Unbundle the Courts

It’s been a long time since I did an analysis of the constitutional give-and-take between the courts and the legislature when it comes to Charter decisions, so I’m not going to opine on Justice Minister David Lametti’s remarkable musings last month that the government might legislate a solution to court backlogs caused by enforcement of the Jordan decision during the pandemic.

As the defence lawyer states in the linked article, the Supreme Court’s ruling already allows for flexibility around “illness or extraordinary circumstances,” and COVID-19 certainly qualifies as both. There’s no need to legislate a solution to Jordan backlogs — what’s needed is more support for the criminal justice system to do its work within the Jordan guidelines.

Whether or not the Justice Minister carries through on these thoughts, the incident highlights an uncomfortable reality: Despite the best efforts of justice system personnel and a plethora of good ideas, the court system is nonetheless sinking under the weight of the pandemic. Without intervention, it will continue to sink until it reaches a point where recovery is impossible.

In Ontario, according to the Criminal Lawyers’ Association (cited in the CBC article), the backlog of delayed court cases now runs to 30,000. The statistics are probably similar elsewhere in the country. Past a certain point, this stops being a matter of “delay” and starts becoming a permanent and incurable condition. Canada does not want to become India, where it routinely takes a decade for a case to wind through the courts. But that is the path we are now on.

Some provinces are doing their best, like Manitoba, which is planning to develop an “Integrated Case Management” system. The province envisions a new technology that would consolidate information and share it in real time through a “single province-wide system,” provide online access to court records, feature online dispute resolution and reduce the need for paper. It’s not far off the vision I suggested in one of my pandemic blog posts this past spring, although Manitoba clearly began thinking about this long before I wrote anything on the subject.

Experts interviewed for the article view the plan positively, but massive government technology projects frequently go off the rails, especially when two or more levels and branches of government are involved. In Ontario, if you’re speaking with government lawyers and you mention the turn-of-the-century “Integrated Justice Project,” you can still produce a shudder.

Another reason for concern is the goal of “modernizing” the justice system through this project. ODR advocate Darin Thompson has drawn a distinction between “modernization,” which seeks to take existing justice systems and processes and update them with modern technology, and “digitization,” which requires a wholesale review of what the justice system is trying to achieve and starts building something new and better with digital tools. There’s a (relatively) old saying that if you automate a bad process, you’ll get bad results faster. That’s the concern we should have about any “court modernization” project.

A better solution would be, as an article in CBA National magazine puts it, to “find a way to need courts less.” The CBA’s COVID-19 Task Force and the National Action Committee on Access to Justice in Civil and Family Matters are thinking along these lines, and the comments in the article (including from Edmonton lawyer/mediator Patricia Hebert) are refreshing and encouraging:

“The clients – the users – need to be at the centre of the system. It has to work for them and their needs. Users want resolution. Access to justice is not access to courts. If reaching resolution is something that can be done in a community-based process, can be done effectively and quickly, that’s what we need to do.”

You’re probably familiar with the nascent “Defund the Police” movement in the United States and Canada. Part of the mission of “Defund The Police” is not just to break up the toxic culture of police brutality and to transfer funds from police to other social services that need the money more. It’s to reduce the number of things that the police are called upon to do.

This article makes the cogent argument that what we need to do is “unbundle the police.” When you pause and think about it: Why are cops pulling over drivers for speeding infractions, anyway? Why are cops being called in to handle disturbances caused by people with mental illness? Isn’t part of the problem that we’re requiring one institution to take on much more than it ought to, causing its members to go far outside their core competence and mandate?

In a similar way, COVID-19 could require us to finally “unbundle the courts.” What really needs to be processed through the court and resolved by a judge? Which of those resolutions really needs to take place inside a court building? Isn’t it the case that the vast, vast majority of civil matters could be settled in an online process? Isn’t it the case that a courtroom is the last place most family law matters should ever wind up, and that we need to create an entirely new agency to handle them instead?

That’s the process we need to start undertaking. It would lead to far better outcomes than would legislating in favour of unconstitutional trial delays, or even finding enough money to put a 19th-century court system into a time machine and transport it to the 21st century. Let’s take what doesn’t need to be in the courts out of the courts and create a new home for it. Let’s unbundle the courts.