No Turning Back: A report from the CBA COVID-19 task force

  • February 23, 2021
  • Bradley Regehr and Vivene Salmon

The CBA has long been an advocate for the modernization of the justice system, and change has been slow and incremental. Despite the system bursting at the seams, there was little appetite and even less money to make it happen.

COVID-19 has sent everyone scrambling to keep courts, tribunals and legal services operating remotely. As we approach the one-year anniversary of the pandemic we are pausing to look at the changes, assess what worked well and what didn’t, and figure out how the modernization process can continue in a sustainable way.

No band-aid solutions

We found that once the big shock of the pandemic occurred, good things started to happen. Generally speaking, the justice system has adapted to deliver its services remotely. While different areas of law have different requirements, virtual hearings can work well in some circumstances.

The title of our report really says it all. We need to go forward from where we are now, not from where we were pre-pandemic, when thinking about modernizing the justice system in a comprehensive way. We need to collaborate with other justice system partners to permanently implement what is working and fix areas that can be improved.

Addressing risks

We need to recognize the risks and address them. We must be careful not to overlook the perils and unintended negative impacts of technology. For instance, the increase in electronic court documents and recordings means that more personal information may be disclosed and could potentially be used for shaming, doxing or identity theft. The possibility of having personal information fall into the wrong hands might affect a person’s willingness to use the justice system to seek remedies. The report contains several recommendations on how to safeguard personal information and other sensitive data.

None of this will be cheap. The CBA’s Reaching Equal Justice report a few years ago called ours a world “thick in law but thin in legal resources” and that hasn’t changed. Justice spending is only one percent of government budgets, yet increasing it is often difficult. What we don’t see is how much spending on justice issues saves in other areas. Unresolved legal problems can be a big strain on health and social services budgets; every year they cost governments $248 million in social service payments, $450 million in employment insurance, and $101 million in health-care costs. It adds up. Spending on the justice system now will provide big dividends later.

Training for all to benefit marginalized litigants

It is important to ensure the people using the technology, for example, judges, members of administrative tribunals and boards, mediators and court personnel, are properly trained in how to use it. This is particularly important for self-represented or marginalized litigants, as many people don’t have the literacy skills to use all electronic tools. Modernizing the justice system must account for age, literacy, income level, mobility and a host of other issues. One size does not fit all, but the system needs to fit everyone.

Collaboration between justice system partners is essential. Together we can share ideas, and results, and find a reasonable path forward. The report calls for a Centre for Expertise to collect data about the legal profession, and to poll users of the system about their experience with it. Because if it’s not working for the people who need access to justice, it’s not working, full stop.