While loathsome in most ways, the Covid-19 pandemic taught legal professionals many lessons on access to justice. Particularly, we learned that it is not always necessary to meet with clients or colleagues in person when a phone call or Zoom meeting would suffice. Many interim court hearings during the pandemic were conducted by teleconference or in some cases, by video conference. The legal profession as a whole became more flexible on rules regarding filing of documents, attendance at hearings, etc. Courts allowed the filing of many documents electronically, saving legal staff time and client’s money.
However, since the brunt of the pandemic has subsided, the justice system seems to have returned to many of the same practices as before the pandemic. In an interview published in the Canadian Bar Association National magazine on February 16, 2023, the Chief Justice of the Supreme Court of Canada, Richard Wagner, discussed issues of access to justice. A link to this article is available here. In one notable exchange, the Chief Justice stated that he has heard that some courts are returning to the old way of doing things. Chief Justice Wager continues that a lack of resources has likely contributed to courts not implementing technologies that would modernize the justice system. This exchange is quoted in its entirety as follows:
N: You co-chaired the Action Committee on Court Operations in Response to COVID-19, which acknowledged the many advantages of virtual hearings and easing of procedures. We’re now hearing about courts backsliding into old habits, especially in family law matters. Are you worried that we’re taking a step back?
RW: I’ve heard the same thing, that some courts are going back to their old ways of doing things. I think it’s a mistake. I’ve said that COVID-19 was the crisis we needed to realize just how much our system had to be modernized. It would be unfortunate if we went backwards because people claim it’s easier or because they prefer it. We need to build on new technologies. For example, our new Supreme Court portal launched on January 30, which makes it easier for lawyers and people who are self-representing to file documents securely. That’s access to justice.
N: But that’s a luxury for the Supreme Court. Currently, in many jurisdictions, there is a very real lack of resources.
RW: I’ll point to statements by Chief Justice of the Superior Court of Quebec, Marie‑Anne Paquette, who said that the judicial system is held together with “duct tape.” That says it all. And she’s right. The system lacks legal resources. Technology hasn’t advanced sufficiently yet. Employees quit because they aren’t paid enough. For many years now, justice systems in democratic societies have been underfunded—not only in Quebec, not only in Canada, but all over the world. Governments have primarily invested in health and education, and that’s essential, but the justice system has always come second, as if we could just figure it out for ourselves. Judges do indeed figure it out, they are creative people, but they don’t have sufficient resources. There was the COVID pandemic, and there was the 2016 Jordan ruling that came as a warning that we need to invest in the justice system. It needs to be said that provincial governments have made investments, as has the federal government, but it hasn’t been enough. We have a long way to go.
In this author’s opinion, a lack of resources is not a sufficient explanation for why courts have not modernized their systems to strengthen access to justice. While change is always difficult initially, the long-term benefits of e-filing systems, for example, far outweigh the short-term difficulties of implementing these systems. Access to justice must be top of mind when drafting procedural rules for court filings. In one interesting article entitled Electronic Legal Proceedings in Canada, the authors note that many jurisdictions have introduced some form of electronic filing system. Pearce and Younggren reference in this paper that in 2002, the Supreme Court of Canada and the Federal Court of Canada completed a study on electronic filing and 73% of the respondents surveyed stated there would be “significant benefits to the ability to initial court proceedings and file documents electronically.” A link to this paper is available here.
In my opinion, all provinces in Canada (particularly New Brunswick) should conduct a similar study and look at several actions that would increase access to justice, such as: a. electronic filing systems; b. technology allowing counsel and parties to appear by teleconference (and video conference) for certain (non-consequential hearings).