Evidence of meeting #30 for Justice and Human Rights in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was pandemic.
A recording is available from Parliament.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Why don't we start with Justice Eidsvik? She's in the middle of a six-week trial right now. She's living it in real time.
Board of Directors, Canadian Superior Courts Judges Association
That's right. I'm on the ground working on this.
I think on a go-forward basis, with regard to some of the criteria of who can attend or not, right now we have much more flexibility. Let's put it that way. In the past, criminal trial lawyers n particular were very hesitant to have complainants or their accused attend remotely. Now they are seeing the benefits of that happening.
I understand your views, Mr. Maloney, about how it's difficult to monitor a video situation. We're taking lots of steps. If somebody does attend remotely, we have them turn their camera around. The complainant in my case, who is testifying right now, is in a hotel room so that there are no distractions.
All of this is to say that I agree that an in-person hearing is a lot more interesting. It goes a lot more smoothly and it's less tiring, but nonetheless, sometimes our witnesses are out in remote areas and it's very difficult for them to attend in court. This gives us the flexibility and the access to justice that we didn't see available beforehand. I think that is tremendous.
I saw the CBA report, and I read it with great interest. I thought it was a tremendous piece of work. Mr. Berkes, I'm glad you're here. I certainly wouldn't want to see many of the improvements that we've made in conducting trials go away.
The other really important thing that's changed because we're doing things virtually is that the need for digital documents has become crucial. This paper-based world that the court systems were logged into.... There was movement before the trial. I actually did a study on this in 2018, about technology across the country and in the U.S. and the U.K. Canada is very far behind in terms of moving to an electronic digital-based system. COVID-19 has forced us to use more technology. I would hate for that to go away. Even if we're in person, we can use more digital documents and kill fewer trees.
I don't want to hog the stage here, but those are a couple of my thoughts.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
I'm running short of time, so I just have a quick question. I agree that the CBA report was very helpful, but one of the recommendations is that less complicated, simple proceedings can be done remotely. There is an access to justice issue. I used to have to go up to Haileybury, which is in northern Ontario. I'd fly and then rent a car, and I'd stay there for a one-hour pretrial. There's going to be great pressure now to do those remotely instead of in person, and you lose the solemnity, as Mr. Berkes has mentioned. I would ask that hopefully all of your groups could come up with criteria that would be applied, because ultimately it's going to be the judges who are going to have to decide when that happens.
Very quickly, one thing we've seen during COVID-19 here in Toronto is that judges are working from home and court reporters are working in the courthouse. There are health and safety concerns. It's a technology issue. Have there been any steps taken in your jurisdictions to give consideration to how you could create a level playing field between the court's administration side and the actual judicial aspect of it?
Secretary, Canadian Superior Courts Judges Association
I'll jump in with that.
I don't think that's the same across the country. In Nova Scotia, up until we had the recent outbreak, we were working in the courthouses, and then the court reporters were working from home at different points as well. I understand from speaking to Kris that in Alberta the judges are more likely to be in the courthouses and the support staff is at home. It's different across the country.
Liberal
The Chair Liberal Iqra Khalid
Thank you very much.
My apologies; we're running very short on time. Thank you, Mr. Maloney.
We'll now go to Monsieur Fortin.
You have the floor for six minutes.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Madam Chair.
Good morning, witnesses. Welcome. It is impressive to have so many judges and experts on court proceedings among us today.
Liberal
The Chair Liberal Iqra Khalid
I'm so sorry; Mr. Fortin, I've just been informed that the bells are ringing in the House.
The bells will ring for 30 minutes. At this time I will ask for unanimous consent of committee members to continue for 12 minutes with Monsieur Fortin's time and with Mr. Garrison's time so that we can at least get through the first panel. Is that okay with everyone?
Liberal
The Chair Liberal Iqra Khalid
In that case, because we do not have unanimous consent, we will suspend the meeting until after the vote. Thank you for your patience, everyone.
Liberal
The Chair Liberal Iqra Khalid
As we connect with Monsieur Fortin, we'll resume our meeting.
For members' benefit, I have asked the witnesses from our last panel to stay and to be available for questions and answers for the second round because there was not much of an opportunity, especially for the Bloc and the NDP, to ask questions to this very interesting panel.
At this time, I will introduce our second panel of witnesses.
We have the Canadian Association of Elizabeth Fry Societies, represented by Emilie Coyle, who is the executive director. We also have the Canadian Juries Commission, represented by Mark Farrant, who is the founder and chief executive officer. We also have the Office of the Federal Ombudsman for Victims of Crime, represented by Heidi Illingworth, who is the ombudsperson.
Welcome to our committee. Thank you for being here today.
Just for housekeeping, I have these one-minute and 30-second deadline cards so that you can keep track of your opening remarks. Each organization will have five minutes to present, and then we'll go into questions and answers.
We'll go ahead and start with the Canadian Association of Elizabeth Fry Societies. You have five minutes.
Please go ahead.
Emilie Coyle Executive Director, Canadian Association of Elizabeth Fry Societies
Thank you very much.
Good afternoon, Madam Chair and members of the justice committee.
CAEFS, as we call the Canadian Association of Elizabeth Fry Societies, is a national organization. Our main office is located on the unceded and unsurrendered territory of the Algonquin nation.
We are dedicated to upholding and forwarding the rights of criminalized and incarcerated women, trans, non-binary and two-spirit people, particularly those who are serving federal sentences.
One of the key aspects of our work is the monitoring of conditions of confinement within the federal prisons that are designated for women. The people we work with are disproportionately those who are living in poverty, with mental illness and often with histories of addiction. They are people who have been underserved by multiple systems prior to incarceration, including health care, and so they often enter into their time in prison with underlying comorbidities.
It is not surprising, then, that when the COVID-19 pandemic began in Canada, the fear of contracting the virus was extremely present in the prisons, given the existing health conditions. Add to this the very real risk of being incarcerated in a congregate living environment.
Since the emergence of COVID-19, people in prison have been held under harsh conditions that were not contemplated or foreseen by the courts at the time of sentencing. These have included but have not been limited to the suspension of all programming and visits; adapted movement schedules, such as being allowed out of living units or pods for less than half an hour a day, if at all; limited access to the telephone; limited access to legal counsel; and disturbingly, the reported use of structured intervention units—which are the old segregation units—to isolate prisoners who were showing symptoms.
Based on this, the most important recommendation that CAEFS has for this committee is to immediately push for the implementation of alternatives to incarceration and, in tandem, to resource communities as well as possible so that they can provide the supports that are needed. This recommendation is in line with the latest COVID-19 report from the Office of the Correctional Investigator.
Additionally, given that the harsh conditions were not and could not have been foreseen at the time of sentencing, we are encouraging government intervention to count time served during the pandemic in such a way that it accelerates the timings of release.
I also want to briefly expand upon two of the conditions of confinement that I articulated previously. The first is the sustained lack of access to legal counsel and the second is lack of access to programming.
During the pandemic, lawyers were barred from physically entering the prisons. This was at the beginning. Thus, the reliance on telephones for communication with lawyers became paramount, while at the same time, access to confidential phone calls became extremely limited. In many cases, private phone calls between lawyers and their clients are taking weeks to set up. Some are being asked to use the telephones in their living units, which can be expensive and are not guaranteed to be confidential, given the ability for the Correctional Service to monitor any of the calls in the prisons from these particular telephones.
Where lawyer visits have resumed in some jurisdictions and in restricted ways, prisoners and lawyers alike have been asked to articulate in writing why an in-person meeting is needed, including in some cases providing details about the concerns that will be addressed, which is a clear violation of lawyer-client privilege.
These difficult logistics are for people who have already retained counsel. Actually finding and hiring counsel while incarcerated during COVID-19 presents an additional suite of barriers that are nearly insurmountable without outside support.
Without in-person lawyer meetings, reliance on written materials and communication raises yet another access-to-justice issue, as the rates of literacy for federally incarcerated people are considerably lower than for the rest of the population in Canada.
In sum, during COVID-19, the right to legal counsel for incarcerated people is being treated as an inconvenience. Thus, access to legal counsel should be prioritized and should never be considered conditional. The government should ensure that prisons are held accountable for violating these rights and ensure that no further violations occur.
During the course of the pandemic, we've seen a near halting of programming inside the prisons. Although core institutional programming has resumed at 50% capacity in some prisons, the lack of access to programming is having serious adverse effects on prisoners, affecting the timing of their release on parole. We've been told that parole officers have been encouraging prisoners not to go before the Parole Board when they become eligible. In fact, some people are being told that they cannot go before the Parole Board prior to completing their programming. This means that people are spending more time in prison than they should. The law that governs the Correctional Service is clear that people can apply for parole at the earliest date they are eligible. The lack of programming during COVID should not be used against them in this particular way.
We recommend that the Parole Board reconsider programming requirements in their decision-making and instead utilize all mechanisms available to them to ensure that access to parole, and therefore liberty, is not unduly restricted.
Thank you very much for your time.
Liberal
The Chair Liberal Iqra Khalid
Thank you very much, Ms. Coyle.
I will now go to Mr. Farrant for five minutes. Please go ahead, sir.
Mark Farrant Founder and Chief Executive Officer, Canadian Juries Commission
Thank you.
Honourable Chair, vice-chairs, and members of the justice and human rights committee, thank you for the invitation to appear before you today as part of your important study on COVID-19 and its impact on the judicial system.
The COVID-19 pandemic has impacted every industry and sector like nothing in our history, and our courts and justice system are no exception. Prior to the crisis our courts were already stressed with enormous backlogs and delays in many provinces and territories; the closure of courthouses across the country as part of the emergency public health measures has compounded the problem further, delaying trials and due process.
Once regular court operations resume, there will be an unprecedented requirement to begin empanelling juries across the country. While responding to a summons is mandatory, many Canadians will be very unwilling or unable to participate, for very real reasons.
During the first wave of the pandemic, the Canadian Juries Commission conducted a national opinion poll and found that Canadians were more willing to donate blood or volunteer for a community organization than to serve on a jury when emergency measures lift. Similarly, Canadians rated jury duty lower in terms of civic importance than donating blood or volunteering within the community. These opinions are a direct result of decades of underinvestment in jury duty across the country and of not keeping pace with the modern world and its challenges.
As the crisis comes to an end, many Canadians will be unwilling or unable to respond to a jury summons, yet responding will be expected of them. Transitioning out of the period of unemployment, layoffs and tenuous employment, for many Canadians the focus will now be on their jobs, families and availability for work. Many will be experiencing financial hardships not seen in decades and will still have family care commitments that will not have expired and may have been exacerbated by COVID-19 health issues. Canadian workplaces will be less willing and sympathetic towards supporting employees during time spent in court, given their own economic fragility and desire to revitalize operations. This will put mounting pressure on employees to respect their employers more than their summons.
Alarming data has emerged during the pandemic that highlights the significant worsening of Canadians' mental health. It has raised concerns among health care professionals of a looming echo mental health crisis. Statistics Canada has observed Canadians reporting increases in anxiety, depression and PTSD, as well as alarming increases in suicidal ideation as a result of the pandemic. Reported substance abuse and alcohol consumption among Canadians has increased across the pandemic. All reported figures are higher among vulnerable communities, those with existing mental illness, the indigenous community, the LGBTQ community and, sadly, among our young adults.
In 2017, I was very pleased to appear before this committee as part of its groundbreaking study on jury duty mental health and the publication of its landmark report, “Improving Support for Jurors in Canada”, in 2018. The 11 recommendations contained in that report stand today. They include providing more information to prospective jurors about jury duty, providing psychological support to jurors, increasing daily jury pay to $120 per day and federal funding to the provinces and territories to implement the findings of that report.
It is now almost three years since the publication of this report, and sadly, very little has been done since to see these recommendations universally adopted.
The Canadian Juries Commission was born out of those recommendations to represent and support Canadians on jury duty and in coroners' inquests and to provide programs directly to jurors to assist them in their roles, working with the provinces and territories and the judiciary to improve jury duty.
The recent federal budget detailed significant investments in mental health to meet the challenges of COVID-19, vital investments to combat systemic racism and improve access to justice across Canada, and also investments to repair our economy and grow back post-pandemic. These investments must be met with similar investments in jury duty, which is the last remaining mandatory civic duty in our democracy. This current crisis will only serve to compound and deepen foundational concerns for jury duty identified by this committee and the Canadian Juries Commission.
Once selected, jurors are identified as judges of the facts and are exposed to the same graphic and disturbing evidence as others in the court as part of their role. However, unlike the judge, legal counsel, court staff, police and first responders, they are not afforded access to new and evolving evidence-based treatments to assist them after the verdict is delivered. Jurors are the group in the court most vulnerable to developing mental ill health, as jury duty is not a vocation, has no training and affords no organizational support, yet is exposed to the same graphic evidence, and without a support network.
Juror mental health requires a specific intervention through evidence-based assessments and treatments and trauma-informed approaches, and it must be given the same priority everywhere and made available to all regions of the country.
Those concerns for juror mental health predate the pandemic. Now Canadians may be returning to court experiencing elevated mental ill health from the pandemic and exposed to new trauma in the court.
It is vital that we invest in mental health.
Thank you.
Liberal
The Chair Liberal Iqra Khalid
Thank you, Mr. Farrant. My apologies; we are now out of time.
I will now move to Ms. Illingworth for five minutes. Please go ahead.
Heidi Illingworth Ombudsman, Office of the Federal Ombudsman for Victims of Crime
Thank you so much.
Thank you for inviting me to appear before the committee today.
The Office of the Federal Ombudsman for Victims of Crime works to ensure that victims are treated fairly and with respect across the criminal justice system.
I give my respects to the First Nations, Métis, and Inuit ancestors and affirm my office's commitment to respectful relationships with one another and this land.
Honourable members, there can be no doubt that the COVID-19 pandemic has had a profound effect on Canada's criminal justice system.
The pandemic has exacerbated challenges faced by victims of crime in Canada and has had disproportional effects on vulnerable populations, who are already at greater risk of experiencing violence and and victimization. These include women, children, and older adults, as well as members of the 2SLGBTQ+ community and members of indigenous and racialized communities.
According to Statistics Canada, research has shown that social isolation, loss of employment and reduced income are all factors known to increase the risk of domestic violence, and these conditions have been heightened in recent months.
Intimate partner and family violence often go unreported because the perpetrator is a loved one who exerts control over victims, who are left feeling unsafe in their own homes. Stay-at-home orders mean fewer opportunities for victims of violence to reach out for support or to report the violence to police or other agencies.
Pandemic-related restrictions have also meant that agencies' capacity to provide service to victims has shrunk, and in some parts of Canada the systems have been overwhelmed with demands for service.
Marginalized groups who face a higher risk of victimization also cope with considerable structural oppression in accessing support and justice. For instance, individuals who identify as 2SLGBTQ have voiced that receiving help from victim service providers is often a barrier on its own, as victim service organizations may overlook the importance of considering and addressing multiple intersectional identities.
I am also very concerned about the increased vulnerability of children. Violence against children has become even harder to respond to, since school staff make 90% of all reports of child abuse and children have been out of school because of the pandemic.
In my view, Canada must take proactive steps to fund and deliver prevention information, education and services to the public in order to reach persons who may be at risk of instigating violence.
Alongside greater investments in prevention, victims' rights need to be prioritized, enforced and upheld. Respect for victims' rights was inconsistent prior to the COVID-19 pandemic, and victims in vulnerable populations often reported experiencing many barriers to navigating the criminal justice system and feeling like an afterthought. This situation has been worsened by the pandemic.
For example, early in the pandemic the Parole Board of Canada cancelled all observer attendance at parole hearings, meaning that victims could not attend hearings that were scheduled and that would still take place without them. My office raised this matter as unfair and as failing to comply with the statutory rights of victims. The teleconferencing and videoconferencing accommodation was eventually extended to victims, as had already been the case for offenders' assistants.
This set a concerning precedent that victims' rights could simply be pushed aside and overlooked, instead of ensuring that proper accommodations were put in place so that victims' rights could be upheld. This cannot and should not be the case.
I would also like to discuss the worsening of criminal justice system delays due to COVID-19.
Courts and other tribunals have been slow to modernize and use technology to move cases forward. We must bring accused persons to justice in a timely manner, as required by the charter. Not doing so affects us all, but none more so than the victims and survivors who have been harmed. Victims experience memory loss, heightened stress and anxiety and feelings of languishing the longer cases take to be decided.
In closing, I will emphasize that the consideration of the rights of victims of crime to information, protection, participation and restitution is in the interest of the proper administration of justice during COVID-19 and beyond.
I welcome the opportunity to answer your questions. Thank you.
Meegwetch.
Liberal
The Chair Liberal Iqra Khalid
Thank you very much, Ms. Illingworth.
We'll now go into our first round of questions, starting with Mr. Cooper for six minutes.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Yes, Madam Chair. When we suspended the meeting because of the vote in the House, it was my turn to ask questions. Have we lost that time? Are we not taking up where we left off?
Liberal
The Chair Liberal Iqra Khalid
Thanks for that question, Monsieur Fortin.
Yes, we have lost a significant amount of time with the two full panels. This is why I asked the witnesses from the first panel to stay for the second panel; it's so you will have your opportunity to ask them questions as well when it's your turn.
Right now we have started our second hour and our second panel, so we'll just go through. I'll do my best to make sure you get your time, Monsieur Fortin. Thank you for understanding.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Madam Chair.
Mr. Ferrant, I was there in October 2017 when you appeared before the justice committee and gave very powerful testimony along with other jurors, and I was proud of the fact that we came together as a committee unanimously with, as you put it, a groundbreaking report on enhancing juror supports, the first parliamentary study and the first report of its kind.
You noted that despite a great deal of consensus, we unfortunately haven't seen a whole lot of action three years later.
You spoke of the fact that nowhere in the budget was there mention of jurors. I would further note that recommendation 10 spoke of the need for one-time federal funding to the provinces and territories to implement the recommendations in the report.
Could you speak to that, and more broadly the need for federal leadership? Would you agree that leadership and funding are all the more necessary in light of COVID?
Founder and Chief Executive Officer, Canadian Juries Commission
Thank you for the question.
In speaking with attorneys general across the country, I have heard them express a willingness to implement some of those recommendations—some more than others—but they are also expressing the need for a federal investment going back to that report.
COVID-19 obviously has put downward pressure on the provinces like no other time in our history, so given that jury duty is vested in the Criminal Code and is a federal mandate administered provincially by the provinces, there is a need for a federal role at this time in investing in improvements to jury duty.
As I said, raising jury duty pay to $120 per day, while it's a provincial responsibility, can be shared with the federal government through transfer payments, and we're not talking about an investment that is going to break the back of any government. In fact, it's going to improve the lives of jurors and it's going to open the opportunity for racialized Canadians, those who work in the gig economy and those who are under-represented in the justice system to participate in jury duty simply by being able to afford it. I have heard from so many Canadians who have said, “I would love to serve on a jury; I simply can't afford it” and “My employer will not allow me to do it.”
If we are talking about combatting systemic racism in access to justice, simply raising jury duty pay allows us that opportunity to suddenly change the diversity of a jury simply by bringing in people who would not have been able to do it before.
