National Post (National Edition)
Antiquated justice system fails Canadians
In the past month, businesses have had to adapt at lightning speed to a new reality. Bricks and mortar have been traded in for laptops on the kitchen table, and Zoom meetings reign supreme. For many, the transition has been relatively smooth. It is 2020 after all, and the technology to support working remotely has been kicking around for a while, and this should be pretty easy, right?
Well, not for the justice system. It is so woefully unprepared to deal with the present realities that operations have almost ground to a complete halt. Practically every province and territory has suspended most of its court functions.
In Ontario, the court suspended regular operations on March 17. Aside from some very narrowly defined “urgent” and other specified matters, the courts are simply not available. Most criminal matters have been adjourned until at least June. Almost everything in the civil courts has been postponed until further notice. All limitation periods have been suspended. The timelines for doing things like issuing a statement of defence or disclosing documents have been paused. If you are a litigant with an ongoing matter in the court system, there is almost nothing you can do right now except sit tight and wait.
The fact of the matter is that people have greater access to the liquor stores right now than the courts, and that is a big problem.
For a system that even in the best of days is riddled with lengthy delays, the current court suspension is going to cause a dreaded backlog that is almost unimaginable. As a litigator, I cringe to think about it. Before all of this, the average wait time for a trial was two to three years. How long will it be when things finally get up and running again?
And why, when access to justice is a fundamental pillar of our society, are the courts basically not accessible to the public right now? Primarily, the issue is not health and safety. The real issue is that the courts in Canada have very little capability to function outside of the physical courthouse.
The technology is not present to support remote hearings by teleconference. Court staff and judges are not equipped to work remotely. Almost everything is done in-person or by paper. The legal industry almost single-handedly keeps fax-machine manufacturers in business. Floppy disks are still a “thing.” Lawyers, this one included, regularly attend courthouses dragging boxes of documents behind them.
The irony is that most lawyers are equipped to work remotely, and many operate their practices paperless. However, what good does that do when the courts aren’t?
The crux of the problem is that the justice system has not had any sort of major technological overall in decades. It still operates on 1960s’ and ’70s’ technology and methods of doing things. It is one of the last vestiges of the bygone ways of operating. Walking into a courthouse can feel like walking into a time capsule. Of course, this is a public institution and the reality is that the cost of modernizing the justice system would be substantial, which is almost certainly one of the reasons why it hasn’t been done on a significant scale by any government. But it could also be that the justice system in
GREATER ACCESS TO THE LIQUOR STORES ... THAN THE COURTS.
general, with its traditions and history, isn’t one to swiftly embrace change.
There are a few fancy courthouses out there — newbuilds with higher-tech equipment. But they are few and far between. I remember once having to drive to a small courthouse because they didn’t have the capability to conduct a hearing by telephone. At the time I joked to the clerk that it would be cheaper for me to buy and mail them a telephone. I ended up doing the drive for my brief attendance.
Maybe this terrible pandemic will finally be the impetus we needed to modernize the justice system. The delays and unnecessary expense to litigants caused by a system that hobbles along on long-retired technology and ways of doing things shouldn’t be acceptable. There can be no access to justice when that access depends on technology that hasn’t been adopted and embraced with open arms.