Creating a modernized, efficient, and effective court system in Ontario… (A holiday Wishlist).
This clarion call is something every lawyer has long hoped for. Lawyers and their clients have long suffered the inefficiencies and costs associated with a Court system that refuses to meaningfully move from a model of the 19th Century.
But, as with most things government, change only comes as a product of crisis driven by public controversy. This long-needed impetus stems from the recent Supreme Court of Canada case of R. v. Jordan tha set out strict timelines of how long it should take a case to get to trial.
At the time Jordan was released, it was known a significant shaping of Canadian jurisprudence was coming. However, I doubt many anticipated just how severe and strictly Canadian courts would interpret it. The severity of the crisis became painfully clear in October when a first degree murder charge was stayed in Edmonton. The Edmonton case perked the ears of politicians and courts alike to ensure that the backlash does not befell their own systems.
Efforts are now underway, or so we are told, to ensure that cases move through the courts with greater efficiency and speed.
Yet it comes as no surprise that I was in Court yesterday and informed that “as a response to Jordan” there will be more forms, more administration, and more formal scrutinization of the parties to achieve this goral (thus absolving the Court). And herein lies the fundamental problem with the Court system and its aversion, if not incompatibility to efficiency: an inability to recognize that efficiency is not created by administration or more rules, or replicating an already inefficient system by adding more resources to do the same; if anything, the opposite is true.
The Courts, albeit with genuine and significant efforts, are forever bogged down by this misguided idealism of bureaucracy.
I have often said that every time I see Courts imposing new rules to make things more efficient, it is like a hockey game that is incessantly calling delay of game penalties in an effort to speed things up. Pretty soon, the game is three times as long, and we are more focused on penalties than actually scoring goals. The game shifts from one of hockey, to the game of avoiding penalties.
If The Courts are serious about change and meeting standards of true efficiency, then a massive and profound paradigm shift needs to happen in the way we look at the delivery of justice. No longer can Courts refuse to accept the integration of technology and modern human behaviour into the systems. As a stark contrast, look at companies like Apple, General Motors, Amazon, and other giants in how much their businesses have changed in the past 10 years. In comparison, and without exaggeration, if one were to place a lawyer into court 10 years ago, one would not notice any noticeable difference.
The reason being is that businesses, unlike Courts, are not immune from failure.
If businesses do not adapt and use modernized methods to meet contemporary expectations and demand, they fail. Up until now, Courts cannot fail. No matter how inefficient, or how unwilling they are to adapt, they continue. It comes as no surprise then that we frequently hear calls from the Court that “more judges are needed” and yet there are hardly any calls for “more technology” or “better management”. This is a product of the idealism that drives the Court in that more judges, employing archaic methods of forms and bureaucracy will fix the system. Such efforts might temporarily reduce the pressure of the immediate demands, but they do nothing to adapt to contemporary society and its demands.
To some, that time has reckoning has come and Jordan will force it upon Courts. Like many, I fear that the efforts made will simply create a greater capacity for inefficiency on a backdrop of ever-increasing demand. Yet, as a hopeless optimist (and someone who truly believes it can be salvaged), here is a list of things to consider in developing a system that is efficient, yet balanced in its approach to delivering justice.