Interview with the Justice Minister

CBA National: According to the latest statistics, the number of vacancies for judges in Canada sits at roughly about 10 percent. Meanwhile, we're getting reports of exhaustion and burnout among judges who are under-resourced and understaffed. What's your assessment of the state of our justice systems across Canada?

Justice Minister David Lametti: Like every other institutional structure in Canada, there was stress on the system that COVID created. I'm willing to work with my provincial partners to find the resources federally to be supportive. So for provincial courts -- they're not in my jurisdiction -- but anything that I could do to help, I will in terms of resources. 

N: What about the vacancies? 

DL: The number waxes and wanes. We've added a lot of positions, so the total sum has gone up since I became justice minister. We do have a rigorous process for selecting judges. There are more appointments in the pipeline coming. 

N: What's difficult about filling the vacancies? 

DL: First of all, encouraging good candidates to apply. And we're at a stage right now where we need more good candidates to apply to refill the pools. Each province has different pools, and some provinces have more than one pool. And then there's the federal court. The judicial advisory committees look at the files. They are now in place for three years instead of two, which is better because they can evaluate more files. I'm really proud of the quality of the appointments I've made and the diversity of the appointments. And doing a good job takes time. Sometimes elections also get in the way. 

N: I understand that some of this does not fall within your remit, but you co-chaired the Action Committee on Court Operations in Response to COVID-19, which identified some of the benefits and challenges of remote hearings. We're hearing reports that some jurisdictions are returning to their old ways, bringing back in-person hearings that aren't necessary. It's also reasonably well-accepted criticism that procedural layers can get in the way of courts doing what needs to be done. From your perspective, are justice stakeholders paying enough attention to rethinking the procedural burdens of how justice is delivered?

DL: I think we've done that. In December, we passed Bill S-4, largely at the behest of the provinces, particularly Ontario and Quebec, with suggestions for distance proceedings, audio, video, and appropriate safeguards for the accused in criminal proceedings and special attention paid to self-represented individuals. And it tracked largely with what we heard on the Action committee and what we'd heard from the CBA. So that's now in force as of the beginning of this year. 

N: Are you worried courts are slipping back into bad habits? 

DL: I hope not. We have to move to best practices, and that might be virtual in many cases. It might be in-person in others, depending on the nature of the case. But what we're trying to do is give flexibility to the provinces and territories for administering their justice systems and also to participants in the system. We think it's moving in the right direction. Obviously, it needs investment in terms of technology. There's probably a need for more resources, I understand that. But there's also a better need for broadband connectivity across Canada. The Minister of Science, Innovation and Development has that on his agenda to get 98% of Canadians hooked up on high-speed broadband by 2026. It's a tough file, given the geography of the country. But that's absolutely necessary before we can press provinces or territories that might be moving more slowly on the technological front. 

N: You delayed the expansion of medical assistance in dying (MAiD) for those whose sole underlying condition is mental illness. It remains a divisive issue, and both sides have raised concerns about the social factors at play, including poverty. Is that behind the decision to give it more time? 

DL: It's on a separate track, but it's not part of the reason behind the extension. The reasoning is simply to get all the experts, clinicians, medical faculties, and regulatory bodies across Canada on the same page. There's been a lot of work done developing the standards for mental disorders as a sole criterion for MAiD, the protocols at the federal level and for some of the provinces. But not everyone is in the same place. And to get the social licence to move forward, we need everyone to internalize those guidelines. We need medical faculties to teach what's there. We need regulatory bodies in provinces to understand the rules and regulate properly, and for clinicians to understand. 

N: So getting everybody to agree and understand those protocols is the challenge. 

DL: We have to do as best as possible. To be honest, we'll never get to 100%. We haven't for any other medical standards and safeguards. But this is something that requires a greater degree of social licence. And it's important that I point out that when we talk about mental disorder or mental illness as the sole criterion, we're not talking about someone who's depressed or having suicidal thoughts. Those people need to find help. We need to provide help as a society. That's not this. These are long-standing mental disorders that have been under the treatment of a professional, and then the safeguards kick in. You need that opinion, you need another opinion. You need all possible treatments to have been tried. And the understanding that I have from the expert committee is that a number of people will apply, but very few will get MAiD. And we're now getting better data. The vast majority of cases are still end-of-life: cancer, terminal illness. And even for the track two cases [where natural death is not foreseeable], the last statistics I saw were [...] less than half a percent. Mental disorders will be a fraction of that fraction. It's not a large number of cases.

N: Health Canada granted a three-year exemption from the Controlled Drugs and Substances Act to British Columbia, effectively decriminalizing the possession of drugs under 2.5 grams. Critics worry that this experiment could worsen the province's drug crisis without addressing all the factors that contribute to the incarceration of people, or addressing some of the public safety concerns that people have. What do you say to those critics?

DL: We are working with the province and the City of Vancouver, working with the police authorities in British Columbia. And there was a lot of back and forth on, say the amount, for example. We're collaborating with health authorities in the province, with police authorities and governments because something had to be done, and the old plan wasn't working. So I don't want to use the word experiment. This is an important project to treat health issues with a health response as opposed to treating health issues with a criminal response. 

N: But decriminalization itself is not enough, is it? 

DL: No, and the province is committing to greater health supports. We're trying to look at this as a health problem and see how the health system can respond with appropriate supports. This was done with great care. So I'm hoping that it works, and we'll see where it goes from there. But it lines up with part of what I did with [bill] C-5, which was making diversion the default for these kinds of minor drug offences. 

This interview was edited and condensed for publication