Justice Committee on April 29th, 2021

[Chris Lewis, Conservative, Essex, ON]

Thank you.

My last question is also for you, Mr. Brown. I'm sorry. I'm not trying to pick on you, sir. I really respect...and I was listening to your testimony very, very much in depth.

The federal government has introduced Bill C-23 to try to address some of the backlog. Do you have any other thoughts or feedback on the legislation as it was introduced?

[Daniel Brown]

I'm going to pass this one to my colleague Mr. Struthers. I'm sure he will have some things to say about the importance of Zoom trials and the ability to accommodate those trials.

[John Struthers, President, Criminal Lawyers' Association of Ontario]

Madam Chair, if I may, our Zoom trials have been an absolute godsend. The system would have failed completely without them. We have done very well for the past 13 or 14 months now, getting an awful lot of things done by Zoom.

As to your question about the airports and the courts and the interrelationship between those two things, the problem in the courts isn't a series of rich scofflaws taking $3,000 tickets at the airport because they want to go home. This is not the problem. Deflecting to suggest that the problem with COVID or with the justice system is a federal problem at the airport is, frankly, complete nonsense, with the greatest of respect, sir. This is not the issue.

If there are four people in Canada who took a $3,000 ticket in the past 12 months to enter Canada and say “The heck with you, I'm not going into quarantine—I can afford $3,000”, if you can find those four people, I would be amazed. This is not the issue.

With the greatest respect, what we have now, and what Mr. Sealy-Harrington was very clear to point out, is that you don't lose weight just by exercising. You have to lose weight by eating less. You have to digest less, which means that what we have is an entire system that is criminalizing mental health, poverty, domestic problems, and drug addiction and expecting the criminal justice system to solve all these social problems. It can't do that.

[The Chair, Liberal, Iqra Khalid]

I'm going to stop you there, Mr. Struthers. My apologies. We're well over time.

[Chris Lewis, Conservative, Essex, ON]

Thank you, Madam Chair.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Lewis, but that was—

[Chris Lewis, Conservative, Essex, ON]

To Mr. Struthers, saying there are four is an understatement.

Thank you, Mr. Struthers, and Madam Chair.

[The Chair, Liberal, Iqra Khalid]

I notice that Mr. Lafond has his headset now, which is wonderful to see.

Mr. Lafond, if you would like to make your five-minute opening remarks, please go ahead and do so now.

[Drew Lafond]

Thank you for the invitation and apologies for the delays, everybody. Thank you kindly for your patience.

[Witness spoke in Cree as follows:]

Mitoni miyo kisêpâyâw kahkiyaw nîtîsânak êkwani totamahk. Miwâsin, mitoni kahkiyaw kinaskomitinawaw.

[Cree text translated as follows:]

It is a very good morning. To all my brothers and sisters, it is good that we do this. I want to thank you all.

[English]

My name is Drew Lafond. I'm here as the president of the Indigenous Bar Association in Canada. Serving as president, I'm in the second of a two-year term.

The IBA, by way of background, is a not-for-profit organization comprised of indigenous lawyers, judges, academics and students across Canada. Our mandate, generally, is to promote the advancement of legal and social justice for indigenous peoples in Canada and the development of laws and policies that affect indigenous people, generally.

In response to the request by the committee for submissions, the past year has been rife with examples about territorial sovereignty, broken treaty promises between the Crown and indigenous peoples and more shockingly, the disvalue of indigenous lives, particularly the lives of indigenous women and youth.

The COVID-19 pandemic is worsening the underlying legal, political health, economic and social injustices that indigenous peoples and communities face. Against this backdrop, the IBA is acutely concerned with the treatment of indigenous peoples in the recognition and respect of their human rights. The IBA responded to the events in the last year by finding some pragmatic and timely responses to the rapidly changing political, economic and social realities facing indigenous peoples.

The first initiative we undertook was in April 2020. We partnered with researchers at the Department of Indigenous Studies at the University of Saskatchewan to conduct an online survey that examined the legal impacts of COVID-19 and the ability of the legal profession to respond to those impacts. As part of that study, the participants primarily spoke about jurisdictional issues that they were facing, such as conflicts over who has the authority to regulate who's coming into indigenous communities and who has the authority in relation to a community's pandemic and health response. It includes the exacerbation of jurisdictional issues that were happening prior to the pandemic, including the state undermining indigenous laws and legal authorities. Participants expressed concerns regarding consultation and negotiations where existing agreements and precedents meant to uphold indigenous rights were too often being ignored in the interest of economic revitalization plans. Concerns were raised about the case delays, which have worsened an already slow process and deferred indigenous rights matters further. These delays are uneven, with indigenous clients having to wait for access to the courts while resource extraction approvals by the Crown continue at a regular and accelerated pace.

We must address the clear gendered issues in relation to the COVID-19 pandemic. These include increased family violence, disproportionate family care responsibilities faced by indigenous women, access to safe and stable housing, gender violence outside of the home, concerns about industry or “man camps” posing dangers to the health and safety of nearby indigenous communities, and worsening economic inequalities for indigenous women. These gender-specific injustices create barriers to indigenous women being able enforce their rights and access meaningful, legal participation.

Secondly, the IBA worked with the UBC faculty of law, the Union of B.C. Indian Chiefs' BC First Nations Justice Council, the Nuu-chah-nulth Tribal Council and the first nations or indigenous legal clinic in B.C. to study 21 reports in the last 30 years concerning indigenous peoples in the justice system.

As a result of that study, we pulled 10 recommendations for immediate action, which I'll mention briefly here: create a national indigenous-led police oversight body; establish a national protocol for police investigations; redirect public safety funding to services that increase community safety; implement a multi-pronged indigenous de-escalation strategy; establish a national protocol for police engagement with indigenous peoples; amend Canadian and provincial-territorial human rights codes to include indigenous identity as a protected ground against discrimination; create indigenous courts; increase indigenous representation across all levels of the criminal justice system; and establish requirements that judges give written reasons in all indigenous sentencing cases and require that judges give written reasons in all indigenous child apprehension cases where a child is placed outside of the indigenous community.

Just to close off, during the COVID-19 pandemic, we're facing significant challenges in being able to centre our well-being and our legal rights, including our rights to health, access to our territories, to our laws and to self-determination. Canada has fiduciary obligation to support the enforcement of rights and protections for indigenous peoples.

Those are my submissions to the committee today. Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Mr. Lafond. Your sound was coming through quite clearly. We appreciate that.

We'll resume our questioning.

We'll go to Madame Brière for six minutes. Please go ahead.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madam Chair, and thank you to all of our witnesses. I appreciate your expertise.

My question is for Mr. Sealy-Harrington.

You said in your introduction that COVID-19 has not created new problems, but has rather exacerbated existing ones. Do you think it would be a good idea to strengthen the use of other dispute resolution methods, such as mediation, to support the effectiveness and the quality of our justice system?

[Joshua Sealy-Harrington]

Madam Chair, I think that alternative systems, like mediation, can be part of holistic approaches to dispute resolution with a view to addressing things through a lens of efficiency. But I do want to reaffirm the idea that something like mediation falls towards the kinds of tweaks that I want to caution the committee against, insofar as multiple people who have spoken today have described the extent to which the system is completely and, in many ways, catastrophically overwhelmed.

I don't know that adding or increasing avenues towards mediation is a proportionate response that would be able to comply with the constitutional obligations at play. I would say that while that could be one of various tools that could be added, I strongly suspect it would fall short of the systemic change needed to bring dispute resolution within Canada back under constitutionally required thresholds.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

As for sexual assault or domestic violence cases, during our study on another topic, we heard that integrated courts could be a good solution. I would like to know what you think about that idea, where the victim would not have to keep repeating their entire story and where everything would be heard within a single system.

[Joshua Sealy-Harrington]

Madam Chair, I haven't done a lot of study of integrated sexual violence courts. I do think that alternatives to the kinds of existing, pervasive, and highly punitive approaches to addressing sexual violence are ineffective. I think they are ineffective both for accused and for victims for various reasons, including some that Ms. Brière mentioned.

I think I would respond to this in a similar way to the idea of mediation—not identically, but similarly. I don't think that when we're trying to deal with the systemic problems I've described and that others have described, increasing mediation or creating a parallel court when we're trying to deal with a variety of cases that are pushing us well beyond our limits, are responses that will effectively address that problem. I won't say that integrated courts are something I would oppose per se, and I haven't studied them extensively, but I will say that creating a parallel court system without removing the gigantic amount of input that goes through the criminal punishment system as a means of dispute resolution, I strongly suspect, will not address the core issues here today, which is delays. I think the committee needs to strongly consider reducing the inputs into the criminal punishment system if delays are its concern.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

In your introduction, you talked about structural changes. Do you have any concrete examples that could enlighten us?

[Joshua Sealy-Harrington]

Madam Chair, absolutely.

There's decriminalization of drug possession, dropping mandatory minimum sentences, as Mr. Brown mentioned, and the impact that has on the resolution of disputes. I think more fundamentally, as I raised in my remarks, the government itself, in its budget, admits and describes the various ways in which the conditions of people in society—low-income people, racialized people—is foundational to cycles of criminality.

The government spends a lot of money on criminal punishment—on policing, on prosecutions, on incarceration. These are not cheap fixes, and money is fungible. I would stress that if the goal is decreasing crime and deceasing delays, meaningful and substantial, perhaps even unprecedented, investment, in communities—which I'm happy to hear some other witnesses echoing in their remarks—is an approach that would will engage with the root causes of crime.

There are certain labels that come up in the government budget: root causes, systemic racism. I would urge the committee to take those terms seriously and not refer to them performatively, but to think about the ways in which significant change as to how we approach public safety within Canada is urgently needed if we actually want to decrease delays.

I think the ideas you're proposing may work in certain ways to tweak the system, but I would encourage the committee to think more broadly in terms of how we approach public safety in Canada.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much.

Do I have time for another question, Madam Chair?

[The Chair, Liberal, Iqra Khalid]

You have five seconds.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Okay, thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you, Madam Brière.

We'll now go to Mr. Fortin for six minutes.

Go ahead, sir.

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

Thank you, Madam Chair.

I thank the witnesses who are joining us.

I appreciate each of the opening statements, but I was especially affected by Mr. Struthers' statement.

I really liked your analogy, Mr. Struthers, when you said that losing weight was not just about exercising, but also about eating less. That is something we should perhaps hold on to.

As for the lesson we should learn from this, I am wondering whether our justice system is currently paralyzed by procedure and is struggling to digest all the cases it must manage or whether it is simply underfunded. Aren't we, the legislators, the ones who are overfeeding the justice system by introducing a certain number of offences that did not previously exist, thereby creating congestion? That is my question for you.

At the same time, I also really liked Mr. Brown's comments, which were very consistent. He talked about barriers. I think that is important. Barriers are currently preventing a certain number of cases from settling out of court—in other words, without the use of courts or the entire justice system.

Mr. Brown, could you provide us with a copy of your notes, which are really interesting?

Mr. Struthers, could you tell us more about why the justice system is clogged up? Eating less, exercising, I get that, but is the justice system being fed too much, too little or too poorly?

[John Struthers]

Madam Chair, thanks very much for the opportunity to speak about it. The problem is this. We have a whole bunch of societal problems, and we've decided that they are going to be dealt with by policing. We're going to arrest our way out of the problem of mental health. We're going to arrest our way out of the problem of drug addiction and arrest our way out of the problem of poverty. This is never going to work. Our resources are being thrown heavily into issues that are not going to be resolved by the criminal justice system.

Addiction and mental health are strongly related, but let's just look at what we're doing. Let's compare our criminalization of drugs with what we do regarding alcohol. Let's say that you knew that one out of 10 bottles of wine is going to kill you, and yet the government insists that all of the labels be removed from the wine bottles, which is what's happening on the streets of Vancouver right now. These are not, if you will, overdoses; they're poisonings. People aren't deliberately overdosing; they're taking things when they don't know what they are because there's no label. We have a whole bunch of problems that we are throwing into the criminal justice system. Instead of investing in poverty reduction, or in mental health or addiction treatment, we're investing in the criminal justice system where we're caging people.

You know, there's a new regime that thinks about the way we look at these things based on trauma-based evidence. The fact is that most of the people in the criminal justice system have suffered trauma in their lives one way or the other, What we're doing is that we're inflicting more trauma on them. Can you imagine taking someone with a serious mental health problem and thinking the solution is to put them solitary confinement in a jail? This will not work.

We have to divert things from the criminal justice system, and as Mr. Brown said, the barriers have to be removed very quickly. The thing people want to avoid is a criminal record. They're not avoiding the counselling; they're not avoiding the stay away; they're not avoiding not having a weapon. They're avoiding a criminal record because it prevents them from working, from going on a school trip with their kids or travelling in the States. They don't want the record.

If there were a way to do all of this work up front, be it probation, counselling or whatever it is, and then have the charge dismissed, as they do in many American states, we would resolve a lot more. There are solutions out there. We need to have fewer people in the system, and we need to make it easier for them to get out of the system; otherwise, we are going to have way too much to deal with for a very long time.

Thank you, Madam Chair.

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

That's interesting. You are president of the Criminal Lawyers' Association of Ontario. I assume that you have a few years of experience in private practice. Civil courts are also backed up. As the previous witness, Mr. McCarthy, was saying, those are closely linked. Since the R. v. Jordan ruling was handed down, time frames imposed on criminal trials have resulted in judges being engaged extensively in criminal cases and moving away from civil law cases. Those are in fact closely linked.

You are telling us about those barriers in a criminal trial. I understand the idea, and I think it makes sense. We should discuss this further. However, there are also similar barriers in civil law cases.

Can you talk to us about that? What do you think prevents certain cases from being resolved in civil courts?

[John Struthers]

Thankfully, I'm not a civil lawyer. I made the clear decision in my life never to go near civil files because they last six to eight years. The civil system is a complete mess. However, I do not agree with the premise that people in custody—in jail—waiting for their trials do not take priority over people arguing about money. Those people can go into a room and argue about money all day, but the people who are in jail have to have priority because it is a human rights issue.

Thank you very much, Madam Chair.

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

I agree with you, Mr. Struthers, but I was just wondering whether you had ideas on the barriers preventing the resolution of civil law cases.

Mr. Brown, I have a few seconds left. Perhaps you would like to say a few words.

Could you provide us with a copy of your presentation document?