Justice Committee on April 29th, 2021

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Mr. Garrison.

I will now go into our second round of questions.

Mr. Cooper, please go ahead.

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

Thank you, Madam Chair, and to the witnesses.

I'm going to direct my questions to Mr. McCarthy.

I want to pick up on the Jordan decision. It goes without saying that when the presumptive ceilings were established, it obviously was long before the court could have possibly contemplated something like COVID. Can you speak to how the courts have addressed COVID in the context of Jordan to date? Is there anything we should be looking for?

[Todd McCarthy]

Well, certainly, remote appearances on routine criminal matters are being embraced. They were looked at even before COVID, but now they're being embraced more than ever.

Why should someone have to be brought from a distance while being in custody—if they were denied bail pending trial—just to make a one-minute court appearance to set a new date for a preliminary inquiry or a trial? That just is a waste of time and resources.

Even in criminal cases where the liberty of the subject is at play—the liberty of the subject being a very important consideration—in-person appearance is not always required.

Those kinds of changes can, will be and should be permanent, but let's face it: Credibility is often a big issue in criminal trials, so the courts have been trying to get to as many in-person trials as they can. However, the COVID-19 restrictions, especially in Ontario recently, have kept pushing back the ability to have, for example, in-person jury trials until, at this point, after June 7 in most venues in Ontario and after July 5 in Toronto and Peel.

The courts are just dealing with it. They're hoping for plea bargains. They're hoping for resolution. I can tell you, having done all kinds of litigation—I am a civil litigation specialist like Mr. Maloney was—I did defend our fellow citizens accused of offences, and, boy, what a great defence to be able to raise the section 11(b) defence. I successfully raised it for many of my clients, rightfully so, invoking the proper charter right.

However, should this become a mass amnesty? Does this create a scenario where we have to, virtually or otherwise, deploy judges for criminal cases to save those cases from being stayed, and then not get there in time, while in the meantime having ignored other cases? That's why we're in this crisis, and it's going to get much worse before it gets better.

The courts are doing the best they can, but they need help from this Parliament on this issue.

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

Thank you for that.

I want to ask you a little bit about virtual hearings and some of the concerns that have been raised. For example, at our last hearing, Madam Justice Lynch raised concerns with regard to the open court principle and whether that could be truly respected in the context of virtual hearings. There were issues of privacy concerns—for example, going in camera. There were also issues around using private platforms from a privacy and security standpoint.

Could you address those three issues?

[Todd McCarthy]

I sure can. It depends on the case, Mr. Cooper.

For appeals on questions of law, the open court process is actually enhanced by Zoom because more people can get access to a hearing before three judges of an appellate court or even the Supreme Court of Canada through Zoom. That's a wonderful new form of technology in open court, and we should embrace it.

However, you're right. There are trials at the trial court level where there are real privacy concerns, where people are recording the testimony of witnesses even when they're told that they can't and that it's an offence to do so. How do we check that? How do we protect the witness who does not want to be identified? Even jurors, as we know, in the recent George Floyd trial in the United States, were kept away from the general public so that they could not be identified by those viewing the case.

Everyone has an interest in an open court system, but particular cases do require the control that comes from in-person hearings, and it is case-specific.

[The Chair, Liberal, Iqra Khalid]

You've muted yourself, Mr. Cooper.

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

I think my time is just about to expire, but maybe I'll just go to the point of private platforms and the use of private platforms such as Zoom. What are your thoughts on that from a privacy and security standpoint?

[Todd McCarthy]

Our courts in Ontario have fully embraced the Zoom technology, and it's working extremely well just because.... It's a concept of private-public sector partnerships in a way. It's a good platform from the private sector. It's been chosen over others. The court was free to do that, and it dealt with it very thoughtfully and carefully before it embraced it.

[The Chair, Liberal, Iqra Khalid]

Thank you.

Thank you very much, Mr. Cooper.

We'll now to go Mr. Virani for five minutes.

Go ahead, sir.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Thank you, Madam Chair.

I'm going to direct my questions to Mr. McCarthy.

Welcome, Mr. McCarthy.

In the context of addressing some of the issues you've highlighted, would you say with respect to unrepresented accused that allowing court officials to assist them in administrative matters would be a step in the right direction?

Second, with respect to preliminary inquiries, would you say that allowing an accused to appear by video in a preliminary inquiry and a trial on consent, including when evidence is taken, would be step in the right direction?

[Todd McCarthy]

These are two very separate but important issues. I was a duty counsel in my younger days, when you had per diem duty counsel. The presence of an individual who can assist and advocate not only helps the individual unrepresented litigant in family and criminal cases in particular; it also assists the court to make sure that people are steered in the right direction. That's a very important feature. That's for the provinces to fund. I think there's a place for volunteerism, too, among duty counsel.

With respect to the second question, can you remind me of that again?

[Arif Virani, Liberal, Parkdale—High Park, ON]

It was about preliminary inquiries and ensuring that an accused can appear by video in a preliminary inquiry and a trial on consent.

[Todd McCarthy]

Right.

There are many who say that maybe we have to end the preliminary inquiry, because it's largely a discovery mechanism, but certainly in terms of being present before the court—a preliminary inquiry really is about hearing the evidence, maybe testing the evidence and sometimes getting a committal on a lesser offence—I submit that it's a very good and proper use of the accused not having to necessarily be there in person, but rather remotely. It really is a discovery process. His or her liberty is not truly at stake in a preliminary inquiry.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Right.

I want to address some of the aspects of Jordan that you talked about at length with some of my other colleagues. I agree, as a former litigator, that obviously judges are not infallible. That's fair, but with the Jordan case, I feel like it's been—

[Todd McCarthy]

Don't tell them I said that.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Fair enough. You're appearing before them still, and I'm not right now.

What I would say is that it appears we're giving a bit of short shrift to the decision itself. Paragraphs 69 to 71 of the decision in Jordan talk about exceptions and extenuating situations. It wasn't as if the judges crafted the rule to be ironclad. At the end of paragraph 71, they indicated the following:

Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

To my mind, and I'm wondering what your opinion is, wouldn't the pandemic be considered an exceptional circumstance?

[Todd McCarthy]

Yes. It is. No doubt a judge applying Jordan, in the wise words you just quoted, would perhaps use the fact of the COVID pandemic to not grant a stay. But remember, every time you deploy a judge to a criminal case to deal with anything, because it's a priority over all of the other cases because of Jordan, you've just used judicial resources that can't be used in other types of cases where there aren't time limits.

So you're missing the point, with respect. I'm saying that a pause is necessary on this issue so that judicial resources are not deployed as a priority in criminal cases at the expense of family, child protection and civil cases. That's what's happening. We need a pause on the monopolization of our judges in the superior courts across the country because of the effect of the Jordan case and its unintended consequences. They didn't foresee the pandemic coming. You can't just deal with that on a case-by-case basis, because if you do, you're tying up judicial resources and you're just compounding the problem.

[Arif Virani, Liberal, Parkdale—High Park, ON]

I have just a minute left here, but I'll confess to you that you asked for a conversation to take place, and conversations have already taken place. Some of the changes that I put to you at the start of my questioning already exist in Bill C-23. That bill is the product of conversations. We don't have any instances of any provincial leaders or attorneys general asking the federal minister to invoke the notwithstanding clause.

You'll forgive me for thinking that maybe this is a bit ideological, because we know it's been used by certain governments, including by the government in the province where I am located. I know you've been a candidate for the provincial Conservatives in Ontario and a candidate for the federal Conservatives. So is your interest in invoking the notwithstanding clause simply based on ideological perspectives?

[Todd McCarthy]

Mr. Virani, not at all. I will be happy to report to you that I've been a candidate for the Conservative Party of Canada, but I've also voted for Liberal and NDP and Green candidates whom I respect and who have run in my ridings.

I'm non-partisan on this. I come to you as a counsel and advocate before the court. I am currently on the rules subcommittee on experts for the civil justice rules. It's a plea for help for our courts.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Mr. McCarthy and Mr. Virani.

We'll now move on to Monsieur Fortin for two and a half minutes.

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

Thank you, Madam Chair.

Mr. McCarthy, I feel discriminated against, as you have not mentioned that you voted for the Bloc Québécois in the past. So I am probably the only one here you have never supported.

That said—

[Todd McCarthy]

I've been voting for 40 years, but I've never lived in a Quebec riding, Mr. Fortin. Sorry about that. I would probably vote for you if I could, because I respect you very much.

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

Mr. McCarthy, just quickly, as I have only two minutes left.

I understand the principle of the discussion you wanted to launch in order to do away with the time frames imposed by the Jordan decision during the crisis.

I also understand my colleague Mr. Virani's arguments, which are correct. Some provisions make it possible to deviate from it, in exceptional circumstances.

That said, Mr. McCarthy, would you not agree with me that the issue with unreasonable time frames, when it comes to the administration of evidence, did not start a year or two ago? That was a problem well before the Jordan decision. Issues with time frames are very old news. They go back years, even decades.

Don't you think it would be time to consider a different way to hold trials?

For example, plea bargaining is often talked about. Is there a way, even in civilian matters, to make a mediation stage mandatory, so that people would have to talk to each other before the court sets a trial date?

Couldn't the appointment of new judges help increase the number of hearings and eliminate or mitigate this issue of unreasonable time frames?

I would like to get your opinion quickly, as I am being told that I have one minute left.

In your opinion, aside from the Jordan ruling being suspended, could other measures be implemented to resolve this issue?

[Todd McCarthy]

Those measures have been implemented, and are being embraced. In fact, the system would collapse without mediation and pretrials.

However, this is about the use of judicial resources in courts of general jurisdiction. Judges are being monopolized by criminal cases in the adjudication, even of these stay motions, at the expense of other very important cases in family child protection and civil justice.

That's the problem. We're talking about the court system, not the settlements that are reached because of these measures outside the court system. It's been widely embraced, and it's working. This is about judicial adjudication.

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

I apologize, but time is running out.

Correct me if I'm wrong, but mandatory mediation is not in place, even in Ontario. Perhaps you are asked, like in Quebec, to report that mediation was proposed, but it is not mandatory.

Is there an obligation?