Justice Committee on April 29th, 2021

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

All right. Thank you. I think I'm out of time.

[Joanne Hardie]

The ministry, I guess, is responsible for that.

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

Right. Thank you both. Sorry for having to rush through it, but time is limited.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Mr. Maloney.

Thank you, Ms. Hardie.

I will now go to Monsieur Fortin for six minutes.

Go ahead, sir.

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

Thank you, Madam Chair.

I thank the witnesses for joining us today.

I have a few questions for you, Mr. McCarthy. I would like you to tell me more about the conversation you would like to see take place among the various levels of government. How much do you think this conversation could help advance the administration of justice with regard to trials that are partially virtual and partially in person?

[Todd McCarthy]

Through you, Madam Chair, merci, Monsieur Fortin.

The issue of whether the trial is remote or in person is equally affected by the fact that judges who have general jurisdiction have to be deployed for criminal cases first. Otherwise cases get stayed if they've taken too long to get to trial. That's what Jordan does. That then has the ripple effects across the system, because a lot of times they can't get to them in time and then they're stayed anyway. Legitimate prosecutions are stayed, and then those judges have been deployed and others have been kept waiting in all the other areas of law within the jurisdiction of those courts—family, civil and child protection.

There's no right to a trial within a reasonable time in those other areas of the law, so the conversation between the branches of government that I propose is thank you for your [Technical difficulty—Editor] court from five years ago but you didn't see this pandemic and the delays associated with it coming. We, the elected Parliament, are saying it's time for a pause, a timeout. We're going to suspend the effect of that decision, and let's work toward new solutions. Allow the judges to do their job with counsels. We have dedicated, hard-working judges who are doing the best they can, but the system is falling apart, and we need to be able to take a pause so that criminal cases are not put in peril by this court-imposed time limit.

I have to say, Monsieur Fortin, the courts are not always right. Our Supreme Court of Canada in 1929 famously said women are not persons for purposes of Senate appointments. The courts are dreadfully wrong sometimes on matters of public policy. They're not coming from Mount Olympus with great wisdom. As Professor Hogg pointed out, they have their own failings. They're not perfect. They don't pretend to be perfect. Many of them don't want awesome powers. The charter provision for the over-ride is there for this conversation that has to happen in times of crisis. It's not the War Measures Act. It's a balanced conversation about how to carefully use scarce judicial resources in our trial courts so that all of our citizens have access to justice.

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

I understand.

Only the king can do no wrong, not the judge.

We agree in saying that holding trials only virtually does not seem to be a solution. There are various problems, including those related to assessing the credibility of witnesses. Law is still a human science, and I think in-person attendance is essential in most cases.

Nevertheless, we are going through a situation that is making us question the usual parameters of the practice of law. There will always be in-person hearings, but chances are, there will still be virtual hearings over the coming years, probably even increasingly so.

The current crisis is temporary. In one year, we have completely changed our habits. However, this way of administering justice may remain for a long time, at least in part.

You are telling us about a conversation to put aside the time frames imposed by the Jordan decision. That may work over a short period of time. However, over the long term, I assume that you agree we cannot go back to time frames of seven to 10 years for a decision to be handed down in a trial. That must be done within reasonable time frames.

In that sense, the Jordan decision seems well founded to me.

Over the long term, would this kind of a conversation to set aside the Jordan decision be useful?

Shouldn't we instead find ways to be more effective by working virtually and in person?

[Todd McCarthy]

Thank you. It's a great question, Mr. Fortin.

Remember this is temporary. The charter provision for the override is five years maximum. It will expire if a future Parliament doesn't re-enact it, and Jordan would be the law again. It has its limitations.

I'm talking about a timeout in this conversation. This 30-month ceiling, which is leading to the monopoly of criminal cases by judges of general jurisdiction, the ignoring of many other cases, and the loss of legitimate prosecutions just because they fall outside this timeline, is not tolerable in the crisis of COVID-19 delays to the justice system.

The people of this country, through their elected representatives, I submit, ought to be able, through the charter, to be part of the conversation and say they're not going to have any time limit right now.

You're right, in the long run there should be time limits. In a perfect world there should be. Their right is not there to be ignored; it's just to be paused until we get through this terrible crisis in the courts.

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

What do you think the time frames should be?

[The Chair, Liberal, Iqra Khalid]

You're out of time.

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

Thank you, Madam Chair.

[The Chair, Liberal, Iqra Khalid]

Thank you for your patience, Mr. Fortin.

I appreciate it.

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

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

Thank you very much, Madam Chair.

Ms. Hardie, my late mother would never forgive me for not talking to transcriptionists and reporters after her long career as a court reporter in family court.

In your presentation you did a good job of outlining some of the challenges that have been presented by the change to the use of Zoom technology. I'd like to hear a bit more about both short- and long-term solutions to those problems from your point of view.

[Joanne Hardie]

Our point of view is that we would like the ministry to respond to our concerns. That's the major point; they haven't. We simply want the audio recording to improve and to find a platform that would accommodate eight separate channels of speakers. Right now everything is coming through on that one channel and the transcripts can't even be certified because there is so much interruption and cutting out as the Wi-Fi becomes unstable. It's a serious concern. Transcripts are supposed to reflect what happened in a person's experience in the justice system. We don't have the death penalty, but if you don't get a good transcript, there are real, severe repercussions. We're just asking. That's our one and only concern: Just let us do our job. We can't right now.

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

Is this a matter of which platforms people are choosing to use or the fact a platform for this does not exists?

[Joanne Hardie]

There isn't one. It's not being connected; it's not being integrated into Zoom. The platform or the system that exists in every courtroom has not been integrated into the Zoom platform, so we have one channel that we can transcribe from, and that's it. It's becoming impossible. It's been 14 months, and we just want to know where it's going. Why can't they fix this now?

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

Have you seen any evidence that anybody is actually working on developing either the equipment to Zoom or another platform that would do this?

[Joanne Hardie]

We do a lot of research in our association. We've been tracking things, keeping on top of stuff, reading articles and, I guess, snooping, because we're not getting any kind of really direct response from the ministry. Yes, there is a platform available, but we don't know what's happening or what its status is. It has been 14 months. That's a long time.

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

I want to be very clear on this. Are you saying that from your research you believe there is an alternative platform that would allow you to do your job directly at this point?

[Joanne Hardie]

There is an option. Liberty Recording services now provide all of the systems in the courtrooms. We believe there's a platform that they have available and would connect right now.

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

I think that's very important information for us. I thank you for bringing it to our attention.

[Joanne Hardie]

Thank you.

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

I want to turn to Mr. McCarthy at this point.

Did you have the same concerns about the Jordan decision before the COVID crisis? Would you have been suggesting the same temporary solution of using the notwithstanding clause were we not in this COVID crisis?

[Todd McCarthy]

That is a very important question.

The Jordan case was controversial and imposed exact time limits of 30 months or less. It was a great burden on the courts, and the deployment of judicial resources to criminal matters did begin to delay judicial resources for other types of cases. That was the immediate effect of Jordan, but I wouldn't have recommended it without the COVID-19 pandemic. I'm addressing the use of the notwithstanding clause to overcome it as a temporary measure because of the severe impact of the COVID-19 pandemic.

Also, of course, as I've indicated in my written paper submitted to the committee, there's no doubt that the court was well intentioned in trying to give real definition to the 11(b) right to trial “within a reasonable time”. That's what courts can and should do. When something unexpected comes up, the Supreme Court of Canada can't reverse itself until a case comes up before it in particular circumstances.

You might well get five of the nine judges in a COVID-19 type of case saying, well, wait a minute, section 1 of the charter says that these rights are subject to reasonable limits prescribed by law, and so on. You might get a different result in a certain fact situation, but how long do we wait for such a case to get all the way to the Supreme Court of Canada?

Judges are not active. They have to wait for a case to come to them, whereas the Parliament of Canada can be proactive. The time is not to sit back and wait for a new precedent that might go a certain way. The time to act is now, to be part of the conversation. That is your right and role as parliamentarians. That is what I think our citizens expect of our parliamentarians. It's a conversation that has to happen and that probably wouldn't have had to happen in non-COVID times and won't have to happen again.

To Monsieur Fortin's point, it doesn't have to be permanent. Jordan can become the law again if this Parliament decides to suspend the effect of it for a period of time. You can actually invoke it for less than five years if that's what you put in the legislation.

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

Thank you very much, Madam Chair.

I believe there's so little time that I'll wait for the next round.