Yves Faguy speaks with Justice Minister and Attorney General of Canada David Lametti, and CBA President Vivene Salmon about how the justice system has coped with the pandemic, the digitalization of our courts, funding legal aid and criminal law reform.
Bonus Episode presented by CBA National and CBA Futures, After the pandemic: The future of justice, Ep 6
In this sixth and final episode in our series, Justice Minister David Lametti and CBA President Vivene Salmon talks about the investments the federal government and the provinces need to make in the administration of justice to improve access to justice. They also discuss how the global racial protests is putting pressure on the government to address systemic racism in the criminal justice system.
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Yves Faguy: You’re listening to Canadian Bar Association National Magazine. [music]
Hello. I'm Yves Faguy, the editor and chief of CBA National Magazine. Welcome to After the Pandemic, a conversation about the future of justice, produced with the support of CBA Futures. For this sixth and final episode of our series, I have two special guests. The first is the federal justice minister and Attorney General of Canada, David Lametti, who also chairs the action committee on court operations in response to COVID-19. He chairs this committee with the Chief Justice Of Canada, Richard Wagner. Thank you for joining us, Mr Lametti.
David Lametti: Thank you, Yves, for having me.
Yves Faguy: I’m also pleased to have with us CBA president Vivene Salmon, who is also the chair of the CBA taskforce on justice issues arising from COVID-19. That taskforce will be making recommendations later this year, I believe, for improving the justice system post pandemic. It’s great to have you with us today, Vivene Salmon. Thank you for coming.
Vivene Salmon: Thank you very much for having me, Yves.
Yves Faguy: Mr Lametti, let me start with you. First, I'm hoping to get your impressions from your perspective on how the justice system in Canada has managed through this difficult time, and has it had any impact on your views on what to do and how to tackle the system’s shortcomings, not just in the short term but in the long term as well?
David Lametti: That’s a good question. Look, I think the system’s handled it reasonably well. Obviously the administration of justice is generally provincial across Canada, so, depending on the province, but generally the provincial court systems, also the spirit of courts in every province’s courts of appeal, which are generally administered by the provinces, and then the territories. We, of course, at the federal level, have the federal court system, the Supreme Court, and the various branches of the federal court.
I think generally they’ve handled it reasonably well. There have been slowdowns, something ranging from shutdowns temporarily to slowdowns. Most of the systems have now come back to some semblance of volume. It isn't necessarily what it was before the pandemic hit, but they are all up and running again. And so I think they’ve done a reasonably good job. Judges have shown a remarkable degree of flexibility, and so have the participants in the system.
There are a number of lessons that we can learn, and learn moving forward, in terms of identifying gaps that we have physical structural gaps in the system – technology, for example – and the ability to do certain kinds of procedures at a distance has become much more important. Hopefully we’ll be in a better place with better, more pointed kinds of investments to allow that kind of distance to happen, where it doesn't have a negative impact on any of the parties, and, in particular, participants in the criminal justice system, we wouldn't want to see their rights being impeded upon.
The other thing that helps with respect to technology and digitization is just the idea that we can actually do more things digitally: keep better records digitally, get better data digitally. That weakness is glaring in some places worse than others, and I think for me as a federal minister of justice that kind of [unintelligible 00:03:31] becomes very important moving forward to try to make sure that we help provide the resources to allow for better record keeping, better digital record keeping, so that we have a better and more efficient system.
Yves Faguy: We’ll get to digitalization perhaps a little bit later, but I would like to ask Vivene Salmon. The pandemic, obviously, has jolted parts of the legal industry into action, and not just the criminal justice system; it’s forced us to rethink how our system of justice works. Again, post pandemic, what do you think needs to happen to perhaps meaningfully fix access to justice and ensure that the system becomes fairer for everyone:
Vivene Salmon: One, it’s recognizing that there is a challenge, and I think that has been recognized now. More than ever it’s shown what some of the gaps in the system are and some of the challenges that we’ve tackled at the court administration level that we’ve heard, and also at different levels of courts across the country. But what it’s also shown us as well is that it’s really important for all stakeholders and the justice system to work together, and that’s why I think the CBA taskforce is very important as well as the action committee on court operations in terms of working together with other stakeholders, looking at the access issues – access to justice issues – the backlogs, understanding that within the whole system, when there are backlogs, when the average person cannot access the system, that their problems expound, they snowball. It leads to all these other problems within our society.
So I think that’s primarily to situate it in terms of a framework; I think that’s important to understand in terms of how we discuss this issue today. But I also think working together is very important to look at the backlogs and the system, looking at investments in the justice system as a whole, technology, and specifically we know there’s challenges with our remote communities in terms of accessing technology, and understanding that this is all linked to ensuring that we have open courts and that we have a democratic system that the average person and people across Canada can believe in and feel that they can access justice and justice will be not only seen to be done but will be done.
Yves Faguy: Minister Lametti, you know, I think everybody agrees that we need to embrace technology in our courts to make justice available to more people. How difficult of a challenge is that and why have – You know, I realise that it’s an area of provincial jurisdiction for much of administration of justice, but why is it so difficult for us to get our heads around this in Canada?
David Lametti: Well, first of all, Yves, let me just circle back to what Vivene just said. I agree with every single word that she said and I would amplify it times ten. The need to cooperate, the need for the federal government to be working with provincial governments, all of us to be working with court administrators, justices, chief justice, with stakeholders, key stakeholders like the CBA and other groups is absolutely critical as we move forward, and any kind of change that we make or propose to make has to be done in a proper consultative, cooperative fashion, so, and I thank her for her implication and leadership in that regard. We’re obviously looking very closely and will be working very closely with the CBA taskforce on the action committee as well as as an elected politician and Minister of Justice.
Back to your question, it is complicated and it’s in part because it’s a provincial system, a provincially administered system, and [simply] we’ve got three territories and ten provinces; in part because it’s a big country; in part and, you know, going back to my old hat when I was parliamentary secretary to the innovation minister – in part because we need better infrastructure for telecommunications. You don't have to go very far outside of a big city to begin to lose either your cell phone or your internet access, and think about it in regions in this country in the north and in other rural regions in what is a relatively sparsely populated country that covers a lot of geography.
So part of it is the telecom infrastructure itself, which is, quite frankly, look, I'll be honest, quite frankly inadequate. A jurisdiction like Nunavut has to deal with distance proceedings all the time and it’s tough because of the nature of their connectivity.
And then it’s just the different amounts of, I suppose, resources that are dedicated, because provinces are different sizes and they have different densities and you get a varying level of, you know, the way records are kept, for example. And so we need – We found that out with, you know, when we were – when we passed our legislation to pardon cannabis offences – simple possession of cannabis. The way in which the pardons are done are going to differ in every single place because the procedures are different.
So it’s complex. I think it has become glaringly clear to me as the federal justice minister that the federal government has to take a leadership role and invest in resources to help – really to help standardize and bring up the standard, the way records are kept and the way digitization generally – documents and that sort of thing in the court system – have to help, really help, bring everyone up to the same and a very high standard.
Yves Faguy: Over the years there have been repeated calls, including from the CBA, obviously, for significant increases to justice funding, to put more money into the court system, also to [invest 00:09:30] more in legal aid. Indeed, according to justice figures, somewhere near 600,000 legal aid applications, I think, were received in 2017, 2018. About four to five of them were approved for full service. It is a question of meeting the thresholds, which are still quite low in terms of revenue. I mention that just simply to state that there’s clearly a demand for the service, and we’re seeing more and more people feel like they’re shut out of the justice system. Again, I realize a lot of this is run at the provincial level because we’re talking about civil issues, but, you know, criminal as well.
My question to you, Minister Lametti, is why is it so difficult to have a meaningful debate in this country about properly resourcing the justice system when we are a country of the rule of law, we wear that emblem of pride, but why is it so difficult to talk about it when access to legal services is an issue that obviously affects a great number of Canadians?
David Lametti: It is a challenge, and it’s a political one. As someone who has to fight for resources around the cabinet table, I can tell you that it’s tough, and that gets replicated at every provincial and territorial budgetary table as well. So it is the reality of our political system.
I certainly understand the challenge of legal aid. It’s not just civil; you’re right. It’s criminal. A lot of immigration legal aid. And I'm also aware of the acute impact that COVID has had on certain funding mechanisms like the Law Foundation of Ontario and the drop in revenues as a result of the market hit has resulted in less money than traditionally went to legal aid funding. So I understand that.
There’s also different mechanisms. The way legal aid is run in Ontario is very different from the way legal aid is run in Quebec, and so there is – there are different funding models, different payment models. But, that being said, you’re critically correct to say that it is a fundamental access to justice issue that the people who have recourse to legal aid are the people who most need it and perhaps most need the justice system. And so the protection of it or, again, the ability of it to seek reparation in civil cases and that sort of thing.
I understand how critically important it is, I understand how much of an access to justice issue. I do my best to obtain those resources, but I think you’ve put your finger on the fact that we perhaps need, as a society, to prioritize these kinds of resources more than we have in the past, and that’s true at every level – every level of government as well as the federal government. And just also as a society, we need people to realize that access to justice is critical and one of the key components to access to justice is adequately funded legal aid.
Yves Faguy: Vivene Salmon, you know, I know the CBA has looked at this from the vantage point of we need to think of legal aid as almost part of the social safety net. Can you help us understand that?
Vivene Salmon: Yes. In any three-year period we have done some statistics. Almost half of Canadians will have some kind of legal issue. And I would say it would be maybe even lower in a lifetime but almost every single person in a lifetime will have to access the justice system in some way, whether you’re getting a divorce, whether you need to go to a small claims court, there’s always going to be something – that’s life. And so I think the challenge comes when our system is not functioning correctly, that people feel that they can access lawyers, then they become self-litigants, which becomes a challenge for a justice system as a whole, definitely for judges in terms of doing their role and, in a way, I would say, babysitting self-litigants, which is not correctly their role to play in the system.
And I think a general understanding for people to understand that at least $800M is probably the cost that it costs the state each year when we’re not investing in the system properly. And I think when you look at it even more, like everything in life, everything is intersected. The whole world is interconnected; the whole legal system is interconnected. And so, by that, when we don’t invest in the justice system as we should, I think I had mentioned the statistics earlier, that for every dollar spent on legal aid services, it saves about $6 in other social services. And so, you know, for a lot of people when they’re not able to access the system, they don’t spend money in other areas, or they just let their problem bubble and bubble and bubble and bubble, and then, by the time they get to a lawyer, maybe they’re bankrupt. You know? Which then perhaps leads to other social problems where people are depressed, they commit suicide, all these things that are really difficult that society as a whole bears the cost.
So I know back in the fall we, as the Canadian Bar Association, we had our hashtag LegalAidMatters campaign, and we were grateful for the support from other lawyers across the country as well as our 36,000 members from across the country where we called on the government to have more sustainable legal aid funding, and I know investments were made.
I guess what we’re seeing is lawyers who are in the forefront of this – of the justice system and on the front lines, really, is that we need Canadian people to recognize how complex the system is, how intertwined it is, and how important it is for everybody to have access to justice and to feel that, when they have a legal problem, that they can go and get the services and the justice they need to ensure that their other problems don’t expand into catastrophic problems.
Yves Faguy: Minister Lametti, I'm wondering, from your vantage point, has the pandemic in any way changed the government’s view or accelerated the government’s view to thinking of justice more holistically in terms of it being a social issue?
David Lametti: Well, I think there are a number of issues that have come up as a result of the pandemic – court delays and that sort of thing – that have forced a great deal of discussion. The issue that I just mentioned on legal aid certainly has focused some minds in, you know, not just the justice department but I would hope the finance department and around the rest of the cabinet table.
As well as the really physical technological investments that we have to make in – we have to help the provinces to make in particular in the administration of their courts, particularly in a world where COVID hasn’t disappeared. We need to have a way, and this is what the action committee is actually doing a great deal of in terms of collecting best practices and setting out guidance documents, but we need to have a way to allow for the health of all participants in the system from, you know, the people running the building, the janitors and the cleaners and the food service staff, to security, to court participants, to the actual litigants, to the judges, we need a way for all of them to be safe while dispensing justice and going through the kinds of procedures that are necessary.
So all this has really come to light. I think it’s helped people understand the complexity of the justice system, and I think it’s helped people to understand that this is very, very important, and that, particularly with the delays that have obviously happened as a result of COVID, we have some challenges and we’re going to need to keep cooperating at all levels in order to get through.
Yves Faguy: The other issue I want to bring up are the recent global protests over racial issues, and that have shed a lot of light on racial justice. So, last week as part of this series of episodes on our justice system, we had a lawyer over, his name his Joshua Sealy-Harrington, he’s a young lawyer. He was giving a critique of criminal justice, explaining that it was socially constructed in a way that marginalizes certain communities, people of colour, indigenous people, and obviously there’s a lot of evidence of unfair treatment throughout the criminal justice system from contact with police to sentencing, issues to do with bail, parole, all these kind of important components of our justice system. You as the Minister of Justice must be giving some thought to how we need to address that, so that racialized groups and black communities, indigenous people, see that the justice system also belongs to them. Where are you at with that now?
David Lametti: Let me just begin by saying that it is simply true and utterly shameful that if you are a black Canadian or if you are an indigenous Canadian or a racialized Canadian you are more likely to get stopped by the police, that if you get stopped by police you are more likely to have that contact end in an arrest, that if you arrested you are more likely to have charges proceed, and that if charges proceed you are more likely to end up with a conviction, and a conviction with incarceration. It is – Overrepresentation in the criminal justice system of black Canadians, of indigenous Canadians, and of other racialized Canadians, is absolutely shameful and we need to fix it.
And so the recent protests that have happened have shone a great deal of light in Canada, because we have a problem of systemic racism in Canada in the criminal justice system, and we all have a responsibility to try to fix it.
As Minister of Justice, I'm trying to work on reforms within my bailiwick. So, obvious – Things that are obvious that have been suggested that I am looking at, minimum mandatory penalties and the disproportionate impact that they have on black Canadians, on indigenous Canadians. Conditional sentences as an option. Investing in more community-justice-oriented programs, so that, whether they be restorative justice, whether they be urban programs to help kids and gangs, to get out of gangs and to get out of guns, there is a great deal of – a great body of evidence that exists. Improving the quality of Gladue reports, and improving the coverage of Gladue reports and perhaps extending Gladue reports to other marginalized groups in Canadian society.
So all these things are on my radar screen. It is also a matter of me, as a member of cabinet and as a member of parliament, convincing my colleagues around the table. So the public security minister has a great deal of responsibility to deal with policing and making our policing better. Perhaps looking with the Minister of Health at treating a number of different issues, not as criminal justice issues or as crime issues but as health issues, in order to keep people from entering the criminal justice system at the outset. All the incarceration questions, again, that fall under the public security minister’s responsibilities.
And then also as a member of parliament and as a member of cabinet to work on what causes crime. Poverty causes crime. Mental health. Better support for mental health. Better housing. If we attack – And fundamental racism in society, just as a general – as a general. If we value and validate people and if they have a roof over their head and they have access to medical health services and mental health services, we’re going to have a lot less people in the criminal justice system, and I think that’s really ultimately where we need to push but I do need to, as a Minister of Justice, to push for concrete measures within the criminal justice system itself.
Yves Faguy: Vivene Salmon, there is also, and you may wish to weigh in on this on the criminal component, but there’s also a civil component to involving community-based organizations. How do we redesign the system where we can manage some of people’s legal problems before they get to court?
Vivene Salmon: Well, I think situated it again in its bigger context. When I was listening to Minister Lametti, I feel like so much is on his shoulders and I feel like in a way it shouldn’t really be, because I feel so many of these issues, right, are in terms of colonialism and systemic racism. It’s not solely within the justice system; it’s in the broader community as a whole and the broader society as a whole. Whether we’re speaking about residential schooling or slavery or all these things, fast forward, there are still elements that are institutionalized in our system, and I think I was reading somewhere they were saying that the reparation in terms of this legacy of slavery, the slaves were never paid for being slaves or compensated; it was actually the slaveholders and it was, I think, about four years ago where some of those debts were finally paid off. So what it amounts to is that most people don’t realize that there’s very things that individuals aren't responsible for but there are certain things that are baked into the system that it takes more than one person to dismantle it.
And so I think that, yes, we need things in the civil system, we need to talk about things like restorative justice, we need to be innovative, to think outside the box, we need to use more use of pardons and things for – that petty crimes do not clog up our system. You know? We have so many backlogs and we’re fighting for access to justice. Yeah. Perhaps we’re criminalizing things that don't need to be criminalized, as an example.
On the civil side I think it’s the same thing, quite frankly – that we don't want to, as a society, be investing resources, and by that I also mean people resources, in terms of a system that is – I wouldn't say it’s broken but fundamental things need to change so that we have, at the end of the day, I think, one, a system that we all can believe in and we all believe we can get justice in, because I fear on the extreme if people don’t believe in a system then it’s a method of vigilante justice where I feel like the rule of law breaks down in society, and that, I feel, is a fundamental principle of our democracy, which I think all lawyers and I think all Canadians should be very concerned about.
Yves Faguy: Minister Lametti, there’s a lot of talk these days about defunding of police, and I think it’s a term that means a lot of things to a lot of different people. To some people it means shifting resources from policing institutions to more community-based, once again. How is your government approaching this issue? I mean, you must have had conversations with your colleagues about this.
David Lametti: Well, look, back when I was an academic, I did a little bit of administrative law and people were talking about restructuring government. We had a saying which was deregulation is re-regulation. Look, all defunding means, as from a government perspective, is, where are you best employing your resources? As Vivene has just said, I don't think anybody – I think we want to have a really good, robust justice system, based on the rule of law, that policing will be a part of that, but, on the other hand, what – linking it back to what I said earlier, if the better use of resources is not an extra police officer but an extra health worker on the ground or an extra mental health facility or a mental health outreach program, or an addiction program for problematic addiction, if the resources are better spent there because they’re actually health problems, for example, or poverty problems or other kinds of social challenges, of course we need to look at where the money is best spent and we need to be innovative and creative and try to figure out how to balance all these competing needs.
So, defunding is currently a buzzword but, as a challenge to how to figure out the best way to attack social problems, I think it’s a perfectly legitimate challenge.
Yves Faguy: We’re running up against the end of this interview. I would like to ask you both: if there’s one aspect you would like to see the different stakeholders of the justice system really focus on, again, with the goal of making our justice system more accessible and fair to all, what would it be?
Vivene Salmon: Well, I could probably sit here talking to you all day, but – [Laughter]
Yves Faguy: You get one. [Laughter]
Vivene Salmon: If I had to pick one, and this is not, I would say necessarily, the CBA's view, but my personal view, I think we must invest in technology. We can't have lawyers running across town having to file things in person. We can't have people trying to see their lawyer, and they’re spending, like, an hour on the subway to get there. Like, from what I feel on COVID is teaching us, I wouldn't say taught us, because I don't think we’re finished with this pandemic yet, but is teaching us, is that technology is already here. We have so many resources that can do so much.
I know under our taskforce we had Karen Eltis, who is a professor at the University of Ottawa in their law and technology program, and it was so fascinating to have her here. And at the end of the day I think technology is tied into access to justice, it’s tied into how lawyers do their job, therefore how they perform – helping them perform better for clients, helping us serve the rule of law more efficiently. I personally think technology is at the heart of how we do things and, as Professor Eltis had told us in our last taskforce, there’s also a negative element that we also have to look at in terms of who’s controlling technology, even when we fund things, and perhaps down the road we’re going to ask the folks where David Lametti works to fund things more and develop more technology. Who owns the technology and are we leaving that into the private hands of these big corporations [that yeah were 00:27:59] government and societal?
So I think there’s a lot of issues to go through but, fundamentally, I think this is the way the world works now and we’re not going to be able to go back in terms of a way doing things differently. We have to do things efficiently but at the same time we have to preserve the open-court principle and we have to preserve the rule of law.
Yves Faguy: Minister Lametti, what would you like to see happen?
David Lametti: Well, I was going to actually agree with every single word Vivene just said, so, and I do that, so I think she’s absolutely, absolutely right. But let me then use this opportunity, since she’s answered the question for me, and much more eloquently than I could have, let me say that we all have a – we all can play a role in getting a more diverse bench, right away. So, I encourage anybody to apply, particularly people from racialized communities, from indigenous communities. We’re getting better; our numbers are getting better. But we can do so much more if people will step up and apply. So, yes, technology is the way to go but here is something that we can all do: encourage your friends, encourage people who might not otherwise think that they’re qualified to apply for the bench, to apply for the bench, and, again, particularly from racialized community groups. The bench has to look like us in order to dispense justice that is meaningful.
Yves Faguy: I thank you very much, and that concludes our interview. I've been speaking with the Minister of Justice and Attorney General of Canada, David Lametti, and CBA president, Vivene Salmon. Thank you both for joining us and thanks for taking the time to speak with us and our listeners.
Vivene Salmon: Thank you very much.
David Lametti: Thank you, Vivene, and thank you, Yves.
Yves Faguy: If you enjoyed this conversation you can listen to our previous episodes of After the Pandemic, a conversation about the future of justice. You can hear them on our CBA channel, The Every Lawyer, on Spotify, Apple Podcast, Google Play and Stitcher, and, to hear us in French listen to our Juriste Branché podcasts.
Now, we also want to hear views about what changes need to happen in our justice system and in the legal profession. Where do you think the key players need to focus their energies and how do you suggest we overcome some of the challenges we’ve discussed? Let us know on Twitter at @CBAnatmag, and on Facebook.
Finally, I would like to thank everyone who helped me put these conversations together: our guests, but also the folks at CBA Futures for their guidance. I'm talking here of Martine Boucher, Jean-Philippe Couture, Aviva Rotenberg, and Leanne Plamondon. Also, my CBA colleague Kim Covert, who gave me some editorial advice, and especially our podcast editor, Ann-Catherine Désulmé, who’s done a terrific job at making us sound the best we can in these COVID times.
Thank you, all.