Access to Justice in the Time of COVID-19: Lessons from Classical Antiquity

  • April 23, 2020
  • Megan Hodges, Blaney McMurtry LLP

A judicial system that cannot hear cases and deliver fair, decisive, and timely results weakens social bonds and can sow distrust and disfavour of the government. What can lawyers and litigants do to help?

In Thucydides’ History of the Peloponnesian War, a contemporaneous account of the vicious war between the enemy city-states of Athens and Sparta in the 5th century B.C., Thucydides writes of a plague which tore through Athens, killing a third of the population, or 75,000-100,000 people. He described a disease so virulent and causing so many deaths that there was no record of anything like it ever before.[1] In one of his more searing passages, he wrote, “Words indeed fail one when one tries to give a general picture of this disease; and as for the sufferings of individuals, they seemed almost beyond the capacity of human nature to endure.”[2]

Perhaps even more intriguing is Thucydides’ account of the breakdown of Athenian society resulting from the havoc wreaked by the plague. It killed indiscriminately, wiping out Athens’ most wealthy and powerful citizens alongside its most impoverished. Mortality soared amongst doctors and other caregivers. It was a “catastrophe so overwhelming that men, not knowing what would happen next to them, became indifferent to every rule of religion or of law.”[3]

Amid widespread panic and despair, the public’s trust in judicial institutions disintegrated and a state of “unprecedented lawlessness” ensued.[4] No one expected to live long enough to be brought to trial and punished. By Thucydides’ account, it did not take long before humankind’s more sordid and base instincts began to surface: “it was generally agreed that what was both honourable and valuable was the pleasure of the moment and everything that might conceivably contribute to that pleasure. No fear of god or law of man had a restraining influence.”[5] While the devastation wrought by the plague no doubt contributed to Athens’ loss of the war against Sparta, it is widely believed to have sowed the seeds of distrust and instability that led to the ultimate collapse of Athenian democracy.

This crash course in ancient Greek history is not a purely academic exercise, for we ignore the teachings of history at our peril. So, what can we learn from Thucydides’ account? Perhaps that, even for robust democracies, social order is remarkably fragile. When the public sees governmental institutions failing, and justice not being done, moral panic and chaos can shortly follow.

In the past few weeks, the Ontario justice system has faced extraordinary and unprecedented challenges. As part of a critical, comprehensive effort to curb the spread of COVID-19, the Ontario Superior Court of Justice, one of the busiest trial courts in the world, closed its doors - along with the Small Claims Court, the Ontario Court of Justice, the Divisional Court, and the Court of Appeal for Ontario. In a matter of days, thousands of hearings, motions, pre-trial conferences, trials, and other courtroom appearances were indefinitely postponed. Only the most serious and urgent of cases continued to be heard by the courts, such as matters related to public health and safety or child protection. Everything else was put on hold.