FINDING JUSTICE

Is Canada’s legal system too outdated to deliver justice?

By Elizabeth MacGregor

Elizabeth MacGregor is a regular contributor to SideOne and a former educator who has had personal experience with Canada’s civil courts.

“Our justice system is too expensive, too slow and too unwieldy to meet the needs of most Canadians.” This opinion was not given lightly, or by the uninformed. Beverley McLachlin, chief justice of the Supreme Court of Canada from 2000 to 2017, wrote these words in an essay published in The Globe and Mail on July 10, 2020. It is a statement that should grab our attention and concern us.

“Access to justice has reached crisis proportions in Canada in recent decades. … We place 56th of 128 nations for accessible, affordable justice.”

McLachlin, now retired from Canada’s top court, is worried about our system of justice because it does not serve us appropriately. In its current outdated form, established in the 19th century, it does not make full use of modern technology. In a practical sense, this means paper still rules. In the more complex cases of modern times, this has led to thicker and thicker files that can severely hamper proceedings.

BURIED IN PAPER

In civil court, a plaintiff’s case can generate a huge file before the case is even near resolution. Boxes are lugged into court proceedings while lawyers sit with laptops containing little information of value.

Even with legal associates employed to keep track of important documents, the head lawyer will be putting forward the case without all the pertinent details at his or her fingertips – leafing through hundreds of documents looking to provide accurate information.

“Our justice system is too expensive, too slow and too unwieldy to meet the needs of most Canadians.”

According to Ms. McLachlin, “Access to justice has reached crisis proportions in Canada in recent decades. … We place 56th of 128 nations for accessible, affordable justice.” So, are we truly a “just society,” as Canadians and our politicians have claimed? Or, have we become complacent, assuming this system that we may rarely or never personally use is up to the job?

YEARS WITHOUT RESOLUTION

If you have the misfortune of being involved in a legal proceeding, it could continue without resolution for many years. Wealthy spouses, insurance companies, and employers can stall proceedings with various tactics. Rather than justice being done, many cases are dropped because most people cannot afford to continue.

Even if a case goes to trial and the judge finds in your favour, you may never receive the results of the judgment. If the defendant refuses to honour the judgment, you have little recourse other than the revolving door of the justice system.

In a typical auto-collision case, with personal injury and job loss, cases can drag on for close to a decade. It is not unheard-of for a case to take five years to reach the mediation stage, followed by two to three years before a court date is set and a trial can begin.

Rather than justice being done, many cases are dropped because most people cannot afford to continue.

‘CRISIS PROPORTIONS’

Ms. McLachlin advocates for “a process that is proportionate to the problem in terms of money, time, and results.” She argues strongly that everyone should feel well served by the justice system, and says, “Access to justice has reached crisis proportions in Canada in recent decades.” She sees the results as tragic.

The mediation process, for example, is seen as a crucial way to solve cases before going to trial – ease the clogged courts and find faster resolutions. It’s not available in all provinces, however, or even in all jurisdictions in provinces where it is offered. By no means is it a perfect solution, either. Lawyers have been known to accept a mediation date only to cancel as the date approaches. Strategies like these can be employed to delay cases, with no penalty imposed.

As lawyer Jon Khan wrote in The Globe and Mail of July 1, 2020, “We know more about professional sports teams than we do about the Canadian legal system.” The justice system has not attempted to understand its users, or their needs, to try to fix the problems that exist within it.

In 2016, the United Kingdom sought to begin the process of reconfiguring its justice system; according to Khan, the U.K. is creating radical change by employing user-driven data, hoping to have a modern system in place by 2023. So far, Canada has not started on that journey, even though experienced jurists are advising the federal government to do so.

While Covid-19 has created a crisis in the availability and use of the legal system, problems existed long before that. Modernization of this antiquated justice system would serve all Canadians, and bring equitable, reasonable access that does not currently exist. If you need to enter into a lawsuit, it may be unrealistic to expect a reasonable, cost-efficient, timely solution to your problem.