JusticeDavid Brown
on the Charter, judicial accountability and civil justice reform
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Hello. Welcome everyone to another episode of The Yunusov Question. This is another judicial episode. My guest today is Justice David Brown, formerly of the first Superior Court of Justice of Ontario, and the most recently of the Court of Appeal for Ontario. Hello, justice Brown.
Good morning. How are you?
I'm good, thank you. I'm really happy to have you. I've followed your career since I became a lawyer in 2011. I remember meeting you at one of the Advocates' Society events when I was, I think in my first year of practice or something like that. So a long time ago. I know you were appointed to the bench in Ontario in 2006 and I went to law school in 2007 and make me
Feel old.
No, no. But I think that when I became a lawyer, I think you were a judge only for three or four years at the time, and I think you at the time, even at the time, you were already well known as a judge even after three or four years on the bench. I'm really curious about your path. Everyone knows a little bit about my path now. I started law school at Osgoode in 2007. You graduated from the University of Toronto Law School in 1981. But I'm curious about your path before law school because it's always interesting how people end up going to law school. So tell me about that.
Well, I wasn't one of those people who always wanted to be a lawyer from grade three. That had never really crossed my mind. I grew up in Montreal. I was born in Montreal. My dad, his job was transferred up to Toronto in 69. So we moved up here and I completed my high school here in grade 12 high school, the Etobicoke Collegiate. I had an extraordinary history teacher, Mr. Beaton, and he taught a full year course on the modern history of Russia and China. And he essentially influenced the next seven years of my life, I guess because I took a real interest in ancient but more particularly modern Chinese history including political history. So when I finished high school and I went to U of T and specialized in political science and economics, I became fascinated with communist systems, comparative communist systems, both the political and the economic side of things.
And really the last two years of my undergraduate, I was concentrating on what one would call modern Chinese politics or East Asian studies. And through that I began to study Mandarin through some of the courses at U of T and was interested enough in the area that I wanted to do graduate work and indeed got admitted to the graduate program down at Ann Arbor University of Michigan, where there was a particular in modern Chinese politics whom I wanted to study under. But at that time, as long ago as that was, I was 76, the states did not have diplomatic relations with China, Canada had diplomatic relations with China. If I wanted to pursue my foundational language studies for the PhD and I started at Ann Arbor, I'd have to go to Taiwan. However, Canada had a cultural exchange program with China at that time where you could essentially get a two year language study scholarship.
And so I deferred Michigan, went over, I lived in China for two years, studied for a year at the Beijing Languages Institute, and I forget how long it was, four weeks, five weeks after we arrived in the fall of, or late summer of 1976 Mao Zedong died. Then you had the gang of four dadda that are knocked down and the installation of Hua Guofeng is the new general Secretary of the Communist Party attended the million person rally in Tiananmen Square for his, whatever you want to call it, inauguration coming out, coronation, whatever the appropriate term would be. And I spent the first year in Beijing, which was a bit of a hotbed of political upheaval. Political upheaval was more readily manifested in Beijing than it was elsewhere in China. And then an opportunity arose to spend my second year in Nanjing down at Nanjing University, which was opening up to foreigners for the first time since 1966, the beginning of the cultural revolution.
So I went down there, had to pretend I had a great interest in classical Chinese history and I went to class, but it was an opportunity to really sort of roam around the city and try and understand the upheaval that was going on because by the time I gotten down the Nanjing, Deng Xiaoping had been resurrected from the political dead. And of course that spurred many, many changes over the course of the next 15 years or so. But towards the end of my time, well one of the things about studying in China, there was a small group of European and North American students I was studying with. And the more I chatted with them, the more I thought seven years to do a PhD was not a particularly attractive way to spend the next few years of my life. Law had always been, if you can't do anything else, go to law school kind of thing.
That was sort of the attitude at the time everyone was applying and I'd gotten into U of T and deferred a few times. So I decided ultimately that I'd leave China leave after the two years and go to law school, which is what I did. And that was a good choice on my part because at the end of first year, I met my wife who was working in the admissions office. She had no influence over my admission to U of T. She does recall having read some of my admission letters, thought I was a bit stuffy and arrogant, but nonetheless, over the course of some beer at, oh, can't remember the name of that pub anymore on Bloor Street in the Annex. Anyway, we got to know each other and that was the main result of my time at U of T law. I met my wife and we got married and had our first kid first day of third year of school. So that was my path before legal practice.
Wow. So you definitely studied history very deeply before you studied law. Is it fair to say that, and in your case, it was the history of China,
It was a history of China, it was a history of communism in Europe and in other areas. And essentially that study had two parts. One is what one would call the theoretical study at university. And I was part of a small study group that intensely studied Das Kapital and all that sort of stuff. But that was the theory of communism then living in China for two years was the reality of living in a communist system. And that sort of changed my views completely about the attractiveness of communism either in its economic and particularly in its political manifestations. So yes, it was a very intense study of history and in a way an intense living, the results of history in China, and it's an interest I've continued to the present time. I read a lot of books and the majority of them are history or philosophy.
I'm really curious about influence or of the study of history on the practice of law, on judicial philosophy or on philosophy in general philosophy of arguing cases. So I recently interviewed Kannon Shanmugam who leads the appellate practice of Paul Weiss. It's a US firm, and he's based in Washington DC He argued I think about 40 cases before the Supreme Court of the United States, one of the leading supreme court of the United States lawyers in America. And he studied classics, all his educational career, all his entire educational path was classics Latin. And he clerked for Justice Scalia. And I'm not drawing any inferences or making any conclusions, I'm just saying. So he's a very interesting person and extremely intelligent. And we talked about the effect of studying classics and Latin and that society because that was a society on his judicial philosophy, his legal philosophy. And you studied something very different, but also a society, but a very different society. You studied the Chinese society, you studied communism in Europe, and how did that, you briefly mentioned that you became disappointed I think in communism and especially the political component. Can you talk more about how studying a completely different system affected your understanding of our system, which I think is rooted in English law in things like Magna Carta and so on?
Right. Well, it influenced it profoundly in several ways. The first was the study of history for several years in undergraduate. And when I was over in China, simply indicated to me that one had to continue to study history throughout one's life in order to gain a greater understanding of what had gone on before in terms of human history. And its different manifestations and different cultures and different geographic areas. And that perspective, that long perspective of several millennia, but also the broad territorial perspective of how human beings organize themselves is critical to any nascent lawyers understanding of the process in which he or she works. Because by having that perspective, you avoid the disease of myopia, of just having this narrow view that your system somehow is the greatest system that is ever walked the face of the earth. And the principles of this and the principles of that are the highest forms of human thought and organization.
This utter trash just utter nonsense. But unfortunately, that particular mindset is one that has been promoted since the enactment of the charter in 1982, which was a document not in existence when I went to law school. So I had to go back to law school before I became a judge and I got a master's in constitutional studies. But one of the difficulties I see in the sort of raising of lawyers these days through the law schools is that the prospective law schools offer is extraordinarily narrow and somehow tries to exalt the principles of the charter and the charter itself and its governing structure as God gifts to mankind when it's nothing of the sort. What it was fascinating during my time on the court of appeal is that every year I would have the benefit of the services of a law clerk for two six months slots, very, very bright graduates of law schools.
And some of them had sort of drunk the Kool-Aid in the sense of buying into the greatness of the modern Canadian system and others. And these are the ones I particularly enjoyed working with, came out of law school thinking this isn't the entire picture. There's more to an understanding of human behavior than what I've been told. And those were the clerks that were fun to work with. Those are the clerks who really had an appetite and thirst for further study, further critical study. And they've gone on to great careers, all of them. And we, we've kept in touch, but I think that's the first thing that the study of history does. It gives you a broad perspective and you aren't drawing on history necessary to replicate things that have gone on before. But you could draw on history to understand the limits of human ability, the tendencies, repeated tendencies of abusing power as it's manifested itself over the millennia in human history, the checks that can be put in place to check that kind of abuse of power.
And through a study of history and philosophy, an understanding of the key questions that you have to ask in order to figure out what is a good life, how does one try and pursue a good life? And more importantly, and this is a challenge of today, how can a whole bunch of people pursue different good lives but in harmony in a community where they don't end up either at war with each other or the more modern manifestation these days, one tries to suppress the other and essentially tries to suffocate them. So I think the study of history and philosophy is very, very useful in giving you that perspective, that understanding and as well an idea of the key questions that have to be asked in the sense of bringing a perpetual critical approach to or skepticism towards how humans act and how people are purporting to try and resolve difficulties that have arose in inner human conduct. It's a long answer, but that's sort of the way I see it. I've seen it. It's been crucial to my development as a lawyer and even more critical to my development as a judge.
Do you think law schools don't teach history because it's all about change, and change now is raised to a pedestal? We have shrines built to change and everything is about change. And if law schools taught history, then they would have to teach that historically the courts treated changes in a very incremental way. There is a doctrine of incremental development of the law, and I'm quoting from the 1991 Supreme Court of Canada case R v Salituro,
In which the court wrote, judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As Justice McLachlin indicated in Watkins, in a constitutional democracy such as ours, it is the legislature and not the courts which has the major responsibility for a law reform and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society. So I understand that this proposition is about the common law, and I also understand that charter cases are separate from the common law, and I think that most social change that the Supreme Court of Canada has introduced over the last several decades has come from the charter. But what do you think about the fate of this doctrine, of the incremental development of the law today and its relationship to charter cases?
Well, it's interesting that you picked that particular question to pose because over the last, actually over the course of the summer, I've been researching a paper that I'll be giving at the end of September. The theme will be the need for greater judicial accountability. The device or the path down, which I'm going, is to examine the charter's preamble rule of supremacy of God. And anyway, in the course of reading for that, I read Tom Bingham just as Tom Bingham's book on the Rule of Law, which is put out I think in 2010 just before contemporaneous with his passing. And Bingham is certainly known as a proponent of what WMA called the thick Rule of law. That is to say that almost any sort of issue is a grist for the judicial mill under the rubric of the rule of law. But what I found striking in reading and justice, Abella has gone down that road in her own way in Canada with her rule of justice, but the two of them very much proponents of the judiciary playing a critical role, if not the ultimate role in the governance of a polity.
But what I found interesting about Bingham's book is notwithstanding this sort of thick version of the rule of law and judge is able to change almost anything at the end of the day. He said very expressly it's not open to judges to change everything, that there are other political institutions that have their place and that judges must exercise great restraint in the exercise of their power or otherwise risk, really damaging the political fabric of the community. And he was talking at a time when I don't think there had yet been the incorporation of a lot of European constitutional law into the UK thing, but you were beyond the mere traditional supremacy of parliament into a greater involvement of the courts. I think it's very, I guess the main concern I developed as a judge, both as a trial judge, but more particularly on the court of appeal, was that we have entered a time where it is certainly true that courts play a role in the development of law.
They've always played a role in the development of law, whether it's in the private common law or whether it's in the public common law that predated the charter or the public law that now postdates the charter, which enshrined some existing principles, but the charter and the ability of courts to review government action takes place in the context of a political community, which still, I don't know, which still pretends to be based on the notion of the consent of the governed going back to Locke and to Hobbes. And it's true that the governments come in that a whole bunch of people didn't vote for, but nonetheless, they attracted enough votes to form the government. And part of the consent of the government is of the government as well. You sometimes get what you hope for, sometimes you don't, but there's a system that at least allows you to influence that process.
The concern that I developed as a judge was that although judicial review and the role of the courts and the development of the law is extremely important, the courts are not the only interpreters of the constitution. Parliament has an equal role in the interpretation of the constitution. Courts are ill suited in many of their institutional ways and their processes to be able to tackle larger questions of public policy because the adversarial system simply doesn't bring before them the information they need. But more importantly, judges are not accountable to the public save in very limited ways. And I am quite concerned that we are moving towards a system of governments in which far too many judges think that they are the last word. And if people don't like it, well then they have to lump it. That is not democracy, that is not consent of the governed, nor do I think it's a proper exercise of the very strong power that judges have.
So coming back to sort of an earlier part of your question, I think if the law schools were to teach more about the history of law, and particularly the history of law and judicial institutions as checks on excesses of power, which is a very legitimate role of the courts, but also the ongoing tension over the centuries between judges developing principles of law, it used to be the common law simply reflected the way people thought At that particular time, the judges weren't creating anything new, they were simply reflecting the reality on the ground. But the tension between that and then judges simply once appointed trying to implement their own agenda, their own ideology, and I mean those are things I've heard thrown around judges conferences is we do the program, we have the agenda, that's our job. That's just wrong. That is just wrong in a country that professes to claim that it's a democracy.
And I have great concern about that. And indeed one of the things I like to write about over the next year or two in this new stage of my career is on the issue of the need for greater mechanisms to hold judges accountable for their decisions. I think that is a fundamental aspect of the rule of law that every officer of government who possesses power must be subject to the restraint of the law. And although judges have a role in formulating law, they are no different than members of parliament and having been needing to be subject to constraints. So that's a theme I want to develop in some of the work I hope to publish over the next year or two. But it does come back to the law schools. I think the sense I get from having interacted with, I dunno, 22 clerks or something over the course of a decade is the main message in law school is the courts are where it is at.
They are the rulers of this country, get in with the courts. That's where the power is. That's where you suspend your career. That wasn't the way it was taught when I was in law school. Things change. Sometimes they change for the better, but sometimes they change for the worse. And I think we're at a stage in this country where there has to be a lot more debate about judicial accountability. And I'll say, I guess one last comment on that. I'm very concerned that when there are criticisms that are leveled towards the court or when people try and call and to question the need for judicial accountability, there is a groundswell that somehow that is against the rule of law. And we've seen that over the last number, last number of months. Well, it goes back to justice McLachlin's tenure. I think there has to be the development, a very healthy debate in this country over where court's proper place lies and lie. And what mechanisms of accountability should be in place with respect to judges.
Do you think that lawyers are ultimately responsible for the state of the judiciary? After all, judges come from the bar, judges listen to lawyers. Lawyers influence judges. Judges depend on lawyers and their submissions to make decisions. And if you look at the state of the bar today, I think it's fair to say that to make a name for yourself, you have to argue a public law case. You have to argue a charter case, you have to argue a case that changes everything, that breaks something, that creates something from scratch. And it feels almost like this is a career prerequisite now for a certain tier of the bar to argue groundbreaking cases that change everything. And one wonders, do we really have enough of everything for all these lawyers to change? And then
To put that way, it's an interesting way of putting it,
But ultimately judges come from the bar. And do you think judges are afraid of lawyers now when lawyers take positions in front of judges, do you think that judges are afraid of saying no for fear of appearing too conservative or too in favor of the tradition while forgetting at the same time the very long time principle of the incremental development of the law?
Well, the judiciary, like any organization of human beings is not homogenous. You have different types who are judges. We are fortunate in this country to have a significant number of members of the judiciary who view their role in a modest way, a role that is based on public service to offer a service that assists people with disputes to resolve them in a peaceable way. And I think they form the backbone of the judiciary. I know when I decided, when I said turned 50, that perhaps I would pursue a judicial career, the ability to engage in public service was a thing that attracted me. I'd had a very, very good career at Stikeman Elliott and wonderful partners, and it ended up all really well. But I thought there was something more to law than simply private practice. And so public service is what appealed to me.
And during my years, particularly on the trial division, but also at the Court of Appeal, I was extremely impressed with the number of judges who shared that commitment to public service. I mean, the people who would come at seven o'clock and not leave until seven at night, day after day, weekend after weekend, I mean they are the ones who are holding the system of justice together. Without them it would crumble. But there are a significant number of those At the same time, there are those who I think joined the judiciary with the view that they are out to change the world. And you see that particularly manifested in public law cases. And so what the proportion is, I don't know, but the number of those in that particular group is not insignificant, but so be it. Every human organization, whether it's corporate or public or whatnot, you've got those who are there for the sake of personal ambition and those who are there to serve.
It's always been that way at evermore shall be so. But in terms of your question as to whether the judges, some judges are apprehensive about responding to particular positions asserted by lawyers, I mean the answer is yes. I never was. And I know some people on the court of appeal who aren't, they may end up writing dissents, but they will express their view of the way the analysis should proceed in a way they think is consistent with the governing of law and is intellectually coherent and a position of integrity. But there were occasions over the course of my career where I did certain things, and none of them come to think of it were in the public law context. They were in the private law context, but where comments are made about, well, geez, you got to be careful about saying that in your decisions because of this, that and the other. There was one comment in particular at one time that, oh, well if you continue saying things like that, you're going to hurt your career. To which I said what career? My career is to serve the public who judges should have no career beyond serving the public. But definitely it's there and it's there. It's always been there from what I can see.
But I think that's where there has to be a change in the judicial culture and the education of judges to give them a greater understanding that the more they pursue their own agendas, whatever those agendas might be, the less lesser becomes the ability of this country to say that is based on the consent of the governed and the democracy. And they have to really look themselves in the mirror and say, am I to be the ultimate ruler or am I just a servant of the public? And I think that's a question that has to be raised more and more within the judicial education that takes place because quite frankly right now, the judicial education on the conferences I've gone to and all of that, it is talking about, oh, the cutting edge topics and will this change and the eternal debate over section seven of the charter do this on section seven and you break the log jam and the courts will rule the world or at least World Canada and be happily ever after. That ethos I think has to change because it is infecting the judiciary and in my respectful, humble view in a way that is not healthy.
Well, I want to downshift into a less dramatic topic, civil procedure, which is my day to day bread and butter. And I know that you are an expert and you wrote several important decisions in this area. So I want to start with the proposed changes to the rules of civil procedure in Ontario. I'm sure you've heard, and you wrote several papers over the years advocating for change to civil procedure in Ontario. I'll open the floor to you. What do you think about the proposed changes to the rules?
Well, I suspected that you were going to ask that question and I will avoid the question for the simple reason that what I've learned to understand over the course of the last week is that the actual formal framework for the new rules will probably be disclosed during the opening of courts on September the 23rd. I assume Chief Justice Morawetz would be the one who would speak to that particular topic. All that's available in the public domain right now is the initial or the first two reports. Then I guess the second report is the one that probably elicited the most commentary from interested parties. I haven't found a place where I could read all the stuff that people filed, so therefore I'm not really OK on all of the objections. I know what some of them are, but more importantly, I don't know what the final shape is.
I don't know whether the review committee or whether the two co-chairs or whether the attorney general have taken to heart some of the criticisms that have been made. One of the main ones is the abolition of examination for discovery. Don't know. So if I don't know, I really can't comment on what is going to my view of what will emerge from the pipe, which I gather will be on September the 23rd, that there is one thing I can say how so I'm not going to make any specific comment. I've written a lot of papers over what I think should be a more streamlined system. I do think there are just a few general points that I've learned along the way of studying civil process rather intensely for the last 15 years. And the first is that we obviously have a problem in Ontario in terms of the timeliness and the cost effectiveness and therefore the accessibility of civil justice in this province.
Lot of reasons for that. But before one begins to change the system, I think one has to identify with great accuracy what the problems are, where they lie perhaps within the confines of the process, outside of the process in terms of resourcing, you have to have a real handle on the causes of the problem. And I think that's true of any design. So I'll be very interested to read whatever the final report is, what the attendant rules as to what it's perceived to be, the causes of the problem that we have and the assessment of what the problems are really does have to be data-driven. It can't be anecdotal. And I'm unclear how much data-driven analysis was done within the current review process. Now in part, the people involved in the process were somewhat hampered because the data collection system available at the trial division is the old frank system.
And even the government acknowledges that it's not a really good system in terms of data collection. But nonetheless there was data available. And so I think when you're trying to assess what the problem is, you have to have your conclusions based on the data. The second thing is in order to solve the problems, you have to have data-driven solutions as well. And I understand this Superior Court of justice is in the process of implementing a new case information system, which is great news and all of that, but I don't know the extent to which they have the review folks have taken into account count the functionality or the ability of the new system to generate data in coming up with a revised process. We will have to wait and see. That's one of the things I'll be curious about. And then I guess the third point I would make is that if one is going to, well, if one is going to change, one is going to change the Ontario system, there have to be metrics identified by which you can stand back a year later, two years later and three years later and say, okay, well we changed the system.
Have we made it better? Have things improved, or are things still the same or are they worse? And I don't know what metrics are going to come out of this particular review process. So that's one of the things that I'm curious about. If there aren't metrics, then it's very difficult to get a handle on whether one has improved the system or just maintain the status quo. The only source will be the extent to which the bars moan and groan and this report comes out and that report comes out. So I guess what I'm curious to see is the extent to which the changes that are going to be proposed are data based and the extent to which they're going to put in place metrics that will measure whether these changes have resulted in something better or maintain the status quo or have made things worse. We'll have to see, I hope for the sake of the public who are not properly served by the civil justice system in this province, not withstanding the number of really good judges who try hard to give good service, I just hope for the sake of the public that something better emerges from this two year process.
Right. Well, you called the judiciary a service or you called judging a service, but you would agree that this type of service is different from other services that government provides in Ontario or in Canada. For example, if you walk into Service Ontario, people behind the counter probably didn't have to work for 15, 20 years before they were appointed to that post. They didn't have to go to three years of professional school and they didn't have to spend tens now maybe hundreds of thousands of dollars to get that education. So most services that governments provide are different because it's much cheaper to provide these services. There's a lot less education and a lot less cost to preparing the people who provide those services. But the judiciary is different. If you walk into a courtroom, you will see at least three people who went to school for probably more than a decade each and spent a lot of money. And then there is support staff in the courtroom. And when in the old days the scheduling court, I was joking, what is the combined hourly rate of this courtroom when you had 20 lawyers packed into the scheduling court room and sitting together waiting for their turn? So this idea of access to justice and access to justice for all idea, is it really reasonable to promise everyone access to these highly educated people spending hours, days, weeks of their time investigating, thinking and then making findings about these cases? What do you think about this?
Well, let me unpack that just a bit. Yes, I have frequently referred to the civil process, the civil adjudication and the courts as a public service. I have in many talks referred to the litigants as our customers, which has puzzled many of my fellow judges. I remember at one luncheon I was giving a presentation and said, our customers and one of my colleagues turned to me and said, well, why do you keep calling the litigants customers? I said, because we offer a service, you have to think of them as customers and therefore they're entitled to a level of service. But the last decade of my practicing career, I focused on energy regulation, did a lot of work in the natural gas, but particularly in the electricity sectors. And there's a public service. We have public utilities at the generation transmission and the distribution level. And although they're public services, they are staffed with highly sophisticated engineers who've gone through years and years of training.
And our transmission system is designed by maintained by PhDs in engineering. So there's a public service where it's just not like walking into Service Ontario and that particular public service is subject to intense scrutiny as to its performance. Will it keep the lights on? Will it give us enough electricity to make our industries grow? And the former client of mine, the independent electricity system operator, at least quarterly issues, reports on how we are doing. There are lots of statistics and they explain to the public how that particular public service is working. I don't see the courts as any different. There is a special sauce in the courts. There are two special sauces in the courts, both of which are related to justice, and one is the resolution of disputes between two human beings and that is something that other public services don't necessarily do. And then the second is there is the public law dimension where the courts have to deal with issues between well the people and the government, and those are unique characteristics of that particular public service.
But where you've got a businessman whose corporation has been stiffed for $150,000 and wants to collect it and goes to court, that person shouldn't have to wait 3, 4, 5 years to get a result. That's just scandalous. That is not an appropriate level of public service. And one can look at other jurisdictions outside of Ontario, which is what I wish people in Ontario involved in the system would do. Look outside at the greater world, and there are many jurisdictions in Western Europe and down in the States and all of that who take the service component seriously. They take metrics seriously and their performance is better than ours. They turn things around in and out much faster than we do in Ontario. So there's just something about the Ontario approach to things which is reluctant to look outside the boundaries of the province to understand there is a larger world which can offer solutions to the problems that we face and that we are not exceptional and that therefore there should be an exceptional result, which is performance at a substandard level.
You take a look at the international rankings of civil justice systems around the world. Canada's not in the top 10. Some of them are not even in the top 20. So we don't have a lot to crow about, which perhaps would respectfully suggest that we should be looking outside of our boundaries for assistance in solving a chronic problem. But I don't buy the argument that courts do not provide a service. I think as soon as one takes the position that you don't provide a service that's an excuse for poor service and I don't buy it, the public deserves better.
You mentioned a classic case of debt collection and there are many other cases that should be straightforward, but take many years, and this is of course unacceptable. It's unacceptable from the point of view of policy by making this jurisdiction less attractive to business and commerce commercial list was created at some point to address this issue, wasn't it? What do you think about the role of the commercial list in addressing this exact issue?
Sure. I sat on it for close to four years and I'll never forget the back in around 2010, but there was yet another change in the rules change to summary judgment to make it more accessible that our regional senior justice tasked two of us, former Justice Colin Campbell, who's more senior than I am, he retired a number of years ago and myself to see whether we could move the commercial list model into the general civil thing because the model works on the commercial list. You have not necessarily dedicated single judge case management, but something that's pretty close to it and you got to move the herd along if you want to put it, you have to have somebody riding shotgun or whatever. The westerns metaphor would be someone who has responsibility for the case, a judge who has responsibility for the performance of the case in terms of in and out and will be a person who can provide informal solutions to problems that the lawyers perceive pop-up along the way during the process.
Anyway, we tried to do it in 2010 and fell flat on her face. And in part because in order to do that, you need to have access to robust data and ability to track a proceeding through the system. And that just wasn't in place then. And the ministry was in no particular hurry to help on that particular, particular front. But I've never really understood why the commercial list model cannot be imported or cannot be exported to the Toronto civil list. Although it has to a certain extent I gather with civil practice court, but to other regions and that we begin to treat. We've got the technology now where people up in Thunder Bay can be heard by a judge down in Toronto. You don't need regional management of cases. It can be a provincial management of cases. The technology is there, so for heaven's sakes, get with it and use the technology. But then again, I'm a broken record on that and I've tried and I failed in my time as a judge to persuade people to that position. It's up to other people now to try and persuade them.
Do you think the success of the commercial list is due to the carefully regulated supply and demand rather than any unique process that it uses? It's very hard to get on the commercial list. So demand is regulated, cases are vetted, and the supply of judges is stable. It's high relative to the demand. So maybe that's the reason the commercial is successful. Also, the culture on the commercial list, I'm sorry, the lawyer's culture on the commercial list is different because access of lawyers, not of parties, but of lawyers to the commercial list is also regulated. So the combination of lawyers culture and supply demand could be the factor in its success rather than any net process.
I think you've identified two critical issues, one, supply and demand. And indeed, for the system to improve, one has to analyze supply and demand throughout the province. One has to analyze supply and demand in light of the fact that judges of this Superior Court of justice have both civil and criminal jurisdiction. You've got to assess the supply and demand in light of the demand or the dictates of the Supreme Court of Canada that on the criminal side, thou sh process a case within so many months. If you don't, it's out the door with the attendant outcry from the public. And so naturally resources have been shifted from the criminal side to the civil side and the civil side is left impoverished, which then leads to the need for a very public demand and public presentation of a business case by the courts for more judges to serve the civil side.
That hasn't happened. And until the judiciary begins to press more vigorously and more publicly, and I emphasize publicly this has to be a matter made a matter of public concern for more judges, then nothing's going to happen, which I think is one of the risks involved with whatever process comes out of the civil review. They may come up with a new design, but has there been the appropriate supply demand analysis given the volume of civil cases in Ontario? Are the judicial resources going to be there in order to meet whatever the new design is? If they aren't, is really anything going to change? So I think you've identified a key factor there, but I think the judiciary has to basically design a public relations press kind of program to get more judges and they have to have the bar supporting them on that. The second thing in terms of the culture of the bar is one thing I've learned as a judge who was a former lawyer of course, and made all the mistakes that judges now chastised lawyers for, but lawyers can be trained.
And I think one of the benefits that's come out of the commercial list is to demonstrate how lawyers can be trained in a different culture of processing cases. And the training has involved close cooperation between lawyers and judges and both each has learned from the other, but lawyers can be trained and lawyers do have to be trained because particularly in a time of strained resources where perhaps the demand for judicial services exceeds the supply. Lawyers today operate in a civil system in Ontario where basically, or the access to judicial resources cost nothing. The filing fees are minimis, and that kind of access precess to a scarce resource I think cultivates a culture of waste. And lawyers are not disciplined enough in their use of time for their clients. And that I think is something that has to change. But I think in order for it to be changed, I think lawyers have to have some assurance that if they change their ways, they're going to get things done more quickly by the judiciary and that requires more judges. So it's a bit of a, I dunno what you call it, a catch 22 kind of thing, but you have identified two areas which are very important areas that have to be examined if there's going to be any long-term solution. On the civil side,
You've always been a big proponent of technology in the administration of justice. Do you think there will ever be any role for artificial intelligence in adjudication making decisions, judging?
I don't know the answer to that question. I know the answer to the immediate question of is there a role of AI in the courts in processing cases? Absolutely. And I've tuned into a number of excellent seminars that the National Center for State Courts down in the US puts on the role of AI in the management of cases. And I mean the states are just so far ahead of us on that particular model. It brings tears to my eyes. So there's obviously a role there. It has to be managed, one has to assess the risks, and there are risks, but properly managed. Yes, there are in adjudication itself probably I can see the different aspects of AI have a great facility to extract key information from large masses of data. And certainly to be able to use those sorts of processes to assist a judge can increase the judge's ability to deal with more cases over the course of the year and perhaps improve the quality of judgments by bringing to the judge's attention, things that were in the record that perhaps the judge had not missed.
Donna, on a hard copy, if I could put it that way, or sort of a visual review of the record as to whether machines can substitute for judges in deciding cases. I suspect that technically at some point it will. You're both drawing on the same body of data in terms of previously decided cases. Judges can bring the ability that their human beings and do human beings have a greater ability to assess whether someone's telling the truth or not. I don't know. There's a lot of literature on that unconscious bias, the whole nine yards. So it's unclear as to whether humans are better than machines. However, we are talking about justice here. We are talking about disputes between two human beings. They have to live with the solutions that are imposed through the adjudication. And I think justice demands that ultimately the decision be that of a human being because I don't think human beings should lose the faculty of being able to adjudicate human disputes. If they do, then justice is out the window. So quite apart from the technical ability of a machine to perhaps give almost as good a judgment or in some cases as good a judgment as human being, I don't think that would be healthy for the political community, which at the present time is just populated by human beings. If we're into a Star Trek kind of world of cyborgs and all of that, who knows, but I'll be long dead and that's not a problem for me to worry about.
Do you think it'll go a long way towards access to justice if the judiciary or maybe the government offered a service based on artificial intelligence that would take submissions from litigants and then provide a preview of what the judge might find in this case, and that would promote out of court resolution of disputes, that would be acting to alternative dispute resolution, but to accomplish that, of course, case law need to be liberated, maybe put in the public domain and it's not, well, I don't know why not? I mean, you write those decisions in theory as a judge, you can just put them on your
Website. I know you ask a question too, which present state of affairs, there's no reasonable justification for it. I mean, what you described as the government perhaps doing is something that the private sectors already doing. A lot of the legal publishers, Westlaw, Thomson Reuters and whatnot, I mean they're coming out with their own form of analytics, which essentially get you there. They allow the lawyer to have access to the public decisions and put in some facts, and you get a handle on how things might go, not definitive, but they would assist to provide that to the public, let's say to the self-represented and the indigents who don't have a lot of money, sure would be good service. You have to have a lot of guardrails and whatnot in order to ensure that the source of information upon which any analysis is done is solid. And it's not garbage because there's probably more garbage out there than there is solid stuff.
But yes, I mean, conceptually that would be something. And yes, that may well reduce the number of disputes that require actual adjudication. And I could see something like that going into a system such as the British Columbia Civil Resolution Tribunal, which does upfront mediation and efforts to settle it. If you slap onto that, that kind of, well, here's your problem, and based on the reported decisions today, here are the probabilities of what the result would be that may well assist in settling more cases than it currently does. You're always going to have irrational actors. The justice in my cases should be generous and no matter what's happened elsewhere, I'm going to win fine. But that's a very small minority of litigants in the courts. So I think Canadian courts have to sort of change their attitude towards ai. There are risks with ai. There can be great benefits, and I think there could be great benefits for access to justice. One just can never lose sight of the risks, and therefore one has to manage the service accordingly.
You're such a great interlocutor. I could talk to you forever, but there is no, forever time is a scarce resource. I want to discuss so many subjects and topics with, you're so generous with your opinions, and this is a breath of fresh air. I mean, all of my guests are great, but if you think about lawyers, they're usually reserved, they think three, four times or something before they say it. And many judges, of course, are also conservative with what they put out. So I'm thankful to you for sharing your deep insights with our audience that consists of many lawyers, especially young lawyers and judges also. I'm really grateful to you for this opportunity to ask you questions, justice Brown, and if you want to say a few words about your mediation arbitration practice right now, I mean, I would love to hear about it. I've been always curious about how retired judges or former judges transition into this world.
Well, I'm learning along the way, but I like adjudication and I like mediation as well. I didn't want to go cold Turkey, but at the same time, I want to have more time for my family and we've got a lot of grandchildren. So the last, I dunno, until May or so, I had to clean up at the court and I had other things involved in my life, but since June, I've done some mediation and started some arbitration. You have to put your marketing hat back on and I'm trying to figure out ways to do that. A part of marketing is pricing. I'm trying to work my way through fair pricing, but I set up shop at arbitration place and I now have my own website and I've got nice glossy pictures and all of that sort of stuff, and we'll have to go to some conferences, which I enjoy doing, but it is very much a work in progress. I want this to be part of a more balanced life than what I had as a judge, which I found was an all consuming occupation 24 7. I do not want arbitration to go down that
Road,
Whether it turns out that way or not. I'll give it a year, a year and a half or so and see how it goes, but if it doesn't strike the balance that I want, then I'll just stop. I've had a long career in the law and enough is enough families, the more important thing.
Justice Brown, thank you so much. It was great to have you today.
Okay, well thank you. Pleasure talking to you.