Fragility and Resilience: The Lessons of 2020 and the Potential of 2021

By Beverley McLachlin, Chair of the Action Committee on Access to Justice in Civil and Family Matters

January 2021

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

One could be forgiven for some hyperbole when writing a column about the past year. 2020 and the beginning of 2021 has been a time of historic, and largely negative, extremes across the health, environment and social landscape. We have been personally and institutionally tested in ways that most of us could not previously have imagined.

And, it isn’t over yet. Indeed, in many ways, we are at the apex of the challenge. We feel fragile. We must summon the courage to stay the course. We can do this by examining the lessons of 2020 and reassuring ourselves that, in spite of all that 2020 threw at us, we, as individuals and as a community, displayed remarkable resilience.

The justice system, like other sectors of society, has been deeply impacted by the experiences of 2020. The pandemic amplified the fragility of the process of delivering justice to Canadians, both in the civil and criminal sector. Of necessity, courts and myriad justice providers were driven to triage and rapid fixes to serve the most at risk – those in custody and those in danger, all the while struggling to maintain some sort of ongoing service. None of this was good, but it forced a shift to make better use of technology platforms in justice delivery and confront long-held shibboleths, like the idea that in-person appearances are required for everything every time and the notion that every document must be physically filed in a registry.

Not only did the pandemic make operating the justice system more difficult; it added to the cases needing to be processed. The pandemic exacerbated domestic violence and mental illness. It further marginalized people already experiencing social disadvantage, increasing demands on courts and tribunals for decisions relating to welfare and housing. And it showed us the limits of technology. If you don’t have minimum digital literacy, don’t own an ipad or computer, or can’t connect because you don’t live in a city, e-filing and in-person hearings aren’t likely to help you.

The pandemic revealed the cracks in our justice system, forcing a reckoning with our approaches to serving the fundamental principles of justice and to ensuring that justice can be accessed by everyone. It showed us technology can be used in myriad ways to help deliver better justice. It showed us that a stodgey system is capable of innovation. And it showed us we need to get all Canadians hooked into the electronic way of communicating that is the new norm. We pivoted, we innovated. We came away with the confidence that despite the problems we face, we can innovate to make the justice system more accessible when this is all over.

Finally, the justice system proved it can survive and continue to deal out justice in adverse circumstances. The system is fundamentally sound, the rule of law is secure. With difficulty, people continue to access justice. Yes, we have work to do. But justice remains a bulwark of Canadian society. This is the most important lesson we in the justice sector can take from 2020.

So I, for one, approach 2021 in confidence. Our justice system is solid, but will continue to be tested in 2021. We will need to be open, smart and aggressive in rebuilding what has been damaged and rebooting to overcome backlogs. We will need to avoid short-term reaction and instead make long-term assessments, based on data. We will need to constantly remind ourselves to focus on two questions. First, what do people need? Second, how can we make the system work so these needs are met? And in answering these questions, we need to think not just about 2021 but beyond.

Making the changes that will provide answers to these questions will depend on public support and political will. To achieve this, we must push access to justice into the national conversation, up there with health care and the economy. That won’t be easy, when physical and economic survival occupies the entire frontal lobe of the public mind. But we know that in the long run, we can’t have economic recovery and personal well-being without a strong justice system capable of delivering justice in a timely, efficient and equitable manner.

The Right Honourable Beverley McLachlin served as chief justice of Canada from 2000 to mid-December 2017. She now works as an arbitrator and mediator in Canada and internationally and also sits as a justice of Singapore’s International Commercial Court and the Hong Kong Final Court of Appeal. She is the outgoing chair of the Action Committee on Access to Justice in Civil and Family Matters.