Justice Committee on April 29th, 2021

[The Chair, Liberal, Iqra Khalid]

I call this meeting to order. Welcome to meeting number 31 of the House of Commons Standing Committee on Justice and Human Rights.

Today, we have MP Pam Damoff replacing Mike Kelloway.

Welcome back, Pam. It's so great to have you back.

To ensure an orderly meeting, I'd like to outline a few rules to follow.

As our witnesses know, there are interpretation services available. You have a choice at the bottom of your Zoom screen. Select the language that you would like to listen to. You can speak in any language you like. When you are not speaking, you should be on mute.

Please do wait for me to recognize you by name before you start speaking. I will remind everyone that all comments by witnesses and members should be addressed through the chair. With respect to a speaking list, the clerk and I will do our best to maintain one and make sure that everybody is accommodated.

Now, before we get to our witnesses today and start the hearing, I'd like to get the committee's approval for the operational budget that was distributed to members yesterday. The budget is in the amount of $1,775. It will serve to pay our expenses for the current study. Do I have the members' approval with a thumbs-up?

Okay. That's carried. Thank you very much.

Now I would like to welcome our witnesses. We have, appearing as an individual, Mr. Todd McCarthy, who is a barrister and solicitor. We also have with us the Professional Transcriptionists and Court Reporters Association of Ontario, represented by Joanne Hardie, who is the president.

To the witnesses—and for members—you will have five minutes to make your opening remarks. I have a one-minute time card and a 30-second time card to help you keep track so that we can keep our meeting on track.

With that, we'll start our panel with Mr. Todd McCarthy for five minutes.

[Todd McCarthy, Barrister and Solicitor, As an Individual]

Thank you very much, Madam Chair. Good morning to you and members of the committee.

It's an honour and privilege to be asked to appear before you today to address the committee on the specific issue of the impact of the COVID-19 pandemic on the judicial system in Canada, especially on any delays or impacts on trials in the criminal justice system.

Let me first address the challenge. A year ago the courts across the country were virtually shut down because they were not set up for remote practices to any great extent. For almost three months, from mid-March into late June or early July, criminal, family, civil and child protection cases could not be adjudicated or dealt with. That led to the creation of a large backlog. It also had the effect of often shutting down negotiations with respect to those cases. Without the access to adjudication or the threat of adjudication, parties often aren't motivated to resolve their matters.

Now we are in a similar position. We've adopted remote practices in our trial courts in Ontario, that being the Ontario Superior Court of Justice in this province. Across the country it's called the Court of Queen's Bench in many provinces, and the Superior Court of Quebec in that province. All of those are trial courts; they're section 96 courts. The judges of those courts, while subject to the administration of justice jurisdiction of the provincial governments, where they sit under section 92 of the Constitution Act, are section 96 appointees by the federal cabinet on the advice of the federal Minister of Justice. They are judges of general jurisdiction, dedicated, hard-working judges working with counsel and pivoting to remote practices in this pandemic—very successfully, I might add.

More recently, because of the stay-at-home orders in Ontario, among other provinces, court staff can't get into the courthouses. Therefore, the Zoom technology can't be dealt with at home by those dedicated court staff. Consequently, the judges are adjourning or cancelling many hearings in all of these areas of the law.

What's the impact of that? Of course, as a general jurisdiction, the section 96 courts across the country and the judges of those courts decide cases in the matters of criminal law, family law, child protection and civil justice. They could be hearing a civil pretrial in the morning, dealing with a child protection midday and an urgent bail hearing in a criminal matter at the end of the day. They are very hard-working, and very diverse aspects of the law come before those judges.

What happens when you have this kind of challenge? You have a growing backlog, and it's very difficult to deal with that presently, and it's only going to worse. That is the problem.

The problem is compounded by a policy choice made by our Supreme Court of Canada in the case of Jordan and Her Majesty the Queen in 2016. The Supreme Court of Canada decided that the right to trial within a reasonable time, the section 11(b) charter right under our supreme law of the land, was such that it would be specifically time limited with a ceiling of 30 months for a trial in the superior courts of the country after a preliminary inquiry. That's 30 months. In the case of Jordan, the latter was was charged with multiple narcotics and trafficking offences, and after the 44 months it took to try him in a superior court, his charge was stayed by the Supreme Court of Canada. He was allowed to walk free. The prosecution of that case was not successful just because of the delay due to that charter breach.

I am proposing that the committee seriously study a solution, however temporary it might be. It's called the notwithstanding clause. It's also part of our supreme law of the land and part of what policy choices are possible. It preserves parliamentary supremacy. I can answer more questions about it.

The courts are not always right. To quote the late Professor Hogg, “it is wrong to assume that a judicial decision on a rights issue closes the debate on that issue. On the contrary, citizens and their elected representatives Parliament will inevitably want to continue the debate, and in some cases there will be a strong sentiment in favour of reversing the decision of the Court.”

That is what the notwithstanding or override clause does. It is a legitimate constitutional instrument, uniquely Canadian, and endorsed by the late Professor Hogg as a useful instrument.

I ask this committee, subject to questions you may have, to consider how this can be thoughtfully invoked for five years—because it does expire after five years if not renewed—to deal with this crisis in our trial courts. It affects criminal, civil, family and child protection cases.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Mr. McCarthy. You are right on time. I really appreciate that.

We'll now go to Ms. Hardie. You will have five minutes. Take your time, speak slowly and clearly, and we'll get through this.

Thank you. Please go ahead.

[Joanne Hardie, President, Professional Transcriptionists and Court Reporters Association of Ontario]

Good morning.

I hope everyone can hear me properly because I don't have the proper headset.

Thank you, members of the committee for inviting me here today to represent the Professional Transcriptionists and Court Reporters Association of Ontario for a discussion of the impact of COVID-19 on the judicial system.

I'll read my statement in order to stay within the five-minute time allotment. It's just a very brief intro.

PTCRAO is a not-for-profit business association with membership spanning across the province of Ontario. Through 55 years of operation, we have adapted and evolved to meet many challenges. Our mandate has never changed. We are committed to ensuring that the profession of court reporting and transcription services are provided to the highest professional standard. Now we face our biggest challenge.

In Ontario, from the onset of the pandemic, the justice system went into immediate action. Lockdowns and restrictions because of COVID accelerated the rapid modernization of the courts and gained immediate and positive response. The path to modernization went straight to Zoom and teleconference calls as a way to exist in a virtual world that COVID created.

I'll just make reference to Zoom because it's more efficient, but all these comments apply to teleconference as well. To zoom directly to the point, as a reaction to COVID, in the understandable rush to ensure the courts remained functional, stakeholders and decision makers overlooked the most important foundation of the justice system, which is the official court recording. They replaced it with a one-channel Zoom solution. Without a stable, eight-channel audio recording that is properly preserved and securely stored, a verbatim-certified transcript is almost impossible to produce. The voice of a victim or a witness to a crime can no longer be heard if words are lost on a one-channel recording. This is our main concern and focus, and the reason we appear before you today.

By regulation in Ontario, a transcriptionist must be authorized by the Ministry of the Attorney General to certify court transcripts, herein referred to as ACTs.

Here are some examples of the problems with Zoom. On one channel, you cannot separate speakers if they talk over one another. On one channel, if there is nothing to identify same-gender speakers, they are simply noted as “unidentified”. On one channel, dogs barking, babies crying, doors slamming and dishes being washed in the background are just a few examples of interference. At times, Wi-Fi connections fail, audio becomes unstable, sound becomes distorted and words are lost or become garbled and warbled. The audio cuts in and out. There have been bail hearings where lawyers are sitting in their cars on cell phones. Sometimes participants phone in, often from custodial institutions. Sometimes they appear via Zoom, but the most a transcript can reflect is that they are all participating from multiple unknown locations.

Ultimately, transcripts must reflect the truth and deficiencies created by lost audio must be noted. Justice is not served if a transcript cannot be certified to verbatim accuracy. We support whatever makes courts run smoother and quicker, but by doing so and by making those things priorities, we have sacrificed the most important element that keeps the justice system safe.

The Liberty digital software system, which was implemented across Ontario in 2010 by the original MAG and court reporting services team, was almost flawless. We had moved from four channel analog tapes to state-of-the-art digital recording and transcribing equipment across eight channels. Speakers could be identified, voices separated and volumes controlled. This push to modernize the courts during COVID has stripped away any progress, effort and time that went into developing this state-of-the-art digital recording technology. It has pushed the fundamental importance of the checks and balances in the court system to near non-existence.

We read the article in the National Post that references comments that Supreme Court Justice Mona Lynch made before you. I quote:

“A colleague of mine was conducting a family hearing by phone, and one of the parties said, ‘Oh, just a minute,’” Lynch said. “There was silence. And then she heard: ‘Can I have a medium double-double?’” She called the incident amusing and “quintessentially Canadian,” but said it also reveals “the lack of respect and attention participants pay when the court proceedings are not in-person, in the courtroom with a judge.”

We agree with Justice Lynch on that and we are here to answer any questions the committee has.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that, Ms. Hardie.

We'll now go to our first round of questions.

Ms. Findlay, please go ahead, for six minutes.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Thank you very much, Madam Chair, and thank you to the witnesses for being here. We really appreciate your expertise, and perhaps the expression of some frustration.

To Todd McCarthy, I know you're an accomplished litigator, so I do thank you for sharing some of your thoughts with us here today.

At our last meeting, we heard from a witness representing the Canadian Bar Association about some of the challenges involved in virtual hearings, including a lack of formality—we're hearing that from Ms. Hardie, as well—when separated from the trappings of a courtroom. The CBA's report submitted that credibility assessments can be difficult when conducted remotely.

From your experience, could you speak about some of the difficulties Zoom hearings pose for counsel, witnesses and the courts in terms of assessment of credibility?

[Todd McCarthy]

That's an excellent question.

To Ms. Hardie's point and her reference to Justice Lynch, a lack of decorum is a serious problem, and so is the ability to assess credibility fairly, where credibility is often the essence of how any case, criminal, civil, family or child protection, is adjudicated.

The remote process, the Zoom hearing, the teleconference, has a place, and will continue to have a place. We've embraced it, and the pandemic has expedited that. However, to say that should be the default position, especially where credibility is so crucial.... We cannot dispense with in-person hearings, of course, and we need to get back to them.

On both decorum and the issue of credibility, the sense of being heard in a courtroom is all about respect for the rule of law, for the judicial decision-making process, and for having been fairly heard. All of these things affect the participants in the process, and their view of whether or not fairness and justice have occurred in a proper forum.

The reason our forebears built such grand courthouses across the country, many of which are still with us, is to salute the rule of law. We are deferring to the rule of law, and where the rule of law is applied, and that decorum is very important.

We always say about judges that they write for the loser, right? You have to explain why the loser lost, and you're writing for the public, as well. The credibility determination is always a part of those reasons.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

When you're prepping witnesses, for instance, do you pay attention to things like lighting and camera angles when you're dealing with a virtual setting? Do you think these elements, that are unique to virtual hearings, could end up affecting the outcome or fairness of a trial?

[Todd McCarthy]

Absolutely. Not everybody is equipped with a grand computer room and multiple screens. Some are calling in from their phones, and that depends on the kind of phone they have. This creates an inequity.

We would never want a witness to be more likely to be believed just because they have better technology any more than we'd want them to be more believed if they are wearing fancier clothes. That should not be the measure of credibility.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

One issue we're all rightly concerned about is access to justice.

Justice Canada has estimated that 50% to 80% of litigants in civil and family courts are self-represented—numbers that could continue to grow under the pandemic stress. Former Chief Justice McLachlin has called this a crisis.

Do cases involving self-represented litigants take longer, and thereby contribute to the backlog? In your opinion, what can be done to improve access to justice for these litigants?

[Todd McCarthy]

Self-represented litigants, as much as it is their right to proceed without counsel.... That raises issues of the cost of legal services, which is another matter. We can talk about a duty counsel, and so on. It is a serious problem. In fact, right now, it is leading to great backlogs, because many self-represented litigants don't have access to the technology, even if the court does.

In fairness to the judges presiding, even at a pretrial conference, where nothing is being specifically decided with a self-represented litigant, they want the proceedings to be recorded. Normally, they are done in an open court with a court reporter present. The problem is that we have judges saying, “I cannot and will not fairly hear this self-rep case in family law or any another matter, because I have to be able to have it recorded.” It's part of doing the job thoroughly.

This is a serious problem. The self-represented issue requires in-person attendants to return, or it at least requires our court staff to come to court, and utilize Zoom technology properly.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Mr. McCarthy, we only have a short time left, so I would just like to give you the floor to talk a little bit more about what you think the federal government can do to address the backlog. You mentioned the notwithstanding clause, an interesting idea.

We have about 30 seconds left. It's not much, but can you just speak to that briefly?

[Todd McCarthy]

I'm proposing a conversation between different branches of government. The courts are not always right. The Jordan decision was well-intentioned, but it's adding huge problems because courts of general jurisdiction, or trial courts, have to then give priority to criminal cases.

Many of those are being stayed because of this time limit, and then those judges are not available for family, civil and child protection cases, which are also very important, so we need to take a pause. The Parliament of Canada has the last word on that, not the Supreme Court of Canada, at least for a five-year timeout.

It should not be the preserve of the courts to make that policy decision, and the charter says as much, but somehow the notwithstanding clause gets a bad name. It should not. It's a fair, balanced conversation between branches of government on an important constitutional issue, and it's in the Constitution. It's in the charter. It's there to be rarely used, but appropriately used in a crisis before the courts, such as this.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Thank you very much.

[The Chair, Liberal, Iqra Khalid]

Thanks very much, Mr. McCarthy.

We'll now go on to Mr. Maloney, for six minutes.

Go ahead, sir.

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

Thanks, Madam Chair.

Thank you to both of our witnesses.

I don't have a lot of time, so I'm going to try to jump right in.

Mr. McCarthy, first of all, it's good to see you again. It's good that you are here. Thank you for your presentation. I'm particularly happy you're here because whenever we have discussions about court systems and issues in the courts, the default position is criminal courts. You are a civil lawyer, like I was, and we tend to be under-represented, so I'm pleased to see you here speaking on our behalf.

There is a lot of discussion about what's going on during COVID and what impacts it is having. You talked about them. as did Ms. Hardie. Hopefully this will be over and we will not be dealing with these unique situations like Tim Hortons anymore.

The bigger issue, in my mind, is what takeaways from this we're going to adopt going forward in the system, because virtual hearings are going to become part of our process going forward. I think the default position should be in-person hearings, not just for trials but for pretrials, discoveries, motions, all proceedings. You should have to present an argument as to why it should be otherwise, because, as you said, Mr. McCarthy, deadlines impose pressure, and that's at all stages.

What permanent features do you see going forward that have been adopted during COVID?

[Todd McCarthy]

Definitely the Zoom hearing for matters that are based on a paper record are ideal because you can't just make written arguments on affidavits and then have the judge pop out a decision. The exchange between bench and bar is very important, especially when there may be some impact on the development of the law, but that can be done effectively with a Zoom hearing, a motion for summary judgment, a pretrial where everyone is represented.

We all have these Canadian winters that have often delayed cases that had to occur in person, and the Zoom technology, next February and in February 2023, will be very welcome when, for example, we're not flying from Toronto to Pembroke in the province of Ontario just to do a summary judgment hearing that could be done by Zoom. Most certainly, the beauty of that is that court resources can be better used by the combination of embracing Zoom where appropriate and continuing with it, while also having the default of in-person hearings.

The rules committees provincially are grappling with how to deal with this. As you put it, should the default be in-person, or should the default be Zoom? I agree with you, Mr. Maloney, but I think that for some types of processes, Zoom should be the default position.

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

We agree on that. I think back to my trips to Haileybury for a one-hour pretrial. It would be a 13-hour day. My clients didn't like it, but there is some importance to being there in person.

You talked about deadlines at trials. There is some threat when somebody has to incur those costs to go to do that. It creates pressure that gets cases resolved, and that shouldn't be lost, but I'm glad to hear that the rules committee is dealing with that.

There's another thing, and I just want your thoughts on this. If you're having a Zoom trial or a Zoom process and it's appealed, right now judges go out of their way to make findings based on credibility, to make the decisions unappealable or hard to appeal, but in a world now where things are virtual, do you see lawyers asking that things be recorded virtually, which would then allow appellant courts to be asked to consider reviewing findings of credibility because they have the opportunity to look at witnesses?

[Todd McCarthy]

Well, to your point, Mr. Maloney, the situation is exemplified by a recent trial that was done by Zoom, a public trial in the civil justice system, Fabrizi v. Chu, and there was a huge issue of credibility. Who saw what? Who recalled better? The case was 12 years old when it was heard.

Whether or not there's an appeal on that, as in any case involving credibility, the issues of credibility really are for the trier of fact who saw and heard the witness. The appeal court, as you know, is only going to review a transcript. There's not going to be a change in the practice that somehow they get to see a recording of the original witnesses, because the trial judge is always in a better position to deal with that issue, but appeals will continue—

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

I agree with you but I could see lawyers asking for the Zoom proceeding to be recorded so that that process could be addressed. I do agree with you, and I'm sorry to interrupt, but I have only a few minutes and I do want to move over to Ms. Hardie if I can.

[Todd McCarthy]

Yes, sure.

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

Ms. Hardie, I know you represent transcriptionists and court reporters. I'm not sure how many of the court reporters in courthouses you represent. I'm not sure if they're represented by a different group or not but I have a question for you. One of the things we've heard about during this pandemic is the issue of safety.

Everybody had to go home and work from home, so what's happened, in Toronto at least—and Mr. McCarthy will agree with this, I think—is that a lot of the judges are working from home and working remotely on Zoom, but the court reporters, for example, have been forced to go into the courthouses because they don't have the technology at their disposal, which puts them on public transit and back in the courthouses, so right now, during this third wave of lockdown in Toronto, for example, the court reporters are going downtown to the courthouse.

What measures can be taken to address that?

[Joanne Hardie]

We have had some indication that reporters are working from home, and the DRD, which records the proceedings is then the virtual courtroom and it's turned on wherever the reporter is.

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

Yes, okay. How many court reporters do you represent?

[Joanne Hardie]

None.