THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Wednesday, May 11, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:15 p.m. [ET] to continue the study of Bill S-4, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures).
Senator Mobina S. B. Jaffer (Chair) in the chair.
The Chair: I am Mobina Jaffer, a senator from British Columbia, and I have the pleasure of chairing this committee. Today we are conducting a hybrid meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
If you run into any technical difficulty, particularly with the interpretation, please let me or the clerk know, and we will do our best to get the problem resolved.
I would like to take a few moments to introduce the members of the committee who are participating in today’s meeting: Senator Boisvenu, deputy chair of the committee; Senator Batters; Senator Campbell; Senator Clement; Senator Cotter; Senator Dalphond; Senator Dupuis; Senator Harder; Senator Pate; Senator White; and Senator Wetston.
I remind you to only signal, please, if you do not have a question; otherwise, all members are on my list of questioners. Members will have four minutes each to ask their questions.
Senators, as you know, we continue our study of Bill S-4, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures).
Today we are happy to welcome, from the Canadian Association of Elizabeth Fry Societies, Emilie Coyle, Executive Director; from the Indigenous Bar Association, Alain Bartleman, Treasurer; and from the Canadian Council of Criminal Defence Lawyers, Mark Knox, Board member for Nova Scotia.
I will now ask our witnesses to make opening remarks to be followed by questions. You have five minutes.
Emilie Coyle, Executive Director, Canadian Association of Elizabeth Fry Societies: Thank you so much for having us here today, senators, on behalf of the Canadian Association of Elizabeth Fry Societies.
I am here today on unceded and unsurrendered Algonquin territory, and if you cannot see it beside my name, my pronouns are “she,” “her” and “elle.”
In our work, we look to address the persistent ways that women and gender-diverse people who are impacted by criminalization are routinely denied their humanity and are excluded from considerations made by the wider community. Today I will mainly be speaking about ways that Bill S-4 will impact the federally incarcerated women and gender-diverse people that we advocate for and alongside.
Before I begin with the main body of my remarks, it is important to highlight here that as of last week, many of you know that half of the people we work with in federal prisons designated for women are Indigenous. This is a sobering statistic and one that must underpin all of our efforts to increase access to justice.
I will be speaking today to the themes of stigma, privacy, confidentiality, consent and, finally, technological issues.
We would be remiss if we did not begin today by speaking about how much stigma impacts the women and gender-diverse people we work with who are incarcerated. Our society quickly assigns value-laden judgments to criminalized women and gender-diverse people without a clear understanding of the ways in which we systematically fail people through lack of access to the social determinants of health. Deepened virtual participation in justice processes will compound the already significant impact of stigma, as people will be appearing from prison with little to no supports, and often in prison clothing. Accused persons will have less of a neutral presence in a process in which they are already disadvantaged.
As for privacy and confidentiality, which are essential when a person is participating in a hearing, for those of us who work in prisons, it is unclear, nigh impossible, to imagine how this may be accomplished in a prison setting.
For example, in Joliette Institution, the federal prison designated for women near Montreal, the conference room used for video conferences is not soundproofed. The sounds emanating from the devices are more audible than the voices in person. People who are in adjoining rooms and who are passing by in the corridor are clearly able to hear what is being said. This is but one example to bring the concept of privacy or lack thereof in a prison setting to life, but the same issues around privacy and confidentiality are replicated across all of the prisons that we work in.
Without a guarantee of privacy or confidentiality, the prisoners may not speak openly, and important information could be withheld because of the very real fear of being harmed as a result. Should the trial be compromised because of the lack of privacy and confidentiality, there is little to no legal recourse for incarcerated people. The lack of substantial oversight of our prison system creates a lack of adherence to the legal rights of the incarcerated women and gender-diverse people we work with, thus impacting their right to a fair trial.
On to consent. Now, the word “consent” is a tricky word to use, given the many ways in which consent is not freely given in a prison setting. Although proposed section 715.232 maintains the requirement of consent from an accused person who is in custody for virtual participation for summary conviction offences, there is a body of evidence that demonstrates how the power imbalances and stressors in prison adversely impact an accused person’s abilities to make informed, free, consensual decisions. They may be told, for example, that they will face delayed time frames should they not opt to consent to virtually participate. Accordingly, the provision of consent would need a qualification that the absence of consent would not result in longer time frames, thus directly inhibiting access to justice.
Now, throughout the COVID-19 pandemic, the practice of appearances by audio conference and video conference has become widespread. At the same time, the disparity in access to these tools has also become evident. Using our experience supporting people who are participating in parole hearings through the pandemic from prison as an example, we’ve seen the ways in which glitches in connectivity, which we experienced earlier today, and issues with sound quality can lead to greater anxiety and inability to focus on what is being said, despite having been prepared well in advance. It’s also difficult to read and interpret facial expressions, which can also lead to heightened anxiety. In that vein, cultural and linguistic issues are at play. Most people would never admit that there is an issue with comprehension, even if there were, and so if a question were asked and misunderstood, it may not be answered well or fully.
The Chair: Ms. Coyle, may I ask you to wind up, please.
Ms. Coyle: Yes, I will conclude now. Thank you.
Case advocacy records over time indicate that women and gender-diverse people who are accused and convicted of crimes generally limit understandings of the nature, impacts and outcomes of the legal processes that they are experiencing. Virtual participation adversely impacts their rights to fair trials by increasing barriers and challenges to the already limited abilities for people to gain informed understanding of the legal choices that they are making. I want to say the goal of efficiency and modernization should be to bring everyone increased access to justice, but in many ways the increased use of video conferencing during the pandemic in the prisons has widened the gap for access to justice for those for whom access to justice is already fleeting.
Thank you very much. I look forward to your questions.
The Chair: Thank you very much, Ms. Coyle.
Alain Bartleman, Treasurer, Indigenous Bar Association: Honourable senators, good afternoon. My name is Alain Bartleman. I’m appearing here virtually today from the Chippewas of Rama First Nation, formerly known as Chippewas of Mnjikaning.
I’m a lawyer and a representative of the Indigenous Bar Association of Canada, or IBA. The IBA is a national not-for-profit association comprised of Indigenous people, professionals and students within Canada. Our mandate includes the promotion and the advancement of legal and social justice for Indigenous peoples in Canada and the reform of laws and policies affecting Indigenous peoples. I’m also a former criminal defence lawyer who has worked across southern and central Ontario.
The IBA has a particular interest in criminal justice reform. We are all aware, as has been eloquently spoken of earlier today, of the over-representation of the Indigenous community within the criminal justice system. It is the position of the IBA that substantial reform to the criminal justice system, including the adoption in full of Article 5 of the UNDRIP, or the United Nations Declaration on the Rights of Indigenous People, must be implemented.
The proposed amendments to our criminal justice system, including those found within Bill S-4, merit a special consideration from both the IBA and its members.
I’m here to make two points. The first is that the use of technology as a supplement to in-person appearances is a boon to both Indigenous accused and to Indigenous lawyers. The second point and the corollary to that is that for the promises of Bill S-4 to be properly realized, the provisions of this bill must be matched by concurrent investments in technological infrastructure in both Indigenous communities and in the larger criminal justice system.
First, in relation to Indigenous accused, the provisions of Bill S-4 are likely to minimize the likelihood of process-related offences. In August 2020, Transport Canada noted that nearly 182 First Nations were considered as remote, which we can define as a situation in which a community is located over 350 kilometres from a near service centre having a year-round road access. In many of these communities, poor and non-existent road access during certain seasons requires individuals to either take a flight or use a barge to access service centres, including potentially justice centres. Proposed amendments to the Criminal Code regarding video conference attendance at trials for summary offences would be useful additions and amendments to the code in this case.
Per Statistics Canada, nearly half, or 58%, of crime reported in Indigenous communities consist of charges related to mischief, common assault or disorderly conduct. These offences are typically proceeded by way of summary conviction, and implementing a clear regime that permits for accused to, upon obtaining the necessary consents, appear remotely to these trials would substantially reduce travel costs and minimize the risk of inadvertent process-related offences, such as a failure to appear.
Second, and in relation to defence counsel, the provisions of Bill S-4 are likely to assist Indigenous lawyers. Within Ontario, the Law Society of Ontario reports that 18% of Indigenous lawyers practise primarily in the field of criminal law, and some 22% of all Indigenous lawyers exercise their role as sole proprietors, the largest such market segment. Many sole proprietors, by virtue of the location of Indigenous communities, practice in areas where it is difficult to allow for easy access to courthouses without either significant travel to courthouses by either motorway or by plane or without having to send a designate or agent. Allowing these lawyers to appear by video conference, where appropriate, would reduce many of the logistical challenges and reduce costs that these individuals would face. Moreover, and as a side benefit, it would also allow Indigenous legal professionals to assist clients from their member communities located in other parts of the country.
I would note, however, and to sum up, or rather, as a corollary, the technological enhancements promised by this bill must not be used to gloss over the real issues posed by internet connectivity. As discussed by the Honourable Senator Dennis Patterson, issues involving high-speed internet connection, notably in Nunavut, are serious and must be considered and must also be improved for the promises of this bill to be brought forward.
With that, this bill represents a step forward for justice, and the proposed amendments to the code and to the Identification of Criminals Act mark a step forward for both Indigenous accused and Indigenous counsel.
The Chair: Thank you, Mr. Bartleman.
Mark Knox, Board member for Nova Scotia, Canadian Council of Criminal Defence Lawyers: Senators, my organization is a national organization dedicated to bringing a voice and perspective on criminal justice issues, and we’re very grateful for being invited to join you today.
I echo all of the comments of my learned friends Ms. Coyle and Mr. Bartleman so far.
From our point of view, the legislation arose due to the pandemic, essentially, and will have profound consequences in the future after the pandemic. We’re concerned with the slippery slope. We’re concerned with the movement away from the humanity, the decorum, all of these factors that are associated with an in-court trial being adjudicated from start to finish in court. We’re concerned that Canada will have a very different, fundamentally altered criminal justice system in the future forever, and we believe that some of the changes should be studied better and further and not implemented for efficiency’s sake in a rush.
As Mr. Bartleman has indicated, we also concur with some of the non-criminal trial process parts of the bill, namely, the amendments to the Identification of Criminals Act and the issues concerning telewarrants, authorizations and interlocutory applications. We’re concerned, though, about the lessening of the in-person feature. We’ve referred to that at times — and others have as well — as remote justice or, as some would say, justice in a portal.
The benefits of in-person appearances in court are hard to define, but they come in these various phrases. I’m not sure how many of us today are experienced in the criminal justice in-court process but, after 35 years, it’s a community. A courtroom is a community. There’s decorum. There’s formality. There’s solemnness. Anything that reduces this humanity and dignity is a concern to our group and I think to most who, day in and day out, do what we do to ensure the rights of all Canadians. These are fundamental to the process, to democracy and to the jury system.
To some degree, we’re concerned with the enhanced role that judges will play in the criminal justice system. With all due respect to all members of the judiciary, there are parts of the legislation that provide more authority and more discretion, if I can put it that way, to the judges that do cause us concern without further guidance or further description of how that can be carried out.
I won’t go on and on about all of the various components that are impacted on the trial process by the legislation, but, as has been said, the impact on Indigenous and other marginalized communities, in particular, as emphasized by my friends, unrepresented individuals, is a huge concern.
As I wind up, I want to remind us how remoteness impacts all of us. I wish I was with all of you today. I think maybe I could deliver something in addition. Similarly, we were all happy with remote education. It was necessary during the pandemic. We were all content with telehealth during the pandemic. But on a go-forward basis, on a permanent basis, we would not want to do that. We know there’s something to be gained by dealing, in whatever community it is, in person in that community. That’s what we want to maintain. Thank you.
The Chair: Thank you very much, Mr. Knox.
I will now go on to the senators, and we’ll start with the Deputy Chair of the committee, Senator Boisvenu.
Senator Boisvenu: I want to thank the witnesses for joining us in committee.
My question is for Mr. Bartleman or Mr. Knox. However, I think it is mostly for Mr. Bartleman.
The development of technological means of communication is very slow, especially in the north. It is also slow in some communities in the south. I had to consult Indigenous communities on that for another bill I am sponsoring.
Here is my question. Will this bill be applicable to communities in the north? If so, does it not bring more problems than solutions when it comes to speeding up trials?
Mr. Bartleman, can you answer my question?
Mr. Bartleman: Thank you, Senator. I will answer your question in French.
I think it helps to look not only at current trial processes, but also at alternative solutions—in other words, different paths than the ones proposed in the bill we are studying.
I will give an example that may be very concrete. The example is that of a hunter who, by shooting, commits an offence under the law in a province or territory that is not his own. So, if an Algonquin hunter from Ontario commits an offence on Quebec territory, is he going to be asked to appear in person in a city located several hundred kilometres away from his home? What will be the legal and social issues for that individual?
I think that, with the bill currently before us, we have an option or another path that could minimize that individual’s problems when they are called to appear, not only legally, but also financially.
Senator Boisvenu: What is that other path?
Mr. Bartleman: The other path is to develop technological systems and skills to enable that individual to appear using technology and media, by video conference.
Senator Boisvenu: That is a technological issue. The Government of Quebec announced this morning the launch of a satellite for communication. That will give isolated communities the possibility to communicate with government organizations without having to travel. That will happen in five or ten years and not when the bill is passed.
Will the bill apply to isolated communities or will we be pretty much in the same situation?
Mr. Bartleman: Yes, there will always be gaps between isolated communities and non-isolated communities. However, I think of what I did during the pandemic with my clients in difficult circumstances. I am talking about the most isolated communities [Technical difficulties] where we have organized, not without difficulty, many appointments and meetings with the provincial government, with the federal government and with courts.
So the options are available. If I may say so, it is now enough to develop the legal framework to support the development of those circumstances in a more regulated and [Technical difficulties] framework.
Senator Boisvenu: Thank you very much.
Senator White: I only have one question for Mr. Knox. I spent 19 years in mostly the three territories, in isolated communities. I was enthused about the opportunity to have a court party arrive and actually see what was happening in the community and not just hear what was happening in the case. I felt that, first, they had a better understanding of the issues and, maybe more importantly, a better understanding of the individuals before them. Is that what you’re referring to when you talk about the importance of that engagement face-to-face? If so, I wholeheartedly agree about anything that would take that away. While perhaps more expedient and more efficient, there is a reason why we had it in place.
Mr. Knox: Thank you very much, Senator White. First, I have to defer to those who have a practice in the northern areas, in the territories.
I think it’s critical for everyone to be in the same forum, for everyone to be in the same room. As Ms. Coyle said, there’s a loss when there’s a witness on video or the legislation permits audio — that is, audio or video. One of the comforts would be — it doesn’t cover all of our concern because we want everyone in the courtroom, but if it has to be — to ensure that the person making the determination is the accused, is the defendant with his and her counsel, whereas some of the legislation doesn’t provide that. Some of it gives the decision to the learned trial judge, with some parameters that are not comforting to us. I think to make the ultimate decision, if it is by video, if it has to be audio, should clearly be only the decision or the purview of the defendant. Thank you.
Senator Dalphond: Traditionally, the sponsor of the bill is supposed to ask the first questions. I will skip my turn, so that all my colleagues can ask questions, but save a few minutes for me at the end. Thank you.
Senator Clement: I’ll put my questions out there, one for each speaker. Thank you for appearing before us.
Ms. Coyle, I’m struggling with the concept of consent and how it looks on the ground. You talked about freely and fully given consent. I wonder if you could, in your answer, delve a little more deeply into how you see section 715 and what you would suggest to deal with the power imbalance and the difficulties around that.
Mr. Bartleman, in your comments, you certainly take a long-term view of this, which I appreciate. In terms of technological investments that you refer to, I know you talked about connectivity, but what else are you talking about specifically? Are you talking about training? How would that work? Could you go into more detail around that?
Mr. Knox, what are your clients saying to you about their experience in the courtroom? I’m a legal clinic lawyer. I shifted to virtual hearings two years ago. I don’t do it in the courtroom. It was a boardroom. But now these hearings are done in my office at the legal clinic. There is a loss there, but I wonder what your clients are saying to you.
That is one question for each.
Ms. Coyle: Thank you very much for your question, senator.
The issue of consent is tricky in prison, especially because for people who are in prison, there’s so much that happens in the outside world that they don’t have access to. It’s really hard to communicate even with your own counsel. Throughout the pandemic, we have heard that for a long time counsel were not allowed to go to the prisons and had to arrange for phone calls with their clients in the prison. Now they are able to go back in, but it’s hard to get in touch with your counsel when you’re in prison. That’s part of the issue around consent, because you certainly want to be able to have free and frequent communication with your counsel so that you can get their legal advice on what you should do to move forward.
The other thing is they may not have access to counsel. If you have counsel, wonderful. If you don’t have access to counsel, which is a reality for many people in prison as well, then you’re at an even greater disadvantage for understanding what’s happening vis-à-vis your trial or your upcoming hearing.
If I was to give advice on this section, I think it would be to my last point, which is that if the judiciary is going to be seeking the consent of the person who is accused, then there needs to be a qualification that the absence of their consent would not result in longer time frames. I think that has to be clearly explained.
I don’t know how many of the judiciary have been into prisons and understand what it’s like to be in prison and the reality of what life for prisoners is. Thankfully, there’s been movement on that from senators and from others who do have an interest in prison. The people in prison are particularly disadvantaged already by multiple systems, including the justice system. I think we have to keep that in mind.
The Chair: Senator Clement, we will go to Senator Cotter.
Senator Cotter: Thanks to each of you for coming and joining us to talk about this. I particularly wanted to say hello to Mr. Knox, who I know from a different movie. It’s nice to see you, Mark.
You provided lots of insights in identifying some of the opportunities that we might benefit from through this movement in a more consistent way going forward, perhaps greater access to lawyers, lawyers greater access to clients, lower numbers of offences against the administration of justice and reduced cost to clients.
But you’ve also identified a whole series of vulnerabilities, and some of them might actually become systematically embedded. For example, take Senator White’s question. Might we end up seeing, by virtue of the potential for this, fewer circuit courts going around where the judges are less inclined to head up to northern Saskatchewan, for example, because if they can — let me use the word — coax people into virtual hearings, they might be able to save time and money and the like? Lawyers may be perhaps the same.
Then there’s also the upside of potentially moving forward in this fully. There is enormous pressure on the system to improve the way it handles things, including safer places in the prisons for conversations and appearances or greater degree of access to remote locations.
Mixing all that together, are there some of these significant systemic vulnerabilities that you see, and can they be addressed effectively? I think that is a question maybe for all of you or whoever would like to try.
Ms. Coyle: I’ll let my learned friends answer because I think I took up all of our time on the last one.
Mr. Bartleman: Thank you, senator, for your question.
Yes, there is the risk that the vulnerabilities, the issues embedded within not only this particular bill that we are examining but also within the larger push towards greater technologicalization, if I can put it that way, of our justice system could result, in its worst case, in a two-tiered system in which certain individuals with means will have access to what my friend has called the community of the court. Speaking as a former defence lawyer, as a former barrister, that community is very real. It is a source of immense comfort, not only to counsel, but also to the accused or of an offender, who have the benefit of seeing their advocate in the court, who will have the benefit of being able to speak to their advocate in the cells or in the halls of the court and being able to see justice done, not through a grainy pixilated video screen, but in person.
There are those who will not have the means to do so, those who may, through reduced financial circumstances, be put in institutional settings that are not conducive to allowing lawyer visits, as we saw during the pandemic. They will find themselves profoundly isolated. I’ve not spent time in jail or prison aside from visiting my clients, but even then I knew it was an incredibly isolating and dehumanizing experience. I cannot imagine the most important days of my life being spent in a system where my fate was being decided by those individuals I could only see through a screen, with poor resolution, and having my reactions tracked through an unblinking video camera. It would be a serious harm to the administration of justice in this country if indeed we ended up in a situation where circuit courts were not as developed as they are now, if they’re allowed to further erode for the benefit of technological expediency.
The Chair: Senator Cotter has indicated Mr. Knox, that he will ask you in the second round, if you don’t mind.
Senator Dupuis: I think my question is for both Mr. Bartleman and Mr. Knox.
I would like to understand your position better, Mr. Bartleman. My understanding is that you really want justice to be closer to the accused people. This means that, if someone lives in an Indigenous or a non-Indigenous community, justice would go to them, to the community, so I assume to a place where more culturally appropriate services can be arranged to deal with legal cases.
Are you saying that community justice must absolutely take place in person, or can it be over video conference?
Mr. Knox, if there was consensus on the fact that in-person appearances and in-person administration of criminal justice work very well, including for those who are not represented, for marginalized individuals and for Indigenous people, I may be more receptive to your argument on community.
Is the community you are talking about the community of lawyers, judges and clerks—in other words, justice system operators—but not of the accused?
Mr. Bartleman: You asked me whether there was a way to adapt justice to First Nations’ and Indigenous communities’ cultural needs, and whether it must be provided in person or could be provided virtually or adapted to technological needs.
I think we are living in a state that is not only social and cultural, but is a state of flux. Our societies, including Indigenous societies, are becoming more virtual. So, although the justice system reflects our current environment, we are already living in an Indigenous society. Of course, I’m talking about my Indigenous brethren, as we are living in both a virtual and a physical world.
We, as members one of the Indigenous Bar Association of Canada, continue to hold our meetings with clients virtually, and we are pursuing justice through virtual means. That is already the case.
For the Indigenous Bar Association, this is the matter we are currently considering: should the current system be adapted to minor criminal offences, and should the system be adapted to the realities of our professional practice, legal practice?
For me, the answer is yes, as this has already happened.
Senator Dupuis: Thank you.
Mr. Knox: Thank you, Senator Dupuis.
From our point of view, the legislation allows a witness to be outside of the courtroom, an accused to be outside of the courtroom, and the justice, the judge, to be outside of the courtroom. We feel that it’s the best choice, the five-star model, to ensure democracy, to ensure proof beyond a reasonable doubt, to ensure the ability to assess credibility and demeanour and to make the most critical decisions, to be, should be, in the courtroom, eye-to-eye and face-to-face. Personally, myself, dealing with issues in my local community, my neighbourhood, in my household with my children or partner, staff — there’s just something that’s lost when we start chipping away at that best model. That’s what we certainly prefer. Thank you.
Senator Pate: Thank you to all the witnesses for appearing.
As you all know, and have all articulated, the majority of people we’re talking about or coming before the system are people who are already in systematically marginalized situations — poverty, homelessness, racial discrimination, gender discrimination.
I don’t know if you’re aware, but there was research done both pre- and during the pandemic, in Britain, in particular, around the use of electronic means of conducting hearings, particularly video conferences. One of the findings was that of the lawyers who participated, a mere 16% felt that their vulnerable clients were able to effectively participate in remote hearings. But more shocking and disturbing from my perspective was the fact that when the University of Surrey did some research on what was happening pre-pandemic — so this is pre-pandemic, bear in mind that since the pandemic, it’s been articulated as worse — defendants were more likely to be jailed following video hearings and suspects whose cases were dealt with remotely were less likely to have legal representation, which I think speaks to issues a number of you have raised.
Mr. Bartleman, in particular I’m concerned about, of course, Indigenous individuals. As you know, and as Ms. Coyle identified, the numbers are through the roof now, and it’s been a crisis for more than three decades. I’m a bit surprised I haven’t heard from you a push from the IBA and others to have more Indigenous governance approaches to circuit courts, looking at some of the self-governance types of approaches that have been recommended.
In particular, Ms. Coyle mentioned Joliette prison. Most of these cases will involve provincial and territorial jails. Every single one of the provincial and territorial jails throughout this country, including in the North, that I have been in over the last number of years, where they are conducting video conferencing, it is not only audible but oftentimes doors are left open because there’s a requirement to have correctional officers guarding, if you will, prisoners. So there’s not just a lack of consent, privacy and confidentiality, but you actually see people trying to plead guilty before their charges are even read out for fear that the charges will be read out and then that breach of confidentiality will result in other issues for them within the prison. I leave it to your imagination to understand exactly how and why that happens.
I’m curious as to whether you have looked at some of these other measures and what recommendations you would have to amend this legislation or to look at alternative approaches to the ones recommended in this legislation.
Mr. Bartleman: Thank you, senator.
Yes, the Indigenous Bar Association has, for many years now, repeated the importance of Indigenous-led, Indigenous-created and Indigenous-supported mechanisms, institutions and processes to ensure that criminal justice matters, and legal matters as a whole, reflect and are the products of Indigenous legal justice orders. When settlers came to what is now Canada many years ago, there were flourishing and active Indigenous legal orders that allowed for the resolution of differences and allowed for individuals to exist in communities.
The concern that the IBA has with this legislation, as has been outlined, is twofold: the allowance of technological means to supplant what my friend has called the community of the court and the risks associated with that, as well as, for example, the diminution of circuit courts.
However, and I suggest this with respect, it should not be allowed to detract from the very serious benefits that this legislation could have in increasing access to justice and allowing for space — if I could use that term — for Indigenous communities to build up their own protocols and their own ways of interacting with the court system, whether it’s directly, such as in the form of Indigenous courts as we see at Old City Hall in downtown Toronto, or in the informal methods that occur when First Nations governments or tribal councils work closely with local Crown attorneys’ offices to set up policies and procedures that are applicable to certain areas.
Increased facilities for video conferencing and digital solutions, if I could use that term, are a boon in the view of the IBA, but they — and this is where, I think, we are in accord, senator — cannot be used as a replacement for Indigenous-created, -maintained and -supported legal orders.
Senator Wetston: Ms. Coyle, could I ask you a question about the three aspects you raised with the committee: stigma, consent and advocacy? Case advocacy, I think, is the way you put it; am I correct? I wanted to get your take, because this bill, obviously, has a lot of digital aspects to it. How would digital access address the issues that you’ve raised? Would it help, hinder or create further obstacles to achieving the kinds of concerns that you have with respect to stigma and consent? Would there be any impact to that whatsoever? I’ll ask a second question if there’s an opportunity. Go ahead, please.
Ms. Coyle: Might I clarify that question? When you say “digital access,” what do you mean?
Senator Wetston: I mean access to technology and to be able to use it for whatever means allows them to communicate, to be more a part of the system and to ensure that they obtain as much access to justice within the prison system as possible. Obviously, you’re saying there’s a stigma as soon as you’re in jail. Consent doesn’t mean the same thing when you’re incarcerated, et cetera, and you spoke about advocacy. Indeed, we live in a digital society, and that’s not going away, so I’m just wondering whether or not you have any thoughts about how that might advance some of the concerns you have.
Ms. Coyle: Certainly people who are in prison would like to have more access to technology. However, I think in the case of access to justice, and particularly when it comes to accessing justice in trials, I’m hesitant to say that an increase in access to technology would increase access to justice for people in prison by virtue of the fact that the environment of a prison would not allow — however connected that prison may be — for a person’s full consent, and I worry that it would be given not freely and without benefit of counsel, without benefit of understanding how the system works fully.
In addition, in terms of the stigma, as I mentioned in my remarks, if somebody is coming into a hearing from prison, the judge can see that. The jury can see that. The Crown can see that. Everyone can see that that person is coming from a prison, and that’s what I was saying when I meant stigma. The stigma is already there because they are in prison, and then add to that the fact that you can see that that person is in prison. It would just increase the stigma, in my opinion.
I don’t actually think that it would help. That’s my answer.
Senator Wetston: Thank you.
Mr. Knox, I’m quite sympathetic to your perspective on courts. I’ve spent a fair bit of time in courts during the earlier part of my career, but there’s a reality here, which I don’t think you’re recognizing, and that is we’re not going back. I think we are not going back, and to address a number of the issues that Mr. Bartleman was describing about access to justice, I don’t see how we can go back. I would like your perspective on what it is that we can do to maintain what you’re hoping we can maintain but, at the same time, accommodate the reality of the fact that access to justice today means digital access, for the most part, so that those individuals who are unable to participate in the way Mr. Bartleman has described must be given those opportunities. I wonder if you have any comments on that, sir.
Mr. Knox: Sure I do. Thank you, senator.
First of all, there are so many aspects of the criminal trial process, from bail to plea, maybe preliminary hearing, various pretrial processes, trial and sentencing. If we can’t have the model of everything’s in the courtroom, forever and ever, some of those processes don’t beg for the in-person community, I don’t feel.
If we had more clarification in the legislation and, therefore, more consistency across Canada, and currently, if we are 714.1 and 714.2 — I think those are the sections — remote witnesses in Canada and outside of Canada, I think there’s a great deal of disparity in terms of jurisdictions in terms of addressing those.
Having said that, if we provided more authority to the defendant, to defence counsel and the defendant — as Ms. Coyle is describing, informed consent of unrepresented persons, is, I think we can all understand, a huge issue — if we put the decision in the hands of the person who’s being most impacted, I think that would satisfy some of our concerns, anyway.
Senator Wetston: Thank you, sir.
Senator Batters: Thank you all for being here.
I first have a question for Ms. Coyle. I’m concerned about how Bill S-4 allows an accused person to testify by video at summary offence trials. I think your opening remarks — and you also expanded on it a little bit just recently here — provided us with some really important context on that issue about the stigmatization that can exist for an accused testifying from jail because what can happen is that it can cement in the trier of fact’s mind — in this case, the judge — that someone being seen in a jail setting during a trial should, perhaps, remain in jail and potentially give a bias to a guilty verdict. I wanted you to speak a little bit more about that and that particular aspect.
Ms. Coyle: Thank you. I’m grateful for that question, senator.
I think that the stigma aspect I spoke about is really something that we don’t consider when we’re talking about video conferencing. I think there are issues for anybody, actually, who is participating in a video conference, just around assumptions that are made via video versus when you’re in person.
Again, what I said at the outset was that our society assigns judgment to people who are in prison without understanding their background. As Senator Pate mentioned in her question, the people who are in prison are the people who are already experiencing difficulty with the justice system and various other systems prior to becoming incarcerated, in many cases. It’s the failure of our systems in a lot of ways that led to people becoming incarcerated.
Because we have this idea that people in prison are bad — we put bad people in prison — that judgment that we cast upon people who are in prison would lead potentially to an outcome in a trial that would not necessarily have been the outcome had that person not been in prison. Maybe they would be able to put on a suit that their family had given them. Maybe their family would be sitting behind them in the courtroom. Just those subtle differences influence our bias.
Senator Batters: My second question is to Mr. Knox. In your opening remarks, you said that certain aspects of this particular bill should be studied further and not merely implemented for efficiency’s sake. You then indicated that you’re concerned about the lessening of in-person features. I am, too, as I just indicated.
I have an idea here. For things like court appearances, bail, guilty pleas, maybe even sentencing, perhaps it could help to try to use video for those types of court proceedings first with this Bill S-4 before going all the way to conducting trials in that particular fashion. What do you think about potentially an amendment taking the ability to have summary offence trials by video out of Bill S-4 and leaving the other types of court proceedings in it?
Mr. Knox: Thank you very much, senator.
Any time we hear a witness who is not in the courtroom, or if the accused is not in the courtroom and/or if we don’t have effective manner of pure communication with the client, that’s an issue.
I do agree with that for a plea or election and plea and in some jurisdictions for bail hearings. I hear from my fellow colleagues out West that many, many bail hearings are done by video without concern. Those, they say, are when witnesses are not typically called during the bail hearing. Instead, submissions are made. I agree with you. If we do back away from this pure model that’s been developed over 150 years, there are places that we could start to see how it works.
As Ms. Coyle has said, informed consent from the accused person is really critical. To always ensure that that is the case is important to us.
Senator Batters: I agree with you. I think that in an ideal world, all of those different things would probably continue in person. However, if it’s something that the government definitely wants to proceed with down this road, perhaps the most egregious case is an actual trial.
Mr. Knox: Yes, I would agree with you. Thank you.
Senator Dalphond: I thank our three participants. You are giving us important insights. Some of you are bringing up potential benefits and others potential disadvantages. It is important to remind ourselves that, 150 years ago, jurors and judges slept at the courthouse. Society has changed a great deal. Changes are part of life. That said, isn’t the problem you are seeing strictly related to consent? Both the provision on summary trials and the provision on criminal offences or pleas are based on the accused consenting to a virtual trial and the judge agreeing to that. If the accused says no, it has to be impossible to hold a virtual trial. If they do not ask for a virtual trial, it cannot be held. When they do ask for it, the judge has an obligation to ensure it is done properly.
Is the main issue the quality of the consent? What I feel in some cases is a concern that the accused may consent to proceeding virtually because they see disadvantages in not consenting. What could we do to prevent that from happening? Lawyers must provide more information when they speak to their clients, but I am very sympathetic to what Ms. Coyle was saying, when she said that a person in custody appearing before a court may not have made an informed decision. I don’t know whether that is the case for people who are represented by a lawyer, where we are under the impression that they have not made an informed decision. How to make sure that people who are represented by lawyers are making an informed decision? Ms. Coyle, do you have any suggestions for us? Perhaps the room is not soundproof or noises are heard, and that is not acceptable. Confidentiality at all times must be ensured, and there needs to be a room without bars behind the person. I think that goes without saying.
Ms. Coyle: I agree with everything that you have said. Exactly. It’s completely unacceptable. We need to remember that we have been speaking for decades about prison reform. We have commissions of inquiry that have looked at reforming prisons and making them better. We have Madam Justice Louise Arbour’s report after the incidents at the prison for women. Yet, here we are 30 years later and we still have these problems in prisons.
I go back to Senator Wetston’s question for me about whether or not bringing technology into the prison would enhance access to justice for prisoners. I say again that it does not because the prison itself is not an environment that is conducive to access to justice in a variety of ways, including issues around consent, privacy, confidentiality and issues related to having representative counsel or not.
There are other bills in play. I think you spoke about Bill C-5 with Minister Mendicino when he appeared before you on this bill as well. You cannot take issues of bias, racial discrimination, homophobia and transphobia and separate them from any of the legislation that is put before you. In particular, those issues are felt acutely by people who are incarcerated because those are the people who are “behind bars,” as you put it.
Senator Dalphond: Maybe, Mr. Knox, you could comment on the same questions. You want to keep the tradition of a court appearance being the main way appear and to testify, so what would you suggest to ensure the consent of the person who appears by video instead of court appearance is valid?
Mr. Knox: Thank you, senator.
My clients are typically not those that Mr. Bartleman has represented. They are not those that Ms. Coyle and Senator Pate used to represent. Mine are from a different economical stratum. Usually, they are not as ingrained and are not suffering as many problems as many of the persons in jails and prisons do. Typically, my clients are fairly good communicators.
We appreciate mental health issues, and we appreciate addiction issues, education issues, FASD and so on. When I have a chance to speak to somebody in Millhaven or in another institution, sometimes it’s extremely difficult because those people are really suffering and they are suffering in their daily life. They must be in the institution. To try to explain things and to try to get instructions is extremely difficult. I’m really glad that Ms. Coyle raised that issue. The legislation does touch on that issue of informed consent, particularly from unrepresented people, but something more than just talking about it will have to be done.
In the courtrooms in Nova Scotia, when an inmate, no matter who it is, is brought into a courtroom, particularly during a jury trial, there is never a hint that that person is in custody. There are no prison clothes. There are no shackles. We can’t allow that. What we’re hearing today is that remote attendances from institutions probably tell that in either explicit or implicit ways. Thank you.
Senator Cotter: Mr. Knox, a comment on whether we might see some systemic changes to the system that could be negative and unintended if we proceed in a fulsome way on this?
Secondly, I’d be interested in your view of a suggestion that the advocates society has made, which is that the default proposition for in-person hearings should be whether there are significant steps taking place where there might be a decision that leads to consequences like incarceration or where credibility is at stake. I guess I’m asking whether you think that might be a good lens through which we could examine this legislation and say that, for instance, this one goes too far or that one would work in the context of this proposed framework.
Mr. Knox: Thank you, senator.
First of all, I fully agree that the legislation is well intended, and it’s largely COVID pandemic driven. However, the consequences are, we believe, profound and would be saved to some extent — albeit it’s still going down the road — if an accused and his or her counsel had the ability to concur at least on very fundamental parts of the criminal trial process. That’s number one. Senator Pate mentioned some extremely interesting studies.
Number two: assessing credibility, assessing demeanour and assessing veracity are the cornerstones of what happens in a criminal courtroom. I know you have heard from or will hear from a wide spectrum of individuals concerning the criminal justice system and this legislation. I don’t know if there are any forensic psychologists or psychologists who may have some insight into what is lost in terms of some of these remote processes and could comment on that.
Thank you, senator. I hope that helps a little bit.
Senator Cotter: Thank you. This is really a comment. I’m thinking of a colleague of mine and somebody you probably know well in Nova Scotia who used to say that criminal trials were decided on the balance of perjury, and the job of the decision maker was to decide who was the least perjurious or most truthful, and that was more effectively done in person. I’m not really inviting you to comment on your clients and your work with them in courts, but it did underline the point about determining credibility as best we possibly can in person in courtrooms. Thanks.
Senator Batters: I have a very brief question for Mr. Bartleman. You expressed in your opening comments about the difficulties to do with the lack of technology in so many of the areas that Indigenous lawyers participate from while also representing Indigenous clients. I also wanted to bring up that I’m from Saskatchewan, and so I know that certainly northern Saskatchewan, where many Indigenous people live, has drastic problems with the technology. I wondered if you had any comment about that particular area.
Mr. Bartleman: Thank you, senator.
Yes, there are technological gaps — major ones — and the Indigenous Bar Association, on the one hand, signals and applauds this act for moving in favour of greater accessibility through video conferencing. However, it also notes its concerns that if the promises found within this bill are not matched by concomitant investments into technology — and not simply internet connectivity technology, which I believe the other senators pointed out could take quite some time to catch up, but also training in how that technology is used and in developing a measure of comfort with that technology — this effort will be, for lack of a better term, stunted. It will not be as effective as it could be.
I would also note, however, that the promises of this act — improvements towards technology — could also address some in-person concerns, or at least sidestep them, most notably translation services. Northern Saskatchewan is an area of great linguistic diversity. As an anecdote, I recall being press-ganged into having to provide translation services in the French language in downtown Toronto courthouses. I can count on one or two fingers the number of times in which the courts have been able to properly find individuals with the appropriate linguistic competencies for either Anishinaabemowin or other dialects of Indigenous languages. Accordingly, a centralized or technological solution to enable pools of translators to assist would be a boon to the profession and certainly a boon to Indigenous clients — those Indigenous individuals in the justice system who are faced not only with obvious challenges of distance and time but also with simple communication and access to justice.
Senator Batters: Thank you.
The Chair: Ms. Coyle, Mr. Bartleman and Mr. Knox, thank you very much for taking the time to appear in front of us. As you can see, there’s a lot of interest. I know that there are many more questions we could ask, but we have to stop here. We appreciate you making yourselves available today.
Mr. Knox: Thank you for having us.
Ms. Coyle: We appreciate your time.
The Chair: Thank you so much.
Honourable senators, for the second panel today, we will hear, from Nunavut Legal Aid, Ms. Eva Tache-Green, Appellate Counsel, and as individuals, Cheryl Webster, Professor, Department of Criminology, University of Ottawa, and Brendyn Johnson, PhD Student, Criminology, Université de Montréal.
Eva Tache-Green, Appellate Counsel, Nunavut Legal Aid: Thank you, senators. I’m appearing on behalf of the Legal Services Board of Nunavut, which is Nunavut’s legal aid provider.
We operate in a unique jurisdiction, which is 25 fly-in-only communities spread out over 2 million square kilometres in three time zones. Given this geographic reality, the Nunavut Court of Justice already conducts much of its daily business, including bail hearings, by telephone and video conference. The court also travels, and this is important, to every one of the 25 communities for circuit court and special sittings. That is where all of the trials originating from those communities take place, but the only physical courthouse is in the capital city of Iqaluit. Against this backdrop, the parts of Bill S-4 dealing with the remote appearances raise some concerns for defence counsel in Nunavut and for our clients.
On the one hand, it seems obvious that increasing the availability of remote appearances would further access to justice in Nunavut. The infrequent circuit court schedule means that people wait far too long for their trials, not because of backlogs but simply because there is no court in town. Court circuits are not only infrequent, but they are also regularly cancelled when bad weather prevents the court party from landing its plane. These delays, of course, have the same impact in Nunavut that they might have elsewhere in Canada, prolonging sometimes unreasonable restrictions on the liberty of those on bail and providing a strong incentive for those in custody to plead guilty. Obviously, if trials could proceed sooner with the parties appearing remotely, that would alleviate those issues. Nonetheless, we are urging caution on Bill S-4, for two reasons.
The first is that we do not have the technology to ensure that it is justly applied in Nunavut. This point was made earlier and more broadly by Mr. Bartleman, but I’d like to elaborate on how it works in Nunavut specifically. As I said, the only courthouse is in Iqaluit. This means that in 24 out of 25 communities, we don’t have the necessary equipment to allow for video conferencing in open court. When video conferencing is needed in a criminal proceeding outside of Iqaluit, it often means moving the court proceeding, the trial, from the community hall where it’s taking place into the local health centre, because the health centre is the only place that has a video screen connected to the internet. We have case law from our jurisdiction saying that this is highly problematic, and that is with respect to witnesses testifying by video.
It’s also relevant that we don’t have the technology to allow for private communication between the accused and counsel during the proceedings, as contemplated by the proposed 715.234, not to mention the added complications of parallel lines of communication where interpretation would be necessary for all parts.
Even more important, the internet in Nunavut is simply not reliable or powerful enough for clear and continuous transmission of testimony or submissions. Earlier today I was advised that due to my internet connectivity, it was quite likely that I wouldn’t be able to present submissions to you this evening. I’m grateful that we are now connected so that I can do that, but it’s just an example of exactly how unreliable our internet is here and that my internet connection is unstable.
As things stand right now, witnesses and counsel appearing remotely during court proceedings regularly cut out, freeze or lose connection altogether —
The Chair: Ms. Tache-Green, may I please ask you to turn off your video, and maybe we’ll be able to hear better. This is really giving us a taste of what you face. Please bear with us. Please be patient with us. We still want to hear you. If you don’t mind, just turn off your video. Thank you. Please proceed.
Ms. Tache-Green: Certainly. Thank you for telling me. I’m happy to proceed and happy to be interrupted if you’re not able to hear me.
My concern is that if this bill passes into law, those wishing to attend their trials remotely in order to expedite proceedings will face the same frustrations, except instead of a witness or counsel, it will be the accused who is potentially losing connection, missing parts of the proceedings or being unable to follow what is going on in court. Of course, a breakdown in the internet connection would ultimately lead to adjourning the trial for an in-person attendance, which is likely to lead to even more delay.
It may be that members of the bar and the judiciary here in Nunavut who are aware of these technological shortcomings will simply avoid the new provisions altogether. The result of that would be that parts of the Criminal Code that could reasonably be perceived as ameliorative won’t be available in Nunavut, the one jurisdiction in Canada with a majority Indigenous population, which gives rise to concerns under section 15 of the Charter, among other things.
It is also entirely possible that notwithstanding the inadequacy of our technology and court facilities, these new provisions will be very popular. It is very difficult and expensive to get around Nunavut, and the possibility of relying on remote proceedings may be very attractive to all members of the justice system. Senator Cotter referred to that possibility in some of his earlier comments.
That brings me to the second reason that we are urging caution. Increasing reliance on remote appearances in Nunavut is very likely to further alienate Nunavummiut from the justice system. For most people in Nunavut, the criminal court is a foreign entity that flies into town periodically to dole out justice that may be perceived as irrelevant by the time the court gets there or disconnected from the reality of life in the community. To use the language of others today, remote justice stands to be even more remote in Nunavut, which is a jurisdiction where justice is already remote. Of course, in Nunavut, the remoteness is not just geographic; it’s also culture and it’s also language.
Given the already low level of engagement with the justice system here, it seems likely that faced with a choice between waiting months for an in-person trial or getting it over with via a remote proceeding, many of our clients will choose the latter, despite the disputed procedural rights it affords. That, of course, raises the issue of whether consent in this context is truly informed. It won’t be good for our clients and it won’t be good for the administration of justice in Nunavut.
On behalf of Nunavut Legal Aid, I’m asking the committee to consider these factors, in particular, whether it’s fair to pass laws affecting the procedural rights of those in Nunavut, knowing that the technology to allow for a just application doesn’t yet exist. At least as important is knowing that increasing the availability of remote appearances stands to diminish the potency of justice delivery here in Nunavut, both for offenders and for their communities.
Thank you and I look forward to your questions.
The Chair: Thank you very much.
We’ll now go to Professor Cheryl Webster, who will share her time with Mr. Johnson.
Cheryl Webster, Professor, Department of Criminology, University of Ottawa, as an individual: Thank you for the kind invitation to speak to you about Bill S-4.
My co-presenter and I wish to make two points. First, we find the proposals in Bill S-4 to be largely sensible as they plot the course for the continuing use of technology in our criminal courts post-COVID, yet we suggest that you might want to critically evaluate the bill in terms of its ability to meet one of its stated objectives: to reduce court delay. Second, while we also support this bill as a means of increasing access to justice for the majority of Canadians, we urge this committee to consider three distinct groups whose access may be compromised by the transition to a virtual court environment.
Permit me to start. If this bill is to reduce court delay, we need to ensure that case processing going forward doesn’t just mimic what was happening before the pandemic, albeit now with simply more technology and remote appearances, but rather, that it brings about real change that’s necessary to improve case processing efficiency.
The extensive research on lengthy case processing in Canada, including this committee’s 2017 comprehensive report, repeatedly points to systemic causes of delay. To use bail court as an example, the mere option to process bail cases through virtual technology would seemingly have little impact on the current culture of adjournments in which many cases are requiring five or more court appearances to simply complete the bail process, or the protracted show cause hearings that currently resemble mini trials in which potential sureties are cross-examined.
My concern is that it’s difficult to identify in this bill any compelling mechanisms that will create a different court culture capable of altering our current complacency in processing cases largely at the root of court delay. Clearly, the modernization of our criminal courts is a worthy goal that will benefit many Canadians in a variety of ways. My point is simply that greater court efficiency is unlikely to be one of them. I urge this committee to renew its efforts in reducing court delay that it so clearly took up in 2017. The need is even more urgent now.
Brendyn Johnson, PhD Student, Criminology, Université de Montréal, as an individual: Like my co-presenter, I would like to thank the committee for the invitation to speak today.
Beyond how these technologies may or may not impact court delay, we also have concerns about what they may signify in terms of expanding access to justice — of course, an admirable goal of this bill. Despite common refrains that technologies will increase access to justice, we submit that their use can at times undermine it in a variety of manners, some of which can also exacerbate court delay.
My own doctoral research was undertaken systematically between January and October 2021. Among other issues, it highlights how access to justice issues are particularly troubling for three already disadvantaged groups in our criminal justice system: rural, self-represented and incarcerated litigants.
First is rural court litigants. As other witnesses have stated, the availability of reliable internet connections is problematic in rural and remote settings. I will simply add the following. It must be recalled that Indigenous peoples make up a large amount of the population in these areas. Consequently, these issues impact Indigenous peoples disproportionately.
Second is self-represented litigants. During my research, I witnessed the difficulty with which some self-represented accused navigated the virtual justice system. In addition to remote appearances, other technologies were introduced that they were required to use, such as e-court filing or electronic disclosure. Thus, in addition to navigating the criminal justice system without a lawyer, they were now required to do so remotely with whatever tech savvy they happened to possess.
Third is incarcerated litigants. Issues of access to justice were most salient among these individuals. I will discuss three of them.
In most appearances from jail, there was some interruption. Frequently the noise from the facility was so great that the court was forced to mute the litigant. Unfortunately, it was not always possible for the accused to unmute themselves when necessary.
Second, confidentiality was also an issue at times. Indeed, on a few occasions, I myself mistakenly entered a virtual meeting between defence and their client.
Finally, and perhaps most importantly, participants spoke of the limited number of video conferencing suites available in the jails, forcing local courts to vie for the same resources. Inevitably, not as many accused could be seen in a day, and cases were inevitably adjourned.
Stated otherwise, there are individuals who struggled to access virtual courts, those who struggled to navigate them and others who struggled to find meaningful, equitable justice when appearing remotely. If the use of technology in Canada’s courts is to benefit the system, it must be available, functional and user-friendly. None of this can be taken for granted.
Thank you very much.
The Chair: Professor Webster and Mr. Johnston, thank you.
We will now go to questions, starting with Senator Boisvenu.
Senator Boisvenu: I thank all of our witnesses. Ms. Webster, Mr. Johnson, you mentioned the report titled Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada (Final Report). I helped prepare that report with our former colleague Senator Runciman, who was then chair of the committee. This was a comprehensive study on delays in courts of justice.
Bill S-5 must also benefit victims. In the current system, the biggest source of frustration for victims of domestic violence and sexual assault are hearing postponements. I once saw a trial postponed 37 times in a domestic violence case. Bill S-5 will help address this scourge, especially in Quebec, where there is a culture of hearing postponements. This is not coming from me, but rather from a former chief justice who said it when we consulted him. Will this bill have a positive or negative impact on hearing postponements? Ms. Webster, can you answer?
Ms. Webster: Thank you, senator.
I certainly appreciate the reference again to your comprehensive report from 2017. I’d actually strongly urge the Senate committee to use Bill S-4 as a starting point for a renewed discussion on court delay.
The dramatic backlog resulting from COVID has seemingly, ironically perhaps, jump-started a rejuvenation in the search for effective strategies in reducing lengthy case processing in our criminal courts. At least in Ontario, where Brendyn and I have looked at more detailed data, the positive signs seem to suggest that the courts are open to real change. However, the current window of opportunity may not remain open for very long.
This Senate committee’s 2017 report put court delay back on the political agenda. We’re arguably in even greater need now. I encourage you to galvanize on the current momentum using Bill S-4 as the start of a wider process of additional reform. While Bill S-4 raises the issue of court delay, it’s very unlikely to be effective in addressing it. We need bold strategies at this point that attack the systemic factors underlying it. This Senate committee was bold in 2017. I invite this committee to take the lead once again and make court delay a top priority.
Senator Boisvenu: Mr. Johnson, did you look at victims’ position on applying this bill in your doctoral research?
Mr. Johnson: Thank you very much, Senator. I will answer in English. That’s my mother tongue, so I am much more eloquent in it.
I did not look at victims in my research, nor at how this bill might impact victims specifically through court observations and with court participants. Through the observation of court participants as well as the interviewing with court participants, specifically the legal community, I was told that some participants described how there was some hope among victims that this might help. However, I cannot comment on how this may or may not impact victims.
Senator Batters: First, a question for Ms. Tache-Green: In your opening statement, you talked about how you were urging caution, and you provided us some really important points of view, both in what you said and then in how your testimony actually came out. First of all, you talked about how 24 out of 25 communities in Nunavut don’t have technology to do a video conference in court, which is quite alarming. Then, partway through your testimony, your face froze and it came through for us saying, “network bandwidth is low,” and that’s when the chair wisely asked you to turn off your video so we could still hear you, and we did hear you well with the audio alone. You’re in this particular position working in a legal aid office, I imagine with some generally decent connectivity, and probably a lot of the clients would not have that sort of thing. I’m wondering if you could comment a bit more on that.
I’m not sure if you heard what I was asking in the last panel, but I’m quite concerned about having full-on video trials where the accused would be potentially subject to these types of situations. I’m wondering what you think about the possibility of, rather than or before using video for a summary trial, instead using video, if it’s to proceed, for a number of different court appearances like bail, guilty pleas, sentencing and things that are generally briefer than a full-on trial. What do you think about that possibility?
Ms. Tache-Green: Thank you for your question. I hope that I’m being heard clearly and that I don’t freeze.
Senator Batters: You are.
Ms. Tache-Green: I am speaking to you this evening from Iqaluit, which is the capital and should, in theory, have the strongest internet, and I am in an office and well connected, but, as you’ve all observed, I certainly don’t have the kind of internet that I would think would be sufficient for testimony at a trial. When we have witnesses testifying from other parts of Canada, pursuant to section 714.1 as it already stands, we often lose considerable amount of court time to their connectivity problems. Witnesses are disconnected or they can’t connect, the system shuts down, and very often, with respect to witnesses testifying, there will be a decision to transfer from video to just audio. That’s the same also with counsel. That happens here at the courthouse in Iqaluit, as well as on circuit in the other communities, where, as I said in my opening statement, we don’t have the technology to accommodate it so we’re often starting with audio as the default.
I am very interested in your comments about perhaps holding off on making video conferencing available for trials and starting perhaps with proceedings that have lesser jeopardy. I think for us in Nunavut, if we had our bail hearings by video, that would in fact be a step up. We have most of our bail hearings by telephone only, which means that the decisions about detaining folks are made by justices of the peace who never look at the people they are detaining. There are trade-offs. We do have a very quick bail system here. People get their bail hearings usually within 24 hours. But the geographic reality is that they do their bail hearings from a room at the RCMP detachment in the community where they were arrested by telephone, and if there is video technology in those detachments, they’re not using it. I think it would be great if we were using video for those proceedings.
I am very concerned about the possibility of trials proceeding with an accused who is, of course, the person with the most at stake, being potentially cut out of the proceeding by the technology breaking down. To give the committee an illustration of this, we did have proceedings under section 810 of the Criminal Code, which are peace bond proceedings and happen by telephone all the time in Nunavut. I recently had a client who was actually locked out of the proceeding and had a peace bond issued against her and she didn’t even know because nobody knew that she wasn’t on the line. At least with video, you have the ability to see if the person freezes, and that’s not always possible with audio.
I think the stakes are very real for us here, but I also want the senators on this committee to understand that we’re already relying on some questionable procedures in Nunavut as it stands right now. That’s just because of the geographic realities and the technological shortcomings that exist today.
Senator Pate: Thank you to the witnesses.
I think your evidence, Ms. Tache-Green, is fairly clear in terms of this presentation.
My question is for Mr. Johnson and Dr. Webster — soon to be Dr. Johnson, from the sounds of it. Congratulations on that. I don’t know if you heard the previous panel, but my question was about some of the research that’s been done in Britain where it shows that, in fact, people are more likely to get jail if they’re attending bail hearings from jail cells. I wonder if your research showed anything about that. Dr. Webster, if you could please tell us, what are the bold suggestions you would like to see this committee recommend? Thank you.
Mr. Johnson: Thank you very much, Senator Pate, for the congratulations. I do expect to add the doctor to the title very shortly.
As to your question, during the writing of my article, I found some studies that discussed how sentencing might be affected by virtual appearances. Like you, I did notice some conclusions that people may receive a custodial sentence more often if they appeared virtually. In my own research, however, I did not get to sentencing outcomes yet. That is currently in the works. I personally do not know if I can speak about that consequence, about actually receiving a custodial sentence.
However, what I can say is that when individuals were appearing virtually, there often appeared to be many more adjournments, returning to the culture of adjournments that Dr. Webster discussed. It appeared much easier for the accused to be adjourned to another date because there were many matters that had to be heard. I saw many sentencing hearings adjourned. I saw many bail hearings adjourned simply because of the volume and the individual was not in court. I did notice that there appeared to be greater delay because of these technologies and because individuals were not appearing in court.
I believe I’ll end my comments there. I don’t want to speak on something that might be a little far out from what my data actually says. I would simply end by saying that I believe delay is caused more often by appearing from jails, but I cannot speak to the actual case outcomes. Thank you.
Senator Pate: When you’re looking at that research, could I request, one of the pieces of research I was involved with some years ago in India showed very low incarceration rates overall because there were such long delays. People were actually released for time served for the amount of time they likely would have had as a sentence because there were so many delays, but it never got registered as a sentence because they were delayed on when they were remanded in custody, basically. I’d be very interested if your research shows any of that going forward and if you could possibly share it with us. That would be great.
Mr. Johnson: Of course, senator. Thank you.
Ms. Webster: Thank you, Senator Pate. I’d be happy to suggest bold statements for you.
Let me start within the context of Bill S-4. I certainly note from the start that I’m feeling a bit like a black sheep right now in the sense that everyone has tended to focus on all issues revolved around access to justice and I’m focusing specifically on court delay. As this Senate committee knows very well, we’re in desperate need of reform that could impact court delay. The advantages are multiple in nature. I won’t repeat them. Your report was very comprehensive.
Hence, how to move forward. First, I would strongly recommend a more comprehensive study. I’m suggesting using Bill S-4 as a springboard or as a starting point for reopening the whole discussion about court delay. Despite all of the great work that this committee did, it has been some years since we’ve heard much about court delay. The current situation resulting from COVID has certainly created a huge need to revisit court delay.
As part of that, my first thought would be to increase the research that’s being done, particularly on court delay, that is, what it looks like right now in Canada and the impact that COVID has had on it. I’ll give you two reasons why I’m strongly suggesting this.
In preparation for today, Brendyn and I examined two large data sets on case processing in our criminal courts. One is Statistics Canada publicly available data on court efficiency measures; the other is the Ontario Court of Justice publicly available data on criminal court processing measures. Each one of them tells us something important about the current state of our criminal courts in terms of court delay and, by extension, the potential impact of video technology that is being proposed in Bill S-4.
Looking first at Statistics Canada data, obviously they have the advantage of providing national data. However, this data set is limited in terms of the number of variables and data points. What is clear, though, is that court delay nationally has worsened since COVID. Not surprisingly, there’s been a dramatic drop in the number of cases resolved immediately following the onset of COVID. While the courts have indeed been working diligently since then, the numbers have not yet returned to pre-COVID levels.
The Chair: May I ask you to conclude, please, Dr. Webster? Just so you know, this is something the committee’s looking at, but, because of COVID and other challenges, it will be a while before we look at court delay.
Ms. Webster: All right, then. My bold statement would be to look at it as quickly as possible. Thank you.
The Chair: You have given me a lot of ammunition now when I go back to the committee. Thank you, Dr. Webster.
Senator Cotter: Ms. Tache-Green, I’m fully sympathetic to the challenges that you face in Nunavut. I spent three weeks just before I came to the Senate teaching in Iqaluit in the Nunavut law program. Though the matter was far less significant than what happens in a courtroom, regular breakdowns in the technology and the internet interfered with me teaching little things compared to the importance of what happens in court, so I understand fully the challenge.
I have one question, but I don’t even know, quite frankly, Dr. Webster or Mr. Johnson, whether you can answer it. I was listening to Mr. Johnson and thinking about the problems that are faced at the correctional centre end of things or perhaps in other locations. With respect to the administration of criminal justice, when COVID arrived, we made significant investments in our courtrooms so the judges would have good access, but we didn’t do much at the other end of the system. As a consequence — not intentionally uncharitably — a lot of the people who are professionals in the system have a fairly positive view of it because the system has been put in place that really helps them, but I think it’s fair to say we are hearing about concerns and difficulties at the other end. Do you have any idea whether the investments to try to make the use of technology, video access, and so on work during COVID were imbalanced in its distribution across the system?
Mr. Johnson: I don’t know about the funds that were allocated. However, I believe that you are right. The resources allocated to courts were perhaps either better utilized or more effective than they were in the jails.
In almost every day of my observations, I noticed on the list for the custodial institutions that, whether it be a provincial jail or a penitentiary, there were not enough people organizing those appearances. There were too few video suites. One example stands out in my mind. One judge discussed how they would arrive at the court several hours early and call all the other courts in the area to see if they did not need a bail slot for that morning so that they could use it. That’s why I raised the point earlier where I was discussing courts vying for the same resources. It was an amicable atmosphere, but it was still stressful nonetheless.
There was one positive example that I saw in my observations. In one facility in Ontario, they specifically had one correctional officer responsible for all of the virtual appearances. In that institution, appearances were never missed by individuals unless it was on consent, apart from a few instances where there was an active COVID outbreak that could not be helped and the accused were not allowed to be moved around the institution. Otherwise, it was a seamless process. I noticed that not many institutions had that.
Investing into the technology in custodial facilities is paramount, as other witnesses today have mentioned, but ensuring that there are sufficient staff to organize those appearances and use those technologies is also paramount.
Senator Clement: My question is for Ms. Tache-Green. I guess I’m concerned that the shift to virtual and access to technology reinforces existing privilege in the system. Those with money and education could pivot easily, and those within the court system could pivot, but clients and the accused could not. Could you comment on that? What do we need to do to address that?
Also, you said that there is a growing disconnection between Indigenous people and the criminal justice system or the justice system. How do we deal with that? What are your suggestions around this? You cautioned us about this. What do you suggest?
Ms. Tache-Green: Thank you for the questions. I’ll do my best to answer them.
I certainly agree that the shift to virtual remote technology-dependent proceedings does reinforce existing privilege. Much has already been said this evening about the circumstances of those in custody. To shed a bit of light on those not in custody living in remote communities in Nunavut, there are the same issues of privacy because we have a massive housing crisis in Nunavut, which means that people live in overcrowded houses. It’s very difficult to imagine finding a private space in which to phone in or video conference into a trial. Additionally, of course, people don’t have the personal resources to have their own phones or computers in most of these communities, and that’s on top of the problems with the internet already. So, yes, I do think that it reinforces existing privilege, and it’s very likely to create a two-tiered system — at least two tiers — whereby, perhaps, those who are well connected in downtown Toronto are able to log in and have their trial dealt with in a speedy amount of time, with great reception and great visibility. I’ve heard that some judges really like being able to see everybody up close, and maybe that’s even better justice in some ways, but that’s not going to be available for our clients in Nunavut who are not in custody, and it sounds like it’s definitely not available for those in custody elsewhere.
I’m sorry, senator, can you repeat the second part of your question?
Senator Clement: Yes. The growing distance, you said, between Indigenous people and the justice system.
Ms. Tache-Green: Yes. I’m not from Nunavut, but I have lived here for a couple of years, and my observation from being here is that there is a real disconnect and a distance between the court, which is this structured, southern, we can say, colonial entity that comes into communities, and the lived experiences of the people upon whom justice is supposedly being delivered.
One of the things to keep in mind is that the culture in Nunavut is very community-oriented, so there are very strong communities that exist with strong internal mechanisms for dealing with conflict that don’t necessarily align with the court system. Often conflicts are resolved within a community before the court comes back to impose punishment or judgment, as the case may be. That disconnect is already there.
Also, it’s something where individuals, like I said, want to get it over with, and so they are not necessarily concerned with the implications of a criminal record and not necessarily concerned with the implications of spending some time in custody. The results of that and that disengagement with the system, I think there are two parts to that. One is that it’s very easy for people to forfeit their procedural rights in favour of expediency, and the other side is that I don’t think that it produces a very good quality of justice.
Just to give you an illustration, if someone is being sentenced by telephone and they are not standing in front of the court, hearing the solemnity of the proceedings, seeing the judge, having their counsel stand beside them, they are less likely to absorb the gravity of the proceeding and, perhaps, are more likely to reoffend. That’s just one of the many ways to think about the larger implications of this disengagement or this remoteness that already exists.
I’m not sure if I can say fairly that it’s getting worse, but I do think that technology and increased reliance on remote appearances has the potential to make it worse.
Senator Wetston: Dr. Webster, I wanted to ask you a question about your view that what much of the discussion has been dealing with is access to justice and not court delay. Do you not see those as important concepts that affect one another and that any approach to addressing access to justice should also positively impact court delay, which we recognize has been a troubling aspect of our judicial system for a very long time? I wonder if you have any thoughts about that, please.
Ms. Webster: Thank you, senator. I appreciate the opportunity to clarify my comments.
Obviously, they are linked, and the fact that I’m focusing on court delay is more a reflection of the fact that you’ve had excellent feedback from the other witnesses in terms of access to justice issues.
I am troubled by the fact that the Minister of Justice has — one of the claims in support of Bill S-4 is that it will contribute to reducing court delay. My concern is that certainly in the analyses that Brendyn and I have done, we haven’t seen support. On the contrary, in some instances we’ve seen the opposite, that video technology can actually increase court delay. I suppose I’m simply urging the Senate committee to critically assess that claim in order to be able to ensure that there is supporting research and that there is an empirical basis to anticipate improved case processing with Bill S-4. Otherwise, my fear is that we’re simply replicating old inefficiencies albeit now using a new technology.
Senator Wetston: Ms. Tache-Green, Senator Patterson has articulated very passionately the need to enhance digital access in the area that you live in and in the North, and he speaks very passionately about the failure to invest appropriately to provide those kinds of services. I certainly agree with him, and I wonder what your view is about that kind of investment, enhancing that kind of investment. In some ways I hear you saying it’s a good thing but also it’s not such a good thing. I would think for the North, it might be more positive than not. He talks about spectrum, for example, purchasers of spectrum not using that spectrum, and, therefore, they should be mandated to do so or another company should.
The second part of that question, if I might ask, is really around the fact that when you think about digital access — and I mentioned this to Dr. Webster — we’re thinking in current terms. We’re not looking into the future here. We’re looking at the current use of this technology, which is not very dated at all. I appreciate your research and how important it is, but looking down the road, we’re going to see the use of this technology incredibly change society and the way we function, and maybe we don’t like it, and maybe it’s going to have detrimental aspects with respect to certain aspects of society and not benefit everyone. I wonder whether the panel might be able to comment on that, because I see the future here, and I see much of this will be based upon technology. I’m not saying that’s a good or a bad thing, but I do believe that’s the direction we’re going in, and it’s not going to be turned back.
Ms. Tache-Green: Thank you. I’ll try to answer your question.
With respect to Senator Patterson’s observations, he may know more about the reality of why our internet and technology are so deficient in Nunavut. I’m certainly not an expert in that area.
I do want to clarify whether enhancing technological capabilities in the North is a good or bad thing. I’m certainly on the side of it is a good thing. I don’t see any downside to increasing the quality, availability, reliability and consistency of the internet and other technological means at all, and I certainly agree with you, senator, that the future is likely to include more technology rather than less.
My concern at this stage is that we live in a country that is not evenly provided for and that the laws that are passed, federal laws, the Criminal Code amendments, affect everybody in this country, no matter what technology is available where they live. And that’s where I’m urging caution. We’re racing towards the future, but we’re not always getting there from the same starting point, and that’s something that we need to keep in mind.
I don’t think that conflicts with much of what has been said by other speakers this evening about the importance of in-person appearances because of what they add to the quality of justice and also to the quality of credibility determinations. As a defence lawyer, I can also say that that in-person connection is essential for building rapport with clients.
It may well be that one day our technology is so advanced that it feels like we’re all in the same room together, even when we’re not, but we’re not there yet.
The Chair: I’m very sorry, but I have to stop you, because we only have five minutes to get out of here. I’m really sorry to stop you.
Ms. Tache-Green: Not at all. I was just finishing. Thank you.
Senator Dupuis: I thank the witnesses for joining us. I have a question for the two witnesses. Perhaps Ms. Webster could answer me first, and then Ms. Tache-Green.
When the Minister of Justice appeared before our committee, he said these were requests made by the provinces. Bill S-4 is a response to those provincial requests. The minister tried to work based on the consensus he had obtained from the provinces.
My concern is more about what will be done. The provinces’ and territories’ requests seem to have been responded to. Since we are living in a technological world—and we know that the accused are sometimes marginalized individuals for all kinds of reasons—what can be done to improve the system, in addition to what you said, Ms. Webster? What can be done to work on the real reasons behind those reports—in other words, the complacency in the system? We saw that in 2017. We were all there. I was there. In addition to all this, what can be done to better equip people who are accused in this system to prevent technology from being an obstacle? What can be done to reduce what may appear to be an additional obstacle imposed on people who are already marginalized and vulnerable?
Ms. Webster: Thank you for the question. I appreciate it.
Certainly, thinking about those who are vulnerable, more marginalized — and again, I’m always talking within the context of court delay at this point — it’s certainly true that they are currently marginalized within the court system by court delay. They tend to be the ones that are disproportionately harmed by court delay. I’m thinking, for example, of the bail process itself. We know that, for example, Indigenous populations are particularly disadvantaged in terms of the number of conditions that are placed on them for release. Oftentimes the conditions are either not even related to the original offence, or they are setting them up for failure down the road, and then we have additional administration of justice offences and court delay becomes even bigger for them. The same issue would be in terms of surety requirements. My point being simply that they are increasingly disadvantaged the more court delay that we have in the system, hence my point that the centrality of dealing with court delay is ultimately trying to resolve the systemic factors that are at the base of a lot of this disproportionate treatment. Thank you.
Senator Dupuis: Thank you.
Senator Dalphond: Thank you to the witnesses. I know it’s late, but your contribution is always appreciated.
Professor Webster, I had the benefit of reading what you wrote, Out of Sight Out of Mind in 2009, and it sounds familiar to what you’re saying tonight. Here we are 13 years later. Your article was about bail hearings, but now we live in a society where it’s no longer limited to bail hearings. It will be appearances. It will be even summary trials and pleas. You fear that we will have this culture of adjournment setting as it did in the bail issue.
Over the years, did you notice some improvement before the COVID pandemic? I understand COVID is a reality that everybody was affected by, but before that, did you see some improvement in the systems? If not, why? Is it a lack of desire to improve? Is it that everybody wants to say all stakeholders will try to achieve better efficiency, fewer delays and end these cultures, but it’s not happening, and if so, why?
Ms. Webster: Thank you, senator. I think that’s the $128,000 question that we’ve all been trying to answer.
I will answer it in a different way. Certainly, COVID has created increased court delay, inevitably, in terms of an enormous backlog that is being dealt with. What is quite remarkable in comparison with the past — and just parenthetically, no, I don’t think court delay has been improving over time, at least during the 15 to 20 years that I’ve been studying it. Much to my surprise, when I looked at the Ontario Court of Justice’s data post-COVID, what I saw was positive signs of improvement in terms of efforts being made to reduce court delay, and successfully.
That raised, in my mind, two points. First, it demonstrated that change is, in fact, possible, a finding that excited some of us who may have largely given up on after decades of research on court delay. There appears right now to be a current openness within the courts, at least within Ontario, which is the data that we’ve looked at, to implementing measures that are, in fact, reducing court delay. I find this quite exciting but, at the same time, I think the window of opportunity to take advantage of and to galvanize on this movement towards change will close. I think for whatever reason — I assume being overwhelmed, being terrified by such a backlog — that has kick-started real change that we haven’t had before. Hopefully, we won’t have COVID or anything like it down the road again, and hence my urgency in being able to monopolize on that movement that we’re currently seeing towards positive change. It’s new. It’s exciting, but we need to act now. Thank you.
Senator Dalphond: You understand the bill is designed to give more tools in the tool kit, but the change of culture and the change of the way the courts are operating is within the realm of the courts and other stakeholders, and it cannot be done through the Criminal Code, in a sense. It’s more than that. Do you have any suggestions for us as parliamentarians? We can make observations. We can call for this momentum to be taken up and to finally do something, but apart from that, are there some things we can do in the Criminal Code to force it?
Ms. Webster: Thank you, senator.
I can give you a couple just off the top of my head. Legislative reform.
In the context of bail, which is where my expertise lies, legislative reform would look like, if I could suggest it, an overhaul of the legislative framework for pretrial detention and release. Specifically, legislative reform could take the form of tightening the grounds for detention. I’ve just read a really interesting study from the Irish in which for a very long time the predominant concern was simply on the primary ground. They had very low imprisonment rates and pretrial detention rates. More recently, with the introduction of a secondary ground, their use of pretrial detention has risen significantly.
Second type of legislative reform, eliminating the reverse onus provisions that exist right now.
Third, imposing limits on bail conditions that, quite frankly, are out of control right now with the risk-averse mentality.
Fourth, imposing strict limits on the duration of pretrial detention. In 2020-21, the Ontario remand population now accounts for 77% of the total inmate population. This is crying out for urgent reform in terms of legislation.
I hope that’s helpful.
Senator Dalphond: I have a quick follow-up. Could we have the documents you referred to from the provincial court in Ontario about the delays and the one from Statistics Canada about the delays?
Ms. Webster: Senator, I would be happy to. There is no report. We are using the raw data that’s provided online. It is publicly available and we have done our own analyses, but I would be happy to share that if that would be useful.
The Chair: Thank you, Professor Webster, Mr. Johnson, and Ms. Eva Tache-Green. All of you have really got us thinking about many different things. Thank you for staying with us so late.
And Ms. Eva Tache-Green, thank you for your patience. We really appreciate it. Your difficulties brought home to us that there are real challenges.
(The committee adjourned.)