Main Estimates 2020–21

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COVID-Related issues

COVID Impact on Court Delays

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 stakholders 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, recognizing the need for a multi-pronged approach that reflects the perspectives and marshals the efforts of each institutional branch.
• 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.

Provide 2 other questions & answers that the Minister might be asked based on current topics, hot issues or media/public interest:

• 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, 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.

COVID-19 Impact on Departmental Operations

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 are working remotely, the Department has taken enhanced safety measures to provide a safe workplace for employees delivering critical services.
• 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 legal professionals have spent over 207,000 hours supporting on 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 has 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 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, the Public Health Agency and others. In total, Justice Legal Professionals have logged over 207,000 hours supporting Canada’s response to the Pandemic.
  In addition, grant and contribution surplus funds have been re-directed to assist funding recipients such as Child Advocacy Centres in safely delivering 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 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 on the day the World Health Organization declared a global pandemic.
• 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 the Department provided clear direction to employees quickly. This ensured that the Department was able to continue operations and support the Government’s response.
• 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 2.8% productivity was lost 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 2.8% were claimed as special leave related to the pandemic.
• 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 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 of Justice has spent approximately $125,000 on personal protective measures, including non-medical masks, hand sanitizers, signs and partitions.

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 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 97.2% efficiency level meaning that only 2.8% 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. 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. A team of over 40 employees was assembled to create and deploy individual Microsoft Teams accounts for all Justice Canada employees, providing a workspace chat and videoconferencing capability that did not rely on the Department’s network. In addition, a team was dedicated to imaging and shipping devices to employees’ homes as not all employees were able to bring their workplace devices home to work remotely.

At present, most Justice Canada employees continue to work remotely. As courts have re-opened and 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 over the first six months of this unprecedented situation, preparing for potential local resurgences, and refining its plans for increased office attendance. 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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