Will COVID-19 justice become the norm?

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

 November 2020

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

I am an optimist. In previous columns I have expressed the hope that COVID-19 will reveal the inefficiencies and gaps in how we deliver justice to Canadians and allow us to build a better justice system that combines the strengths of the current system with new thinking on how to run our justice institutions more efficiently and humanely.

This is still my hope. But two other possibilities have increasingly preoccupied me, as the never-ending pandemic grinds on and on and on. One is that we will emerge from the pandemic too fatigued for bold new thinking and settle for what we had before. That would be a shame. But the other possibility is even more chilling — that the incursions on justice that have accompanied COVID-19 will settle in and become permanent. As information on its impact on our justice system accumulates, a new question has emerged: Will COVID-19 justice become the new norm?

My early concern that we would fail to build a better justice system post-COVID-19 and settle for the previous status quo with a few jigs here and there, has morphed into the worry that we may actually emerge from the pandemic with a permanently weakened justice system — what Andy Richardson of the Inter-Parliamentary Union described on a recent webinar sponsored by the World Justice Project as “minimalized justice,” a phrase calculated to send a chill down the spine of anyone who cares about rights and democracy.

It cannot be denied that throughout the world COVID-19 has made society less just than it once was in myriad ways. Emergency edicts and laws have pushed the courts and institutions that monitor fair process to the side. In parts of the world, free expression has been curtailed. Canadians have seen their right to move in Canada, guaranteed by s. 6 of the Charter, truncated. People understand that individual rights must sometimes yield to the greater public good and accept these curtailments as temporary intrusions on liberties they hold dear as inevitable.

But COVID-19 has inflicted harms not only on individual liberties writ large, but more broadly on the justice system and the institutions that sustain it.

One problem is funding. Courts and the myriad institutions that support just outcomes in family law, criminal law and civil disputes, have seen funding reduced in some countries. Courts that were operating on inadequate budgets before COVID-19 fear the new cuts will become permanent, further impoverishing their justice systems. Who needs new courthouses when people can meet online, the politicians will ask? Except that not everyone can access online solutions, and not everything required for justice can be done or done well remotely. One result of the pandemic could be an impoverished and consequently diminished justice system.

Coupled with diminished funding is the problem of diminished expectations. COVID-19 has meant increased delays in resolving people’s legal problems, as courthouses have reduced capacity and justice support agencies have been silenced as non-essential. We know that pre-pandemic, many people had given up on courts and tribunals as a way to resolve their legal problems. The curtailments and closures caused by COVID-19 has exacerbated this situation.

This is a dangerous situation. When people give up on the justice system, they also stop believing in the rule of law. Unable to use the law to obtain the benefits it accords them, they view the system as alien and elite. The law is not their law; it is the law of a privileged and empowered class. This in turn, undermines trust in all our democratic institutions.

Compounding the potential problems of diminished funding and diminished expectations, is the fact that COVID-19 has worsened the lot of many people. Around the world, domestic violence has spiked. Already disadvantaged minorities have seen their situation grow even more bleak. Coming out of the pandemic, we will need a strong and robust justice system to address the breakdowns and losses the epidemic has wrought.

People who think about justice have a new name for all these COVID-related impacts — the justice debt. COVID-19 will leave us with economic debts and social debts. But it will also leave us with a justice debt — court backlogs, legal advice backlogs, backlogs of unresolved disputes, of rights denied and harms inflicted.

We can write the backlogs off in an act of collective denial, when the trauma of the pandemic is over. To do this would leave our justice system and our society permanently diminished. Or we can resolve to erase the justice debt COVID-19 has produced, just as we are resolved to pay back the economic debts the epidemic has run up. There is a real danger that justice will take a back seat as fatigued and overspent governments work to restore society when this is all over. Instead of building a better post-COVID-19 justice system, we will end up with a worse justice system, providing minimized justice.

Justice is vital to society and a well-functioning democracy. Let’s make sure that as we emerge from this epidemic, we keep it alive and well.

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 chairs the Action Committee on Access to Justice in Civil and Family Matters.