20 THE ADVOCATE
VOL. 79 PART 1 JANUARY 2021
complex” (and thus more time-consuming): an “increasingly complex
world”; the “growing number of self-represented litigants, particularly in
family matters”; the increasing number of cases requiring interpretation of
testimony in languages other than English; and, most importantly, the fact
that “electronic communications have vastly expanded the number of documents
typically put into evidence at trial”.22
In 2018, Chief Justice Hinkson again reported that “the Court continued to
see an increase in complex proceedings, despite the fact that filings did not significantly
grow in number”.23 In 2019, he emphasized that the court “heard
more than twice as many long trials as it did in 2018” and that these long trials
(taking “anywhere from several months to several years to complete”) imposed
a heavy burden, resulting in “only modest increases to the number of cases
heard”.24 The gist is that fewer cases are being resolved because of the energy
sucked by the increasing number of very complex matters that have to be
resolved with stagnant resources (such as the number of judges and court staff).
Indeed, the complement of judges assigned to meet the demands of a population
that grew by 23 per cent between 2002 and 2019 has essentially remained
the same (hovering around 85 justices and 20 supernumerary justices).
Chief Justice Hinkson’s diagnosis is, unfortunately, as clear-headed as it is
sobering, in the sense that there does not appear (at least at first glance) to be
any way to address these pressures, at least not in a way that would significantly
reduce the cost of navigating the legal system. However, that clearheaded
diagnosis was necessary to begin the hard work of identifying what
can in fact be usefully done and adapting to realities that cannot be changed.
WHERE DO WE GO NEXT?
The common law tradition believes that the truth emerges from both full
disclosure and the clash of opposing views and submissions. Indeed, our
law has been influenced by a long period of concern over wrongful criminal
convictions caused by failing to disclose exculpatory evidence. In criminal
law, full disclosure is, now more than ever, an article of faith, an essential
element of a fair criminal procedure, as enshrined in the Supreme Court of
Canada’s 1991 decision in R. v. Stinchcombe.25 That same principle applies
in civil cases, best exemplified by the Peruvian Guano rule26 and its modern
version in Rule 7-1(11). This is “no stone unturned” justice. In an ideal world
where cost is no object, that is what one would strive for. In real life, this
has limited access to justice.
To a great extent, preparing a case for trial is like archaeology, the art of
figuring out what happened from the objective pieces of the puzzle. That
has always been the case, with the only difference being that, nowadays,