Access to Justice During the Pandemic


With Bevereley McLcachlin and Vardirt Ravitsky




Vardirt Ravitsky: The enduring effects of the pandemic and the continuing questioning in nearly every state and region about how it has been handled means most institutions – public and private, local and global – will have to take a hard look at their performance. Beverley McLachlin, retired Chief Justice of the Supreme Court of Canada and a 2020 Pierre Elliott Trudeau Foundation Mentor, believes that the system of justice, taken in its broadest sense, also has a real self-examination to undertake. 

Bevereley McLcachlin: I've realized that our justice system is not just a system of government provided courts, it is that's important, but it is also a whole system of civil society, NGOs, various groups who are dedicated to helping people who need the legal protections that the Constitution of Canada gives to them. NGOs and community justice services, They have proved most helpful in this situation because they deal with people on the ground. When people can't get to a law office or they can't get to a courthouse, they can go to those places. And fortunately, since the Access to Justice movement got going about 10 or 15 years ago, we've seen a plethora of these small organizations, often partially or wholly funded by nongovernmental sources, they're there to help women who suddenly find themselves on the street without a home and three children to look after. They're there to help people who are going through a housing crisis. And they can take up a lot of the slack through counseling, through making connections to telling the person where they can go for help and other means.


Vardirt Ravitsky: Did you expect this important contribution from civil society?


Bevereley McLcachlin: I've been working with a lot of these groups and I've been so impressed, even pre pandemic with the wonderful work they're doing.But my impression is that they've helped pick up a lot of the slack, that a lot of the job, rather, that the more formal governmental tribunals have not been able to handle. 


Vardirt Ravitsky: I'd like to explore with you more specifically and of course, related to your own perspective on society. What did you think? How did you feel when the court started to shut down with a pandemic? And what implications did this have?


Bevereley McLcachlin: Well, it's a very big picture, but of course, I felt I felt very concerned because having worked in the court system for most of my life and seeing the men, women and children whose lives are affected by the decisions that are made there.The dislocation is enormous because the justice system is a big, complicated system. And at the hub of it are our courts. And when the courts shut down, then police have nowhere to go to take their people. How do you arrange for bail and so on.If you are involved in any kind of dispute that goes before the courts there, there will be documents, there will be pieces of paper. That's the foundation. So how do you do that when there's the counter is not open in the courthouse and you have a deadline coming up. How do you deal with those things if nobody can get to a judge and nobody can get to the paper? So they started e-filing in most places. And that just means that lawyers and other designated agencies can have an electronic track and they can send their document that way and get it filed that way makes perfect sense. We were doing this in the Supreme Court of Canada for many years, working up a system. It takes some time to build up a system. Fortunately, in some parts of the country, we'd already started putting in place some virtual systems so that these could be upgraded and expanded. And so a lot of these things were up-wrapped quickly, stood us in good stead, and I think prevented a real calamity. But this is one of those things we shouldn't go back on now that we've built it up in our provincial courts and our local courthouses. Let's move on it.I'm not one who says that courtrooms should be closed forever, that justice should be virtual. I think that we do need our open courtrooms where the press can be present, where the public can come, where juries will deliberate together once they are capable of going and sitting next to one another. And where there is a judge. This is our bulwark to ensure that the rule of law in all of its ramifications is maintained. Lawyers present, everyone present debating in the public arena. And if a person charged with a serious offense or with a serious dispute, I believe is entitled to that quality of justice. But we have learned that along the way, a lot of the interlocutory applications about, you know, documents, disclosure, how many days you get to do this and that, a lot of those things can be dealt with online.


Vardirt Ravitsky: So you've been actually describing to us your ideal vision for the future of the justice system, this combination of in-person and virtual. Do we in Canada currently have the infrastructure that is required to kind of fulfill this vision in terms of the virtual, do we have the funding for that? Is there political will to build what is necessary? 


Bevereley McLcachlin: There's a whole lot of questions there. The first one is we don't have it. The second is there's considerable will from certain sectors to do it.And the third is that there will be a need for funding. And this becomes a question of priorities which will be very, very critical in the post pandemic phase. We all know that important steps need to be taken in the health and wellness sector and how we would deal with such pandemics in the future in a more, this isn't a criticism, but governments were very much caught on the back foot. It's been very difficult to come up with the appropriate response in every case because of lack of precedent, because of the fact we'd let our agencies that were supposed to be ready for this. We got complacent and let them slip. so we need to invest a lot in health, welfare, public health sector.We know that. And we know we have to do something with long term care, which was where most of the ultimate suffering and death took place.There'll be lots of needs in education where we know that sometimes schools may have to shut down and what do we do and how do we keep our kidshealthy and well and socialized and educated.But somewhere in that piece, we have to find the money to make our justice system work because our society is founded on the idea that every Canadian can get justice when they need it. We know people have differences. We know we have to have processes for those differences. And we know the justice system is at the heart of that. So we need to keep our court system strong and we need to keep it accessible and we need to keep it proportionate.It's no good going to a court where you may have to wait two or three years. That's not going to give you the answer. So there's a lot of thinking to be done as to how we can do better justice delivery and then how we can improve.And the problem in the past has been that it's been hard to get government funding for improving the justice system. I hear this every day as I work and access to justice from the smallest agencies who are out there doing bake sales and benefits to raise money for helping people who need justice right through the chief justices who sit and wait for the funding to come from the government to introduce some new computer program in their filing system that would help them be much more efficient. So but it's hard for politicians, I think sometimes around the table, faced with the need for health care improvements, faced with the need for education, are too big and say, “oh, justice will be looked after somewhere down there.” But I believe that is a terrible error because if you don't have a good justice system. Nothing else will ultimately work and the people will end up disrespecting society in a sense. They won't trust their institutions as much when people believe they can go to court and get a remedy for whatever it is in their life, health, education, whatever, they will have more faith in their system. That's the foundation of our system and we cannot let that slide.


Vardirt Ravitsky: You give us so many interesting examples of the impact on people when their access to justice is impeded or slowed down.Who do you think was most vulnerable to these issues of not having access?


Bevereley McLcachlin: I don't have stats, but this is all anecdotal, but I think what I kept hearing when I talk to people was that it was the the families and women. There may have been elements of abuse between husbands and wives and and between children and parents in some cases.And coupled with the psychological stress of maybe not having your work or losing your job, not being able to go to school, whatever it is it created very difficult situations in homes. And so how does a woman who is fearing for her life from her partner, who she feels is going over the edge to actually deal with that in the pandemic situation, is she going to pick up the phone and say, “Come quickly? I'm in fear of my life,” when her husband is hovering over her? And what is she going to say when a counselor calls her virtually and she's in an apartment where everyone can hear what she says of these are the real-life stories you're hearing about people who find their access to support services cut off and are living in this situation. I wanted to mention one thing that I think is vital. One of the special groups impacted the most, I believe, by this pandemic have been rural, often indigenous communities who do not always in Canada, unfortunately, have access to video platforms, to even computer technology and the most basic sense.They can't even access some of these court and counseling systems that might otherwise be available.If we do move to more of our court system being online, virtual, which I hope we do, we have got to improve our digital infrastructure throughout the country. We need to make sure that everyone has some way of accessing, if not through their home, in their community, these digital services in in rural parts of the country. I also believe we need to build more Indigenous justice support centers, which there are some good models for. But we need to get them built on the ground now, in the north. These centers will provide that sort of a connection, which would be excellent.


Vardirt Ravitsky: Recently for International Women's Day, you published a wonderful piece that congratulates women for their contributions during the pandemic and you mentioned specifically women within the legal system. Tell us a little bit about the work that you've seen women do during the pandemic within the legal system.


Bevereley McLcachlin: I spoke of the people who work in the organizations who help indigenous people, women and others get through their justice crisis. Those people have been working overtime. They've been working in the courthouse. And they've been working in church basements. There they are, they are there and their doors have been kept open, I think in many cases, and they've provided a real lifeline in the justice system.Women make up a big part of the infrastructure of the justice system right from the top, where a lot of judges are women. But going right down to the person who receives the documents, processes, the documents, make sure the judgments go out. Women have been key pillars in this in this fight to keep justice alive and and and going during the pandemic despite the strictures. And that goes right down to the cleaning staff and the the people who are there wiping the counters and making sure that everything is done, the volunteers coming forward in every sector. I don't I think it's happened also in the justice sector as well as people who have dedicated their lives professionally to this kind of work. So, yeah, women have been been huge in this pandemic and have shown that, as Mao Zedong said, the women hold up half the sky. But I think they held up more than their share throughout this pandemic in every sector of our society.


Vardirt Ravitsky: I wanted to ask you on a personal level aboutwhat surprised you the most in the early months of the pandemic.


Bevereley McLcachlin: I think the sense of shock and fear that I felt all around me when any turbulence suddenly comes upon society, people don't know what to make of it. But when it did happen in the first start of the second week in March of two thousand twenty people took it seriously. And everyone learned a new way of living and they learned it very quickly, washing hands all the time, eventually, although it was not soon enough, wearing masks and how to be sensible when you're facing a terrible situation and then all the economic privations. All those people who are suddenly seeing their paychecks in jeopardy are canceled or their jobs lost and so on, there was a sense of calm and a sense of how we can help each other out through this.It was this whole coming together around the community, around the notion that something bad had happened, that out of something bad, maybe something good can happen to you have to seize the opportunity. You have to look at the the tragedy, however serious it is, and and try to do your best with it and hopefully in the end, bring out something good and improve the society when we're all through this.


Vardirt Ravitsky: So now a year out, do you still feel this sense of hope and optimism? Do you still see Canadian society in this positive light?


Bevereley McLcachlin: I have a feeling just in recent weeks and months that we are we are going to come through this well and in and with our society enriched and strengthened.There will be huge challenges, just as there were challenges after the Second World War. And many of them, for example, in the in the job market, the economy was already changing exponentially. And this is going to give it another boost, the old ways of doing business,this kind of thing will all take a hit. And there will be different ways of operating after, but also create new jobs. The same thing happened after World War Two. And people said we'll never get back to normal.How are we going to heal? And of course, all that was very difficult to work through. But what came after was was a huge transformational process in our society where we moved from a sort of creaking, post-industrial age into a new way of communications, a new way of huge infrastructure projects across the country.There's going to be a lot of opportunities for rebuilding. Rethinking. First, we need to rethink before we rebuild and making our society bring our back a society, but not only back to where it was, but into a new era. So I look at this and I'm pretty positive.I feel on every front that there's room for positive growth. Also our health and safety, huge issue of education changes in the legal system now that we're using platforms, video platforms for some of the procedures that can be used, we're learning lessons and we can take them forward and rebuild better.


Vardirt Ravitsky: Thank you so much for this historical perspective. You know, we're so stuck in the here and now, surviving another day, another week.It's so helpful to remember how in the past we've emerged from big tragic periods.So thank you so much for that.


Bevereley McLcachlin: Thanks Vardit. This was lovely. Bye bye.