43rd PARLIAMENT, 2nd SESSION Standing Committee on Justice and Human Rights EVIDENCE NUMBER 031 Thursday, April 29, 2021 Chair: Ms. Iqra Khalid 1 Standing Committee on Justice and Human Rights Thursday, April 29, 2021 ● (1100) It's an honour and privilege to be asked to appear before you to‐ [English] day to address the committee on the specific issue of the impact of the COVID-19 pandemic on the judicial system in Canada, espe‐ The Chair (Ms. Iqra Khalid (Mississauga—Erin Mills, cially on any delays or impacts on trials in the criminal justice sys‐ Lib.)): I call this meeting to order. Welcome to meeting number 31 tem. of the House of Commons Standing Committee on Justice and Hu‐ man Rights. Let me first address the challenge. A year ago the courts across Today, we have MP Pam Damoff replacing Mike Kelloway. the country were virtually shut down because they were not set up for remote practices to any great extent. For almost three months, Welcome back, Pam. It's so great to have you back. from mid-March into late June or early July, criminal, family, civil To ensure an orderly meeting, I'd like to outline a few rules to and child protection cases could not be adjudicated or dealt with. follow. That led to the creation of a large backlog. It also had the effect of often shutting down negotiations with respect to those cases. With‐ As our witnesses know, there are interpretation services avail‐ out the access to adjudication or the threat of adjudication, parties able. You have a choice at the bottom of your Zoom screen. Select often aren't motivated to resolve their matters. the language that you would like to listen to. You can speak in any language you like. When you are not speaking, you should be on Now we are in a similar position. We've adopted remote prac‐ mute. tices in our trial courts in Ontario, that being the Ontario Superior Court of Justice in this province. Across the country it's called the Please do wait for me to recognize you by name before you start Court of Queen's Bench in many provinces, and the Superior Court speaking. I will remind everyone that all comments by witnesses of Quebec in that province. All of those are trial courts; they're sec‐ and members should be addressed through the chair. With respect tion 96 courts. The judges of those courts, while subject to the ad‐ to a speaking list, the clerk and I will do our best to maintain one ministration of justice jurisdiction of the provincial governments, and make sure that everybody is accommodated. where they sit under section 92 of the Constitution Act, are section Now, before we get to our witnesses today and start the hearing, 96 appointees by the federal cabinet on the advice of the federal I'd like to get the committee's approval for the operational budget Minister of Justice. They are judges of general jurisdiction, dedicat‐ that was distributed to members yesterday. The budget is in the ed, hard-working judges working with counsel and pivoting to re‐ amount of $1,775. It will serve to pay our expenses for the current mote practices in this pandemic—very successfully, I might add. study. Do I have the members' approval with a thumbs-up? More recently, because of the stay-at-home orders in Ontario, Okay. That's carried. Thank you very much. among other provinces, court staff can't get into the courthouses. Therefore, the Zoom technology can't be dealt with at home by Now I would like to welcome our witnesses. We have, appearing those dedicated court staff. Consequently, the judges are adjourning as an individual, Mr. Todd McCarthy, who is a barrister and solici‐ or cancelling many hearings in all of these areas of the law. tor. We also have with us the Professional Transcriptionists and Court Reporters Association of Ontario, represented by Joanne Hardie, who is the president. What's the impact of that? Of course, as a general jurisdiction, the section 96 courts across the country and the judges of those To the witnesses—and for members—you will have five minutes courts decide cases in the matters of criminal law, family law, child to make your opening remarks. I have a one-minute time card and a protection and civil justice. They could be hearing a civil pretrial in 30-second time card to help you keep track so that we can keep our the morning, dealing with a child protection midday and an urgent meeting on track. bail hearing in a criminal matter at the end of the day. They are very hard-working, and very diverse aspects of the law come before With that, we'll start our panel with Mr. Todd McCarthy for five those judges. minutes. Mr. Todd McCarthy (Barrister and Solicitor, As an Individu‐ What happens when you have this kind of challenge? You have a al): Thank you very much, Madam Chair. Good morning to you growing backlog, and it's very difficult to deal with that presently, and members of the committee. and it's only going to worse. That is the problem. 2 JUST-31 April 29, 2021 The problem is compounded by a policy choice made by our PTCRAO is a not-for-profit business association with member‐ Supreme Court of Canada in the case of Jordan and Her Majesty ship spanning across the province of Ontario. Through 55 years of the Queen in 2016. The Supreme Court of Canada decided that the operation, we have adapted and evolved to meet many challenges. right to trial within a reasonable time, the section 11(b) charter right Our mandate has never changed. We are committed to ensuring that under our supreme law of the land, was such that it would be the profession of court reporting and transcription services are pro‐ specifically time limited with a ceiling of 30 months for a trial in vided to the highest professional standard. Now we face our biggest the superior courts of the country after a preliminary inquiry. That's challenge. 30 months. In the case of Jordan, the latter was was charged with multiple narcotics and trafficking offences, and after the 44 months it took to try him in a superior court, his charge was stayed by the In Ontario, from the onset of the pandemic, the justice system Supreme Court of Canada. He was allowed to walk free. The prose‐ went into immediate action. Lockdowns and restrictions because of cution of that case was not successful just because of the delay due COVID accelerated the rapid modernization of the courts and to that charter breach. gained immediate and positive response. The path to modernization I am proposing that the committee seriously study a solution, went straight to Zoom and teleconference calls as a way to exist in however temporary it might be. It's called the notwithstanding a virtual world that COVID created. clause. It's also part of our supreme law of the land and part of what policy choices are possible. It preserves parliamentary supremacy. I can answer more questions about it. I'll just make reference to Zoom because it's more efficient, but all these comments apply to teleconference as well. To zoom direct‐ The courts are not always right. To quote the late Professor ly to the point, as a reaction to COVID, in the understandable rush Hogg, “it is wrong to assume that a judicial decision on a rights is‐ to ensure the courts remained functional, stakeholders and decision sue closes the debate on that issue. On the contrary, citizens and makers overlooked the most important foundation of the justice their elected representatives Parliament will inevitably want to con‐ system, which is the official court recording. They replaced it with tinue the debate, and in some cases there will be a strong sentiment a one-channel Zoom solution. Without a stable, eight-channel audio in favour of reversing the decision of the Court.” recording that is properly preserved and securely stored, a verba‐ That is what the notwithstanding or override clause does. It is a tim-certified transcript is almost impossible to produce. The voice legitimate constitutional instrument, uniquely Canadian, and en‐ of a victim or a witness to a crime can no longer be heard if words dorsed by the late Professor Hogg as a useful instrument. are lost on a one-channel recording. This is our main concern and focus, and the reason we appear before you today. ● (1105) I ask this committee, subject to questions you may have, to con‐ sider how this can be thoughtfully invoked for five years—because By regulation in Ontario, a transcriptionist must be authorized by it does expire after five years if not renewed—to deal with this cri‐ the Ministry of the Attorney General to certify court transcripts, sis in our trial courts. It affects criminal, civil, family and child pro‐ herein referred to as ACTs. tection cases. Thank you. Here are some examples of the problems with Zoom. On one The Chair: Thank you very much, Mr. McCarthy. You are right channel, you cannot separate speakers if they talk over one another. on time. I really appreciate that. On one channel, if there is nothing to identify same-gender speak‐ ers, they are simply noted as “unidentified”. On one channel, dogs We'll now go to Ms. Hardie. You will have five minutes. Take barking, babies crying, doors slamming and dishes being washed in your time, speak slowly and clearly, and we'll get through this.