Jon Khan is a lawyer currently completing his PhD in law at Osgoode Hall Law School.
The struggle of our courts to operate during the COVID-19 pandemic brought considerable attention to the court system and the need for virtual court hearings. But our court system has struggled to operate long before COVID-19. Crisis already plagued it. Chronic judge shortages. Frequently cancelled hearings. Systemic delay.
COVID-19 did, however, impose something new. A crisis of sufficient magnitude to compel a willingness from courts and lawyers to be bolder in experimenting with solutions.
Our courts have made herculean efforts to hold virtual hearings. That effort is providing Canadians an intimate view of their justice system. Last week, the Ontario Superior Court livestreamed Justice Joe Di Luca’s verdict on charges against police officer Michael Theriault and his brother, Christian Theriault. During the four-hour livestream, over 20,000 people tuned in. Canadians were clearly interested in what the court had to say.
Many people are enthusiastic about such virtual hearings and the possibilities they present. The enthusiasm for keeping them as a permanent feature of our court system is good, but this change is only a tiny antidote to the underlying systemic problems our courts have to face. We need to raise our ambitions as we think about modernizing our struggling courts. We need more than virtual hearings and “Zoom Court.”
The United Kingdom, a jurisdiction that Canada historically looks to for guidance, showcases what’s possible. In 2016, its government said its court system needed radical change, so it committed to creating the finest justice system in the world. This commitment was neither empty rhetoric, nor cheap. £1-billion ($1.7-billion) and extensive administrative resources were committed. A partnership was struck between the government and the judiciary. Extensive data is supposed to be gathered. Reforms are under way. In contrast to many legal systems, these reforms won’t be based on reaction, intuition, or anecdote: they will be deliberate, user-focused, and data-driven. Unless the United Kingdom fails to meet its commitment and adopt recommendations, it will have a redesigned, modern legal system by 2023. It is expected to feature user-focused procedures, digital court files, and virtual hearings.
Should we not expect the same in Canada? Canadian courts have never needed more help. New task forces and action committees are not enough. Like many Canadians and businesses, the system also needs a serious financial bailout. In contrast to most successful institutions, most Canadian courts don’t control their budgets or administration. They simply lack funds and resources to gather data and design improvements. As British Columbia’s attorney-general recently conceded, “governments of all stripes have not prioritized funding for the courts.” In a recent moment of candour, British Columbia’s Supreme Court Chief Justice Christopher Hinkson said his court’s repeated funding requests often go unanswered. It’s time to start prioritizing and answering these funding requests.
With more funding and resources, Canadian courts can address one of the biggest problems in our legal system that Zoom Court won’t address: Canada’s legal data deficit. COVID-19 reminds us every day just how important data is.
Most successful enterprises strive to understand their users and make data-driven decisions. But Canada’s legal data deficit hampers our ability to understand the legal systems’ users or to implement user-focused, data-driven reforms. In comparison with the United States, empirical information about our judges, litigants, and legal disputes is very limited. In many cases, it’s non-existent – we don’t even know what the current Canadian divorce rate is, for example. We simply lack comprehensive and cohesive data about how our legal system works and how it doesn’t. The startling truth is this: we know more about professional sports teams than we do about the Canadian legal system and the individuals in it.
Unless we solve this data deficit, we will not have a just, proportionate, and accessible justice system. Despite the magnitude of the crisis, we know little about what caused it and little idea about how to solve it. Without data, outcomes can’t and won’t be tracked. Reforms will continue to rely on intuition and patchy guesswork. Our lack of knowledge about our legal system and the individuals in it will persist. So, too, will our access-to-justice problems.
As we move forward from this crisis, let’s dare to raise our expectations for our legal system. After all, it’s the backbone of our democracy. We, too, can have one of the finest justice systems in the world.
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