Evidence of meeting #31 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 court.
A video is available from Parliament.
Barrister and Solicitor, As an Individual
There is, and it's mandatory: Rule 24.1 of the rules of civil procedure in Ontario.
Liberal
The Chair Liberal Iqra Khalid
Thank you very much. We'll stop there.
I will now go to Mr. Garrison, for two and a half minutes.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Madam Chair.
I want to return to the Jordan decision and time limits.
I thank Mr. Virani for pointing out that there is still discretion for trial judges to decide what are exceptional circumstances.
As we look down the road, though, I always worry about the use of the notwithstanding clause and believe it should be used sparingly. It would seem to me that the real, long-term question here is the under-resourcing of the court system as a whole at the provincial level. If the provinces were providing adequate resources, both in terms of the number of judges and all the associated court personnel we need to make trials move forward, we wouldn't have this problem with delays.
I'm interested in Mr. McCarthy's views on that.
Barrister and Solicitor, As an Individual
Remember, I'm talking about section 94 respecting courts and section 96 respecting judges. The judges were appointed not by provincial governments but by your government. That's first and foremost.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
The positions are created by the provincial government, and filled by the federal government. The number of judges is up to the province, and the federal government then fills the positions, am I correct?
Barrister and Solicitor, As an Individual
I respectfully disagree with you. The federal government has sole power to appoint or not appoint section 96 judges and fill those vacancies. Sometimes the government has been slow to do so, which causes a backlog in and of itself, but that's not what we're here to discuss today.
The point is, yes, of course, the notwithstanding clause should be used sparingly, but it's gotten to the point where it's got such a bad name and there are partisan views of it. It is a legitimate constitutional tool.
I encourage you to read Professor Hogg's comments on it. It's a unique Canadian instrument. In this case, it would temporarily ensure that judges would not be monopolized with even having to deal with exceptional circumstances. They wouldn't have to deal with these stay applications if this were invoked. That ties up their time. Whenever they have to have a hearing, remotely or otherwise and make a decision, that is use of judicial resources. That takes them away from other matters within their jurisdiction in that same court. That's the problem.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
I thank you very much for bringing this issue before us. I think it is an important one for us to consider.
With that, I'll end my questions, Madam Chair.
Liberal
The Chair Liberal Iqra Khalid
Thank you very much, Mr. Garrison.
We are now approaching the end of the hour, so I'll take this time to thank our witnesses for appearing before us today and for your testimony.
For anything that needs further clarification from the questioning today, and if you feel so inclined, please do provide us with written clarifications. We would appreciate that. You can do that by sending an email to the clerk.
Thank you very much.
We'll suspend temporarily as we let in our next panel.
Liberal
The Chair Liberal Iqra Khalid
I'll resume this meeting and I'll just say a few comments for the benefit of the new witnesses who have joined this panel.
Welcome first and foremost. Thank you for being here today. I'll point out a few housekeeping rules. When you are not speaking please make sure that you are on mute, and before speaking please wait until I recognize you my name and then you can unmute and speak. Once you are finished speaking please make sure that you put yourself back on mute.
I will remind you that all comments should be addressed through the chair. For all of you, interpretation is available at the bottom of your screen. You will see a little globe icon for interpretation. Select the language that you would like to listen to. You can speak in any language that you so choose, English or French.
With that I'll welcome our guests here today. As an individual we have Joshua Sealy-Harrington, an incoming assistant professor at Lincoln Alexander School of Law, Ryerson University, and a lawyer at Power Law. We also have. from the Criminal Lawyers' Association of Ontario. Mr. John Struthers, president, and Mr. Daniel Brown, vice-president. Moreover, we have the Indigenous Bar Association of Canada, represented by Mr. Drew Lafond, president.
To the witnesses, each of you will have five minutes to make your opening remarks per organization. I have a one-minute time card and a thirty-second time card to help you keep track.
We'll go ahead and get started with Mr. Sealy-Harrington.
Please go ahead, you have five minutes.
Joshua Sealy-Harrington Incoming Assistant Professor, Lincoln Alexander School of Law, Ryerson University, and Lawyer, Power Law, As an Individual
I want to begin by thanking the Standing Committee on Justice and Human Rights for inviting me to appear today to speak about the pandemic and the criminal justice system.
I have only five minutes, so I'll cut straight to the point. In many ways, COVID-19 has not created new problems for criminal justice, but rather, exacerbated existing ones.
With this in mind, the state should not be making minor individual changes to respond to COVID-19; rather, the state should be making major structural changes to respond to persistent systemic disadvantages, and thus, comply with constitutional obligations it has long neglected, particularly for Black, indigenous and low-income people.
Specifically, to stem the tide of prosecutions overburdening our courts, I would urge this committee not prioritize increasing investment in carceral institutions, but instead, to decrease our reliance on them.
With respect to the prior witness, Mr. McCarthy, the just response to pervasive constitutional violation is not to license that violation with the notwithstanding clause, but rather to remedy it. To be clear, there is nothing non-partisan about thinking that the best response to a constitutional defect is to let it continue for five years.
I will briefly discuss two key points to advance this thesis: one, the problem, and two, the solution.
First, let's start with the problem. It is not COVID-19, and the Canadian government conceded as much in this year's budget. Two examples, drugs and safety, are illustrative.
With respect to drugs, the Canadian government recognizes that the opioid epidemic was worsening before the pandemic began and that the pandemic has simply compounded the ongoing opioid overdose crisis in Canada.
With respect to safety, the Canadian government recognizes that crime has root causes, independent of COVID-19. True, pandemic-related job losses and financial stresses have increased rates of gender-based violence, for instance, but these structural conditions are not unique to the pandemic. Indeed, the government is well aware that access to jobs, education and stable housing make communities safer by helping to end the cycle of crime.
What solutions should the government consider? Again, drugs and safety are illustrative.
With respect to drugs, the government has declared that its taking a public health-centred approach to addiction, yet it persists in criminalizing simple drug possession. This is incoherent. As activists in communities with the vulnerable and racialized populations impacted by punitive drug policy explain, decriminalization is urgently needed, especially by a government that purports to be committed to fighting systemic racism.
With respect to safety, the government's response overemphasizes increasing prosecutorial capacity and a well-funded police service with improved training processes. But how does policing respond to the root causes and structural conditions the government itself knows lie at the origin of crime? Those conditions cannot be addressed without significant investment, and investment means freeing up government money. For this reason, myriad community organizations have united in calling for defunding police, dismantling carceral institutions, and building alternative systems that focus on the very conditions the government itself acknowledges contribute to crime, for example, housing, health and education.
If, as the government concedes, the aftermath of gender-based violence costs Canadians billions annually, then actually addressing the conditions that lead to that violence, even if it demands unprecedented public investment, is ultimately prudent fiscal policy.
To be clear, the policy positions that I am describing are not unrelated to criminal justice trials and court delays; they are foundational to them. For instance, to reduce court delays the government plans to add 13 new superior court positions. This will not work. One reporter recently described court staff as being totally overwhelmed and overworked, with scheduled hearings not proceeding and vulnerable justice system participants left in profound confusion.
In my understanding, simple two-day trials are currently being booked into March of next year. The system is, without question, overwhelmed. The pipe is bursting and we cannot fix it by frantically taping over holes as they inevitably appear; rather, we need to turn off the source and that means systemic reforms, including ceasing policing and prosecution of administration of justice offences and drug possession.
In sum, if this committee wants to decrease delays in the criminal justice system, a crisis long predating the pandemic, it must decrease criminalization, policing and prosecution. Other modest tweaks will simply not do. The longer this government delays implementing such changes, the longer justice will be denied to everyone, both victims and accused alike.
Thank you.
Liberal
The Chair Liberal Iqra Khalid
Thank you very much, Mr. Sealy-Harrington.
We'll now go to the Criminal Lawyers' Association of Ontario. You have five minutes between you.
Daniel Brown Vice-President, Criminal Lawyers' Association of Ontario
Good afternoon, Madam Chair, vice-chairs and honourable members.
Criminal cases are more complex and consume greater court resources than ever before. We all know that lengthy court delays can violate an accused person's constitutionally protected right to a trial in a reasonable amount of time and lead to charges being stayed. Ongoing and repeated delays in the court system caused by the COVID-19 pandemic can also diminish the public's confidence in the criminal justice system, which is fundamental to its operation.
The answer isn't to give up and to ignore constitutionally protected rights, as advocated by Mr. McCarthy in the last panel. The Criminal Lawyers' Association believes that the answer to COVID-related backlogs in the court system is to enact policy changes that will ensure the system has both the time and resources to focus on the most serious cases and those that just simply can't be solved without a trial.
In our time here, we'll focus on three suggestions that will help remove cases that are clogging up the court system but shouldn't be. Number one is to remove barriers to resolving cases without a trial. Number two is to divert administration of justice offences out of the court system. Number three is to decriminalize drug possession offences.
The decision about whether or not an accused person should proceed to trial can be heavily influenced by the sentencing consequences of a particular crime. A person is far less likely to plead guilty if there are consequences that impact their immigration, their employment or will simply incarcerate them for a long period of time. These significant consequences act as barriers to solving cases without trials. One of these barriers is mandatory minimum sentences. I don't just mean mandatory minimum jail sentences, but mandatory minimum consequences that flow from certain criminal convictions.
Drinking and driving convictions, for example, require the sentencing judge to impose the mandatory criminal record in every single case, even for a first offender who's barely over the legal drinking limit. These otherwise resolvable cases are clogging up the courts. It's no coincidence that drinking and driving offences are one of the most litigated categories of cases and one of the offences that frequently breaches the delay ceiling set by the Supreme Court in the Jordan decision. Eliminating mandatory sentences would drastically reduce the number of cases that go to trial, which would, in turn, ensure timely justice for other cases in the system.
Another barrier to resolving cases is the five- to 10-year waiting period a person with a criminal conviction must endure to have their criminal record cleared through the record suspension process. The proposed changes in Bill C-22, introduced by this government, address some of these barriers, including the elimination of some mandatory minimum sentences, but fails to address other ones like the drinking and driving mandatory convictions. Bill C-22 also fails to address the barriers to obtaining record suspensions, including the prohibitive costs and lengthy wait times.
Another way we can reduce backlogs in the court system is to divert administration of justice offences from the system all together. These offences, including failing to appear in court and failing to comply with a court order, account for more than one in five cases right now in our justice system. Following Senate recommendations in 2017, the government changed the Criminal Code to include a process whereby the police or the prosecutors could now opt to not charge somebody and opt not to prosecute them for one of these offences. Instead, they can refer them to a judicial referral hearing where a judge would potentially tweak the bail release plan or decide to reincarcerate the person. This regime avoids piling on criminal charges, which come with their own requirements for disclosure, meeting with the prosecutor, guilty pleas, trials and sentencings.
Unfortunately, these diversion tools simply aren't being utilized by the crowns or the police who must initiate the referral hearing process. This new regime designed to reduce some 175,000 cases in our system is lying dormant. The solution here is simple: Remove those barriers that prevent either a judge from referring a case or place discretion completely in the hands of the police and the crowns.
A similar concern exists with the increased discretion afforded to prosecuting low-level drug offences. Bill C-22 goes some way toward decriminalizing these offences by encouraging prosecutors to divert some drug cases out of the system in favour of drug treatment programs. Placing discretion to divert these charges entirely in the hands of prosecutors and the police creates obvious problems. For example, will they use this discretion?
We're also concerned about whether this discretion will be applied equitably. We know that discrimination and bias run rampant through the justice system, adversely impacting indigenous and black defendants far more than any other race. If we accept that drug addiction is a public health issue, not a criminal law issue, we shouldn't be prosecuting these cases at all.
In conclusion, removing barriers to guilty plea resolutions and diverting drugs and access to justice offences from the justice system would free up precious court time and resources that could be redeployed to other cases in danger of being tossed for unreasonable delay following the COVID-19 pandemic, and ensure timely justice for victims and accused persons.
Thank you.
Liberal
The Chair Liberal Iqra Khalid
Thank you very much, Mr. Brown.
We'll now go to Mr. Lafond.
Mr. Lafond, I know that your headphones are downstairs in your reception area, but maybe you could try to speak loudly and slowly to ensure that we get the best interpretation possible. Perhaps you can send somebody downstairs to pick them up, so, at least with the questions and answers, we can capture your voice as much as we can.
Please go ahead. You have five minutes to make your opening remarks.
Drew Lafond President, Indigenous Bar Association in Canada
Okay, absolutely, I'll work on that.
Thank you for the invitation today.
[Witness spoke in Cree as follows:]
Mitoni miyo kisêpâyâw kahkiyaw nîtîsânak êkwanima totamahk. Miwâsin mitoni kinaskomitinawaw kahkiyaw asamina ôta ê-pî-tohtêyêk.
[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 once again for being here.
[English]
My name is Drew Lafond, and I'm here on behalf of the Indigenous Bar Association. I'm serving currently as the president in my second year of a two-year term. The IBA is a national, not-for-profit organization comprising indigenous lawyers, judges, law—
Liberal
The Chair Liberal Iqra Khalid
I'm so sorry, Mr. Lafond, but there seems to be some kind of an interruption in your sound. Maybe we should just wait for your headset to arrive before you make your opening statement.
In the meantime, would members feel comfortable if we went into the round of questions, or do we want to wait for Mr. Lafond's opening statement?
Go ahead, Mr. Moore.
Conservative
Rob Moore Conservative Fundy Royal, NB
Madam Chair, I could hear Mr. Lafond perfectly before he put the earbuds in. I don't know if that's going to make any difference. I could hear him perfectly earlier, but then he was asked to put earbuds in and now, as you said, it's very difficult. I don't know if that's worth trying so we can hear the testimony before questions and answers.
Liberal
The Chair Liberal Iqra Khalid
The challenge, Mr. Moore, is with the interpretation so that members have access to that interpretation into French. That is the main issue.
Mr. Lafond, if you want to perhaps try again without your headphones, maybe we can do that.
President, Indigenous Bar Association in Canada
Good morning, can you hear me now?
Liberal
The Chair Liberal Iqra Khalid
Yes, and I'm just going to pause you and go to Monsieur Fortin.
Monsieur Fortin, are you getting any translation? Are you able to understand the witness?
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Yes, I am hearing the interpretation in French.
I understand that we don't have the witness's text, his notes. They may have been useful.
We can begin with the other witnesses, as you suggested. That may be simpler. It's up to you.
Liberal
The Chair Liberal Iqra Khalid
Okay, thank you, Monsieur Fortin.
Perhaps we'll go into our first round of questions as we wait for Mr. Lafond's headset. Once it has arrived, we'll give him his five minutes and get back into the questions.
We'll start with Mr. Lewis for six minutes.
Conservative
Chris Lewis Conservative Essex, ON
Thank you, Madam Chair. I certainly appreciate it.
My first question is for Mr. Brown.
Sir, you spoke a lot about backlogs within the justice system and that type of processing. Obviously, we have quite a case on our hands with a lot of people getting fines. When I speak to that, I mean people who are arriving by plane at our airports and saying, “You know what? I'm not even going to bother going to do a 14-day quarantine. Just give me that fine.” I mean people who are coming across our borders and saying, “I'm not going to quarantine. Just give me that fine.” There will be an extreme backlog with what the courts will be facing in this respect, because people are not going to pay it, quite frankly.
Could you comment on where this is going to go? Are the courts just going to throw these cases out? You were speaking a lot about drinking and driving cases, and I respect that, but I'd like to go down a different path. Truthfully, I believe the court system is going to be stretched to the limits. I'm wondering if you could comment on what this will look like, going forward. I believe you mentioned that the courts are looking into March of next year. Potentially, we could be talking about March of 2025. What happens in that circumstance?
Vice-President, Criminal Lawyers' Association of Ontario
Mr. Lewis, what I can say is that the courts don't just have this ceiling that, once it's breached, is an automatic violation of somebody's charter rights. We have to look at the reason why this ceiling was breached. If the case takes too long, we look at why it took too long.
As Mr. Virani said in the last panel, [Technical difficulty—Editor] the court [Technical difficulty—Editor] exceptional circumstances or discrete exceptional events. Things like the pandemic are simply subtracted from the delay assessment. It's as if no delay occurred where the delay that happened because the courts have been shut down is attributable to the COVID-19 pandemic.
I suppose we can assume, as you are, that everyone is going to fight their case or that everyone goes to trial. We simply know that this isn't the case. We know that some people will go to trial. Some of these offences aren't the types that would clog up the criminal court system. They are what we call provincial offences. They are things like traffic tickets and parking tickets. Again, the sky isn't falling here. We have a situation here where the courts have come up with some great ideas to remedy these problems in the short term. We've offered to you some solutions in the long term, finding ways to get some of these cases that just don't need to be there out of the court system. There are lots of other solutions to come up with.
I don't think we need to worry about simply having these fines being simply dismissed because they've taken too long to come to trial. I think the courts are going to account for the delay, and the reasons behind the delay, in assessing whether any of these cases should be thrown out or simply dismissed.
Conservative
Chris Lewis Conservative Essex, ON
Thank you for that, Mr. Brown.
You mentioned federal and provincial, and herein lies the issue that I see. Our borders and our international airports are very, very federal. In the event that they get a quote-unquote ticket, will that land on the lap of the provincial jurisdiction or will that be federal jurisdiction?
Vice-President, Criminal Lawyers' Association of Ontario
Mr. Lewis, it really depends on who's initiating the offence in the first place. If it's the province that's enacting some sort of bylaw infraction, that's going to end up in the provincial system. If it's some sort of piece of federal legislation that's being violated, that's going to be part of essentially the criminal system, in the same way that drug offences or other offences are prosecuted. Either way, it's the same judges that are likely going to deal with these problems. We have to be prepared for it. We have to acknowledge that these issues may come through.
Again, I don't think the solution is simply, as some panellists have suggested, to suspend someone's constitutional rights indefinitely to accommodate for the ability to prosecute some of these fines. I think the answer is to look at what else we can do to relieve the burden off the justice system. We know that it will be a tragic situation if a victim of a crime has to wait years and years and years for a case to make its way through the justice system, and likewise for an accused person who is facing strict bail restrictions or is in custody. We can't have situation where we just allow those cases to go on indefinitely. We have to find other solutions.