The home stretch, Part 5: Is the court system broken?

TVO.org speaks with Osgoode Hall professor Trevor Farrow about access to justice, the culture shift that’s needed — and why more people need to talk about law
By Matt Gurney - Published on Jul 23, 2021
Trevor Farrow is the chair of the Canadian Forum on Civil Justice. (YouTube/York University)

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This is the final instalment of a multi-part series. Read Part 4 here.

Sometime in the next few weeks, Ontario’s vaccination campaign will be essentially complete. It will not end, because there will be stragglers and new people aging into eligibility. But the main effort is only weeks away from completion. We will move into what military commanders would call the “mopping up” phase — the main fighting will be over, even if some skirmishes continue for some time.

This may not represent a final victory — we will need to remain vigilant against new variants that may defeat our vaccines. For now, at least, a return to something much more like normal is possible. Only time will tell what that new normal looks like, and that’s a topic for future analysis. The challenge (and opportunity) before us right now is different: What does this next phase look like? These coming weeks and months? What should we do right now, as we exit this long crisis?

In the coming days, TVO.org will present interviews with a variety of experts who were all asked some variation of this question: What happens next in your field, and what must we do immediately?

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Today: Trevor Farrow, professor at Osgoode Hall Law School and chair of the Canadian Forum on Civil Justice, a national non-profit.

Matt Gurney: Let’s pretend the pandemic had never happened. Like, let’s go back in time to November 2019. If I asked you then what the state of Ontario’s court system was — and I mean family, criminal, civil, all of it — how were things going? What was going well, and what would have worried you back two years ago?

Trevor Farrow: I think there are two ways to look at our court system. One way, and I’ll be quick on this, is that we have, comparatively to other countries around the world, fabulous judges, we’ve got pretty good courthouses, and we’ve got a very functioning rule of law. And, so, as a comparative matter, we’ve got a good justice system. I think much more honestly, however, most people would say our justice system is in crisis. And that is not because we have bad judges or bad lawyers or bad administrators. The problem is that very, very few people can actually properly access the courts and the justice system. Pre-pandemic, that was not news. The former chief justice of Canada had called it a system in crisis. There a lot of people working on trying to make it more accessible. But as the pandemic rolled in, there was certainly an awareness that something big needed to happen, or we will continue down the road to a less and less accessible justice system for more and more people.

Gurney: Let’s just take a quick minute here and zero in on that concept. What’s access to justice?

Farrow: You’re asking great questions, and the truth is, there are not easy answers, even to what might be a simple question — what is “access to justice.” If you cut through it, there are two ways to think about access to justice. 

A narrow way, a version that has often prevailed in justice circles, is access to courts, access to lawyers, access to the current procedural system. That is one way to think about access to justice. And the bars to that have been cost and delays. And, increasingly, though it’s always been the case, we’re increasingly aware that there are bars to the system that are contextually driven — social context, culture. I’m thinking about systemic racism, I’m thinking about Indigenous communities, who don’t see themselves represented in our current system. So there are lots of barriers to the current procedural system. These amounted to a lack of access to justice in a different way. 

This viewpoint is less procedural and more substantive. So what I’m thinking about there is, simply put, access to the good life. People want safe streets, they want to be free from racism, they want to have safe schools to go to, they want to have clean drinking water, and they want to have shelter and not to be moved out of parks. They want to have access to a place to live. In this view, “access to justice” obviously includes the justice system, but it includes a whole lot more. And I think that’s the more interesting question. How do we connect the procedural with the substantive in a way that makes sense to the regular public, the regular taxpayer, and the regular government official so that we have a more just society? Those are two big questions — two different questions. One’s very much focused on courts. And that system was very much focused on the user and how they experienced it.

Gurney: [laughs] Trevor, if we tried to discuss the societal and substantive element here, I’d have you on the phone all day. So just to stay organized, let’s talk specifically about the courts. I’d asked you about to talk about the entire system, including criminal courts, family courts, and civil courts. Is that fair or reasonable here? Can we talk about the system and how the pandemic hit it in that way, or do we need to break it out by segment?

Farrow: We do need to break it out, at least somewhat. The administration of justice, broadly defined, is largely done by the provinces in this country. And that includes criminal, civil, family. The challenge, of course, is when you think about legal aid, and who has access to legal aid and for what. It’s really only criminal, and a small amount of family and child protection and immigration, where there’s any meaningful legal aid available. And that’s, of course, only for the very poor. The criminal funding takes up a lot of the budget and a lot of the space in the conversation, which leaves family and then, of course, civil, really left up to the user to fund and navigate. 

And, so, there is a huge amount of unmet legal need on the civil and family side. I am very concerned about that. It’s not that I’m not concerned about criminal. But to the extent that we have resources going into the justice system, I’ve got to say a lot of it goes into the criminal system. If you look at the research and the data, way more people experienced a civil-justice problem than a criminal justice problem. Like way more. Almost 50 per cent of Canadians will experience a significant civil or family problem over the course of their life; far, far fewer will experience a criminal matter. And those civil and family matters are not insignificant. They relate to lost jobs. health issues, employment, family issues, etc. They have major impacts on people’s lives. And the problem is those without means have a hard time accessing the system in any meaningful way.

Gurney: Let’s talk about what the pandemic did to the courts in Ontario. We’ve set the table a bit on the structure and the challenges and also what it does well. So, now, walk me through the pandemic and what happened in the courts.

Farrow: A lot of just the system just shut down. People weren’t quite sure how to manage it. Because courts were largely done in person, all of that shut down for a period of time. Then, through the goodwill of a bunch of court administrators and judges, like everything else, a lot of court came back, but online. So Zoom calls were a major way of resuming operations. I can’t speak for every court across the country, but certainly the courts I’m familiar with, they became very familiar very quickly with using Zoom and conference calls to do a lot of stuff, including trials. Not everything made a major shift online — jury trials are an exception. But the courts pivoted to virtual hearings. And they also, in some instances, pivoted to much bigger hearing rooms, so that there could be social distancing, while still having people in the room for cases where it was deemed important to have in-person hearings.

This was a massive shake up. And a catalyst to essentially catapult the system decades forward in a very short period of time. Don’t think that I’m saying that the pandemic was good! But one good thing that came out of it is that it forced courts and judges and lawyers and the public to use the system in a way that they had not been really willing to use it before. Zoom meetings and virtual hearings was not a minor thing when it comes to a system that was still very much paper based, very much in-person based, and very much entrenched in a way of doing things that has been the same for decades. So the pandemic was a catalyst. I think it opened up a lot of conversations. This hasn’t fixed all the problems, but I think it’s set the table for potentially having some real conversations about whether we’re willing to move forward in a massive way or in a more tinkering kind of way. And I think that question is still open. But there’s some goodwill, and people are willing to move forward.

Gurney: I’m surrounded by lawyers in my personal life, and I hear a ton anecdotally, and one thing I’ve heard a lot of is that things overall went way better than people expected. What’s your sense? How did this go? In a really basic way, did this work?

Farrow: Yeah. Overall, it worked. And my view is that it worked remarkably well. A lot of people through the justice system found ways to work that were more efficient than had been done before. I’m thinking about video conferencing; pre-pandemic, people would have had to travel, and lawyers would have had to travel hundreds of miles to spend a day in person for a very small court matter. They were now able to do it remotely, instantly, and much more cheaply. 

And I think the other thing that people were very scared about was the idea that somehow justice could not be done remotely, that you had to look people in the eye, that you had to be there. And I know from having talked to different lawyers, there are different views on this. But I think the prevailing view is, a lot of court matters can be dealt with as effectively virtually as they can in person. You can manage documents, you can make arguments, and you can have your matters heard. And most trials, even, can be done virtually when the technology and the setup are correct. So a lot of this has been done well. I do not think that means that we are going to get rid of in-person court, for a lot of reasons — in-person court will remain useful and part of the system. But I do think the future system will be more blended and more efficient.

Gurney: Some of my earlier interviews in this series were with experts in the health-care system, and a major problem there is that we now have a massive backlog of procedures that have not been done these past 18 months because the system was overwhelmed caring for COVID-19 patients. Is there an analogue to this in the legal system, or did these pivots to online courts allow the system to avoid that same kind of backlog?

Farrow: There’s definitely a backlog. At the beginning of the pandemic, people were very, very concerned that the backlog was going to get out of control. And we know from looking around the world at different countries that have massive court backlogs, it really stretches the ability of the rule of law to function when you basically just can’t get court cases to court. Having said that, we do have a backlog. Because of the Jordan decision in Canada, criminal cases must be heard on certain timelines. Because of the way our criminal system works, it’s harder to keep criminal matters on hold. 

I don’t want to say that there’s no backlog in the criminal courts. But it’s my understanding, and I don’t have the data, but my understanding is that the backlog is most acute on the civil side, and then into the family side as well. But, across the board, for sure, there was a backlog. Having said that, the fact that the courts were able to shift online fairly efficiently and quickly meant that the backlog that everyone was so scared of isn’t quite as bad as it would have been. They simply waited out the pandemic before going back in person, which we’d be waiting for till about now. So that’s why it’s not as bad as it could have been. But, for sure, it stretched the system, particularly at the beginning.

Gurney: Trevor, to state the obvious: terrible things happen in life, sometimes without warning. In criminal court, you might have someone facing charges due to a horrifying violent crime. In family court, God forbid, you can have scenarios where the parents of young children are killed in an accident and the court needs to decide immediately who’ll care for those children. In civil court, we can have businesses go bust, and employees and pensioners can be suddenly left without means to support themselves. These are all examples of when speed in courts matters — was the court able to function, even during the emergency, to manage the critical time-sensitive stuff that crops up in life?

Farrow: I don’t know exactly what the docket looks like right now across the country. It’s a really good question, and I don’t have a great answer for you. Again, my sense is that the court was able to triage and manage the different cases that are time-sensitive, particularly on the criminal side. I do not want to suggest that it was really easy to triage and manage all the civil stuff. And some things just didn’t come forward at all because of the pandemic. And that’s sort of a different side conversation. But when you look at the data, there’s a lot of justice that just doesn’t happen, because people feel like they just don’t have the resources or time to do it; we’ve always had a lot of unmet justice.

So I think it’s a mixed answer to your question. There’s some serious stuff that’s sitting, for sure. There are lots of trials that are waiting to happen on the civil side that engaged really meaningful, important things — human things that are waiting their turn. And that’s the challenge of our justice system. It’s slow. And it would take a significant injection of investment and resources and a retooling if we want to change that.

Gurney: You just mentioned stuff that didn’t come forward at all. I told you before that I’m surrounded by lawyers. My brother-in-law is a mediator, and he’d told me that at first, like everyone, he was wondering what this was all going to mean for him and his business, but then he got busy. And I’ve heard that from a lot of people, anecdotally. That people saw the pandemic and said, man, we’d better find some other way to deal with our business dispute or our divorce. What have you heard?

Farrow: Yeah. Well, I heard what your brother-in-law told you. I’ve heard a lot of that. There’s a whole category of what we call ADR — alternative dispute resolution. That’s mediators like your brother-in-law; it’s arbitration, renewed negotiations, and all sorts of private resolutions that are well-recognized in society and by the law as effective, valid outcomes. They’re sort of a parallel system. The pandemic has been good for business, if you will, on the alternative side. I’d done research pre-pandemic on the use of arbitration and that sort of thing. I have not done the research during or post-pandemic, so I cannot give you statistics.

But, certainly, what I’ve read, what I’m hearing, and what the ADR community itself is saying is that there is an increase in use in those alternatives, largely because of an actual, or at least a perceived, backlog in the courts. So I think your brother-in-law’s anecdotal experience, which is important experience, is not unique. I think that’s the prevailing view, amongst the mediation and arbitration professionals.

Gurney: I’m very mindful of not wanting to sound cheerful here. The pandemic wasn’t good. We’ve lost tens of thousands of people. But in the area of the courts, is it possible that it nudged us onto a better path? I hope I don’t sound delusionally cheerful or unreasonably optimistic. Am I way off base here?

Farrow: No, I don’t think so. I don’t think you are. I think we have the chance of having a much more effective and perhaps a much more interesting and responsive court system than we did before. There are a couple of aspects to this. And let me start by saying, my own view is that courts are a good thing. I think our public justice system, having publicly open, accessible courts in Canada, is a really important part of our democracy. It’s important for the rule of law, and it’s important for everyday citizens, because without it, a lot of the stuff that we rely on that we don’t even think of comes into jeopardy. 

So my view is we need a really well-functioning, accessible public court system. And I would rather have more cases going than fewer cases going. I’d rather strive for, as the current chief justice of Canada has said, more good justice for more people. I think that’s the goal. And so the the pandemic has opened the door, I think, to the possibility that we can do more good justice. We can do stuff by Zoom, we can do stuff by telephone, and we can do stuff in writing — we don’t have to fly lawyers across half a territory, necessarily, to simply do a small matter. Let’s do stuff efficiently. Let’s spend money where it’s needed. 

Secondly, I do think that mediation and arbitration and all that private stuff is really important and useful, and it will have its place. 

And then third, I think this is a wake-up call to notice how much justice has not been done. And to figure out as a society, do we want to try and help all of those people that, up until now, have not been able to get justice for a bunch of different reasons, largely cost and accessibility? Even within the resources that we have, can we reimagine how we do this? I hope we increase the resources as well, but we can do more with them.

And then, finally, just because you asked, I think we need to not lose sight of the other thing that’s happening around us, which is growing awareness of our social context. A lot of members of society, Indigenous members, racialized communities, marginalized communities, have never felt welcome or been able to access the system in any kind of meaningful way. And now we have an opportunity to take on all these challenges and really vault our system forward in a way that will make it better and fairer and more efficient for everyone. We just have to grab the bull by the horns. 

Gurney: [laughs] Oh, dear. In an earlier interview for this series, Anthony Dale of the Ontario Hospital Association said that we can fix a lot of problems if we’re brave and bold. And I thought, and I even said, oh, then we’re [expletive deleted]. [laughs] Because we aren’t brave and bold! That’s not what we do here. Everything you’re laying out here makes perfect sense to me and sounds great. But let me ask you this — what is going to prevent this from happening? 

Farrow: I think there are two main roadblocks, one easier to overcome than the other. Let me start with the easier one. All of the current players — judges, lawyers, academics like me, administrators, whatever — we’ve all grown up in one system. If we want to shake it up, it’s scary, right? It’s destabilizing. It’s easier to stay on the same path. Now, I’m not saying that everyone’s going to stand in the way. I think there are a lot of judges and lawyers and academics and administrators who really, really, really want there to be change, right from the top on down. But there is a culture shift that’s needed within the system to allow us to truly unlock some innovation and some change. So that’s one roadblock: the people. We need a culture shift within. 

And I think that’s the easier one to solve. It’s not easy, but I think it’s the easier one. 

The second main one, the elephant in the room, is resources. I’m not so naïve as to think that everyone’s going to line up to increase their taxes and pay more money. But the problem is, if you look at research that I’ve done and that other people have done, when you look at the return on investment, for every dollar spent on legal aid, for example, there’s a positive return on investment between about $9 and $16. And that doesn’t count positive benefits to society, including social and health outcomes, that we don’t really track or consider part of spending on justice. It’s a bad investment not to invest in justice. But we continue to frame it as a cost as opposed to a benefit. So we continue to underinvest, and that’s a bad decision. 

It’s hard: we either need to raise more funds or to redirect at the treasury level how we’re using resources. But one way or the other, we would be better off as a society if we invested in justice. It would be a big boost to all the challenges we’ve been talking about for the last half hour. I think that’s the bigger barrier. No one wants to talk about it. But I’ve got to tell you, it’s bad. What we’re doing right now will cost us more overall than doing something to fix it.

Gurney: A lot of these necessary steps, have we done some of them already? Could some of the changes we’ve made on an emergency basis simply be made permanent and thereby address at least some of this? Or do we need to step back and make a lot of this more official, more permanent?

Farrow: I think it’s the second option. We need to do this in a more deliberative way. Look, this stuff is not dinner-table conversation. People don’t meet up at Tims and chat about the justice system. They talk about sports, their new diet, getting more exercise, all that stuff. Things that make them happier and their lives better. And politicians respond to that! They want to give the people what they want. So that’s how they choose what to spend money on. But a better justice system would make all our lives better! There’s a reluctance to talk about some of this stuff sometimes, because people can be ashamed if they’re in court or need a lawyer. We don’t have the focus on law, because people don’t really talk about it. And they’re not really aware of how important it is for their life. 

That’s my view. And that’s based not on my own anecdotal view, but on the research on the impact on people’s lives, when you look at the numbers, including the cost to them, their lives, and costs of the system. So, yes, we can do things on an emergency basis, and we did. So what are we going to do going forward? And if you look at what’s in the news, not necessarily today, but over the course of the last, well, forever [laughs], it’ll be education, it’ll be policing, it’ll be privacy. It’ll be that kind of stuff. And it’s not a conversation on how we’re going to re-energize our Canadian justice system. But without it, none of that other stuff functions properly. It’s not an easy conversation. People think I’m crazy when I talk like this, but we need to make this shift away from an emergency into a new model for the system. 

Gurney: I think that’s a really interesting comment, Trevor. I agree with you. A functional justice system — and the rule of law more broadly — isn’t something we think a lot about, because we take it for granted. It’s like gravity. I’m a big fan of spoof movies, and in one of the Leslie Nielsen ones, he sorrowfully remarks, “I guess love is like the ozone layer. You never miss it until it’s gone.” And I don’t even know if our political leadership understands how fragile the foundation of our society is, because they’ve never had to think about the foundation. It’s always been there for them.

Farrow: I like the gravity comment. Because I do think that there are some things, some challenges or problems in the world, that are so big that they’re hard to understand. They’re hard to talk about. And they’re certainly hard to think about turning around. Look at climate change. How do we turn around climate change? I think we’ve sort of ignored that for a long time to our peril. We’re now at that stage, and people are actually taking it seriously and trying to figure it out. On the left or the right, that conversation is now happening. We’re seeing big conversations about racism and Indigenous reconciliation. These are big, huge systemic issues that involve real people — and real problems are hard. 

And justice is another one of those issues there. It’s big; it’s hard. The Constitution was not set up in a way that makes it easy to manage. 

But I think, at some point, we as a modern society are smart enough to realize you can’t continue to ignore the foundations for too long or the house starts to fall down. The rule of law is the foundation of our house. And you can’t ignore it. You ignore it at your peril. A lot of people will only notice when it starts to crumble. Think about what happened on January 6 in the U.S.

I’m not suggesting we are at that stage here in Canada. But I think we need to jealously guard our rule of law and our justice system. And I think it’s time to start investing in it and taking it seriously. 

This interview has been condensed and edited for length and clarity.

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