Why you should care about access to justice
This article is the second in a series exploring the long-term social impacts of COVID-19, written by members of the Trudeau Foundation COVID-19 Impact Committee:
We live in a time of uncertainty and unravelling. Recent events have profoundly shaken the complacent assumptions that once grounded our worldview.
We assumed our world was healthy and that medical advances would look after us. COVID-19 destroyed that assumption.
We assumed racism and the divide between the rich and the poor would be rectified. Racially inspired shootings and the responding fury in the streets showed us that we were profoundly wrong.
And we proudly proclaimed that we lived in a just society. And now we know some of us don’t.
Canada’s legal system is widely admired. The World Justice Project ranks Canada overall ninth of 128 nations. Not bad. However, when we drill down to justice on the ground, Canada ranks 56th — bleak for an advanced nation that prides itself on justice.
What good are rights if you can’t enforce them?
We need to face the facts — Canada is suffering from a justice crisis. More than 15 years ago, I called the crisis out when, as chief justice of the Supreme Court, I started talking about access to justice. The response stunned me. Hundreds of women and men contacted me with their own stories of unattainable justice.
So, things aren’t perfect, you say, get over it. Not so easy. Behind every email, every letter I received, was a story of injustice and loss. Parents seeking access to children, caught up in processes that never seemed to end. Children at risk, left in dangerous situations for months while those in charge waited for court dates. People who had lost their jobs, people injured by negligent drivers, people desperate to stave off what they saw as unjustified eviction notices.
The cost of unresolved legal needs is great, in terms of the suffering it inflicts, but also in terms of loss to society. Unresolved legal problems often overwhelm those involved. They become less productive, running from procedure to procedure; they sometimes lose their jobs. Their health, mental and physical, deteriorates. Relationships deteriorate.
COVID-19 is the great revealer, showing us the cracks in the infrastructure of justice that judges, lawyers and justice officials have been frantically working to paper over. Pre-COVID, courts and tribunals were typically working to the maximum of their capacity and beyond, struggling with delays and backlogs. Post-COVID, they found themselves literally unable to cope.
How do you file documents when the courthouse doors are closed? How do you run a trial when people can’t enter the courtroom? How do you manage a jury trial when the jurors can’t listen to the evidence and deliberate together?
As a result of COVID-19, Canada is being forced to confront the justice crisis full on. A system that we thought could maybe cope with a bit of rule tinkering and the odd cash injection was revealed for what it is — stressed beyond its means and unable to provide effective and timely solutions to legal needs.
If we do nothing, we risk discrediting an already weakened justice system and betraying our image of Canada as a just society. How will we respond to the crisis COVID-19 has revealed?
First, we must acknowledge that it is time to bring the justice system into the 21st century. Technology is not a magic cure and can create problems of its own. How, for example, does a judge hear a matter remotely when the parties have no online access? But there is a growing consensus that we need to equip our justice institutions with the infrastructure required to do justice in the modern world.
Second, the new justice system that will emerge from COVID-19 must be focused not only on the grand principles of the law, but on furnishing on-theground justice to those who need it. How can the court or tribunal best help women and men resolve their problems? How do we deal with the reality that legal problems twine inextricably with other problems, like mental illness, homelessness and health concerns?
Third, we must be prepared to spend what is required. For far too long, the justice sector has been starved of resources. Money spent on justice will pay off in reduced costs of health care, law enforcement and running over-populated prisons. As important as health care and education may be, so is an effective justice system, truly able to serve the needs of citizens.
Canadians need justice, and Canada should be a just society. Now is the time to make it happen.
The Right Honourable Beverley McLachlin is a former justice of the Supreme Court of Canada and served as chief justice from 2000 to 2017. She is a member of the Trudeau Foundation COVID-19 Impact Committee.