Some countries are re-thinking the role of courts and judges and moving to a more people-centered formal justice system. This includes enabling judges to take on dispute resolution and active case management roles. Judges sitting in a court of last resort may, for example, use a pre-hearing meeting to narrow the issues for the future hearing or identity the issues that will require witnesses and oral evidence at the hearing. As noted in Reaching Equal Justice, “the goal of reform of the formal justice system is to complement informal everyday justice innovations, and eliminate gaps between formal and informal justice to create one seamless civil justice system.

Role of Courts

Court-based Triage and Referral

Effective triage and referral to appropriate services and processes is key to transcending the unrepresented litigant phenomenon and transforming courts to be fully centered in the broader civil justice system. Re-centered courts will develop capacity for triage and referral that complements and works in coordination with the jurisdiction-wide and community-based networks that facilitate everyday justice.

Specialized Courts

Specialized courts tend to offer a more holistic and collaborative approach and may be supported by community-based organizations. By understanding the systemic issues that may bring someone into conflict with another person or with the law, specialized courts are generally more efficient and contribute to access to justice and quality decision making.

Specialized courts listed by the Canadian Centre for Justice Statistics/Statistics Canada in its 2017-18 report are:

• Mental Health/Wellness/Community Courts for accused persons who have mental health issues. The court takes into account the challenges a person with a mental health issue may have during a criminal justice process and has services to help repeat offenders reintegrate into the community. In: every jurisdiction except Nunavut and Prince Edward Island.
• Drug treatment courts provide court-monitored treatment and community service support for non-violent offenders with drug addictions. In: Newfoundland and Labrador, Nova Scotia, Québec, Ontario, Manitoba, Saskatchewan, Alberta, and British Columbia.
• First Nations/Gladue courts respect restorative justice and traditional approaches when sentencing Indigenous offenders. In: Nova Scotia, New Brunswick, Ontario, Saskatchewan, Alberta, and British Columbia.
• Youth courts hear cases involving young people between 12 and 18 who have gotten in trouble with the law. In: every province and territory in Canada.
• Family/domestic violence courts take a collaborative approach to cases of domestic and family violence, providing victim support, offender accountability, and early intervention. In: Newfoundland and Labrador, Nova Scotia, New Brunswick, Ontario, Manitoba, Alberta, Saskatchewan and Northwest Territories.

Specialized courts are a modern response to challenging problems facing the court system.

Courts as Learning Organizations

Evolving the judiciary’s culture from one rooted in tradition – we have done it this way for hundreds of years -- to a “learning culture” means supporting an organizational structure that is open to feedback and change. An organization with a learning culture engages in meaningful consultations with the range of people in contact with it and then is willing to take risks and consider innovations. In the context of the judicial system, innovations could, for example, include:

• trying new approaches to case management
• setting up specialized courts to handle certain matters
• expanding the use of technology
• implementing simplified court processes, and
• exploring new roles for judicial system personnel.

An organization with a learning culture also gathers information to assist in effective change management.

The International Consortium for Court Excellence is developing a framework for assessing how courts are doing on an ongoing basis. Measures of improvements include: court user satisfaction, access fees, case clearance rates, case processing times, length of pre-trial custody, case backlogs, trial date certainty, employee engagement, compliance with court orders, costs per case, and the integrity of court files.

Technology

Technology provides a variety of opportunities to improve access to justice, increase transparency, and reduce costs for parties to court cases and the judicial system.

The COVID-19 pandemic is prompting some jurisdictions to allow online filing and set up remote court hearings to keep cases and the economy moving forward. For more information on how the COVID-19 has affected the justice system, see the CBA’s COVID-19 resource hub.

Care must be taken to make sure that the integration of technology into court systems does not create new barriers for people without access to computers and the Internet or without the literacy skills to use online resources well. Reaching Equal Justice emphasizes that actual “human help” and full legal representation must remain available for people and cases that require that level of assistance.

Technology enables web-based tracking of court files, online access to court record information, electronic storage and retrieval of court documents, interactive court forms, e-hearings, and online information, such as on court rules and procedures, to assist self-represented litigants and parties wanting to know more about what to expect at a hearing.

Family law is an area where technology could be especially helpful. The mobility of people today, moving from province to province to access employment opportunities or be closer to family members, can result in complicated multi-jurisdictional family law issues. Using technology to transfer documents and hold hearings using teleconference and videoconference technology could make it much less time-consuming and expensive to resolve child and spousal support claims. 

Role of Judges and Court Staff

Expanding Judicial Functions

Traditionally, lawyers have controlled the pace of litigation bringing forward motions, witnesses, and arguments, as they wish, to prove their case. Without compromising neutrality, the judiciary could take a more pro-active role in pre-hearing case management and judicial dispute resolution. 

Judges could use pre-hearing case management conferences to clarify the issues for adjudication and the type of evidence that would be required to enable decision-making. The narrowing of issues at a pre-hearing conference is already a standard approach for many administrative tribunals. 

The Ontario Human Rights Tribunal, for example, has a case processing system using a pre-hearing conference call with a Tribunal vice-chair and the parties to discuss how the hearing will proceed. The rules outline what may take place during the call, “You may expect to discuss:

• the order in which witnesses will testify,
• a schedule for witness testimony and/or time limits for questioning witnesses,
• whether opening statements are required,
• clarification of issues to be addressed at the hearing,
• marking undisputed documents as exhibits at the beginning of the hearing,
• the adoption of witness statements as all or part of a witness' evidence in chief,
• whether the parties can agree on any facts.”

Referrals to outside court dispute resolution services are a common feature of family law courts. Re-centred courts could provide litigants with the opportunity to schedule a confidential dispute resolution session with a Superior Court or Court of Appeal judge. This is already taking place in Alberta.

Training would assist the bench in maintaining impartiality during confidential mediation discussions.

Court Information Centers

Only lawyers may give legal advice but justice system staff can offer legal information. They know what forms need to be filed out and where to find them, and where to get relevant information. It is understandable that staff may hesitate to provide information, fearing that they will stray away from information to advice. However, training that helps them to distinguish between the two and support for them in their role as gatekeepers to the justice system could increase access to justice.

Court Resources

Unfilled spots on the bench exacerbate access to justice issues, putting pressure on resources and not leaving any time for discussions about court reform and innovations, such as simplifying forms or using an app to show wait times for a process.

See the CBA’s handout on Ten Ways to Address Court Delays.

Learn More

Court Reform and Rule Changes

Report of the Court Processes Simplification Working Group of the Action Committee on Access to Justice In Civil and Family Matters

Hague Institute for the Internationalisation of Law (HiiL)

International Consortium for Court Excellence

Centre for State Courts

Meaningful Change for Family Justice: Beyond Wise Words Final Report of the Family Justice Working Group

Court Specialization

UK - Specialist Domestic Violence Courts 2013

New Zealand - Family Court of New Zealand

Newfoundland and Labrador - Unified Family Courts