Focusing on Justice System Reforms in the Drummond Commission Report

by Lesley Jacobs*

In all the extensive commentary on the release of the Drummond Commission Report last month, virtually no attention has been paid to the implications for Ontario’s justice system. The Justice system accounts for about 5% of total public sector spending by the Government of Ontario, making it the fourth biggest sector after health, education, and social services. From the perspective of trying to rein in public spending, neglect of the justice system is especially surprising because, as the Report notes, in the past year it has seen the biggest sector increase in spending, almost 11.5%.

The central message of the Drummond report is that savings can be secured through reforms that will make public services in Ontario better and more efficient. When it comes to the Justice System, however, there is in the report much more caution than in any other sector about serious rethinking of how to deliver services. In Ontario, the justice system addresses both criminal and civil justice matters, often in partnership with the Government of Canada. The recent increases in spending are often linked to court delay. Court delay leads to more court appearances, higher administrative and legal costs, and typically much frustration for parties. Recent developments in criminal justice, in particular the increase of accused in remand awaiting trial, has made court delay especially visible as a cost issue in Ontario. But make no mistake that court delay is also immensely costly in civil and family disputes. The main difference is that those costs are often hidden or indirect because they are typically paid much more by the private parties than directly with public funds.

A significant research finding when comparing the main causes of court delay in different jurisdictions is that local legal culture plays a huge role and that institutional variance often plays a minor role. The point is that how long it takes to resolve disputes is heavily influenced by how legal professionals understand these disputes and imagine resolving them. In Ontario, in the areas of civil and family law, there are three related features of the justice system — reflections of local legal culture — that are especially costly.

The first is the lack of early access points in the justice system to address legal problems and challenges. Often now when civil or family disputes enter Ontario’s justice system, the disputes have escalated and are much harder to resolve. Early intervention and guidance in these disputes will save taxpayers money. Mandatory mediation in civil disputes and the Family Legal Information Clinics are examples of Ontario initiatives with some promise, but these and others require a more sustained commitment.

The second feature is to treat different kinds of legal problems separately as if they are in a silo within the justice system. The reality is that many legal problems are complex. Domestic violence for instance often involves criminal law and family law. Lack of coordination within the justice system adds unnecessary costs.

The third feature is to treat legal services as if they should not be provided on a continuum with other social services such as health, education, and social services. There are immense savings to be had if legal services are provided in a seamless fashion with these other services. In Waterloo Region, for example, the Family Violence Project, which does provide policing, legal, health, and counselling services in this way, has seen a significant reduction in domestic violence deaths in the region. The extra cost of this project is at most $200,000 per year. The cost savings of a single domestic violence case in terms of policing, prosecution, and court costs is more than a $1,000,000.

Changing local legal culture, however, is a very difficult challenge. Unlike austerity measures, which are typically imposed from outside the service sector, court delay needs to be tackled from within. The Drummond report highlights some of the progress being made. Thinking about other avenues is also needed.