Effective Triage a Cornerstone of a Modernized Justice System

CBA COVID-19 Task Force
Author: Brad Regehr and Vivene Salmon, CBA Co-Chairs

The Statement of Principles guiding the Canadian Bar Association’s COVID-19 task force puts the focus on innovation, effectiveness, efficiency and sustainability as the justice systems and legal profession move from prioritizing safety at the height of a pandemic to institutionalizing change.

One word at the heart of it all is triage.

Innovation is needed to establish the kind of triage necessary to make the justice systems effective and efficient. If it’s done properly, it will also be sustainable well into the future, in bad times and good.

In a hospital emergency room triage means to sort by priority – urgent cases first, followed by less urgent.

In the justice system, triage is about ensuring those seeking justice are guided, quickly and properly, to the path best suited to their purpose – a path that might lead to a courtroom, or to another form of dispute resolution.

Earlier CBA reports, on the future of legal practice and on reaching equal justice, both call for a people-centred justice system, the essence of which is “the way people enter the system and the way they are treated on day one.”

Trish Hebert, Q.C., a family law practitioner with Bruyer & Mackay in Edmonton who addressed the task force during its study phase, said in an interview that lawyers in her field have always looked for ways to resolve cases that don’t involve the courts.

“There wasn’t that ability in many understaffed and underfunded courthouses to work on efficiencies – until they were forced to think about other ways to do things because of the pandemic,” said Hebert, who is the CBA representative on the National Action Committee on Access to Justice in Civil and Family Matters and a former member of the CBA’s Access to Justice Committee.

One kind of efficiency is keeping people from having to attend court when being there in person doesn’t add value – if the activity, such as filing, can be done just as well electronically.

But closing the courts, as was done in the early stages of the pandemic, also created problems for people seeking justice, because it was difficult to know where else they could go, what facilities were available outside the courthouse. That points to a need for more alternatives, and information about those alternatives to be more widely accessible.

“Users want resolution,” says Hebert. “Access to justice is not access to courts if that’s something that can be done in a community-based process.”

Peoples’ problems can compound while they’re waiting for a court date, she added. “If we can find ways to get people to resolution earlier we know that has ripple effects in the communities. It saves untold dollars and untold grief.”

But moving away from the courts is not as easy as sitting in front of a computer.

The task force heard that online platforms can be challenging in many areas including family law, where matters can be complex, emotions can run high and where there is a larger number of self-represented litigants.

“We now have online access to courts and that’s great, but for really marginalized people getting access to a computer is challenging. Many marginalized people go to libraries to use computers, but libraries have been closed during COVID, so what do they do? We can’t leave behind that portion of the population.”

Despite all the challenges posed by the pandemic crisis, we are hopeful that innovative solutions will be developed to tackle issues such as access to justice and integration of technology; the justice system will continue to evolve to meet the needs of Canadians.

CBA President Brad Regehr and Past President Vivene Salmon are co-Chairs of the Canadian Bar Association’s Task Force on Justice Issues Arising from COVID-19. The Task Force will release its report at the CBA’s AGM on February 17.

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