Justice Committee on April 29th, 2021

[Daniel Brown]

Yes.

What I'd also say is that I've touched on a few points here, a few barriers, but there are other ones as well. The unavailability, right now, of conditional sentences for many offences, like fraud offences.... I know that's something the government is trying to reintroduce again in Bill C-22, but it is something where there's an absence of legislation to address a lot of these challenges.

Also, there is the fact that, right now, when somebody is found guilty of a fairly serious criminal offence, they are automatically deported without any right of appeal. There are so many reasons why people refuse to solve their cases, and they hang around the justice system and hang around and go all the way to trial and wait to see if their case gets thrown out for delay because there is just simply no way to solve these cases in advance. We need to find other opportunities to solve cases, to remove those barriers. If we're continuing to eat the same amount, we have to figure out at least a way to get rid of these cases that are in the system so that we can make room for these other cases.

[The Chair, Liberal, Iqra Khalid]

Thank you.

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

I thank each and every one of you.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Fortin.

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

Please go ahead.

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

Thank you very much, Madam Chair.

I'm going to resist the temptation to use my entire six minutes to applaud this panel. I think it is very important that they've directed our attention to the root causes of delays in the system and to the importance of protecting constitutional rights.

We will have opportunities in Parliament to discuss other bills that deal with some of these questions, and I hope that we will see these witnesses come back to give us further input on Bill C-22 and Bill C-23.

I want to take the time today to talk about one of my concerns: that our shift to the Zoom platforms during COVID, while necessary in an emergency, may make some fundamental changes in our justice system, which I believe will disadvantage indigenous people, racialized Canadians and those who live in poverty.

I'd like to hear from each of the witnesses what they think about this shift of platforms and its impact on those who are most marginalized in the justice system already.

Maybe I will start with Mr. Sealy-Harrington.

[Joshua Sealy-Harrington]

Madam Chair, what I would say in response to concerns about shifting to, primarily, digital forms of dispute resolution would be that it's integral to the committee to adopt a systemic lens in terms of how it vets different digital options. What I mean by that is that I'm thrilled to hear Mr. Garrison reference concerns about systemic disparities, about the ways in which different procedural paradigms can have a disparate impact on different groups. I think that's true.

To be frank, I haven't been running trials during COVID, digital or otherwise, so in that sense, I would defer to the Criminal Lawyers' Association in terms of their perspective on the consequences of this for disparate groups.

I could see circumstances where it's very important and other circumstances where it has negative consequences, so I think the contribution I can make to this conversation is to say that it is foundational to be thinking not only about procedure, what works and what seems fair in an abstract sense, but also about the material consequences.

An earlier individual during this meeting spoke about how one of the benefits of logistical complexities with certain hearings is that it pressures people toward settlement. I would say that a systemic lens would raise concerns about that. If there is pressure toward settlement because of financial limitations, that's a systemically racist policy, full stop.

That systemic lens is very important, but in terms of specific procedural ideas, I would defer to the other witnesses who would have more personal experience with that.

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

Thank you very much.

Let's turn, then, to Mr. Struthers and Mr. Brown.

Maybe you two can decide who wants to go first.

[John Struthers]

I will go first, if I could.

I've dealt with multiple matters over Zoom, everything from peace bonds to murder prelims over the past year. There were very serious cases, including sexual assault cases. I did one case where I was the only person on Zoom. Everybody else was in the courtroom.

The problem isn't the technology. It's a tool, and used properly, it can be used very well. Counsel can now appear in Attawapiskat on a Tuesday. They couldn't otherwise because it would take them three days to get there and get home.

Here's the problem. We have a charter right to retain and instruct counsel. The “retain” part seems to have gone sideways because we have an enormous number of self-represented litigants, both in civil and criminal cases. The problem isn't really what technology you use. Impoverished people may not have MacBook Pros to come to court via. That, of course, is a very serious issue, but the most serious issue is that they don't have a lawyer.

Legal aid has been so dramatically cut—in Ontario by one-third—and not topped up by the federal government, particularly, as you know, in the criminal context for many years, that we have thousands and thousands of people who are self-represented in the system.

This is enormously problematic for delay. If you're trying to speed things up, believe it or not, there are some circumstances where lawyers are actually helpful. One of them is in the criminal justice system, because if you don't know what you're doing, it's going to take much longer. Of course, the judge has to effectively become your surrogate lawyer by explaining every step of the procedure, every step of the way, and presenting all of the evidence because you're not effectively able to admit it.

Legal aid is a critical issue. It's much more critical than whether you're appearing in person, on Zoom, on Teams or whatever format you want to use.

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

Thank you very much for that, Mr. Struthers.

I'm afraid of running out of time, so I want to turn to Mr. Lafond and ask him, first of all, if he would table with the committee the report by the Indigenous Bar Association. I think it would be useful for this study and other work we're doing. I would also like to ask him the same question about this shift to digital platforms and its impact on the people he represents.

[Drew Lafond]

The Indigenous Bar Association would be happy to table the report with the committee when it becomes available. We're currently working with the University of Saskatchewan to get all of our ethics approvals in place and to finalize the drafts. The report itself is subject to a SSHRC grant, so there are some administrative hoops we need to jump through before we can finalize it and get the sign-off for it. Upon completion, we would be happy to share the results of the report with you guys.

When it comes to the issue of virtual representation in communities, the IBA had the opportunity to meet with the staff of the justice minister's department. We had raised with them the possibility of discussing the 21 reports published in the last 30 years that outline the difficulties indigenous peoples face with the justice system.

Substantively, I don't think this is a brand-new area. The relationship between indigenous peoples and the justice system is probably one of the most extensively and heavily studied topics in Canada right now. It's not a matter of actually going back and getting more commissions at this point. It's a matter of implementation, and that's where we got our recommendations from. Again, there are 10 recommendations that we want to see implemented in the immediate future.

The problem we had with respect to the discussion about virtual representation in communities was that this was raised during our discussions with the minister's staff about the increase in digital platforms and what that would mean for indigenous peoples—

[The Chair, Liberal, Iqra Khalid]

My apologies, Mr. Lafond, but we're really running short on time. Can I perhaps ask that you provide a written response to the remainder of the question? That would be helpful to the committee.

We will now go into our second round of questions, starting with Mr. Moore for five minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thanks, Madam Chair.

Thank you to our witnesses for appearing today.

We're studying the impact of COVID on the justice system. I know some of what we have talked about today deals with matters that pre-existed COVID.

We heard from panellists earlier this week about how courts in high-pressure situations have had to adapt, in much the same way that we, as parliamentarians, have had to adapt. We're conducting this meeting today by Zoom, which just didn't happen in the past.

Mr. Brown, from what you're hearing from your association's members, is there one thing that has come out of COVID that you would say we should keep in the future? Is there something solid, something that should be built upon? Also, is there an aspect of our current situation, specifically the response to COVID, that you think we should abandon?.

On either of those, what comes to mind for you?

[Daniel Brown]

Madam Chair, COVID really has been a blessing in some ways when it comes to the technological advances in our justice system. We can now file documentation digitally, we can conduct court appearances digitally, and we don't need to drive to court to pick up evidence packages, which now can all be produced digitally. These are great time-saving functions. They're making the justice system more efficient. They're reducing the number of court appearances that need to take place. This should all be encouraged.

What we don't want is a system where there's absolute rigidity when it comes to how we make our court appearances. We don't want a situation where every trial is mandated to proceed by Zoom or where every witness must appear remotely. There are some cases where that works perfectly fine, and other cases where that harms the administration of justice, where in order to make full answer and defence, we need the witnesses in the room.

To the extent that we can manage public safety and manage available court resources, we also want to be able to maintain that option. As I said, with that greater flexibility, we can allow for opportunities to utilize this technology and reduce delay, and also ensure fairness in the process.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

Mr. Lafond, thank you for your presentation today.

With regard to your membership as well, we did hear concerns about the downward pressure of dealing with criminal cases and then the fallout for some very important cases, like family law matters and how delays there are problematic as well. What are some of the major concerns when justice is delayed, whether it's in the criminal or the civil context?

I recognize that there certainly was a problem with the system before COVID. We have managed to have some developments that have helped with efficiency. Perhaps you could speak specifically to delays in the system, whether criminal or civil, and how that impacts the system. Furthermore, is there something that has come out of COVID that you would like to see courts and the system maintain?

[Drew Lafond]

Falling short of calling COVID a blessing, I think it's been catastrophic for a lot of the indigenous communities. The results have been horrific for our populations. Mortality has increased and access to health services has been extraordinarily frustrating and slow. In terms of the ability of our elders to recover from this, the long-term effects have yet to be seen.

When it comes to your specific question on delays in the justice system, this point wasn't actually a point that was heavily emphasized in the report that we conducted with the University of Saskatchewan. Again, going back to my presentation, the participants in the survey spoke largely about jurisdictional issues. The questions and their focus weren't heavily on the delays, although they noted that delays to the justice system exacerbated some existing procedural issues that had been identified by previous reports and commissions.

The real issue is that this needs to be seen as an opportunity to fundamentally and systemically restructure the justice system in the ways we identified earlier today and in our correspondence to Justice Minister David Lametti's office on numerous occasions.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thanks very much.

We'll now go to Ms. Damoff for five minutes.

Go ahead.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Chair.

It is an absolute pleasure to join this committee today.

Mr. Brown, you mentioned record suspensions, and I couldn't agree with you more. It's something I was really pleased to see in the budget in terms of dealing with those mean-spirited increases in the record suspension fee, which meant that people couldn't apply. It is in the budget. There are 700 pages there, so I am not surprised if you may have missed that, but it is something that we're committed to changing.

I want to thank all the witnesses today for your testimony. You've been talking a lot about indigenous peoples, Black Canadians and racialized Canadians who are disproportionately impacted by their being touched by the criminal justice system. It costs us $330 a day to put someone into prison, and that's not the place where most of them need to be.

Because you've brought up those issues, I want to focus on Bill C-22, because that bill does include reducing mandatory minimum sentences, drug diversion and conditional sentences. It's dealing with a number of issues that you've all touched on as being of concern.

There was a study that was done of 44 indigenous women—the fastest-growing prison population in Canada—who received conditional sentences prior to 2012. It was found that 36 of them would have been ineligible to receive a conditional sentence under the Harper government restrictions. I met two of them when I visited the Edmonton Institute for Women. They were women who should not have been in jail, and because they were in jail, it was going to impact the rest of their lives.

I'm just wondering if each of you could maybe talk a bit about how important it is to get Bill C-22 passed—and passed quickly.

[The Chair, Liberal, Iqra Khalid]

That was for Mr. Lafond, I believe.

Go ahead, sir.

[Drew Lafond]

Sure, I can chime in on this one.

On Bill C-22, again, we've had a lot to say to the minister's office on this point specifically. Our written correspondence outlines that while we're pleased to see some changes that reflect some of the calls to action—specifically, call to action 32—there's nothing of any substantive or systemic value in Bill C-22 or Bill C-23.

We've raised 16 points—10 immediate action points need to be addressed today. They need to be addressed immediately. They've been studied extensively and repeatedly and, again, set out in 21 commissions, reports and studies over the last 30 years. The problem we have with Bill C-22 and Bill C-23 is that the scope of their focus is too narrow and doesn't focus on any of the systemic items that we've identified need to take place immediately.

Just to name a few—I've named 10 already in my initial presentation—there are others that we've communicated: addressing over-policing and over-criminalization of indigenous peoples; implementing a multi-pronged indigenous de-escalation strategy; and ensuring appropriate systems are in place for carefully and systemically investigating reports of crime and violence against indigenous victims. These are systemic items that have been identified on numerous occasions, and what we lack right now is the implementation.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, although mandatory minimum sentences, drug diversion and conditional sentences are also important.... I'm not arguing with you that there is a lot more that needs to be done, but I think that for a number of people who come in contact with the criminal justice system, those would make a difference.

I'm wondering if Mr. Brown and Mr. Sealy-Harrington want to add any comment.

[Daniel Brown]

Madam Chair, I'm happy to address this.

I can say that we really do applaud the government for introducing these changes to conditional sentences. I think they're going to make a huge difference.

It takes $330 a day, in fact, on average, about $100,000 a year, to house an inmate in custody. That $100,000 a year could be used for education programs, for addressing at-risk youth or even for hiring a prosecutor to get through some of these other cases. There is absolutely no reason not to bring these types of things back and to allow more people to simply resolve their cases without having to go to trial, to avoid these mandatory harsh jail sentences.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Does Mr. Sealy-Harrington have time to respond, Chair?

[The Chair, Liberal, Iqra Khalid]

You have 15 seconds or less.

[Joshua Sealy-Harrington]

Madam Chair, I'll just say that I spoke with Senator Kim Pate about my concerns about Bill C-22. If you listen to that interview, you'll be able to hear a detailed discussion about my support of certain aspects of it, but also my significant concerns with it.