Deliberate “Design”: Why Canada’s Legal System Needs It

Abstract

This dissertation argues that Canada’s legal system was never deliberately “designed” with evidence, users, user experience, or continuous improvement in mind. Instead, it evolved from an amalgam of colonialism, rebellion, precedent, tradition, feelings, misguided intentions, and inertia. The lack of deliberate design and the traditions filling the gap may partly contribute to Canada’s “justice crisis” and Canada’s legal data deficit. Most people can’t access basic justice, and basic facts about Canada’s legal system remain mysteries.

This dissertation focuses on how the lack of deliberate design and legal data deficit interact with Canada’s justice crisis, judicial decision-making, and judicial decision-writing. Relying on human-centered design and other methodologies, it seeks to identify ways to enhance the user experience of individuals who use and interact with judicial decisions and courts. Over five chapters, it relies on two original surveys, legal doctrine, interdisciplinary perspectives, and comparative research:

• Chapter 1 explains why the legal system lacks a deliberate design and why the lack might undermine judicial independence, impartiality, and basic fairness. It advocates for more systems and design thinking in judicial decision-making and decision-writing instead of generally treating judges and courts as superhuman and super-elite. • Chapter 2 discusses eight concerns that courts may have about calls to innovate, including standardization and the transparent collection, release, and analysis of data. • Chapter 3 presents the results of the 2023 Survey, which builds on the 2019 Survey from prior research in “Life of a Reserve”, and discusses survey themes about judicial decisions and Canada’s courts from over 800 respondents. • Chapter 4 examines the state of Canadian empirical legal research and the legal data deficit and prescribes improvements for governments, courts, law schools, and journals. • Chapter 5 provides eight specific recommendations derived from the preceding chapters, including deliberately designed reforms such as standardized data gathering and transparency, ongoing data analysis, and standardization efforts.

This analysis tries to offer a straightforward thesis. At least part of Canada’s justice crisis might have a simple explanation. While actual laws and practices change, how we reform our legal system mostly doesn’t, including the continued lack of data gathering and transparency. Instead of continuing with historical approaches, this dissertation argues that justice system reformers must adopt more deliberate designs and greater epistemic humility. In other words, reformers must be more deliberate in reform efforts but less confident that efforts will necessarily “work.”