Engineers call it a “test to destruction” — the act of submitting a system or a piece of technology to conditions that force it to fail. The idea is to learn why things break to make them stronger.
The COVID-19 pandemic is putting all systems and institutions, public and private, through a collective test to destruction. In the case of Canada’s court systems, however, there was never any mystery about where the weaknesses were, as former Chief Justice Beverley McLachlin pointed out yesterday, while lamenting “the courts’ woeful inability to pivot” during this crisis. For decades, lawyers and judges have been complaining about the courts’ reliance on paper, in-person appearances and 1980s-era technology. All the pandemic did was prove them right.
In the shorter term, it all promises to make the existing backlogs in the criminal and civil systems far worse. It’s also creating what Ottawa-based criminal lawyer Michael Spratt calls a “dangerous, perverse incentive” for his clients to plead guilty in return for time-served.
“I’ve got clients who’ve insisted all along they’re not guilty, whose cases present a very good chance of acquittal … who are seriously tempted to take plea deals just to avoid being locked up in some overcrowded facility where the chances of getting sick are much higher,” he said.
In the longer term, the current crisis could push governments to get serious about using technology and online tribunals to stop squandering court time on low-priority or administrative matters. How serious they get, said one legal market analyst, depends in part on how long the crisis lasts.
Nobody wants to hear about silver linings in the midst of a pandemic, of course. But for those who’ve been pushing the court system to modernize for decades, the experience of the past few weeks proves that it can be done, and quickly — once circumstances leave no other option.
“People like me have been asking for small fixes for ages,” said Spratt. “Why do we have to pick up disclosure physically at the courthouse on a CD-ROM, instead of by email? Why does a judge have to physically sign consent forms on paper and in person?
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