CCLA to Attorney General: Emergency Management of the Justice Sector Now Needed

Sunday, March 22, 2020

The Honourable David Lametti
Attorney General of Canada
House of Commons
Ottawa, Ontario K1A 0A6

Dear Mr. Attorney,

I am writing you about Canadian justice ministries’ responses to coronavirus, and your own. Thank you for responding to my February 6th 2020 letter, and for your Ministry’s willingness to reach out to a variety of stakeholders and voices on the subject these past few days and weeks.

In particular, I am writing about three matters: emergency funding of provincial legal aid services; access to information and intergovernmental transparency of legal orders; and, the administration of criminal justice during a pandemic.

Regarding access to justice, countless lawyers from across Canada have stepped up to serve the public interest during the coronavirus outbreak. In turn, provincial legal aid systems have had to rise to the occasion. Legal Aid Ontario (“Legal Aid Ontario”), for example, dispatched duty counsel and funded defence counsel to assist with the disposition of charges and judicial interim releases this past week in Ontario, thereby permitting the release of over 1000 in custody, in but one week. The compensation to defence counsel was meagre as ever, but LAO exceeded the highest of expectations in their actions during the crisis, to accommodate the heroic efforts of counsel. The corollary to this is that no doubt provincial Crown attorneys and courts also have unexpected costs to administer the federal Criminal Code and related laws at this time. Credit is due to the bar, bench and their supporting institutions for this debt they incurred for the public good.

Just as the federal government will aid provincial health ministries with relief and emergency funding in the coming days and weeks, provincial justice ministries are going to require financial aid to compensate for the past and future costs of responding to the crisis. The sooner this is confirmed by the Government of Canada, the better. The (unfair) fiscal federalist division of prosecution and legal aid costs is a long-standing issue not to be resolved today, but it ought not interfere with the special costs arising from the coronavirus response.

Regarding access to information, during the coronavirus response, at least, the Executive branch must better align itself with the Legislative and Judicial branches of the state. A judicial decision is made public immediately upon being rendered. The same is true of legislative action. The same is not true of Cabinet orders. While political communication of an Executive decision receives great attention before and after it’s made, the same cannot be said for the disclosure of legal orders. Besides the delayed transparency, there appears to be zero inter- governmental coordination.

There have been intergovernmental efforts to coordinate access to information about public health care, but not with respect to the equally important rule of law. It is unclear at times whether a federal or provincial Minister of the Crown or a Mayor is merely advocating from their bully pulpit versus announcing an interim or other order or legal directive pursuant to legislation or regulation or Order in Council. Some provinces have succeeded in disclosing their Cabinet orders simultaneous with public announcements. Your Ministry has, I know, endeavoured to achieve increased federal transparency but there remains a lag time between announcement and disclosure of legal documents. Nor is there a central location for the public to find such orders, to my knowledge. If judicial review is to be ruled in or out by civil society, we need the government decision to be available once it has been made.

Transparency and the rule of law should require that any order made be immediately disclosed to the public. The other branches of the state already operate in this fashion. Moreover, unlike most government orders in ordinary circumstances, the coordination, collaboration and centralization of information about Canadian emergency management laws must be brought together as soon as possible. In our view, the responsibility for executing that centralization of access to information ought to be undertaken by the Attorney General of Canada, as the superintendent of the rule of law among the executive branches.

I’m sure we agree that everything done by public officials must be authorized by law. It follows that we need access to information when seldom-used laws that provide for exceptional powers are invoked. Canadians need your help in getting that legal information.

Regarding the administration of justice during a pandemic, CCLA and others have already made public our concerns regarding corrections. But the larger issue remains that the criminal legal system is necessarily operating at cross- purposes with public health goals. Whereas the latter is about social distancing, the former is too often about social warehousing. The Ontario Superior Court has made a similar point this week on a bail review: R. v. J.S., 2020 ONSC 1710

Leaving aside CCLA’s common refrain about over-criminalization, there remains the particular conundrum of how the criminal justice system is administered, across Canada, consistent with public health officials contrary directions. Division of justice powers and jurisdictional federalism has also contributed to difficulties in coordinating a public health response to, for instance, overcrowding in prisons and immigration detention centres.

Even if a government agreed, to reduce overcrowding in prisons requires action by Crown attorneys (provincial and federal) and courts (provincial and federal) plus the actions of police, of every jurisdiction, not to mention the administration of provincial offence statutes. The only way to effectively pursue public health goals within Canada’s multifaceted justice system is through the Federal-Provincial-Territorial (“FPT”) Justice Ministers coordination.

We have no view as to whether an FPT Justice meeting online or otherwise is a solution. Moreover, we acknowledge that some Provinces or Territories may diverge on the appropriate approach. Nevertheless, greater coordination and enhanced quasi-judicial discretion from the Attorney General of Canada would help achieve common goals, no doubt.

In a nutshell, a public health approach would necessitate that the releasable be released; that detention be a measure of last resort; and that public health exigencies be imported into the “public interest” component of quasi-judicial discretion exercised by Crowns, at least:

• For the presumed innocent, pre-trial, quasi-judicial discretion ought to be exercised so as to drop charges where it is in the public interest, which includes the public health issues raised by this pandemic (i.e, the “public interest” can be invoked to justify the liberation of a defendant, but not to justify the laying of a charge or continuation of a prosecution, absent a reasonable prospect of conviction).
• Respectful of their quasi-judicial roles, all police and prosecutors should be encouraged, with support from respective governments, to take into account public health goals, and exercise their discretionary authority as follows:
  • Release those charged at the scene, buttressing the principle of restraint entrenched in Part XVI of Criminal Code; viz., release everyone at the scene absent a severe, evidence-driven risk of flight for very serious charges; and,
  • Consent to judicial interim releases on the same grounds of extra restraint, consistent with R. v. J.S., 2020 ONSC 1710.
  • Facilitate timely, fair hearings using available technology, even telephones, for the purpose of granting releases with minimal and flexible conditions, parole, probation, and other forms of release into the community; and
  • Ensure that conditions of confinement adhere to humane standards, including providing for virtual visits, and adequate programming to the extent possible. In particular, isolation and lockdowns cannot replace releases where the latter is possible to ensure the health of inmates, correctional staff, or their families.
  • Maintain accurate, disaggregated data about lockdowns, isolation, and other measures, to ensure transparency and accountability.
  • Facilitate the relaxing of unnecessarily strict application of evidence and procedural bars to facilitating a release.

For those convicted, existing legal tools could be accessed to reduce the prison population (and immigration detention) through conditional releases, compassionate releases, and other discretionary measures. Every release from confinement will alleviate over-crowding, avoid the spread of infection when the virus reaches penal institutions, and protect inmates, correctional officers, and the innocent families and communities to which detainees and inmates will return.

The Attorney General of Canada, therefore, may effectively advance public health goals throughout the justice sector, in a variety of ways, within the current laws, with particular focus on those easily becoming an afterthought during a pandemic.

Thank you for considering the foregoing.

Sincerely,

Michael Bryant
Executive Director & General Counsel
Canadian Civil Liberties Association