Supplementary Estimates C 2020–21 And Main Estimates 2021–22

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COVID-Related Issues

Impact on Court Delays (COVID-19)

Context: Most Canadian Courts were quick to adapt to these unprecedented times. By setting up protocols, leveraging technology and adapting equipment and protocols, courts continue to hear cases and maintain essential services to Canadians.

• Last March, unprecedented measures were taken in order to limit the spread of COVID-19. These measures included the closure of most physical courtrooms.
• The courts are a pillar of Canada’s democracy. In consultation with the private bar, government officials and other stakeholders, most courts were quick to find alternatives to conduct their operations.
• An Action Committee on Court Operations in Response to COVID-19 was also created. It is co-chaired by the Chief Justice of Canada and myself, and its membership comprises key stakeholders in the administration of justice and the Public Health Agency of Canada.
• The Action Committee provides national leadership to support the work of provincial and territorial governments, individual courts, and court administrators in progressively restoring the full operation of Canada’s courts while ensuring the safety of court users and staff.
• The Action Committee offers resources to help our courts adapt health and safety practices to the unique setting of court operations. The Action Committee is also dedicated to building more modern, responsive and resilient courts, improving access to justice and recognizing the need for a multi-pronged approach that reflects the perspectives and marshals the efforts of each institutional branch.
• Lessons learned are now emerging, and courts are looking not only at the short-term, but also at how to leverage some of the practical adaptations and innovations used to respond to the pandemic, such as virtual tools and technologies, to promote longer-term efficiencies and access to justice. We anticipate more lasting changes will emerge over the coming months.
• Parliament also enacted the Time Limits and Other Periods Act (COVID-19) which allowed the continued protection of Canadians’ rights in the context of civil legal proceedings, by ensuring that individuals are not prevented from asserting their rights because of the passage of a time limit. The purpose was to better support Canadians, Canadian businesses, and the Government in making sure they are able to avoid irreversible legal consequences.
• On February 24, 2021, the Government introduced Bill C-23, 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). Bill C-23 proposes reforms that would, among other things, expand remote appearances (by videoconference and audioconference) and expand and update the telewarrant regime.
• The Courts Administration Service, which provides administrative support to the federal courts, received $5.7M to fund the courts’ critical operating requirements impacted by COVID-19. In addition, the Office of the Registar of the Supreme Court of Canada received $0.5M for the same purpose.
• Question: What is the impact of court delays on the application of the Jordan decision?
  • Answer: At this time, the courts are not staying proceedings due to delays solely caused by the pandemic. There appears to be a common understanding that delays caused by court closures and reduced operations due to the pandemic will not count against the Crown as they constitute “exceptional circumstances” under the Jordan framework.
• Question: How to reconcile the open court principle with hearings conducted remotely or with limits on the number of people attending?
  • Answer: The open court principle must be maintained despite physical distancing measures. Courts have established protocols to provide members of the public and the media virtual or alternative access to Canadian courtrooms thereby maintaining the open court principle.

Background:

Action Committee on Court Operations in Response to COVID-19:

The courts are a pillar of Canada’s democracy, an essential service to Canadians, and a critical support to economic activity. However, as a result of the COVID-19 pandemic, courts were forced to significantly curtail operations in response to physical distancing and other public health and safety requirements.

That is why the Right Honourable Richard Wagner, Chief Justice of Canada and Chairperson of the Canadian Judicial Council, and the Honorable David Lametti, Minister of Justice and Attorney General of Canada, established an Action Committee on Court Operations in Response to COVID-19.

The Action Committee provides national leadership to support the work of provincial and territorial governments, individual courts, and court administrators in progressively restoring the full operation of Canada’s courts while ensuring the safety of court users and staff.

As Canadians and their communities emerge from the present crisis and adapt to new realities introduced by COVID-19, the courts will be crucial to a broader national recovery. By providing provincial, territorial, and judicial decision-makers with the best possible health and safety information, and promoting information-sharing on innovative solutions and best practices adopted by courts in various jurisdictions to help restore their operations, the Action Committee supports them in ensuring the safety and well-being of court users, while advancing Canadians’ common interest in a safe and accessible justice system.

Jordan:

Pursuant to section 11(b) of the Charter, accused persons have a constitutional right to be tried within a reasonable time, which if violated will result in a stay of proceedings. In the 2016 R v Jordan decision (Jordan), the Supreme Court of Canada (SCC) set out presumptive numeric ceilings beyond which the Crown would have to establish the presence of “exceptional circumstances”. The time limit between the laying of charges and the conclusion of a trial is 18-months for cases heard in provincial courts and 30-months for cases heard in superior courts or cases going to trial in provincial court after a preliminary inquiry. Exceptional circumstances are circumstances that lie outside the Crown’s control in that they are not reasonably foreseeable or avoidable and cannot reasonably be remedied.

Statistics Canada can provide details on the number and percentage of cases stayed/withdrawn due to unreasonable delay, up to and including 2018/2019. The first release of quarterly data will include Q1 2019/2020 and Q1 2020/2021 data and is anticipated for the late spring or early summer of 2021.

Justice Canada conducted reported case law searches for section 11(b) Charter delay cases in 2020. Reported case law represents a fraction of court decisions across Canada, so the following information provides only a partial portrait of the situation. The Department identified 31 reported cases where proceedings were stayed due to Jordan (section 11(b)) delays and 13 where they were not stayed. 21 of the 31 cases that were stayed involved delays incurred exclusively prior to the pandemic (prior to March 12, 2020). The remaining 10 cases involved delays both prior to and since the pandemic, but for which the total time exceeded the Jordan limit even with a deduction of the pandemic–related delays as an “exceptional circumstance.” The 13 reported cases that were not stayed involved a deduction of the pandemic-related delays under the “exceptional circumstances” exemption of the Jordan test thereby placing the delays within the Jordan limits. A chart with these case citations is attached.

Bill C-23:

On February 24, 2021, Bill C-23, 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) was introduced. The Bill proposes reforms that would, among other things, expand remote appearances (by videoconference and audioconference), expand and update the telewarrant regime, enhance the use of technology in the jury selection process, allow court officials to assist unrepresented accused for administrative matters, and provide flexibility in the process for taking fingerprints. These amendments would benefit the criminal justice system beyond the pandemic as courts manage backlogs and seek greater uses of technology for judicial processes and for virtual proceedings. Bill C-23 was informed by discussions with provinces and territories, as well as input received from other key stakeholders, including the judiciary through the Action Committee on Court Operations in Response to COVID-19.

Impact on Departmental Operations (COVID-19)

Context: Since the declaration of a global pandemic in mid-March 2020, Justice Canada has worked hard to maintain operations in the face of unprecedented challenges.

• Justice Canada has provided high-quality legal services to the Government throughout the COVID-19 public health crisis. While most employees continue to work remotely, the Department has put in place enhanced safety measures to provide a safe workplace for employees delivering critical services throughout the country.
• The Department’s legal services – including legal advisory services, legislative and regulatory drafting, and litigation – have been crucial to the Government of Canada’s COVID-19 response. Since the beginning of the pandemic, Justice Canada legal professionals have spent over 285,000 hours supporting COVID-related files, and this does not include the time spent by employees in policy and internal services.
• Justice Canada has worked hard to ensure that the tools, technology, facilities and protective measures required for employees are in place. The Department reallocated approximately $3 million to ensure its employees have the tools necessary to continue providing high-quality legal services while working remotely.
• I am very proud of how quickly Justice Canada officials adapted to new ways of working and their continued dedication and hard work supporting the Government and Canadians.
• Question: How much has the Department spent in support of the COVID response?
  • Answer: At the onset of the pandemic, Justice Canada quickly reoriented its workforce to continue providing critical legal services while working remotely. Legislative drafters worked night and day to draft new legislation, emergency orders and regulations. Legal advisors provided advice and support to key clients such as Health Canada, Public Services and Procurement Canada, the Public Health Agency and others in their work to address the pandemic. In total, Justice Legal Professionals have logged over 285,000 hours supporting Canada’s response to the pandemic.
    In addition, grant and contribution surplus funds have been redirected to assist funding recipients, such as Child Advocacy Centres, to safely deliver their programs and services during the COVID-19 pandemic.
• Question: How prepared was Justice Canada at the onset for the pandemic emergency?
  • Answer: Justice Canada began closely monitoring the situation in December 2019, including working to update its business continuity plans to address a specific pandemic threat in January 2020. The Department conducted a pandemic preparedness exercise March 11, 2020 - which coincided with the day the World Health Organization declared a global pandemic, and just a few days before the Treasury Board Secretariat requested that employees telework whenever and wherever possible.
• Question: What measures were put in place to support the safe continuation of operations?
  • Answer: The Department activated the governance structures in its Business Continuity Plan to ensure clear direction was provided to employees quickly. This ensured that the Department was able to continue operations and support the Government’s response, including drafting new legislation, emergency orders and regulations, providing legal advisory services to client departments, and conducting litigation.
• Question: How many employees have been able to work remotely during the pandemic?
  • Answer: All Justice employees are able to work remotely, although for some employees, the nature of their work requires physical presence in the workplace.
    If asked, the employees who must attend the workplace generally are working on sensitive files or preparing for court hearings and need access to physical resources in the workplace.
• Question: In circumstances where employees were unable to work, what was the usage rate of other leave with pay for Justice Canada employees?
  • Answer: The Department’s leave tracking system shows that approximately 2.5% of productivity was lost between March and the end of October 2020 as a result of the pandemic. More specifically, of the total number of hours that could have been worked since the beginning of the pandemic, only 2.5% were claimed as special leave related to the pandemic. From the beginning of November 2020 to the end of January 2021, when the new TBS guidance on the use of this special leave came into effect, productivity has increased and is close to normal with only .05% productivity loss.
• Question: Does Justice Canada have plans in place to have employees returning to the workplace?
  • Answer: Justice Canada has taken actions to prepare our buildings to maintain operations and has developed a plan for a gradual return to the workplace, with the physical and mental health, safety and well-being of employees as the primary consideration. The Department recognizes that the pandemic will have a significant impact on the future of work, where working from home will be an option for many employees and the Department will be prepared.
• Question: What has the department spent to date on personal protective measures?
  • Answer: The Department of Justice has spent approximately $125,000 on personal protective measures, including non-medical masks, hand sanitizers, signs and partitions.
• Question: How much has the department spent on technology resources and equipment to facilitate public servants working from home during COVID?
  • Answer: Between March and October 2020, the Department of Justice spent approximately $203,500 on providing technology resources, including monitors and computer peripherals; and office furniture, including chairs and desks, to employees who are working from home as a result of the COVID-19 pandemic.

Background:

The World Health Organizations declared a global pandemic on March 11, 2020. This announcement was soon followed by declarations of a state of emergency in jurisdictions across the country. The situation had the potential to have a severe adverse effect on Justice Canada’s employees and its operations.

Thanks to close monitoring of the situation and preparations that began in the months immediately preceding the pandemic declaration, the Department was well-positioned to maintain its operations as the emergency situation developed. Justice Canada offices never closed; while restrictions were put in place and most employees shifted to working remotely, the Department’s offices remained available to those providing critical services whose work could not be carried out remotely. Throughout the unprecedented challenges presented by the COVID-19 situation, the Department was able to continue providing legal advisory services and legislative and regulatory drafting services that were crucial to the Government of Canada’s pandemic response.

Since the pandemic started, closures of schools and childcare facilities had an impact on the Department’s workforce as employees were balancing working from home with childcare obligations. To address individual employee needs, flexible and alternative work arrangements were implemented to assist in balancing work and childcare obligations, and on a case-by-case basis, other leave with pay was granted when other work arrangements were not possible. With these flexibilities in place, throughout the pandemic, the Department’s workforce continued to work at a 97.5% efficiency level meaning that only 2.5% of the total possible work hours were covered by other leave with pay in circumstances were the employee had a childcare obligation; a care obligation as a result of caring for a family member with COVID-19; had health issues that prevented from attending the workplace to work and due to the nature of their duties were unable to work remotely; due to technology challenges were unable to connect remotely to work; or other reasons.

Justice Canada provided early, innovative leadership in operational COVID-19 response. The Department took early steps to produce a comprehensive plan in preparation for the gradual easing of emergency orders nationally. Justice Canada’s Easing of Workplace Restrictions Plan and supporting training materials have been shared widely. This Plan, along with guidance to managers and communication with employees, continue to be updated to conform with guidance from central agencies and public health authorities. In addition to measures to equip employees with protective equipment and materials and to prepare the workplace for safe attendance, the Department developed an Office Entry App to allow employees to request access to Justice worksites and help managers to monitor and review employee requests. This tool helps manage the number of people who enter the Department’s workplaces and supports physical distancing. The App allows users to submit office entry requests for a specific floor, date and time for their manager’s approval, as well as view occupancy levels before requesting and approving entry requests in order to plan visits safely. (The tool does not collect personal information or health status. It was developed simply to make it easier to schedule access and control numbers of people in our workplaces).

With respect to supporting remote work, the Information Solutions Branch reassigned multiple staff to meet the Department’s technological needs. The individual Microsoft Teams accounts that were created for all Justice Canada employees, continue to provide a workspace chat and videoconferencing capability that does not rely on the Department’s network. In addition, a team continues to be dedicated to imaging and shipping devices to employees’ homes to ensure continued remote working.

At present, most Justice Canada employees continue to work remotely. As courts have re-opened or have adopted a virtual hearing model, more of the day-to-day business of the Department has resumed, more employees have returned to the workplace. The Department remains attentive to the situation and responsive to public health advice and guidance from central agencies. Justice Canada continues working to apply lessons learned of this unprecedented situation, preparing for potential local resurgences, and refining its plans for increased office attendance and increased use of technology. At this point, the anticipated end-state is not focused on a return to pre-COVID normal, but on the arrival at a new normal

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