A look at how technology can increase access to justice issues in Criminal Law

Legal technology and its impact on the fight to increase access to justice is an oft-trending topic.  New technologies offer a fresh alternative to a system that has long been plagued by inefficiencies and waste.  And while some areas of law are embracing technological advances, the criminal justice system has been slow to adapt.

The A2J Crisis and Criminal Law Connection

It is no secret that access to justice is a serious issue in Canada.  We fall behind other countries when it comes to ensuring that all citizens have equal access to our justice system.  It is a reality that our top legal thinkers grapple with.  In her address to the National Advisory Committee Access to Justice issues in Canada, Rt. Hon. Beverley McLachlin quoted reports stating that, “cost, delays, long trials, complex procedures and other barriers were making it impossible for more and more Canadians to exercise their legal rights”.

Few areas of law reflect the gaps in the system as clearly as criminal. Canadians belonging to vulnerable populations or remote equality-seeking communities are all-too-often left in the shadows of the monolith that is our criminal court system.  These groups are faced with significant barriers to enforcing their legal rights.  Referred to as a “justice deficit”, Canada has a large and ever-growing gap between the aspirations of the criminal justice system and its actual performance.

These issues were a common theme underlying research gathered by the Macdonald-Laurier Institute’s (MLI).  The first of its kind in Canada, the “Report Card on the Criminal Justice System: Evaluating Canada’s Justice Deficit” finds that our justice system is “slow, inefficient, and costly”.  Until now, the inefficiency and underperformance in the Canadian criminal justice system has never been fully assessed.  This is a frightening truth: it means we’ve only scratched the surface of the data showing exactly how our system functions.  More importantly, we’re only really starting to understand how our system fails to function.

The promise of technology

Access to justice is a crisis.  A remedy is needed in the form of an innovative change, and technology is proven to bring just that.  Technology has the potential to transform legal services and make them more accessible by adjusting their pace and affordability.  But we need to break away from tradition.

A forum held at RMIT University in Melbourne, Australia this past July was held to address the need to ‘shake things up’ via technology.  Titled “Access to Justice, Design Thinking and Artificial Intelligence”, the forum’s objective was to demonstrate how innovation can effectively narrow the justice gap.  In his opening address to the forum, Rob Hulls, the Director of the Centre for innovative Justice and a former Attorney-General of the State of Victoria, said that a ‘fresh set of eyes’ was needed for thinking about the future of the justice system and potential of design and technology. He argued that we need to stop thinking about solutions that can ‘bolt on’ to our existing and overburdened and, in many cases, past its use-by date adversarial legal system.  It is time to rethink and redesign the system with the user in mind and with the goal of meeting the current massive unmet legal demand.

There are some initiatives that use technology to narrow the justice deficit in Canada.  CanLII, for example, provides free access to court judgments, tribunal decisions, statutes and regulations from all Canadian jurisdictions.  Its goal is to make Canadian law accessible on the Internet.  There is also the Canadian Centre for Court Technology (CCCT-CCTJ), a not-for-profit corporation whose mission is to promote the modernization of court services through the use of technology solutions.  CCCT-CCTJ aims to bring together justice system stakeholders and partners to enhance access to justice by fostering an atmosphere favourable to technological innovation and excellence in our court systems. Technology is also being used to reduce the size of court dockets and budgets.  In July 2016, the British Columbia Civil Resolution Tribunal (BCCRT) started hearing small claims cases online.  The results are impressive: this initiative saves court administrative costs significantly, as well it quickens the pace of dispute resolutions. The online tribunal provides around-the-clock access to justice while addressing speed, costs, timeliness and access – all issues reigning abundantly in the criminal justice system.

Technology offers quick and sustainable solutions to the otherwise challenging access to justice quandary.  So, why is the criminal justice system so reluctant to embrace?

Technology will compromise the “human touch” inherent in criminal court

Skeptics are critical of technology’s place in court rooms. Critics correctly note that the basic strength of our court system is its humanity. For all its flaws and failings, our system is still the product of human beings, and still requires direct input, assessment and decision-making by individuals. This may challenge maintaining that “human touch” in the face of an increasingly pervasive role of technological advances and tools.  Criminal law is often an exercise in synthesizing context with black letter law.  In doing that, criminal lawyers are best able to protect their clients’ most important rights.  Increasing the role of machines in the courtroom may affect the court’s discretion; the commoditization of court process could take away from an individual’s story.

Technology will provide actors the tools they need to “humanize” the system

Criminal law is forever growing, adapting in ways that address changing societal needs.  Why should the system implementing those laws work differently?  The criminal justice system is driven by the individuals going in and out of it.  It’s sad, then, that so much emphasis is placed on how quickly those individuals can be called on a docket.  That reduces the value of people in this system to nothing more than check-marks on a to-do list, and speaks to the disconnect between the principles of the justice system and its actual performance.  A system so dependent on people should also be able to adapt to their ever-growing needs.

By focusing on digitalizing and automating administrative tasks, technology will alleviate a lawyer’s workload, allowing them to focus on what matters most – clients.  Embracing technological innovation will also help create a platform for vulnerable populations and self-representatives to access justice and court support, inevitably increasing their engagement and ensuring that they are more informed.  Technology is a clear way to increase the number of people reached while promoting a system that runs more smoothly, more efficiently – both in cost and in practice.  Judicial process will be encouraged and supported.

The goal, then, should be to let technology deal with the growing administrative backlog that has caused serious systemic inefficiency for years on end, so that actors can invest more time developing the “human side” of the system.  It’s really quite simple: let computers deal with computer stuff, so that we can focus on being more human.  When put in such basic terms, it’s funny to imagine how long innovation has been kept out of the criminal justice system.