Beverley McLachlin is a former justice of the Supreme Court of Canada and served as Chief Justice from 2000 to 2017. She is the chair of the Action Committee on Access to Justice in Civil and Family Matters.
Canadians want – and our Constitution demands – a just, proportionate and accessible justice system. That’s the ideal. Sadly, reality lags behind that. We knew this before COVID-19 shut courts down and exponentially increased already unmanageable backlogs. Now, we can no longer ignore the truth: the sprawling mélange of courts, tribunals and ancillary institutions that we call our justice system needs a complete overhaul.
A good justice system must meet three criteria – it must be “just,” “proportionate” and “accessible.”
First, the good news. Our justice system is fundamentally “just.” Courts and tribunals listen to both sides in the cases that come before them and work hard to render decisions that reflect the law. If they make mistakes, reviewing courts correct them. Judges are independent and impartial. Corruption doesn’t exist – you can’t buy a judge in Canada. All of this adds up to a high score for Canada on the World Justice Project’s 2020 Rule of Law Index – of 128 countries, we rank ninth.
The problem is that while our justice system produces just results in the cases that make their way through it, the system is too expensive, too slow and too unwieldy to meet the needs of most Canadians.
This brings us to the second requirement of a good justice system – proportionality, which requires a process that fits the problem. A good justice system must deliver just results in a wide variety of cases. Top-of-the-line treatment may be appropriate for important constitutional and criminal cases, but people who are caught in a landlord-tenant dispute or a family break-up can’t afford teams of lawyers, nor wait for court dates scheduled years into the future. They need prompt solutions that make practical sense. They need a process that fits their case – in a word, a process that is proportionate to the problem in terms of money, time and results.
A lack of proportionate, practical solutions to legal problems has undermined the third quality of a good justice system in Canada: that it be accessible. Accessible not just to large corporations, the well-heeled or the well-insured – accessible to everyone who needs the system’s help, regardless of their income level, social status or racial and cultural background. Everyone has a right to justice and everyone should be able to get it. Sadly, Canada falls short – here, we place 56th of 128 nations for accessible and affordable justice on the Rule of Law Index. Canada likes to call itself a “just society,” but 55 countries score better than we do for accessible justice on the ground.
Access to justice has reached crisis proportions in Canada in recent decades. It has many faces, all tragic.
How has Canada’s once-proud justice system come to this pass? The fundamental reason is that it has failed to keep up with the needs of modern Canada. We are trying to do justice in the 21st century with an outdated 20th-century system.
The solution isn’t just Zoom courts or electronic filing, although these are steps in the right direction. We need a complete overhaul of the justice system.
The Canadian Constitution places responsibility for the administration of justice mainly on the shoulders of the provinces. Every province in Canada needs to decide how to bring its justice system into the 21st century. In 2016, Britain decided its court system required radical change and struck a partnership between the government and the judiciary to transform the system by 2023. It is time for Canada’s provinces, aided by the federal government – which is responsible for criminal law and the superior courts – to embark on a similar process.
To accomplish this, we will need data, planning and money – all of which have been conspicuously lacking in recent decades.
Successful enterprises strive to understand their users and make data-driven decisions. Justice institutions are the exception – as lawyer Jon Khan wrote in The Globe and Mail on July 1, “we know more about professional sports teams than we do about the Canadian legal system.”
Successful enterprises also collaborate to provide a wide range of services that accommodate the different needs of different users. Justice institutions in Canada too often work in isolated silos.
Lastly, successful enterprises must be adequately resourced. It takes money to glean data, make plans and collaborate on innovative solutions. For too long, justice has played the poor cousin to health and education when funds are allocated at provincial cabinet tables. We won’t get a 21st-century justice system unless we are willing to pay for it.
We used to think we could fix our justice-system problems with rule tweaks and the odd emergency cash infusion. As we emerge from the COVID-19 crisis, we know this haphazard approach won’t work any more. Justice is fundamental to our democracy and to the lives of millions of Canadians. Let’s make equitable access to justice for all the new reality.
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