Access Reform and the Data Gap

By: M. Jerry McHale, QC

The business of law recognizes the fundamental importance of making decisions on the basis of full and accurate information.  Rules governing rights of discovery, duties of disclosure and the admissibility of evidence help us avoid the obvious peril of basing decisions on incomplete or erroneous facts.

Yet when it comes to reforming the business of law - designing access programs, reforming court procedures, determining justice policies or deciding on spending priorities - the justice system finds itself making consequential decisions based on incomplete, insufficient and often inaccurate information.  This happens because of the paucity of useful operational data – we lack the information that could tell us how the justice system actually works and how to most effectively improve it.  As a consequence, we fall back on anecdotal ‘evidence’ derived from individual observations, personal opinions, common understandings and received wisdom – or what one BC Report calls “anecdata.”[1]

The system operates far from the ideal of evidence-based management and information-based decision making. “We are” the Canadian Bar Association suggests, “unable to give definitive answers to even the most basic inquiries about barriers to access and we lack the capacity to pull together the fragmented data available to us into anything close to resembling a complete picture of access to justice in Canada.”[2]

Writers and commentators have lately observed that in spite of more than 20 years of analysis, recommendations and reform initiatives, the access to justice problem is only getting worse. Is it possible that the lack of objective, empirical insights into how the system operates could be at least part of the reason for this?  Do we in fact accurately understand the access problem? Can we properly feel confidence in our proposed solutions?

Information deficiencies in the administration of Canadian justice systems take several forms:

  • Insufficient data: there are relatively few data collection mechanisms in place and those that exist do not provide a great deal of useful information.  Recent research out of the Canadian Forum on Civil Justice, for example, attempted to determine what actually happens to the 98% of non-family claims in the BC Supreme Court that are commenced but do not go to trial.  Existing research suggests we can cannot assume these cases settle, so what happens to them? Unfortunately, the study that was intended to answer this question “confronted multiple problems in trying to collect data” and in the face of “incomplete and uninformative records” concluded that it simply could not locate data robust enough to support generalizable conclusions.[3]
  • Uncoordinated data: typically, the major players in the system - justice ministries and the different levels of court - each have their own separate data collection systems, and these systems are often not complimentary.  A few years ago, for example, when BC was looking to reduce the number of appearances in criminal cases, it discovered that the Ministry of Justice and the Provincial Court were working from different definitions of “appearance”, resulting in conflicting tallies of the average number of appearances per file.
  • Lack of performance measures: implicit in the data question is the issue of how data can be used to measure the efficiency or the effectiveness of the system. Historically, court data collectors have tended to record outputs; that is, they count things like judicial sitting hours, numbers of judicial conferences, numbers of hearings, orders made, time to trial, and so on. While such information is useful for day to day administration it gives little information and no guidance about outcomes. It provides no measure of how well the system is, or is not, working.  Does the system, for example, actually meet litigant’s needs? Does it solve people’s problems? Do litigants get value for money? The system’s ultimate accountability is not to hold a set number of trials or make a certain number of orders every year; it is to maintain social and commercial order through an effective and accessible system of justice. If this is our ultimate goal, we need to be able to measure our performance against it.
  • Lack of empirical research: these data shortfalls create an impediment to academic engagement. They frustrate scholarly inquiry into access and procedural issues, which in turn limits the production of much needed empirical research.

Numerous papers and reports have recognized the essential role that data and empirical research have to play in responding to the access to justice problem.  The UVic Access to Justice Centre for Excellence (“ACE”) plans to contribute to this response in a couple of different ways.

With support from the BC Law Foundation and the Legal Services Society, ACE will hold two invitational Research Colloquia in Victoria in 2016. The first will be held on May 13 and will focus on access to justice research needs, priorities, strengths and challenges within BC.  The second, in September, will go a step further to explore the possibility of a coordinated access research strategy and framework that is national in scope.

The results of the colloquia will be disseminated and will hopefully provide the foundation for a broader conversation about access research involving all justice system stakeholders.

More immediately, ACE will implement its Access Research Data Map project. ACE will soon be canvassing researchers from across Canada to collect information about access research activities now underway, or planned, in Canada.   This project is intended to provide a means for researchers, institutions and agencies to begin to share and coordinate research information. Future blogs on this site will keep readers apprised of progress on this and other ACE research initiatives.

 

 

[1] See D. Geoffrey Cowper, QC,  A Criminal Justice System for the 21st Century (2012) at p. 88, online at http://www2.gov.bc.ca/assets/gov/law-crime-and-justice/about-bc-justice-system/justice-reform-initiatives/cowperfinalreport.pdf

[2] Canadian Bar Association, Access to Justice Metrics: A Discussion Paper, April 2013, at p. 1

[3] Focus Consultants for CFCJ, Civil Non-Family Cases Filed in the Supreme Court of BC Research Results and Lessons Learned (2015) online at http://www.cfcj-fcjc.org/sites/default/files/Attrition%20Study%20Final%20Report.pdf