I call this meeting to order.
This is our 30th meeting of the House of Commons Standing Committee on Justice and Human Rights. Today we have Andy Fillmore replacing MP and Julie Dzerowicz replacing .
Welcome, Andy and Julie. It's great to have you in our committee.
To ensure an orderly meeting, I will outline some rules, especially for our witnesses who are here today.
Take note that at the bottom of your Zoom screen, interpretation services are available. Select the interpretation service that you'd like to listen to. You should be able to speak in the language of your choice, either English or French. Before speaking, please wait until I recognize you by name. Then unmute yourself, and once you're done speaking, please mute yourself again. Keep your microphone on mute.
I'll remind you that all comments by members and witnesses should be addressed through the chair. With regard to a speaking list, Mr. Clerk and I will do our best to maintain one. If you would like to speak, you can use the “raise hand” function at the bottom of your Zoom screen to alert me to your inquiry.
Before we start our study on the impact of COVID-19 on the justice system, we have to approve the report from the subcommittee meeting that we had last Thursday. The report was distributed electronically to members yesterday. If there are no comments on it and if everybody agrees with it, we shall have it carried.
Can I have a thumbs-up from members for it to be carried?
Great. The report carries. Thank you, everyone.
Now I would like to welcome our witnesses.
From the Action Committee on Court Operations in Response to COVID-19, we have the Honourable J. Michael MacDonald, who is the former chief justice of Nova Scotia and of the Nova Scotia Court of Appeal, and Renée Thériault, who is the executive legal officer in the chamber of Chief Justice Richard Wagner in the Supreme Court of Canada.
We also have The Canadian Bar Association, represented by Jody Berkes, who is the chair of the criminal justice section.
Finally, we have the Canadian Superior Courts Judges Association, represented by the Honourable Madam Justice Mona Lynch and the Honourable Madam Justice Kristine Eidsvik, who are on the board of directors.
To each organization, you have five minutes to make your opening remarks. I have a one-minute deadline and a 30-second one so that you can keep track of your time.
Thank you once again for being here today. We'll start with J. Michael MacDonald and Renée Thériault.
You have five minutes. Go ahead.
Thank you, Madam Chair.
Thank you, everyone.
Mr. MacDonald and I are pleased to be speaking to the honourable members of your committee about the Action Committee on Court Operations in Response to COVID-19.
As an executive legal officer at the Supreme Court of Canada, I am an ex-officio member of the action committee. I would like to take this opportunity to thank the co-chairs of the action committee, the Right Honourable Richard Wagner, Chief Justice of Canada, and , for inviting the Honourable Michael MacDonald and myself to talk to you about the work of our action committee, which has now been in place for over a year.
We are using this opportunity to applaud the wise initiative of the Standing Committee on Justice and Human Rights to consider the impact of the pandemic on the justice system, so that fellow Canadians can continue to benefit from a system that protects their rights and their interests while ensuring their safety. It is actually this dual commitment—in other words, ensuring both access to justice and a safe health context to do so—that guides all of the action committee's work.
So I propose to speak briefly to you about the action committee's mandate and composition. I will then yield the floor to my colleague, Mr. MacDonald, who will discuss our work in terms of the pandemic's impact on legal activities.
The action committee was established in May 2020, shortly after the pandemic began. It acts as a national leadership body that helps courts and officials responsible for the administration of justice safely restore court operations across the country. The courts and officials have ensured to do their best to fulfil their judicial mandate, despite court houses having to close owing to the health crisis.
In addition to the Chief Justice and the , the action committee has three members of the Canadian Judicial Council, as well as representatives of the Canadian Council of Chief Judges and the British Columbia Ministry of Attorney General—for the sake of coordination among the provinces, territories and the federal government—and the Public Health Agency of Canada.
The action committee also works with many stakeholders and collaborators. Among others, I'm thinking of the Canadian Centre for Occupational Health, heads of court administration and the Office of the Commissioner for Federal Judicial Affairs, which hosts on its website all the work produced by the action committee.
Bolstered by those partnerships, the action committee is a national consultative forum—and I emphasize its consultation mandate—for promoting non-prescriptive guidance and fostering communication, information sharing and collaboration between the executive and judiciary branches, which is no small matter. In fact, that is without a doubt one of the most positive lessons of the entire undertaking.
As its name suggests, the action committee mainly deals with operational issues that arise within the legal system owing to the pandemic. Its work extends to provincial, superior and appeal courts dealing with various areas of law, including criminal law, civil law and family law, as we know that the pandemic has had a sliding scale of repercussions. Not all bodies have suffered the same consequences. We will come back to this.
Mr. MacDonald and I would be pleased to answer your questions when the time comes. Without further ado, I yield the floor to him, so that he can talk to you about the specific work of the action committee likely to be of interest to you.
Thank you very much. I see we may be running a little low on time, so I'll be brief.
It's an honour for me to appear before you yet again this year. I appeared last March in my capacity then as interim executive director of the Canadian Judicial Council, and I think we attended one of the last meetings before COVID-19 hit in March.
With regard to the action committee, I would commend our website to you. The action committee has listed some core principles. The interesting thing about them is that because it's a collaborative effort, it has core principles from the public health perspective, from the judiciary's perspective and from the court administrator's perspective, so it honours judicial independence but is still able to collaborate.
We essentially do tip sheets, guidance for getting courts back to full operation. Jury trials have been identified in this connection, so we've shopped the country to see who's doing what best, and we're sharing that and coordinating it. We have looked at some case studies and best practices, coordinating those for the individual judges, chief justices, courts of all levels, court administrators and ultimately the people of Canada to get the courts running as efficiently as possible in the middle of this horrible pandemic.
Good morning, Madam Chair and honourable members of the committee.
My name is Jody Berkes, and I'm the chair of The Canadian Bar Association's criminal justice executive. We're pleased to present you with our report, “No Turning Back: CBA Task Force on Justice Issues Arising from COVID-19”.
I join you today from Toronto, from the traditional territory of the Wendat, the Anishinabek Nation, the Haudenosaunee Confederacy, the Mississaugas of the Credit First Nation and the Métis Nation. This land is covered by the Dish With One Spoon treaty.
Thank you for inviting the CBA to discuss the impacts of COVID-19 on the judicial system, especially any delays or impacts on trials in the criminal justice system.
One of the unique things that the CBA criminal justice section prides itself on is that our members come from both the Crown and the defence bars. As such, we bring a unique, balanced, user-oriented focus to our commentary.
The CBA is a national association that brings together more than 36,000 legal experts from across the country. The CBA's main objectives are to improve law and the administration of justice, and it is with this in mind that we are here this morning on behalf of the criminal justice section.
As I mentioned before, in February of this year the CBA published its report, “No Turning Back: CBA Task Force on Justice Issues Arising from COVID-19”. The report highlights two themes. First, there is no turning back from the pandemic-fuelled modernization of the criminal justice system. We must continue these modernizations even after this pandemic ends. Second, new measures in technology must be deployed in a manner that enhances access to justice while ensuring the security of the private information of individuals in the system.
The move to digital courtrooms has enhanced the access to openness of the justice system. For example, in June 2020, Justice Di Luca's decision in Regina v. Theriault was livestreamed, and over 20,000 people watched that decision. Such widespread, first-person access to the justice system would never have occurred pre-pandemic. To this end, in the CBA report, recommendation number 12 states:
Justice system participants including courts, tribunals, and other dispute resolution bodies and bar and media representatives should prepare a tip sheet on best practices to ensure public and media access to courts in a way that respects open courts and privacy principles.
The other issue that I wish to highlight in my opening statement is the need to return to in-person trials. Within the last 12 months, I have personally conducted Superior Court applications, provincial court trials and preliminary inquiries, plea and sentencing proceedings, and routine case remands over the Zoom platform. In many areas, especially routine remands, Zoom reduces client costs relating to travel for counsel. It also allows counsel to assist more clients in different locations, increasing access to justice. Additionally, electronic service and filing of applications as well as provision of disclosure has reduced costs, increased efficiency and reduced paper waste.
Despite these efficiencies, civilian witness testimony represents a major drawback of virtual hearings. Police and expert witnesses are trained that testimony in a criminal case is different from everyday conversations. Courtroom testimony requires formality, accuracy and solemnity, unlike engaging in everyday conversation.
Civilian witnesses receive no such training, and for most, testifying in a criminal case may be a once-in-a-lifetime event. Prior to the pandemic, counsel—both Crown and defence—relied on the surroundings in the courthouse and courtroom to convey the solemnity of the occasion to civilian witnesses. The courtroom trappings signalled that testifying in a criminal case was different from speaking with a friend or even giving a statement to the police.
With the pivot to Zoom trials, witnesses' “courtrooms” occur in the same place they have casual conversations with their friends or relatives, such as the dining room table. Even witnesses testifying from a location within a controlled environment—for example, a remote room in a courthouse or a police station—lack the trappings of the courtroom, the seal of the Crown, the layout of the courtroom and the formality of testifying from a witness box.
Allowing witnesses to testify remotely is a necessary evil of the pandemic. The alternative would have been to shut down trials for over a year. However, remote testimony, even in jurisdictions where transporting witnesses may be challenging, should not become a substitute for trials in the courtroom with all participants present.
Thank you for your time, and I welcome your questions.
I'm Justice Mona Lynch of the Supreme Court of Nova Scotia. With me is Justice Kristine Eidsvik of the Court of Queen's Bench of Alberta. We're representing the approximately 1,100 members of the Canadian Superior Court Judges Association.
As you're aware, not every region or court in Canada reacted or had to react in the same way. Prior to the pandemic, we were still very much paper-based. The pandemic required us to adapt or pivot to use technology.
The increased use of technology and virtual hearings has had the biggest impact on the justice system. That would not have happened as quickly, or perhaps at all, if not for the pandemic, and not everything went smoothly. We were not ready. The search for the right hardware and software continues. Sometimes technology works and sometimes it doesn't.
As you're aware, except in rare cases in Canada, the chief justice or judges don't have control over the funding to support the courts. Co-operation between the branches of government had to be high during the pandemic so that the justice system didn't grind to a halt.
While technology has been good and has increased access to justice, there are issues. Poverty is a major limitation. Not everyone has access to the technology necessary for a virtual hearing. We have places in Canada without good, or any, Wi-Fi, and Wi-Fi is not free. Not everyone has child care and is able to concentrate solely on the court proceeding when they're in their home. We learned very quickly that when a young child wants a parent, the judge is no longer in charge of the proceeding.
While we want to keep the good, we want to stress that in-person hearings are fundamental to the justice system. A colleague of mine was conducting a family hearing by phone when one of the parties said, “Just a minute.” There was silence, and then she heard, “Can I have a medium double-double?”
While that incident is amusing and quintessentially Canadian, it also reveals a lack of respect and attention from participants when the court proceedings are not in person in the courtroom with a judge.
Courts of appeal in Canada adapted to have virtual hearings and continue to do that, but they tell me that virtual platforms do not allow the same back-and-forth with lawyers. Some of the non-verbal cues are missed. Family proceedings moved to deal with urgent cases, such as those in which domestic violence is an issue. We all know about the increase in reports of incidents of domestic violence during the pandemic. You can't make the same connection with parents or parties virtually as you can in person. Civil trials were cancelled in many places. The civil bar has long complained that criminal trials always get priority, and the pandemic made that worse.
We can't come out of COVID and just go back to the way it was. We have advanced the justice system and need to continue with that advancement. We also know that we can never have a totally virtual justice system. There are concerns as to whether the open court principle is truly respected with virtual hearings.
Now I'm going to turn it over to Justice Eidsvik.
Good morning, everyone. It's my great pleasure to be speaking with you from Banff, Alberta. We are here on the land of Treaty 7.
Let me tell you a little bit about the criminal system, because we decided to divide this up. We did a survey with the Canadian Superior Court Judges Association. I looked through all of that with respect to what's going on. There's a fairly similar experience, with some exceptions in the north, which I'll come back to.
There were initial delays of criminal trials—both jury and judge-alone trials—for a few months, but most trials were back in service by September 2020, with some exceptions. The courtrooms were opened up with COVID plexiglass protection and protocols. Trials were rescheduled and resumed within a few months.
Jury trials were much more of a challenge because of the distancing requirements for the jury members in particular. Nonetheless, in most jurisdictions courtrooms have now been built in theatres, convention centres, concert halls, community centres, and, in Calgary, the Stampede Grandstand. Jury trials resumed except in the north, but in some jurisdictions they have been put on hold again. They are now on hold in Saskatchewan and Ontario.
The north and the Northwest Territories, Nunavut and Yukon have not resumed any trials. There is a significant backlog there. More than 60 jury trials are waiting in the Northwest Territories.
The format of trials has changed dramatically. Rarely are we completely in person anymore. We have witnesses, complainants, interpreters and even accused appearing remotely.
I thought I'd give you an on-the-ground example. I'm presently in a multi-week, multi-accused sex trafficking trial that's being conducted completely remotely. The counsel are appearing from Calgary and Edmonton. The accused and complainants are testifying from Montreal. The many police witnesses involved are testifying from Calgary. It is a French trial.
I preside over the trial in French, and all the interpreters are from Calgary.
The plan was for only the complainants to testify remotely, but the crown was exposed to COVID, and in order to avoid yet another adjournment of this long trial, we were able to pivot and do this hearing completely remotely.
Some issues that come up are document management issues, exhibit marking—
Thank you, Madam Chair.
Thank you to a very esteemed panel of witnesses. It's really interesting and fascinating, actually, to hear your testimony this morning about how you have had to respond to COVID-19 and some of your commentary about virtual versus in-person meetings. We're noticing it on Parliament Hill: before COVID, we had never conducted these types of Zoom meetings, and now it's an everyday staple. Your comments regarding what's missing sometimes, when you can not have an in-person meeting, were very interesting.
My first question is for the Action Committee on Court Operations in Response to COVID-19.
Are there any outstanding items now that you feel should be a particular focus? I'm interested in everything that you put together as best steps and action items. Is there anything right now that stands out as a greatest need to keep the wheels of justice moving?
Yes. Thank you very much for the question.
The thing that is most pressing for us right now—in Nova Scotia it changed overnight for us—is to try to stay ahead of this pandemic and to deal with the backlogs. That's going to be a big issue, and it's not just a criminal law matter. Obviously there's a constitutional right to a speedy trial, and that's very important, but when criminal trials bump civil trials, civil trials are delayed as well.
That's an immediate issue. Another issue we're dealing with and working on right now is vaccinations and making sure that there is a two-road approach. We're seeing in real time here in Canada that we have to time it properly so that we don't morph into lessening restrictions on the strength of vaccinations. Just finding the appropriate balance on that is a big issue.
Those two, and dealing with the privacy issues emerging from virtual hearings, are just three examples, Mr. Moore, that are pressing for the action committee right now.
Madam Thériault may have some other examples as well.
I would add in response to the question that initially this action committee was struck in response to the challenges posed by the pandemic. From the outset, we endeavoured to identify the particular pain points. Thus, for instance, criminal jury trials were by far the most pressing issue. That led to a number of recommendations on the part of the action committee for action on that front.
I would add that although this is meant to be temporary, we're also realizing that the pandemic has revealed a number of pre-existing challenges and issues with respect to the justice system, be it the criminal justice system or otherwise, so we have intervened in a number of areas that needed attention even prior to the pandemic.
We're realizing the acuteness of the problem in, for example, access to justice and the impact on the more vulnerable. I think we rightly point out how agile the judiciary has been in pivoting, which is obviously what we have been doing since the pandemic hit, but of course—and I believe it's Justice Eidsvik who has reminded us—not everyone has Internet access; not everyone is able to just log onto a computer and to participate and proceed as they should, because many don't even have access to lawyers.
The action committee has undertaken to look at the justice system through the prism of the pandemic, which is why we're actually considering where to take it from here. It may be that the action committee will still have its raison d'être even when we're all vaccinated.
Thank you, Madam Chair.
Let me echo Mr. Moore's opening remarks about the panel. I really appreciate this.
This issue is also near and dear to my heart. I practised before the courts in Ontario for over 20 years before I went into politics. Six minutes of time here isn't enough, frankly. Justice MacDonald, it's nice to see you again.
We're talking about COVID issues. From my perspective, the challenges during COVID have been or are being addressed. The real issue is what the takeaways are from all of that, and what improvements we can make to the judicial system, the court system and the administration of the courts going forward.
I was very pleased to hear from Mr. Berkes and Justice Lynch and others that going back to in-person trials is a necessity, because I agree. Much of what takes place in legal proceedings are assessments made by judges and juries. You can't see if anybody is in the room with me right now. You can't see if somebody is holding up a sign saying, “That's a bad answer” or “That's a good question”. The solemnity of the court room is bang on. I think it applies equally to other steps in legal proceedings too, like mediations, pretrials, discoveries and civil proceedings. Thank you, Justice Lynch, for mentioning the civil process. It gets overshadowed by the criminal process time and time again in the civil areas where I practise.
This is a very long-winded way of asking whether thought has been given to criteria on when video trials and appeals can be used in place of in-person proceedings. That question is for anybody. I would think we could start with some of the judges on the panel.
That's right. I'm on the ground working on this.
I think on a go-forward basis, with regard to some of the criteria of who can attend or not, right now we have much more flexibility. Let's put it that way. In the past, criminal trial lawyers n particular were very hesitant to have complainants or their accused attend remotely. Now they are seeing the benefits of that happening.
I understand your views, Mr. Maloney, about how it's difficult to monitor a video situation. We're taking lots of steps. If somebody does attend remotely, we have them turn their camera around. The complainant in my case, who is testifying right now, is in a hotel room so that there are no distractions.
All of this is to say that I agree that an in-person hearing is a lot more interesting. It goes a lot more smoothly and it's less tiring, but nonetheless, sometimes our witnesses are out in remote areas and it's very difficult for them to attend in court. This gives us the flexibility and the access to justice that we didn't see available beforehand. I think that is tremendous.
I saw the CBA report, and I read it with great interest. I thought it was a tremendous piece of work. Mr. Berkes, I'm glad you're here. I certainly wouldn't want to see many of the improvements that we've made in conducting trials go away.
The other really important thing that's changed because we're doing things virtually is that the need for digital documents has become crucial. This paper-based world that the court systems were logged into.... There was movement before the trial. I actually did a study on this in 2018, about technology across the country and in the U.S. and the U.K. Canada is very far behind in terms of moving to an electronic digital-based system. COVID-19 has forced us to use more technology. I would hate for that to go away. Even if we're in person, we can use more digital documents and kill fewer trees.
I don't want to hog the stage here, but those are a couple of my thoughts.
As we connect with Monsieur Fortin, we'll resume our meeting.
For members' benefit, I have asked the witnesses from our last panel to stay and to be available for questions and answers for the second round because there was not much of an opportunity, especially for the Bloc and the NDP, to ask questions to this very interesting panel.
At this time, I will introduce our second panel of witnesses.
We have the Canadian Association of Elizabeth Fry Societies, represented by Emilie Coyle, who is the executive director. We also have the Canadian Juries Commission, represented by Mark Farrant, who is the founder and chief executive officer. We also have the Office of the Federal Ombudsman for Victims of Crime, represented by Heidi Illingworth, who is the ombudsperson.
Welcome to our committee. Thank you for being here today.
Just for housekeeping, I have these one-minute and 30-second deadline cards so that you can keep track of your opening remarks. Each organization will have five minutes to present, and then we'll go into questions and answers.
We'll go ahead and start with the Canadian Association of Elizabeth Fry Societies. You have five minutes.
Please go ahead.
Good afternoon, Madam Chair and members of the justice committee.
CAEFS, as we call the Canadian Association of Elizabeth Fry Societies, is a national organization. Our main office is located on the unceded and unsurrendered territory of the Algonquin nation.
We are dedicated to upholding and forwarding the rights of criminalized and incarcerated women, trans, non-binary and two-spirit people, particularly those who are serving federal sentences.
One of the key aspects of our work is the monitoring of conditions of confinement within the federal prisons that are designated for women. The people we work with are disproportionately those who are living in poverty, with mental illness and often with histories of addiction. They are people who have been underserved by multiple systems prior to incarceration, including health care, and so they often enter into their time in prison with underlying comorbidities.
It is not surprising, then, that when the COVID-19 pandemic began in Canada, the fear of contracting the virus was extremely present in the prisons, given the existing health conditions. Add to this the very real risk of being incarcerated in a congregate living environment.
Since the emergence of COVID-19, people in prison have been held under harsh conditions that were not contemplated or foreseen by the courts at the time of sentencing. These have included but have not been limited to the suspension of all programming and visits; adapted movement schedules, such as being allowed out of living units or pods for less than half an hour a day, if at all; limited access to the telephone; limited access to legal counsel; and disturbingly, the reported use of structured intervention units—which are the old segregation units—to isolate prisoners who were showing symptoms.
Based on this, the most important recommendation that CAEFS has for this committee is to immediately push for the implementation of alternatives to incarceration and, in tandem, to resource communities as well as possible so that they can provide the supports that are needed. This recommendation is in line with the latest COVID-19 report from the Office of the Correctional Investigator.
Additionally, given that the harsh conditions were not and could not have been foreseen at the time of sentencing, we are encouraging government intervention to count time served during the pandemic in such a way that it accelerates the timings of release.
I also want to briefly expand upon two of the conditions of confinement that I articulated previously. The first is the sustained lack of access to legal counsel and the second is lack of access to programming.
During the pandemic, lawyers were barred from physically entering the prisons. This was at the beginning. Thus, the reliance on telephones for communication with lawyers became paramount, while at the same time, access to confidential phone calls became extremely limited. In many cases, private phone calls between lawyers and their clients are taking weeks to set up. Some are being asked to use the telephones in their living units, which can be expensive and are not guaranteed to be confidential, given the ability for the Correctional Service to monitor any of the calls in the prisons from these particular telephones.
Where lawyer visits have resumed in some jurisdictions and in restricted ways, prisoners and lawyers alike have been asked to articulate in writing why an in-person meeting is needed, including in some cases providing details about the concerns that will be addressed, which is a clear violation of lawyer-client privilege.
These difficult logistics are for people who have already retained counsel. Actually finding and hiring counsel while incarcerated during COVID-19 presents an additional suite of barriers that are nearly insurmountable without outside support.
Without in-person lawyer meetings, reliance on written materials and communication raises yet another access-to-justice issue, as the rates of literacy for federally incarcerated people are considerably lower than for the rest of the population in Canada.
In sum, during COVID-19, the right to legal counsel for incarcerated people is being treated as an inconvenience. Thus, access to legal counsel should be prioritized and should never be considered conditional. The government should ensure that prisons are held accountable for violating these rights and ensure that no further violations occur.
During the course of the pandemic, we've seen a near halting of programming inside the prisons. Although core institutional programming has resumed at 50% capacity in some prisons, the lack of access to programming is having serious adverse effects on prisoners, affecting the timing of their release on parole. We've been told that parole officers have been encouraging prisoners not to go before the Parole Board when they become eligible. In fact, some people are being told that they cannot go before the Parole Board prior to completing their programming. This means that people are spending more time in prison than they should. The law that governs the Correctional Service is clear that people can apply for parole at the earliest date they are eligible. The lack of programming during COVID should not be used against them in this particular way.
We recommend that the Parole Board reconsider programming requirements in their decision-making and instead utilize all mechanisms available to them to ensure that access to parole, and therefore liberty, is not unduly restricted.
Thank you very much for your time.
Honourable Chair, vice-chairs, and members of the justice and human rights committee, thank you for the invitation to appear before you today as part of your important study on COVID-19 and its impact on the judicial system.
The COVID-19 pandemic has impacted every industry and sector like nothing in our history, and our courts and justice system are no exception. Prior to the crisis our courts were already stressed with enormous backlogs and delays in many provinces and territories; the closure of courthouses across the country as part of the emergency public health measures has compounded the problem further, delaying trials and due process.
Once regular court operations resume, there will be an unprecedented requirement to begin empanelling juries across the country. While responding to a summons is mandatory, many Canadians will be very unwilling or unable to participate, for very real reasons.
During the first wave of the pandemic, the Canadian Juries Commission conducted a national opinion poll and found that Canadians were more willing to donate blood or volunteer for a community organization than to serve on a jury when emergency measures lift. Similarly, Canadians rated jury duty lower in terms of civic importance than donating blood or volunteering within the community. These opinions are a direct result of decades of underinvestment in jury duty across the country and of not keeping pace with the modern world and its challenges.
As the crisis comes to an end, many Canadians will be unwilling or unable to respond to a jury summons, yet responding will be expected of them. Transitioning out of the period of unemployment, layoffs and tenuous employment, for many Canadians the focus will now be on their jobs, families and availability for work. Many will be experiencing financial hardships not seen in decades and will still have family care commitments that will not have expired and may have been exacerbated by COVID-19 health issues. Canadian workplaces will be less willing and sympathetic towards supporting employees during time spent in court, given their own economic fragility and desire to revitalize operations. This will put mounting pressure on employees to respect their employers more than their summons.
Alarming data has emerged during the pandemic that highlights the significant worsening of Canadians' mental health. It has raised concerns among health care professionals of a looming echo mental health crisis. Statistics Canada has observed Canadians reporting increases in anxiety, depression and PTSD, as well as alarming increases in suicidal ideation as a result of the pandemic. Reported substance abuse and alcohol consumption among Canadians has increased across the pandemic. All reported figures are higher among vulnerable communities, those with existing mental illness, the indigenous community, the LGBTQ community and, sadly, among our young adults.
In 2017, I was very pleased to appear before this committee as part of its groundbreaking study on jury duty mental health and the publication of its landmark report, “Improving Support for Jurors in Canada”, in 2018. The 11 recommendations contained in that report stand today. They include providing more information to prospective jurors about jury duty, providing psychological support to jurors, increasing daily jury pay to $120 per day and federal funding to the provinces and territories to implement the findings of that report.
It is now almost three years since the publication of this report, and sadly, very little has been done since to see these recommendations universally adopted.
The Canadian Juries Commission was born out of those recommendations to represent and support Canadians on jury duty and in coroners' inquests and to provide programs directly to jurors to assist them in their roles, working with the provinces and territories and the judiciary to improve jury duty.
The recent federal budget detailed significant investments in mental health to meet the challenges of COVID-19, vital investments to combat systemic racism and improve access to justice across Canada, and also investments to repair our economy and grow back post-pandemic. These investments must be met with similar investments in jury duty, which is the last remaining mandatory civic duty in our democracy. This current crisis will only serve to compound and deepen foundational concerns for jury duty identified by this committee and the Canadian Juries Commission.
Once selected, jurors are identified as judges of the facts and are exposed to the same graphic and disturbing evidence as others in the court as part of their role. However, unlike the judge, legal counsel, court staff, police and first responders, they are not afforded access to new and evolving evidence-based treatments to assist them after the verdict is delivered. Jurors are the group in the court most vulnerable to developing mental ill health, as jury duty is not a vocation, has no training and affords no organizational support, yet is exposed to the same graphic evidence, and without a support network.
Juror mental health requires a specific intervention through evidence-based assessments and treatments and trauma-informed approaches, and it must be given the same priority everywhere and made available to all regions of the country.
Those concerns for juror mental health predate the pandemic. Now Canadians may be returning to court experiencing elevated mental ill health from the pandemic and exposed to new trauma in the court.
It is vital that we invest in mental health.
Thank you for inviting me to appear before the committee today.
The Office of the Federal Ombudsman for Victims of Crime works to ensure that victims are treated fairly and with respect across the criminal justice system.
I give my respects to the First Nations, Métis, and Inuit ancestors and affirm my office's commitment to respectful relationships with one another and this land.
Honourable members, there can be no doubt that the COVID-19 pandemic has had a profound effect on Canada's criminal justice system.
The pandemic has exacerbated challenges faced by victims of crime in Canada and has had disproportional effects on vulnerable populations, who are already at greater risk of experiencing violence and and victimization. These include women, children, and older adults, as well as members of the 2SLGBTQ+ community and members of indigenous and racialized communities.
According to Statistics Canada, research has shown that social isolation, loss of employment and reduced income are all factors known to increase the risk of domestic violence, and these conditions have been heightened in recent months.
Intimate partner and family violence often go unreported because the perpetrator is a loved one who exerts control over victims, who are left feeling unsafe in their own homes. Stay-at-home orders mean fewer opportunities for victims of violence to reach out for support or to report the violence to police or other agencies.
Pandemic-related restrictions have also meant that agencies' capacity to provide service to victims has shrunk, and in some parts of Canada the systems have been overwhelmed with demands for service.
Marginalized groups who face a higher risk of victimization also cope with considerable structural oppression in accessing support and justice. For instance, individuals who identify as 2SLGBTQ have voiced that receiving help from victim service providers is often a barrier on its own, as victim service organizations may overlook the importance of considering and addressing multiple intersectional identities.
I am also very concerned about the increased vulnerability of children. Violence against children has become even harder to respond to, since school staff make 90% of all reports of child abuse and children have been out of school because of the pandemic.
In my view, Canada must take proactive steps to fund and deliver prevention information, education and services to the public in order to reach persons who may be at risk of instigating violence.
Alongside greater investments in prevention, victims' rights need to be prioritized, enforced and upheld. Respect for victims' rights was inconsistent prior to the COVID-19 pandemic, and victims in vulnerable populations often reported experiencing many barriers to navigating the criminal justice system and feeling like an afterthought. This situation has been worsened by the pandemic.
For example, early in the pandemic the Parole Board of Canada cancelled all observer attendance at parole hearings, meaning that victims could not attend hearings that were scheduled and that would still take place without them. My office raised this matter as unfair and as failing to comply with the statutory rights of victims. The teleconferencing and videoconferencing accommodation was eventually extended to victims, as had already been the case for offenders' assistants.
This set a concerning precedent that victims' rights could simply be pushed aside and overlooked, instead of ensuring that proper accommodations were put in place so that victims' rights could be upheld. This cannot and should not be the case.
I would also like to discuss the worsening of criminal justice system delays due to COVID-19.
Courts and other tribunals have been slow to modernize and use technology to move cases forward. We must bring accused persons to justice in a timely manner, as required by the charter. Not doing so affects us all, but none more so than the victims and survivors who have been harmed. Victims experience memory loss, heightened stress and anxiety and feelings of languishing the longer cases take to be decided.
In closing, I will emphasize that the consideration of the rights of victims of crime to information, protection, participation and restitution is in the interest of the proper administration of justice during COVID-19 and beyond.
I welcome the opportunity to answer your questions. Thank you.
Thank you, Madam Chair.
Mr. Ferrant, I was there in October 2017 when you appeared before the justice committee and gave very powerful testimony along with other jurors, and I was proud of the fact that we came together as a committee unanimously with, as you put it, a groundbreaking report on enhancing juror supports, the first parliamentary study and the first report of its kind.
You noted that despite a great deal of consensus, we unfortunately haven't seen a whole lot of action three years later.
You spoke of the fact that nowhere in the budget was there mention of jurors. I would further note that recommendation 10 spoke of the need for one-time federal funding to the provinces and territories to implement the recommendations in the report.
Could you speak to that, and more broadly the need for federal leadership? Would you agree that leadership and funding are all the more necessary in light of COVID?
Thank you for the question.
In speaking with attorneys general across the country, I have heard them express a willingness to implement some of those recommendations—some more than others—but they are also expressing the need for a federal investment going back to that report.
COVID-19 obviously has put downward pressure on the provinces like no other time in our history, so given that jury duty is vested in the Criminal Code and is a federal mandate administered provincially by the provinces, there is a need for a federal role at this time in investing in improvements to jury duty.
As I said, raising jury duty pay to $120 per day, while it's a provincial responsibility, can be shared with the federal government through transfer payments, and we're not talking about an investment that is going to break the back of any government. In fact, it's going to improve the lives of jurors and it's going to open the opportunity for racialized Canadians, those who work in the gig economy and those who are under-represented in the justice system to participate in jury duty simply by being able to afford it. I have heard from so many Canadians who have said, “I would love to serve on a jury; I simply can't afford it” and “My employer will not allow me to do it.”
If we are talking about combatting systemic racism in access to justice, simply raising jury duty pay allows us that opportunity to suddenly change the diversity of a jury simply by bringing in people who would not have been able to do it before.
I would concur that the amount of funding we're talking about here with respect to juror pay and with respect to implementing other recommendations that would go a long way to support jurors is a pittance, having regard to the firehose of money that we have seen showered in this budget. Some of it very much needed funding; I don't want to minimize that reality. This, though, would be a mere pittance.
Another area that you cited is mental health and issues around mental health that jurors face in going through, in some cases, horrific trials, including stressors from not being familiar with the judicial system and being away from family and work, among many other factors.
One recommendation in the report from 2018 was to carve out an exception to the jury secrecy rule. Right now, jurors who are suffering from mental health issues arising from their jury service aren't able to talk about all aspects of their jury service, namely the deliberation process, which often can be the most stressful aspect.
I introduced a bill in the last Parliament to implement the recommendation to carve out a narrow exception to the jury secrecy rule so that jurors who are suffering from mental health issues could consult a mental health or other medical professional bound by confidentiality, thereby protecting the integrity of the jury secrecy rule while ensuring that jurors can get the help they need. There was again unanimous support for that bill, but it died in the Senate prior to the last election. I worked with Senator Boisvenu to introduce a bill in the Senate, but it's been stuck there.
The government has introduced , which touches on issues around jurors in a COVID context. Would you see it as beneficial that be expanded to include the substance of what is in now so that we can get this done, finally, which is something everyone seems to agree to?
Thank you, Madam Chair.
I would like to ask a question about the administration of the justice system. I understood that there was a certain number of advantages to hybrid proceedings. However, I thought I understood that this also came with a certain number of disadvantages, especially at trial, when witnesses are heard from.
I would like to hear the opinion of Judge MacDonald on cases where decisions are being appealed. The parties are often not in attendance at the court of appeal. At the very most, they are at the hearing, but lawyers are the ones pleading the case.
Judge MacDonald, do you see an advantage to proceedings taking place virtually in appeals of decisions?
It's nice to see you again, Mr. Fortin. I think we met around this time last year.
I'd like to very briefly respond to Madame Brière's question. We made arrangements to email the link to our commissioner's website and the portal for the work we're doing, and we actually have a paper on virtual indigenous justice centres and liaison officers for dealing with virtual hearings in remote communities and indigenous communities. I commend that to you.
It's an excellent question, Mr. Fortin. Thank you for the opportunity to differentiate between trials and appeals. Justice Lynch touched on that. Many appeal courts, including the Supreme Court of Canada and many appeal courts throughout the country, really didn't miss much in terms of having their appeals proceed as they should. Justice Lynch mentioned that the real-life interaction is certainly jeopardized, but nothing at all like trial court. I think there is a significant distinction to be made.
Of course, if you go in camera on any matter in the court of appeal or in trial, privacy issues have to be taken into account, and we at the action committee have prepared a paper on the risks of jeopardizing privacy issues in the context of virtual hearings.
I see that Madame Thériault as well has her hand up, and I'm sure she can supplement my answer, but thank you for the question, sir.
You are right. That is sort of along the same lines as what Mr. MacDonald was saying, that the pandemic has had varying impacts. The impact has obviously been much more intense for trial courts, for the obvious reasons you have mentioned, including witness attendance.
When it comes to appeal courts across the country, they have had to adapt to the new platforms, which has required some dexterity. Now that the system is in place, it is true that they have done their best to hold hearings without it leading to delays like those we can imagine during trial.
I would add to this that there are sometimes hybrid formats. In the Supreme Court of Canada, members of the court have continued to preside in person—in other words, they would all be in the hearing room, which was reconfigured to meet health guidelines—and lawyers argued remotely, so as not to have to travel from their province to Ottawa.
Of course, bar association representatives will tell you that it's not the same thing. Someone can prefer to argue in person instead of through virtual platforms. Nevertheless, there have been very few delays.
Since we are painting a broad picture, I would add that this is also true when it comes to administrative tribunals. A large number of federal administrative tribunals managed to catch up in the context of the pandemic. As they did not have to hear from witnesses, they held their hearings through things like virtual platforms, and there were more presentations electronically, they managed to do a great deal of catching up.
So although the pandemic is leaving more negative traces, some benefits have come out of it, and a certain number of realizations are here to stay.
Thank you, Madam Chair, and I thank all the witnesses for their patience with the parliamentary system today.
In particular I want to thank the witnesses of the second panel for bringing forward the important topics of the conditions under which jurors serve and the impacts upon victims and also upon those who are currently incarcerated. I want to return, however, to the first panel for my first and probably only round of questions here.
Mr. Berkes, the very comprehensive and excellent brief we received from The Canadian Bar Association raises two issues that are of concern to me. One of those is the use of private platforms for online proceedings. I have this concern about the House of Commons, not just about the court system.
Your report talks about those who make money from the data acquired from hosting these services. Can you expand more concerning the threat—because I think it is a real threat—both to privacy and to security of information?
Thank you very much for your question.
It's probably a trite statement at this point that the new currency in the new electronic world is personal data. Our data is constantly being monitored, harvested and used to target us with advertising. The federal Privacy Act legislation and various provincial privacy act legislations are going to have to take a long and hard look at some of these private platforms.
Just to use the social media example, when you plug in your credentials and sign up for the service, that data is harvested, monetized and then disseminated. Obviously, if a judicial or quasi-judicial body is going to be using a private service such as Zoom or Microsoft Teams or any of the other ones, there have to be some provisions put in place whereby the private organizations undertake not to disseminate our private information.
That is going to have to be legislated, it's going to have to be monitored, and it's going to have to be enforced, so that if the data gets out, whoever leaked it inappropriately is going to face some kind of sanctioning.
Subject to any further questions you have, I want to keep this brief to give everyone an opportunity.
Thank you very much for that.
I'll once again thank all of our witnesses today for appearing before us and for their very compelling testimony.
If there are pieces that you feel were not highlighted enough or if you would like to provide additional information, please don't hesitate to send that information to Mr. Clerk, and he will circulate it throughout our committee. Thank you once again.
I'll just remind members that the deadline for submitting witnesses for the upcoming elder abuse study is this Wednesday, so please make sure that you get your witness lists in.
With that, the meeting is adjourned.