By: Sukhbir Thind
The Covid-19 global pandemic has completely disrupted Canadian lives and systems. Beyond the detrimental impacts on the health and well-being, various institutions, including Canadian courts, are struggling to continue operating in-line with the current restrictions. Many legal experts have highlighted the many issues within the existing court system, including The Right Honourable Beverley McLachlin who urges courts to seize this opportunity as a “wake-up call”  to embrace innovation and abandon antiquated procedures and structures. Canadian courts have responded to the pandemic by closing their doors to the public, and cancelling or postponing hearings. Urgent hearings continue to proceed via phone or video conference. Courts have also changed procedures by now accepting filling by email.
Legal practitioners in various areas of the law are still struggling to cope under the current conditions. Civil litigation lawyers are scrambling to establish new ways to work due to the lack of set procedural guidelines for virtual work, including conducting discoveries or motions via phone or video conference. Most family law issues addressing access and custody, and child and spousal support claims do not seem to classify as urgent. The delay and lack of support does not fall under the concept of prioritizing the best interest of children. Due to the financial problems caused by covid-19, many parents are no longer receiving child or spousal support and have little to zero recourse to support themselves or their children. Family law experts are pushing for virtual alternative dispute resolution processes to push through these disruptive conditions. The resulting backlog from the current restrictions will be an enormous problem both for legal practitioners and the public seeking justice.
Lawyers and judges need a streamlined system to churn out cases justly and efficiently, without the baggage of procedure and reluctance towards technological options. The public deserves to have a timely resolution of their cases, a concept enshrined through a Supreme Court of Canada decision, but a lack of proposed changes to the court system suggests that justice will not be served in time. The issues caused by the current pandemic will be hard to resolve by the Canadian court systems and every branch and institution is impacted in a different way. The full breadth of justice is not being served. For instance, the Federal Ombudsman for Victims of Crime has to request the Parole Board of Canada to allow victims of crime to participate in virtual hearings for offenders. The Honourable Justice Rosalie Abella, from a recent lecture at Harvard Law School, quoted Roscoe Pound as having “criticized the civil justice system’s trials for being overly fixated on procedure, overly adversarial, too expensive, too long and too out of date” in 1906. Today, in 2020, the public continues to face the same problems as they did a century ago. The current pandemic has only inflated existing issues. It is time to push through “institutional reluctance” and reinvent a court system that works for all.
The Canadian Bar Association (CBA) has launched a national task force to address issues of backlog and make recommendations for systemic changes. This 19-person task force includes experts from national courts and federal organizations, including judges. Beyond the experts in the CBA taskforce, participation in this process needs to be open and accessible as each area of the law has its own problems. Lastly, the impact on law students from the potential changes to the court system is worth discussing to ensure a smooth transition for the next generation of lawyers.