Justice Committee on April 27th, 2021

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you.

I would concur that the amount of funding we're talking about here with respect to juror pay and with respect to implementing other recommendations that would go a long way to support jurors is a pittance, having regard to the firehose of money that we have seen showered in this budget. Some of it very much needed funding; I don't want to minimize that reality. This, though, would be a mere pittance.

Another area that you cited is mental health and issues around mental health that jurors face in going through, in some cases, horrific trials, including stressors from not being familiar with the judicial system and being away from family and work, among many other factors.

One recommendation in the report from 2018 was to carve out an exception to the jury secrecy rule. Right now, jurors who are suffering from mental health issues arising from their jury service aren't able to talk about all aspects of their jury service, namely the deliberation process, which often can be the most stressful aspect.

I introduced a bill in the last Parliament to implement the recommendation to carve out a narrow exception to the jury secrecy rule so that jurors who are suffering from mental health issues could consult a mental health or other medical professional bound by confidentiality, thereby protecting the integrity of the jury secrecy rule while ensuring that jurors can get the help they need. There was again unanimous support for that bill, but it died in the Senate prior to the last election. I worked with Senator Boisvenu to introduce a bill in the Senate, but it's been stuck there.

The government has introduced Bill C-23, which touches on issues around jurors in a COVID context. Would you see it as beneficial that Bill C-23 be expanded to include the substance of what is in now Bill S-212 so that we can get this done, finally, which is something everyone seems to agree to?

[Mark Farrant]

I absolutely agree with that statement. This is the third time we have tried to see this bill and this amendment to the Criminal Code pass. There is no reason it should not be added to Bill C-23.

I have spoken to members across all parties. I've spoken to members of the judiciary. I've spoken to lawyers, both Crown and defence, across the country, who all agree that this is a common sense piece of legislation that would demonstrate to Canadians another investment in jury duty and an important contribution to post-trial recovery.

Many jurors have said that it wasn't the trial, nor was it the evidence, that hurt them mentally; it was the emotional trauma of reaching a decision or not being able to reach a decision in a truly public and difficult case.

[The Chair, Liberal, Iqra Khalid]

Thank you very much. I'm sorry, Mr. Farrant; we're really running low on time.

My apologies, Mr. Cooper. You are out of time. We'll now go to Madame Brière for six minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madam Chair.

Thank you to all of our witnesses, and for your patience today.

Ms. Illingworth, you said earlier that COVID-19 caused delays in case processing. Have you noticed an increase in the number of cases waiting to be processed in a specific field?

[Heidi Illingworth]

Thank you for the question.

I think my comment was around the fact that we had considerable delays and backlogs prior to COVID. The pandemic has only worsened them. In terms of trials being put on hold, initially we saw that courts were addressing only urgent matters. There has been some restarting of proceedings.

Again, as we go through more and more lockdowns, we see cases being put on hold. Not everyone is fully moving towards virtual hearings in all parts of the country as of yet. I think the judge who was on previously was talking about how in the north in particular they haven't been having trials consistently during the last year. I was talking about that context in terms of actual criminal cases proceeding in a timely manner.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Okay. Thank you.

The fact that proceedings are taking place over video conference obviously has an impact on our system's ability to take on various cases. Have you noticed whether this has had an impact on the humanity in the treatment of witnesses?

[Heidi Illingworth]

We have heard from impacted family members, survivors, that people have been able to participate sometimes through audio or teleconferencing in a sentencing proceeding, and so they appreciated that they could be involved, that they could read their impact statements and still participate in proceedings.

I think it's important that we use technology as much as we can and that courts continue to modernize and improve infrastructure to be able to bring in people from rural areas who might have to testify, who might have to give evidence, who are victims who need to participate and provide [Technical difficulty—Editor] and what have you. I know we're still not there yet, but I think, as the judge on the last panel said, that there have been improvements in terms of access to justice for some people who can now participate and for whom it may have been too difficult to get physically to a courtroom in the past.

I do see some positives that have come out of the pandemic in terms of participation and access to justice.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

I also think that something positive can be taken from this. In fact, some sort of a hybrid system should be put in place that would maintain the positive elements brought out by the COVID-19 crisis, as well as best practices we already had.

I'm in Sherbrooke, Quebec, and a number of judicial districts in the region do not have a judge on a regular basis.

Do you think the fact that hearings can be held by video conference will help the processing of cases in the legal system?

[The Chair, Liberal, Iqra Khalid]

Ms. Coyle or Mr. Berkes can answer.

[Emilie Coyle]

I'll answer very quickly on that.

There seems to often be a lack of understanding that the line between the perpetrator of harm and the victim is blurry and that it is often a circular process. Many of the people we work with in the prisons designated for women are also victims of gender-based violence and have been survivors of an intense amount of trauma in their lives. It's important for us to remember that if they're going to participate in the courts as survivors of whichever crime or harm has come to them, there needs to be accessibility for them as well, and that has been seriously hampered during the COVID-19 crisis.

I'll just end there.

[The Chair, Liberal, Iqra Khalid]

Thank you.

Mr. Berkes, do you also want to intervene?

[Jody Berkes]

I will, just very briefly.

In terms of these remote areas, they would receive the most benefit from having virtual hearings. However, I would like to stress that a trial process does require that all parties come together in the same location so that the solemnity of the occasion is carried forward and that all parties have an equal chance to be heard. That's the ideal. Where it's not available, obviously we should look to alternatives.

[The Chair, Liberal, Iqra Khalid]

Thank you very much.

That concludes your time, Madame Brière. I know there were other witnesses who wanted to speak, but perhaps Monsieur Fortin can encourage this conversation to continue.

Please go ahead, sir, for six minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Madam Chair.

I would like to ask a question about the administration of the justice system. I understood that there was a certain number of advantages to hybrid proceedings. However, I thought I understood that this also came with a certain number of disadvantages, especially at trial, when witnesses are heard from.

I would like to hear the opinion of Judge MacDonald on cases where decisions are being appealed. The parties are often not in attendance at the court of appeal. At the very most, they are at the hearing, but lawyers are the ones pleading the case.

Judge MacDonald, do you see an advantage to proceedings taking place virtually in appeals of decisions?

[J. Michael MacDonald]

Thank you very much.

It's nice to see you again, Mr. Fortin. I think we met around this time last year.

I'd like to very briefly respond to Madame Brière's question. We made arrangements to email the link to our commissioner's website and the portal for the work we're doing, and we actually have a paper on virtual indigenous justice centres and liaison officers for dealing with virtual hearings in remote communities and indigenous communities. I commend that to you.

It's an excellent question, Mr. Fortin. Thank you for the opportunity to differentiate between trials and appeals. Justice Lynch touched on that. Many appeal courts, including the Supreme Court of Canada and many appeal courts throughout the country, really didn't miss much in terms of having their appeals proceed as they should. Justice Lynch mentioned that the real-life interaction is certainly jeopardized, but nothing at all like trial court. I think there is a significant distinction to be made.

Of course, if you go in camera on any matter in the court of appeal or in trial, privacy issues have to be taken into account, and we at the action committee have prepared a paper on the risks of jeopardizing privacy issues in the context of virtual hearings.

I see that Madame Thériault as well has her hand up, and I'm sure she can supplement my answer, but thank you for the question, sir.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you.

I think that it is perhaps even more effective to proceed virtually rather than in person in a court of appeal.

That said, I will let you add your comments, Ms. Thériault.

[Renée Thériault]

You are right. That is sort of along the same lines as what Mr. MacDonald was saying, that the pandemic has had varying impacts. The impact has obviously been much more intense for trial courts, for the obvious reasons you have mentioned, including witness attendance.

When it comes to appeal courts across the country, they have had to adapt to the new platforms, which has required some dexterity. Now that the system is in place, it is true that they have done their best to hold hearings without it leading to delays like those we can imagine during trial.

I would add to this that there are sometimes hybrid formats. In the Supreme Court of Canada, members of the court have continued to preside in person—in other words, they would all be in the hearing room, which was reconfigured to meet health guidelines—and lawyers argued remotely, so as not to have to travel from their province to Ottawa.

Of course, bar association representatives will tell you that it's not the same thing. Someone can prefer to argue in person instead of through virtual platforms. Nevertheless, there have been very few delays.

Since we are painting a broad picture, I would add that this is also true when it comes to administrative tribunals. A large number of federal administrative tribunals managed to catch up in the context of the pandemic. As they did not have to hear from witnesses, they held their hearings through things like virtual platforms, and there were more presentations electronically, they managed to do a great deal of catching up.

So although the pandemic is leaving more negative traces, some benefits have come out of it, and a certain number of realizations are here to stay.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

So there could be a preference for a hybrid format going forward.

[Renée Thériault]

It is not for me to say. All I can say is that some dexterity has been necessary.

I can only speak for the Supreme Court, where I am currently. We are now redefining the format for the fourth time. We had an entirely virtual format, considering the circumstances. After that, some lawyers would be in the hearing room and others—for example, for stakeholders—were attending virtually. When the pandemic got worse, we came up with a format where all lawyers argued through virtual platforms. As for Supreme Court members, with very few exceptions, they have always been on site, while following the health guidelines.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I would like to know what was happening in trial stages, but I see that my time is up. I may have an opportunity to come back to this in the next round. I would be curious to hear you talk about challenges, the evaluation of witnesses' credibility and the dynamic of exchanges between lawyers, experts and so on. I think that could be interesting information.

Thank you, Ms. Thériault and Mr. MacDonald.

[The Chair, Liberal, Iqra Khalid]

Thank you, Monsieur Fortin.

We'll now go to Mr. Garrison for six minutes. Please go ahead.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you, Madam Chair, and I thank all the witnesses for their patience with the parliamentary system today.

In particular I want to thank the witnesses of the second panel for bringing forward the important topics of the conditions under which jurors serve and the impacts upon victims and also upon those who are currently incarcerated. I want to return, however, to the first panel for my first and probably only round of questions here.

Mr. Berkes, the very comprehensive and excellent brief we received from The Canadian Bar Association raises two issues that are of concern to me. One of those is the use of private platforms for online proceedings. I have this concern about the House of Commons, not just about the court system.

Your report talks about those who make money from the data acquired from hosting these services. Can you expand more concerning the threat—because I think it is a real threat—both to privacy and to security of information?

[Jody Berkes]

Thank you very much for your question.

It's probably a trite statement at this point that the new currency in the new electronic world is personal data. Our data is constantly being monitored, harvested and used to target us with advertising. The federal Privacy Act legislation and various provincial privacy act legislations are going to have to take a long and hard look at some of these private platforms.

Just to use the social media example, when you plug in your credentials and sign up for the service, that data is harvested, monetized and then disseminated. Obviously, if a judicial or quasi-judicial body is going to be using a private service such as Zoom or Microsoft Teams or any of the other ones, there have to be some provisions put in place whereby the private organizations undertake not to disseminate our private information.

That is going to have to be legislated, it's going to have to be monitored, and it's going to have to be enforced, so that if the data gets out, whoever leaked it inappropriately is going to face some kind of sanctioning.

Subject to any further questions you have, I want to keep this brief to give everyone an opportunity.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much.

All of the participants in the first round, and indeed in the second panel, talked about the impacts of COVID on the problems of systematic racism and the disadvantage of people who live in poverty.

I just want to return to the superior court judges we have with us to ask whether they believe COVID has exacerbated the already large disadvantages that racialized Canadians and people living in poverty face in accessing justice.

[The Chair, Liberal, Iqra Khalid]

Justice Eidsvik and Justice Lynch, I think that question was directed at you.