Varsha Aithala, National Law School of India University
Equal and timely access to courts is an essential aspect of access to justice. Access to courts refers not only to the physical infrastructure of courts, it extends to the use of technology for better administration and innovative use of the court space. When courts are comprehensible, navigable and efficient, there is equality of all before the law and equal protection of rights by the State (Dakolias, 1999). Courts are a public space of justice (Branco, 2016) - a constitutionally obliged, substantive entitlement (Resnik, 2014), but, the judicial space is highly contested and non-neutral (Mulcahy, 2011). When a dispute arises, people are intimidated by their spectre and approach courts only when they have no option (Albiston & Sandefur, 2013; Pleasance, Balmer & Sandefur, 2013; Sandefur, 2016; OECD, 2021; Sandefur & Burnett, 2023). User-centred courts that reflect and welcome the diversity of the actors that inhabit this space are an urgent necessity.
India embarked on the path to digitalisation of its courts in 2005 (e-Courts Mission Mode Project), embracing legal technology for court processes with a promise to ‘enhance judicial productivity, and to make the justice delivery system affordable, accessible, cost effective, predictable, reliable and transparent’. Despite this commitment, infrastructure issues plague all levels of courts and technology take up has been varied and insufficient, even with budgeting and planning for it.
The paper traces the journey of court infrastructure in India, including adoption of technology by the Indian judiciary, highlights the structural and governance issues which pose barriers to access particularly for underserved groups, and explores an innovative financing and governance model for better courts. The analysis of judicial budgets presented in the paper is an important contribution, as this can have a direct impact on the number and quality of court services provided, volume of litigants served and productivity of judges and court officials, which in turn improves access to justice for all.
Earlier work has exhaustively covered related topics of legal architecture, court design and access (Mulcahy, 2011, 2013; Bybee, 2012; Rowden, 2013, Tait, 2013; Hagan, 2018; Khorakiwala, 2020, 2022; Vidhi Centre for Legal Policy, 2019, 2021 & 2024), but these do not sufficiently speak to the problems highlighted in this paper which intersect the areas of judicial system reform and fiscal management in India. Through a detailed review of available national and comparative literature, statistical analysis of budgets and discussions with judges, lawyers, court staff, architects, designers and academics, this paper therefore acts as a blueprint for future research on the subject.
Justice David Brown, Court of Appeal for Ontario
1/ The need for the transparent acknowledgment that Ontario’s courts have a big problem:
- Those who operate the court system must be prepared to disclose all data on court operations so that the public can understand the operational strengths and weaknesses of the institutions;
- Absent full public disclosure, access to justice cannot be improved and efforts to try to do so are doomed to fail.
2/ The need to acknowledge that the current design of Ontario’s adjudicative system is an historical relic that must be discarded and replaced:
- The first tractor built, marketed, and named John Deere was the 1923 Model D. You can restore a Model D tractor and apply many layers of pretty new paint to it, but it remains a 1923 Model D that is unable to match the performance and ability of the contemporary John Deere 6135E;
- So, too, with our court system. It was designed in the early 1880s. Many inquiries, commissions, working groups, and task forces have slapped numerous coats of fresh paint over it. But the court remains a 19th century model of adjudication.
- Until those who operate and use the court system are prepared to park the Model D court in the museum and design a new adjudicative process, access to justice will not be improved.
3/ The need to bring fresh eyes and fresh ideas to the process of designing a new public adjudicative system:
- Two kinds of “fresh eyes” are required for any re-design process:
- The “fresh eyes” of those not trained in the legal system but who possess knowledge and skills about how to design processes that deliver quality services to the public;
- The “fresh eyes” of looking beyond the narrow borders of Ontario to examine the designs that are used more effectively by other jurisdictions.
4/ The need to accept that improving access to justice will require designing a new adjudicative system in which lawyers play a much reduced and more focused role: i.e., not all legal disputes require lawyers to resolve.
5/ The need to design a new public adjudicative system whose performance can be measured, for which service standards can be set, and whose actors are held accountable when they fail to meet the standards set for serving the public.
Suzanne Chiodo, Osgoode Hall Law School
Delay is the ‘wicked problem’ affecting courts and tribunals in Canada. Courts and tribunals at all levels, in all provinces and at the federal level, continue to make efforts to reduce delay in their processes and reduce backlogs that have only increased since the COVID-19 pandemic. Examples include the Civil Rules Review Working Group in Ontario, which in January 2024 was tasked with fundamentally reforming the province’s Rules of Civil Procedure; the Ontario government’s Courts Digital Transformation initiative, launched in November 2021; and the 2024 Global Review of the Federal Courts Rules, amongst many others.
Yet little research has been done on the judicial role in mitigating or increasing delay. This project aims to fill that gap. Its primary hypothesis is that judges’ perception of their role is a key factor in the delay or expediency of the proceedings before them.
The literature and the case law reveals two predominating views of the judicial role. Judges who see themselves as ‘passive referees’ tend to allow parties to pursue the litigation at their own pace, and will generally be reluctant to step in unless egregious behaviour has taken place. Judges who understand themselves to be more managerial, with the responsibility to steward scarce judicial resources and encourage efficiency, will make more efforts to help parties move their cases along and ensure that deadlines are met.
According to this article’s hypothesis, the ‘passive referees’ are more likely to excuse delay in individual cases with little regard to the contribution of those cases to systemic delay, while the ‘managers’ are much less tolerant of delay in individual cases, shepherding those cases through the system with a view to reducing delay systemically.
I am testing this hypothesis through the following methodologies:
- Qualitative interviews with judges about their perceptions of their own role and their perceptions of their colleagues’ roles, and interviews with lawyers about their experiences of the judges before whom they have appeared;
- Quantitative review of case law on delay (for example, judicial decisions interpreting Rule 24 of Ontario’s Rules of Civil Procedure that deals with dismissals for delay); and
- Theoretical work on definitions of delay, how delay can affect the pursuit of justice, role theory in the court system, and differing views on case management and the purposes of the civil justice system.
Whether judges’ perceptions of their role actually cause delay, either in individual cases or systemically, is difficult to establish. I will attempt to match the names of particular judges that arise in the qualitative interviews with the names of particular judges that arise in the case law, to see if the perception of the judicial role in one can be associated with delay in the latter.
In addition, institutional resources have an impact on how much even the most managerial judge can do, because judicial time is scarce and scheduling the same judge throughout the life of the proceeding is exceptionally difficult. This will also have to be factored in when determining the causal factors in delay in these cases.
This presentation involves a discussion of my preliminary findings, both theoretical and quantitative, along with some observations of what I hope to find through the rest of the life of the project and its implications on any potential conclusions.
Jon Khan, Osgoode Hall Law School
New technology won’t solve a fundamental problem in Canada’s legal system: the utter lack of knowledge about the user experience of individuals in it. If this knowledge gap isn’t addressed, technological innovations are unlikely to be successful and risk being fundamentally flawed.
For example, know about how Canadian judges write decisions and how people read and interact with decisions is scant. Almost no data addresses Canadians’ views about judicial decisions,
including what they want, need, and expect. This reality is curious: the law requires Canadian judges to reasoned, sufficient judicial decisions for the public.
This article aims to fill a very small part of the knowledge gap by presenting novel qualitative and quantitative survey data from two user groups of judicial decisions. To gain insight about
their experience with judicial decisions and courts, I conducted 12 personalized surveys for each participant within each user group (“2023 Survey”):
- Group A (judicial decisions’ writers): judges; and
- Group B (the people who read, use, and interact with judicial decisions): Canadian
common law s. 96, appeal, and federal courts; lawyers; academics; lawyers that courts employ, aka staff lawyers or legal officers; journalists; law students; federal and
provincial parliamentarians; Assistant and Associate Deputy Ministers; litigants; legal research, legal publishing, and legal tech organizations; and legal information
professionals.
The article presents four overarching conclusions from the 2023 Survey data and explores their underlying themes—including empirical legal research, judicial independence, access to justice, equality, equity:
- Generating good user experience data is challenging. Courts are often opaque and
reluctant to facilitate research, including of courts, their judges, and their legal counsel.
Because of this reality, I mostly failed to learn what I tried to learn about the user experience of courts, their judges, and their legal counsel.
- User experiences are suboptimal. Many respondents find judicial decisions too slow, too long, and too complex.
- User views could hinder innovations. Many respondents are leery about standardized approaches to judicial decision-writing such as standardized content or structures.
- Universal design for decisions might be an impossible or a naïve goal. For example, respondents’ preferences vary in fundamental ways: some lawyers, individuals, and
organizations prefer the historic traditional fact-driven approach to decision-writing while other users prefer the more modern issue-drive approach.
Emily MacLoud, School of Design, RMIT & Portable, Australia
Joaquin Santuber, Faculty of Law, Universidad de Los Andes, Colombia
Situated within the broader discourse on how the digitalization of court services is seeking to increase access to justice, the paper reports on diverse examples, including the Chilean judiciary's use of the social media platform, Facebook; and the design and implementation of digitally supported judicial services in Australia. Based on these cases, the paper proposes the 5Es — Experimentation, Exacerbation, Ethics, Evaluation, and Empowerment — as a guide for designing for access to justice in judicial settings. Grounded in diverse literature, the five propositions offer a holistic perspective catering to designers, legal professionals, and policymakers navigating the complex landscape of digitalizing judicial processes and access to justice.
Based on practical examples of digitalization of judicial services in Chile and Australia, the paper Experimentation is crucial to understand the impact of introducing digital services into justice settings. The authors stress the need for iterative, setting-specific approaches to experimentation, as way of learning about the impact of digitalization on access to justice. Exacerbation highlights the risks associated with repurposing algorithms and digital services designed for different contexts, emphasizing the necessity of negotiating the design of these systems to avoid reinforcing existing exclusions and injustices. Ethics plays a pivotal role in the discussion, and the authors argue for a broader consideration of ethical approaches beyond traditional frameworks, including care-based perspectives especially when deploying digital technologies in judicial settings. Evaluation is offered as the penultimate pillar, and the authors justify why value-based assessments that align with public and legal values and move beyond efficiency and cost reduction metrics are more appropriate for access to justice. Lastly, Empowerment calls for a critical examination of who digitalization is empowering. The authors argue against the obscurity of algorithms and code and advocate for designing systems that empower and empathize with citizens and communities, particularly in the context of access to justice.
In summary, the paper provides a nuanced exploration of the challenges, opportunities, and risks associated with the integration of AI into judicial systems. The 5Es contributes a valuable tool for navigating these complexities, emphasizing the need for thoughtful experimentation, ethical considerations, holistic evaluation, and empowerment in the design and implementation of digital technologies in courts.
Carey Majid, Newfoundland and Labrador Human Rights Commission
Summary: Carey will share the ongoing work of redesigning a human rights complaints process and building Community Justice Connect, a restorative Justice program housed within the NL Human Rights Commission. They will share reflections on identity based human rights complaints and the barriers to Justice within Newfoundland and Labrador. They will explore the tensions and possibilities with restorative justice and anti-racism, access to justice and building trust in community.
Overview: The Human Rights Act empowers the Commission to receive complaints and educate. However, funding primarily focuses on addressing harm after it occurs, prompting us to reconsider our approach.
Key Discussion Points:
- Structural Challenges: We'll discuss how the current human rights justice system harms participants, lawyers, and staff.
- Reimagining Justice: Despite limited resources, our small team is re-envisioning a more meaningful approach to human rights justice, emphasizing prevention, agency, relationships, options, and impact.
- Restorative Justice: We'll explore the integration of restorative justice processes for identity-based human rights violations within an adversarial system.
- Trauma-Informed Justice: What does it mean to be trauma-informed in a justice process that struggles with sustainability?
- Cultural Shift: Cultivating a culture of human rights is essential to advancing our collective understanding and practice of justice.
Takeaways for Participants:
- Understand why this work is crucial, both in the broader context of justice and within Newfoundland and Labrador's unique landscape.
- Gain insights into our efforts to build capacity within the Commission, focusing on cultural transformation.
- Learn about our progress to date, including achievements, challenges, and our ongoing journey.
- Explore the complexities and accountability required in anti-racism organizational development within the justice sector.
- Discover emerging insights and possibilities from our innovative approach to trauma-informed justice, rooted in restorative principles, anti-racism, and anti-colonial practices.
Conclusion: This session offers a holistic view of our ongoing work in redesigning the human rights complaints process and establishing Community Justice Connect. We'll delve into the motivations behind our efforts, the practicalities of implementation, and the transformative potential of our approach. Join us as we unpack the why, what, and how of this work.
Noel Semple, University of Windsor Faculty of Law
This project is about tribunals, and their potential to improve access to justice (A2J). In Canada, tribunals are public sector bodies that resolve legal disputes, within specialized spheres of jurisdiction assigned to them by statutes, without being legally recognized as “courts.” Similar entities exist in many other world jurisdictions.
The idea that tribunals can deliver better A2J than courts or other institutions can has long been a central argument for their existence, at least in Canada. Indeed, many tribunals do seem to consistently deliver substantively just outcomes in a speedy, affordable, and procedurally fair fashion. However others are dysfunctional: afflicted by extreme delays, reasonable apprehensions of bias, and inability or unwillingness to provide fair hearings to parties that come before them.
The goal of this project is to create better access to better justice in Canada and abroad, through tribunals. Three sub-goals will be pursued through empirical and doctrinal legal research during the summer and early fall of 2024.
#1. Analyze tribunals’ relationships with other parts of government.
Tribunals’ potential to provide A2J hinges on decisions made by judges and elected officials, understanding their place in the constitutional order of Canada and other states is necessary groundwork for this project. What is the “constitutional room” for tribunals, and are they inevitably in a subaltern position relative to judicial and elected branches of government? It will also be helpful to place tribunals within a typology of administrative decision-makers, seeing whether and how they are distinguished from regulators, implementers of policy, and other types of agency.
#2. Understand how Canada’s tribunals address everyday legal problems.
How do tribunals go about their work? In addition to adjudicating, many also seek just resolutions by mediating, and by providing information to disputants. The capacity of tribunals to implement inquisitorial or “active adjudication” approaches within their hearings has been noted, but would profit from deeper empirical study. Compared to courts, tribunals have inherent attributes that may help them deliver access to justice in appropriate cases. These include (i) specialization, (ii) internal teamwork, (iii) accountability, and (iv) designability. One goal of this research is to determine whether and to what extent these advantages-in-principle are actually paying off.
#3. Assist the Efforts of Canadian Tribunals to Create Access to Justice.
Another goal is to synthesize research, identify practices, and facilitate knowledge mobilization across jurisdictional boundaries. The idea is to let those who work in tribunals, and those who design or oversee them within in government, profit from helpful ideas from around the country and the world and thereby improve access to justice.
Methodology
Much of the knowledge necessary to accomplish this project’s goals is probably already held by the people who work with and in tribunals on a daily basis. The role of the applicant and his research team will be bringing it to the surface and creating connections for knowledge mobilization within the community. The empirical methodology, informed by new legal realism, will involve (i) interviews with tribunal members and users, (ii) systematic observations of tribunal hearings, and (iii) simulations to identify the features of tribunal process that are positively or negatively correlated with A2J, as experienced by users.