Justice Committee on April 27th, 2021

[The Chair, Liberal, Iqra Khalid]

I call this meeting to order.

This is our 30th meeting of the House of Commons Standing Committee on Justice and Human Rights. Today we have Andy Fillmore replacing MP Mike Kelloway and Julie Dzerowicz replacing Arif Virani.

Welcome, Andy and Julie. It's great to have you in our committee.

To ensure an orderly meeting, I will outline some rules, especially for our witnesses who are here today.

Take note that at the bottom of your Zoom screen, interpretation services are available. Select the interpretation service that you'd like to listen to. You should be able to speak in the language of your choice, either English or French. Before speaking, please wait until I recognize you by name. Then unmute yourself, and once you're done speaking, please mute yourself again. Keep your microphone on mute.

I'll remind you that all comments by members and witnesses should be addressed through the chair. With regard to a speaking list, Mr. Clerk and I will do our best to maintain one. If you would like to speak, you can use the “raise hand” function at the bottom of your Zoom screen to alert me to your inquiry.

Before we start our study on the impact of COVID-19 on the justice system, we have to approve the report from the subcommittee meeting that we had last Thursday. The report was distributed electronically to members yesterday. If there are no comments on it and if everybody agrees with it, we shall have it carried.

Can I have a thumbs-up from members for it to be carried?

Great. The report carries. Thank you, everyone.

Now I would like to welcome our witnesses.

From the Action Committee on Court Operations in Response to COVID-19, we have the Honourable J. Michael MacDonald, who is the former chief justice of Nova Scotia and of the Nova Scotia Court of Appeal, and Renée Thériault, who is the executive legal officer in the chamber of Chief Justice Richard Wagner in the Supreme Court of Canada.

We also have The Canadian Bar Association, represented by Jody Berkes, who is the chair of the criminal justice section.

Finally, we have the Canadian Superior Courts Judges Association, represented by the Honourable Madam Justice Mona Lynch and the Honourable Madam Justice Kristine Eidsvik, who are on the board of directors.

To each organization, you have five minutes to make your opening remarks. I have a one-minute deadline and a 30-second one so that you can keep track of your time.

Thank you once again for being here today. We'll start with J. Michael MacDonald and Renée Thériault.

You have five minutes. Go ahead.

[Renée Thériault, Executive Legal Officer, Chamber of Chief Justice Richard Wagner, Supreme Court of Canada, Action Committee on Court Operations in Response to COVID-19]

Thank you, Madam Chair.

Thank you, everyone.

Mr. MacDonald and I are pleased to be speaking to the honourable members of your committee about the Action Committee on Court Operations in Response to COVID-19.

As an executive legal officer at the Supreme Court of Canada, I am an ex-officio member of the action committee. I would like to take this opportunity to thank the co-chairs of the action committee, the Right Honourable Richard Wagner, Chief Justice of Canada, and the Honourable David Lametti, Minister of Justice and Attorney General of Canada, for inviting the Honourable Michael MacDonald and myself to talk to you about the work of our action committee, which has now been in place for over a year.

We are using this opportunity to applaud the wise initiative of the Standing Committee on Justice and Human Rights to consider the impact of the pandemic on the justice system, so that fellow Canadians can continue to benefit from a system that protects their rights and their interests while ensuring their safety. It is actually this dual commitment—in other words, ensuring both access to justice and a safe health context to do so—that guides all of the action committee's work.

So I propose to speak briefly to you about the action committee's mandate and composition. I will then yield the floor to my colleague, Mr. MacDonald, who will discuss our work in terms of the pandemic's impact on legal activities.

The action committee was established in May 2020, shortly after the pandemic began. It acts as a national leadership body that helps courts and officials responsible for the administration of justice safely restore court operations across the country. The courts and officials have ensured to do their best to fulfil their judicial mandate, despite court houses having to close owing to the health crisis.

In addition to the Chief Justice and the Minister of Justice, the action committee has three members of the Canadian Judicial Council, as well as representatives of the Canadian Council of Chief Judges and the British Columbia Ministry of Attorney General—for the sake of coordination among the provinces, territories and the federal government—and the Public Health Agency of Canada.

The action committee also works with many stakeholders and collaborators. Among others, I'm thinking of the Canadian Centre for Occupational Health, heads of court administration and the Office of the Commissioner for Federal Judicial Affairs, which hosts on its website all the work produced by the action committee.

Bolstered by those partnerships, the action committee is a national consultative forum—and I emphasize its consultation mandate—for promoting non-prescriptive guidance and fostering communication, information sharing and collaboration between the executive and judiciary branches, which is no small matter. In fact, that is without a doubt one of the most positive lessons of the entire undertaking.

As its name suggests, the action committee mainly deals with operational issues that arise within the legal system owing to the pandemic. Its work extends to provincial, superior and appeal courts dealing with various areas of law, including criminal law, civil law and family law, as we know that the pandemic has had a sliding scale of repercussions. Not all bodies have suffered the same consequences. We will come back to this.

Mr. MacDonald and I would be pleased to answer your questions when the time comes. Without further ado, I yield the floor to him, so that he can talk to you about the specific work of the action committee likely to be of interest to you.

Thank you.

[J. Michael MacDonald, Former Chief Justice of Nova Scotia and of the Nova Scotia Court of Appeal, Action Committee on Court Operations in Response to COVID-19]

Thank you very much. I see we may be running a little low on time, so I'll be brief.

It's an honour for me to appear before you yet again this year. I appeared last March in my capacity then as interim executive director of the Canadian Judicial Council, and I think we attended one of the last meetings before COVID-19 hit in March.

With regard to the action committee, I would commend our website to you. The action committee has listed some core principles. The interesting thing about them is that because it's a collaborative effort, it has core principles from the public health perspective, from the judiciary's perspective and from the court administrator's perspective, so it honours judicial independence but is still able to collaborate.

We essentially do tip sheets, guidance for getting courts back to full operation. Jury trials have been identified in this connection, so we've shopped the country to see who's doing what best, and we're sharing that and coordinating it. We have looked at some case studies and best practices, coordinating those for the individual judges, chief justices, courts of all levels, court administrators and ultimately the people of Canada to get the courts running as efficiently as possible in the middle of this horrible pandemic.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that. I am sure the remainder of it will come out during the questions and answers.

[J. Michael MacDonald]

Yes.

[The Chair, Liberal, Iqra Khalid]

Thank you.

We'll now go to The Canadian Bar Association for five minutes. Please go ahead.

[Jody Berkes, Chair, Criminal Justice Section, The Canadian Bar Association]

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.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Mr. Berkes. We appreciate that.

We will now go to the Canadian Superior Courts Judges Association.

You have five minutes. Please go ahead.

[Mona Lynch, Secretary, Canadian Superior Courts Judges Association]

I'm Justice Mona Lynch of the Supreme Court of Nova Scotia. With me is Justice Kristine Eidsvik of the Court of Queen's Bench of Alberta. We're representing the approximately 1,100 members of the Canadian Superior Court Judges Association.

As you're aware, not every region or court in Canada reacted or had to react in the same way. Prior to the pandemic, we were still very much paper-based. The pandemic required us to adapt or pivot to use technology.

The increased use of technology and virtual hearings has had the biggest impact on the justice system. That would not have happened as quickly, or perhaps at all, if not for the pandemic, and not everything went smoothly. We were not ready. The search for the right hardware and software continues. Sometimes technology works and sometimes it doesn't.

As you're aware, except in rare cases in Canada, the chief justice or judges don't have control over the funding to support the courts. Co-operation between the branches of government had to be high during the pandemic so that the justice system didn't grind to a halt.

While technology has been good and has increased access to justice, there are issues. Poverty is a major limitation. Not everyone has access to the technology necessary for a virtual hearing. We have places in Canada without good, or any, Wi-Fi, and Wi-Fi is not free. Not everyone has child care and is able to concentrate solely on the court proceeding when they're in their home. We learned very quickly that when a young child wants a parent, the judge is no longer in charge of the proceeding.

While we want to keep the good, we want to stress that in-person hearings are fundamental to the justice system. A colleague of mine was conducting a family hearing by phone when one of the parties said, “Just a minute.” There was silence, and then she heard, “Can I have a medium double-double?”

While that incident is amusing and quintessentially Canadian, it also reveals a lack of respect and attention from participants when the court proceedings are not in person in the courtroom with a judge.

Courts of appeal in Canada adapted to have virtual hearings and continue to do that, but they tell me that virtual platforms do not allow the same back-and-forth with lawyers. Some of the non-verbal cues are missed. Family proceedings moved to deal with urgent cases, such as those in which domestic violence is an issue. We all know about the increase in reports of incidents of domestic violence during the pandemic. You can't make the same connection with parents or parties virtually as you can in person. Civil trials were cancelled in many places. The civil bar has long complained that criminal trials always get priority, and the pandemic made that worse.

We can't come out of COVID and just go back to the way it was. We have advanced the justice system and need to continue with that advancement. We also know that we can never have a totally virtual justice system. There are concerns as to whether the open court principle is truly respected with virtual hearings.

Now I'm going to turn it over to Justice Eidsvik.

[Kristine Eidsvik, Board of Directors, Canadian Superior Courts Judges Association]

Good morning, everyone. It's my great pleasure to be speaking with you from Banff, Alberta. We are here on the land of Treaty 7.

Let me tell you a little bit about the criminal system, because we decided to divide this up. We did a survey with the Canadian Superior Court Judges Association. I looked through all of that with respect to what's going on. There's a fairly similar experience, with some exceptions in the north, which I'll come back to.

There were initial delays of criminal trials—both jury and judge-alone trials—for a few months, but most trials were back in service by September 2020, with some exceptions. The courtrooms were opened up with COVID plexiglass protection and protocols. Trials were rescheduled and resumed within a few months.

Jury trials were much more of a challenge because of the distancing requirements for the jury members in particular. Nonetheless, in most jurisdictions courtrooms have now been built in theatres, convention centres, concert halls, community centres, and, in Calgary, the Stampede Grandstand. Jury trials resumed except in the north, but in some jurisdictions they have been put on hold again. They are now on hold in Saskatchewan and Ontario.

The north and the Northwest Territories, Nunavut and Yukon have not resumed any trials. There is a significant backlog there. More than 60 jury trials are waiting in the Northwest Territories.

The format of trials has changed dramatically. Rarely are we completely in person anymore. We have witnesses, complainants, interpreters and even accused appearing remotely.

I thought I'd give you an on-the-ground example. I'm presently in a multi-week, multi-accused sex trafficking trial that's being conducted completely remotely. The counsel are appearing from Calgary and Edmonton. The accused and complainants are testifying from Montreal. The many police witnesses involved are testifying from Calgary. It is a French trial.

I preside over the trial in French, and all the interpreters are from Calgary.

The plan was for only the complainants to testify remotely, but the crown was exposed to COVID, and in order to avoid yet another adjournment of this long trial, we were able to pivot and do this hearing completely remotely.

Some issues that come up are document management issues, exhibit marking—

[The Chair, Liberal, Iqra Khalid]

I'm so sorry, Madam Justice—

[Kristine Eidsvik]

I know; my time is up.

I'm happy to answer any of your questions concerning the on-the-ground changes to the justice system.

[The Chair, Liberal, Iqra Khalid]

Thank you very much.

We'll now go into our question-and-answer round. We'll start with Mr. Moore for six minutes. Go ahead, sir.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

Thank you to a very esteemed panel of witnesses. It's really interesting and fascinating, actually, to hear your testimony this morning about how you have had to respond to COVID-19 and some of your commentary about virtual versus in-person meetings. We're noticing it on Parliament Hill: before COVID, we had never conducted these types of Zoom meetings, and now it's an everyday staple. Your comments regarding what's missing sometimes, when you can not have an in-person meeting, were very interesting.

My first question is for the Action Committee on Court Operations in Response to COVID-19.

Are there any outstanding items now that you feel should be a particular focus? I'm interested in everything that you put together as best steps and action items. Is there anything right now that stands out as a greatest need to keep the wheels of justice moving?

[The Chair, Liberal, Iqra Khalid]

Who was that question directed to, Mr. Moore?

[Rob Moore, Conservative, Fundy Royal, NB]

That was to the Action Committee on Court Operations.

[The Chair, Liberal, Iqra Khalid]

Mr. MacDonald, Ms. Thériault, do you want to take that?

[J. Michael MacDonald]

Yes. Thank you very much for the question.

The thing that is most pressing for us right now—in Nova Scotia it changed overnight for us—is to try to stay ahead of this pandemic and to deal with the backlogs. That's going to be a big issue, and it's not just a criminal law matter. Obviously there's a constitutional right to a speedy trial, and that's very important, but when criminal trials bump civil trials, civil trials are delayed as well.

That's an immediate issue. Another issue we're dealing with and working on right now is vaccinations and making sure that there is a two-road approach. We're seeing in real time here in Canada that we have to time it properly so that we don't morph into lessening restrictions on the strength of vaccinations. Just finding the appropriate balance on that is a big issue.

Those two, and dealing with the privacy issues emerging from virtual hearings, are just three examples, Mr. Moore, that are pressing for the action committee right now.

Madam Thériault may have some other examples as well.

[Renée Thériault]

I would add in response to the question that initially this action committee was struck in response to the challenges posed by the pandemic. From the outset, we endeavoured to identify the particular pain points. Thus, for instance, criminal jury trials were by far the most pressing issue. That led to a number of recommendations on the part of the action committee for action on that front.

I would add that although this is meant to be temporary, we're also realizing that the pandemic has revealed a number of pre-existing challenges and issues with respect to the justice system, be it the criminal justice system or otherwise, so we have intervened in a number of areas that needed attention even prior to the pandemic.

We're realizing the acuteness of the problem in, for example, access to justice and the impact on the more vulnerable. I think we rightly point out how agile the judiciary has been in pivoting, which is obviously what we have been doing since the pandemic hit, but of course—and I believe it's Justice Eidsvik who has reminded us—not everyone has Internet access; not everyone is able to just log onto a computer and to participate and proceed as they should, because many don't even have access to lawyers.

The action committee has undertaken to look at the justice system through the prism of the pandemic, which is why we're actually considering where to take it from here. It may be that the action committee will still have its raison d'être even when we're all vaccinated.

Thank you.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you for that.

I only have a minute left. I'm going to ask both of our witnesses from the action committee if there are a couple of top-of-mind developments that you've put in place and that you've seen over the last year how they've worked and would say are perhaps are the ones that should continue as we hopefully move towards a more normal existence. These would be ones were done in reaction to COVID-19 but that should last beyond.

[The Chair, Liberal, Iqra Khalid]

Be very brief.

[J. Michael MacDonald]

Very briefly, I would point to the use of technology. Judges were forced to embrace technology in ways they haven't before, as was the justice system. I think that will be a legacy piece.

I would also like to put a pitch in for broadband. It will be very important if we're going to have access in remote areas.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that, Justice MacDonald. Thank you, Mr. Moore.

We'll now be moving on to Mr. Maloney for six minutes. Go ahead, sir.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Madam Chair.

Let me echo Mr. Moore's opening remarks about the panel. I really appreciate this.

This issue is also near and dear to my heart. I practised before the courts in Ontario for over 20 years before I went into politics. Six minutes of time here isn't enough, frankly. Justice MacDonald, it's nice to see you again.

We're talking about COVID issues. From my perspective, the challenges during COVID have been or are being addressed. The real issue is what the takeaways are from all of that, and what improvements we can make to the judicial system, the court system and the administration of the courts going forward.

I was very pleased to hear from Mr. Berkes and Justice Lynch and others that going back to in-person trials is a necessity, because I agree. Much of what takes place in legal proceedings are assessments made by judges and juries. You can't see if anybody is in the room with me right now. You can't see if somebody is holding up a sign saying, “That's a bad answer” or “That's a good question”. The solemnity of the court room is bang on. I think it applies equally to other steps in legal proceedings too, like mediations, pretrials, discoveries and civil proceedings. Thank you, Justice Lynch, for mentioning the civil process. It gets overshadowed by the criminal process time and time again in the civil areas where I practise.

This is a very long-winded way of asking whether thought has been given to criteria on when video trials and appeals can be used in place of in-person proceedings. That question is for anybody. I would think we could start with some of the judges on the panel.

[The Chair, Liberal, Iqra Khalid]

You'd have to be a little bit more specific, Mr. Maloney, but I do encourage our judges.