Good morning, Madam Chair and honourable members of the committee.
My name is Jody Berkes, and I'm the chair of The Canadian Bar Association's criminal justice executive. We're pleased to present you with our report, “No Turning Back: CBA Task Force on Justice Issues Arising from COVID-19”.
I join you today from Toronto, from the traditional territory of the Wendat, the Anishinabek Nation, the Haudenosaunee Confederacy, the Mississaugas of the Credit First Nation and the Métis Nation. This land is covered by the Dish With One Spoon treaty.
Thank you for inviting the CBA to discuss the impacts of COVID-19 on the judicial system, especially any delays or impacts on trials in the criminal justice system.
One of the unique things that the CBA criminal justice section prides itself on is that our members come from both the Crown and the defence bars. As such, we bring a unique, balanced, user-oriented focus to our commentary.
The CBA is a national association that brings together more than 36,000 legal experts from across the country. The CBA's main objectives are to improve law and the administration of justice, and it is with this in mind that we are here this morning on behalf of the criminal justice section.
As I mentioned before, in February of this year the CBA published its report, “No Turning Back: CBA Task Force on Justice Issues Arising from COVID-19”. The report highlights two themes. First, there is no turning back from the pandemic-fuelled modernization of the criminal justice system. We must continue these modernizations even after this pandemic ends. Second, new measures in technology must be deployed in a manner that enhances access to justice while ensuring the security of the private information of individuals in the system.
The move to digital courtrooms has enhanced the access to openness of the justice system. For example, in June 2020, Justice Di Luca's decision in Regina v. Theriault was livestreamed, and over 20,000 people watched that decision. Such widespread, first-person access to the justice system would never have occurred pre-pandemic. To this end, in the CBA report, recommendation number 12 states:
Justice system participants including courts, tribunals, and other dispute resolution bodies and bar and media representatives should prepare a tip sheet on best practices to ensure public and media access to courts in a way that respects open courts and privacy principles.
The other issue that I wish to highlight in my opening statement is the need to return to in-person trials. Within the last 12 months, I have personally conducted Superior Court applications, provincial court trials and preliminary inquiries, plea and sentencing proceedings, and routine case remands over the Zoom platform. In many areas, especially routine remands, Zoom reduces client costs relating to travel for counsel. It also allows counsel to assist more clients in different locations, increasing access to justice. Additionally, electronic service and filing of applications as well as provision of disclosure has reduced costs, increased efficiency and reduced paper waste.
Despite these efficiencies, civilian witness testimony represents a major drawback of virtual hearings. Police and expert witnesses are trained that testimony in a criminal case is different from everyday conversations. Courtroom testimony requires formality, accuracy and solemnity, unlike engaging in everyday conversation.
Civilian witnesses receive no such training, and for most, testifying in a criminal case may be a once-in-a-lifetime event. Prior to the pandemic, counsel—both Crown and defence—relied on the surroundings in the courthouse and courtroom to convey the solemnity of the occasion to civilian witnesses. The courtroom trappings signalled that testifying in a criminal case was different from speaking with a friend or even giving a statement to the police.
With the pivot to Zoom trials, witnesses' “courtrooms” occur in the same place they have casual conversations with their friends or relatives, such as the dining room table. Even witnesses testifying from a location within a controlled environment—for example, a remote room in a courthouse or a police station—lack the trappings of the courtroom, the seal of the Crown, the layout of the courtroom and the formality of testifying from a witness box.
Allowing witnesses to testify remotely is a necessary evil of the pandemic. The alternative would have been to shut down trials for over a year. However, remote testimony, even in jurisdictions where transporting witnesses may be challenging, should not become a substitute for trials in the courtroom with all participants present.
Thank you for your time, and I welcome your questions.