fail. I haven’t found an ex­cep­tion,” says Pa­trick Cormier, who was CEO of the Cana­dian Cen­tre for Court Tech­nol­ogy, a fed­eral non-profit es­tab­lished in 2005 to help ju­ris­dic­tions co-op­er­ate on mod­ern­iza­tion. The CCCT closed about three years ago.

Bri­tish columbia has pulled ahead of other prov­inces by ex­per­i­ment­ing with smaller-scale projects that op­er­ate par­al­lel to the ex­ist­ing court sys­tem. In 2016, the prov­ince launched an on­line tri­bunal for re­solv­ing dis­putes re­lat­ing to strata hous­ing such as con­dos, apart­ments, town­houses, and du­plexes, then fol­lowed up last sum­mer with an on­line civil-res­o­lu­tion tri­bunal for small claims, $5,000 and un­der. Within the first six months, the CRT saw more than 2,000 claims filed — about a third of the num­ber that were heard over the same pe­riod in BC’S court­rooms in 2016. The CRT web­site is also de­signed to nudge par­ties to­ward a me­di­ated res­o­lu­tion, and as many as 85 per­cent of small­claims dis­putes fol­lowed this path. “The ear­lier we re­solve these dis­putes,” says Shannon Sal­ter, chair of the CRT, “the less ex­pen­sive, com­plex, and time con­sum­ing they are.”

Of course, small civil claims are pre­sum­ably not the cases tak­ing thirty-five, forty, or forty-five months; vi­o­lat­ing the Char­ter rights of ac­cused peo­ple; or caus­ing pain and suf­fer­ing to the vic­tims of crime and their fam­i­lies. But BC is hop­ing that by han­dling the small stuff more ef­fi­ciently, re­sources can even­tu­ally be re­al­lo­cated where they’re most needed. In a Jus­tice Min­istry budget of more than half-a-bil­lion dol­lars, BC’S CRT cost un­der $3 mil­lion to op­er­ate in 2017; the CRT’S Van­cou­ver of­fice is the size of a liv­ing room, be­cause most staff and tri­bunal mem­bers work re­motely. The ex­pense and has­sle of hav­ing ev­ery­one show up in the same place at the same time have been all but elim­i­nated.

While some as­pects of BC’S in­no­va­tions might be ap­pli­ca­ble to crim­i­nal courts, it may not be pos­si­ble to en­tirely elim­i­nate court­rooms or re­place real-time ne­go­ti­a­tions with al­go­rithms. In cases where a judge needs to eval­u­ate the cred­i­bil­ity of a wit­ness through body lan­guage, for ex­am­ple, or en­sure that tes­ti­mony is given with­out co­er­cion, a bricks-and­mor­tar fo­rum seems the most prac­ti­cal. Yet early doubts about video con­fer­enc­ing have been dis­ap­pear­ing as the qual­ity of the tech­nol­ogy has in­creased. More­over, the very ad­ver­sar­ial na­ture of trial pro­ceed­ings — with each side dis­trust­ful of any­thing that could give op­po­nents an ad­van­tage — could help speed up mod­ern­iza­tion by firms afraid of be­ing left be­hind. Al­ready, in ju­ris­dic­tions where dig­i­tal doc­u­ments are abun­dant, ar­ti­fi­cial in­tel­li­gence soft­ware is now be­ing used to re­view past de­ci­sions to help pre­dict out­comes, al­low­ing lawyers to pri­or­i­tize facts likely to get the favoured re­sult — a de­vel­op­ment that could ut­terly trans­form how Cana­dian cases are ar­gued.

If the suc­cess­ful roll­out of the CRT is any ex­am­ple, the tech­nol­ogy sec­tor’s big­gest con­tri­bu­tion to Canada’s clogged courts will be in mind­set, even more than in in­tro­duc­ing dig­i­tal tools. What made Sil­i­con Valley suc­cess­ful — and what BC has em­braced — has been an it­er­a­tive ap­proach to solv­ing prob­lems: get a prod­uct to mar­ket, spot bugs, re­fine, re­peat. Which also ex­plains some of the philo­soph­i­cal re­sis­tance to in­no­va­tion in our court­houses. The “fail fast, fail of­ten” mantra that pro­duces beloved apps for mak­ing restau­rant reser­va­tions or wiring money is much less at­trac­tive when the down­side is a killer walk­ing away or an in­no­cent per­son be­ing wrongly con­victed. No­body wants their trial to be the trial run.

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