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Terms of Reference for the Action Committee on Court Operations in Response to COVID-19

Updated: February 2023

1. Overview, Mandate and Key Outcomes

The Action Committee on Court Operations in Response to COVID-19 ("Action Committee") is a national leadership body co-chaired by the Chief Justice of Canada, the Right Honourable Richard Wagner, and the Minister of Justice and Attorney General of Canada, the Honourable David Lametti. It is mandated to ensure that Canada's chief justices, provincial and territorial ministers of justice, heads of court administration, and other officials responsible for the administration of justice are supported by the best available public health information, practices, and resources as they work to adapt and restore court operations in response to COVID-19. Further to that mandate, the Action Committee considers the legacy effects of the pandemic, including through promoting innovative practices and providing guidance for addressing challenges such as case backlog and delays.

Recognizing that the provinces and territories have primary responsibility for the administration of justice within their jurisdiction, and that the constitutional principle of judicial independence reserves key elements of courts administration to chief justices and courts themselves, the Action Committee will develop national principles and parameters, facilitate information-sharing and communication across jurisdictions, identify common needs and solutions, and promote a nationally harmonious approach to restoring Canadian court operations that places the health, safety, and the best interests of Canadians at the forefront.

2. Context

While courts remained operative and the open courts principle has been upheld throughout the COVID-19 pandemic, court operations across Canada were severely curtailed due to physical distancing and other public safety measures adopted by governments. In order to ensure the safety of court users and officials, and to assist local and national efforts to contain the pandemic, court hearings in all jurisdictions were often limited to the most urgent matters; new methods were employed to facilitate remote hearings and the electronic filing of court documents; and rapid adaptations were put in place to ensure that essential in-person court services and proceedings could be conducted safely. Owing to the remarkable dedication and resolve of court officials, legal professionals, judges, and members of the public alike, courts thus remained open and the rule of law maintained. Many Canadians have nonetheless suffered delay, uncertainty, and barriers in accessing justice. The pandemic has exposed and magnified the shortcomings of existing outdated processes and practices, and has introduced new challenges to Canada's justice system, most notably the creation of significant backlog and delays in court cases.

Canada's courts are an integral part of our democracy, an essential frontline service, and a critical pillar for economic activity at the local and national levels. As legacy impacts of the pandemic continue to create personal, societal and institutional challenges, Canadians will depend on the courts to ensure stable enforcement of their legal rights and relationships. Effective functioning of court operations is thus essential to Canada's broader recovery plan. This is especially true for vulnerable individuals and communities who rely on the courts to navigate periods of stress and uncertainty. While the COVID-19 pandemic has placed significant additional strain on the system, it has also led to unprecedented innovation in the use of technological tools and other novel measures in the courts. At the same time, stakeholders across the justice system have strengthened existing, and forged new, partnerships to creatively and collaboratively address the challenges faced. Now there is an opportunity to take advantage of this unintended experiment in innovation to both mitigate the lasting effects of the pandemic on access to justice and to continue to modernize the justice system with the needs of court users at the forefront.

While regional and jurisdictional variation are integral to Canada's court system, Canadians have a shared interest in accessible and effective justice. This requires close and respectful collaboration amongst federal, provincial and territorial justice ministries and with Canada's judiciary at all levels, with a view to supporting one another in learning from the crisis and emerging stronger than ever. Effective collaboration will support appropriate local leadership and decision-making in relation to court operations, informed by the best public health information and resources.

3. Mandate

1. The Action Committee will adapt public health principles and guidelines identified by First Ministers and health authorities to the unique context of courts, providing national guidance to support the restoration and stabilization of court operations in all jurisdictions. This guidance will be of a non-prescriptive nature, enabling chief justices, chief judges, justice ministries, and courts officials to develop protocols suited to the circumstances of individual courts and their communities. Recognizing that community needs and corresponding responses will vary, the Action Committee will support the alignment of practices reflecting Canadians' common needs and interests across the justice system.
2. The Action Committee will promote coordination and collaboration, facilitate information sharing, and support the identification of common principles and best practices in restoring and stabilizing court operations, while ensuring the safety of all court users and officials. Information-sharing will not be limited to guidance developed by the Action Committee itself, but will also apply to the distribution of documents, guidelines, and updates emanating from individual courts, as appropriate. The Action Committee will also encourage and promote effective communication of information both to decision-makers and to Canadians.
3. The Action Committee will work to ensure the consistency of its national guidelines with parallel, medium-term planning toward the modernization of Canada's justice system and improvement of access to justice through sector-wide innovation and reform. To that end, the Action Committee will encourage reflection upon, and learning from, the experience of Canada’s courts in response to the COVID-19 pandemic. It will consider the legacy of the pandemic in Canada’s courts, both in terms of innovative practices and challenging situations, such as case backlog and delays, which need to be addressed.

4. Key Principles and Considerations

The Action Committee will be guided by the following principles and considerations:

• The health and safety of court users and staff is paramount.
• Courts exist as an essential frontline service to the public, and planning in response to the COVID-19 pandemic must be driven by the needs, perspectives, and best interests of Canadians.
• The open court principle is key to ensuring public confidence in the justice system. As much as possible, court proceedings should be open and accessible to the public and the media, including when hearings are conducted remotely.
• The needs of Canada's most vulnerable people and communities, and of those most severely impacted by the COVID-19 pandemic, must be accounted for.
• Reconciliation with Indigenous peoples requires awareness of the ways that Canadian institutions, including the justice system, have systemically discriminated against Indigenous peoples. Action is required to dismantle these institutional barriers.
• The operation of an effective court system is a constitutional responsibility jointly shared by the federal, provincial, and territorial governments and a strong and independent judiciary, informed by mutual accountability to Canadians.
• The administration of courts in the provinces and territories falls within provincial and territorial jurisdiction, such that national guidelines cannot supplant the authority and leadership of appropriate provincial officials.
• Judicial independence is a fundamental constitutional principle and includes judicial leadership and control over critical elements of court administration.
• The impacts inflicted by the COVID-19 pandemic on the court system and its users provide an opportunity for lasting improvement, resilience to better withstand future challenges, and modernization.

The Action Committee has further expanded upon these principles in its Core Principles and Perspectives.

5. Composition

The Action Committee is composed of the following members:

• Right Honourable Richard Wagner, Chief Justice of Canada (Co-Chair)
• Honourable David Lametti, Minister of Justice and Attorney General of Canada (Co-Chair)
• Two representatives of the Canadian Judicial Council
  • Honourable Geoffrey Morawetz, Chief Justice of the Ontario Superior Court of Justice
  • Honourable Mary Moreau, Chief Justice of the Court of King's Bench of Alberta
• Honourable Lise Maisonneuve, Chief Justice of the Ontario Court of Justice and Chair of the Canadian Council of Chief Judges
• Honourable Shannon Smallwood, Chief Justice of the Supreme Court of the Northwest Territories, Chair of the Indigenous Advisory Group
• Honourable Niki Sharma, Attorney General of British Columbia
• Shalene Curtis-Micallef, Deputy Minister of Justice and Deputy Attorney General of Canada
• Jeremy Akerstream, Deputy Minister of Justice and Deputy Attorney General of Manitoba, representative of the Heads of Court Administration
• Heather Jeffrey, President of the Public Health Agency of Canada
• Stéphanie Bachand , Executive Legal Officer, Supreme Court of Canada (member ex officio)

Recognizing the heavy and wide-ranging responsibilities all Action Committee members carry, members may choose to send alternates to represent them where necessary.

To ensure the most effective use of members' time, the Action Committee may choose to delegate tasks to a sub-committee or working group to advance the work between meetings.

6. Meetings and Timelines

The Action Committee held its first meeting on May 8, 2020, and has convened on a weekly then monthly basis thereafter. Moving forward, the Action Committee will continue to operate until at least fall 2024.

The Action Committee will meet by videoconference. While meetings will normally be on a quarterly basis, additional meetings may be called as necessary and determined by the co-Chairs. Between meetings, Action Committee members may approve documents by e-mail.

7. Operational Support

Operational support, including the preparation of national guidelines or other resources under the direction of the Action Committee, will be provided by a Technical Working Group, in coordination with the judiciary and other officials or organizations as necessary. In the context of the Action Committee’s health and safety publications, this may include Health Canada, the Public Health Agency of Canada, and the Canadian Centre for Occupational Health and Safety. The Technical Working Group will meet regularly between Action Committee meetings to develop the Action Committee’s publications and meeting agendas. They will be supported by the Secretariat for the Action Committee, provided by the Department of Justice Canada.

In recognition of the unique position of Indigenous peoples in Canadian society, and the challenges they have historically faced in accessing the Canadian justice system, which have been heightened by the COVID-19 pandemic, an Indigenous Advisory Group was established, in consultation with Indigenous partners, to support the Action Committee’s mandate and ensure Indigenous perspectives are adequately considered in the Action Committee’s ongoing work.