Third reading of Bill S-4, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures)

By: The Hon. Pierre Dalphond

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Halls of Parliament, Ottawa

Hon. Pierre J. Dalphond moved third reading of Bill S-4, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures), as amended.

He said: Honourable senators, today, I have the honour of opening the debate at third reading of Bill S-4, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts regarding the COVID-19 response and other measures.

This bill proposes to amend the Criminal Code and other acts in response to difficulties with the administration of the criminal justice system that came to light during the COVID-19 pandemic, particularly with regard to the use of new technologies. It complements Bill C-75, which we passed in 2019.

Before I summarize the amendments, I would like to sincerely thank the members of the Legal and Constitutional Affairs Committee for their comprehensive study of this bill. I also want to thank the witnesses. The committee heard from over 20 witnesses who generously shared their time and expertise with us. The committee members also had access to many documents, including briefs prepared by individuals and organizations with an interest in how the criminal justice system works. The committee devoted two meetings to the clause-by-clause consideration of the bill.

As the chair of the committee, Senator Jaffer, said yesterday, the committee proposed two amendments and made a number of observations that I hope will guide the Department of Justice and members of Parliament in the next steps.

Finally, I want to acknowledge the many constructive exchanges that we had with Senator Carignan, the bill’s critic.

Since many of the COVID-19 measures have now been lifted, you may be wondering whether this bill is still necessary. It is still just as relevant. It will enable the criminal justice system to make permanent the options for using technology in court processes that were developed or improved during the pandemic. Making these options permanently available to accused persons, inmates and other stakeholders in the criminal justice system will make our system more flexible, which I hope will help reduce court delays.

When it comes to the use of new technology, as many witnesses and members of the committee, including Senator Wetston, pointed out, it is impossible to go back to a justice system that relies on old practices that ignored the potential of new technologies and often placed unnecessary burdens on stakeholders in the criminal justice system.

For example, why insist that a police officer go to a courthouse to give a judge a written application for a warrant? That officer then has to wait in the hallway to find out whether the judge approved the application, after merely reading through the documentation, and to get the appropriate paperwork. It would be much more effective to use email for this sort of thing.

Similarly, the criminal justice system can also no longer insist that every document be submitted in hard copy or cling to unnecessarily long or costly work practices.

Why insist that hundreds of prospective jurors show up at the same time and at the same place for pre-screening when that process can be completed virtually, either in whole or in part? Why require an accused who is not represented by a lawyer to travel hundreds of kilometres from home simply to enter a guilty plea for a summary offence? There again, the use of technology that would allow the accused to attend virtually would be in the best interests of justice and the accused.

Bill S-4 responds to these and other similar issues by specifically authorizing the use of technology.

I would add that having accused persons and other stakeholders attend virtually is not a new practice introduced by Bill S-4. As a result of the passage of Bill C-75 in 2019, the current Criminal Code already includes Part XXII.01, Remote Attendance by Certain Persons. What we are doing by passing Bill S-4 is building on and adding provisions to that part.

What is more, in response to the pandemic, since March 2020, the courts have demonstrated creativity by relying on paragraph 650(2)(b) and section 715.23 of the current Criminal Code to authorize accused persons to attend court proceedings virtually in many situations.

(1510)

[English]

In March 2020, when the COVID-19 pandemic became a public health emergency of international concern, many courts were able to rely on the remote-appearance provisions that were expanded or introduced by Bill C-75 in 2019 and which had just come fully into force.

However, the pandemic has made it evident that more legislative clarity and additional mechanisms were needed. Bill S-4 will provide just that.

Former Chief Justice MacDonald, who testified before the committee on behalf of the Action Committee on Court Operations in Response to COVID-19, a special committee co‑chaired by the Chief Justice of Canada and the Minister of Justice, put it succinctly when he referred to Bill S-4 before the committee as:

. . . another important tool in the kit for judicial discretion in terms of ensuring that access to justice is as good as it can be in this country.

At the committee, all of the original provisions of the bill were carried as introduced. However, the provisions that attracted significant commentary and debate by witnesses and committee members were the bill’s proposals to allow accused persons to be able to appear remotely for the entirety of their preliminary inquiry or trial, regardless of whether witness evidence is presented.

Some committee members have expressed concerns about the ability to assess the credibility of witnesses remotely, about consequences of technological issues arising during hearings and about the potential impact of remote participation on the culture and tradition of our judicial system.

Yet we heard from many witnesses that these considerations should not be raised as reasons to oppose a greater use of remote participation. Chief Justice MacDonald in particular stated that judges have been assessing the credibility of witnesses remotely for years, and they have never intended to “sacrifice the accused’s rights or anyone’s rights in a trial at the altar of efficiency.”

Shelley Tkatch, an Alberta Crown lawyer with over 30 years of experience, emphasized how remote proceedings have improved the experiences of vulnerable witnesses by reducing the traumatic impact of testifying in open court.

We also heard from defence counsel Michael Spratt that remote proceedings can actually enhance credibility by providing judges with a clearer view of a witness’s face, and by eliminating some of the systemic problems associated with putting too much emphasis on an individual’s demeanour.

The committee also heard from a representative of the Indigenous Bar Association, Alain Bartleman, that Bill S-4 will offer an alternative to an individual asked to appear in person in a city located several hundred kilometres away from home. Indeed, he said that Bill S-4 will provide to the accused ways to minimize individual problems, including substantial financial costs to travel to the courthouse. According to him, access to justice would therefore be improved.

He also said that this bill could address some in-person concerns, or at least sidestep them, most notably translation services:

I can count on one or two fingers the number of times in which the courts have been able to properly find individuals with the appropriate linguistic competencies for . . . some dialects of Indigenous languages. Accordingly, a centralized or technological solution to enable pools of translators to assist would be a boon to the profession and certainly a boon to Indigenous clients — those Indigenous individuals in the justice system who are faced not only with obvious challenges of distance and time but also with simple communication and access to justice.

[Translation]

That said, I’ll be the first to admit that there will always be hearings where remote participation is not appropriate. Bill S-4 does not allow for remote attendance in jury trials, and nobody is suggesting that remote attendance should be the preferred mode for criminal cases.

On the contrary, I want to emphasize that in-person attendance is the basic rule, as indicated in section 715.21 of the Criminal Code, which is not being amended. I’ll quote it here:

715.21 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so personally.

It’s important to remember that the court can order remote attendance only in exceptional situations.

The fact is, the court cannot authorize remote attendance by video conference or telephone unless the accused requests it either for the plea, a preliminary hearing or a trial — except in the case of a jury trial, of course. In other words, it is always up to the accused. In most cases, the Crown’s consent is required as well.

Lastly, I should point out that court authorization is always required.

As was the case with Bill C 75, this bill sets out considerations for the court to take into account before authorizing attendance by audio conference or video conference. The court must take into consideration all the relevant circumstances, including the right to a fair and public hearing, the location and personal circumstances of the accused, the suitability of the location from where the accused will appear, the costs associated with appearing in person, and the nature and seriousness of the offence.

The bill also gives the judge the discretion to end the remote attendance at any time. This may be the case if technical problems arise, for example.

[English]

After debate, the majority of the members of the committee concluded that it was not necessary to try to spell out in more detail the circumstances to consider and that judicial discretion is and remains key here and that judges are best placed to determine, on a case-by-case basis, if remote attendance is appropriate considering all relevant circumstances.

During the committee’s study of the bill, there was a consensus on the importance that a request for remote attendance by an accused result from an informed and free decision. This concern was particularly true for self-represented accused. That is why this bill further proposes safeguards for those accused persons who do not have legal representation.

Before authorizing a remote appearance for an accused or an offender who does not have access to legal assistance during the proceedings, the bill will require courts to be satisfied that the accused or offender are able to understand the proceedings and that any decisions made by them are voluntary.

Of course, if an accused appearing remotely is represented by counsel, the court must ensure that the accused has the opportunity to consult privately with counsel, and this is also provided for in the bill.

On this aspect, we heard from the Canadian Association of Elizabeth Fry Societies, represented by Ms. Emilie Coyle about the lack of appropriate rooms in jails and penitentiaries for inmates to consult remotely with counsel or to appear remotely in a way that privacy and full participation in the legal proceedings are ensured.

In this regard, Ms. Coyle shared with the committee that she visited a federal institution where the conference room was not soundproofed and where interference from the communication system was more audible than the voices of the participants in the court room.

These things must be addressed before an authorization is given by a judge, and I hope that the Department of Justice and the Attorney General will look at these things to make sure that penitentiaries are properly equipped with the necessary equipment and proper rooms for inmates to participate in their trial in privacy and with full opportunity to consult with counsel.

(1520)

[Translation]

Another aspect of the bill that received unanimous support, including from the Royal Canadian Mounted Police and the Canadian Association of Chiefs of Police, is the proposed expansion and update of the current telewarrants system. These proposals respond to the calls issued by many stakeholders, including the Uniform Law Conference of Canada, the Steering Committee on Justice Efficiencies and Access to the Justice System, and the Canadian Association of Chiefs of Police, with a view to streamline the telewarrant process and extend its application to a greater number of situations.

[English]

Bill S-4 proposes to replace the existing telewarrant provisions with a streamlined and standardized process that will apply to a wider variety of search warrants, investigative orders and authorizations, and that will remove certain restrictions relating to types of offences, applicants and levels of court, while maintaining the current safeguards for issuance of the underlying judicial authorizations.

One key element of the proposed provisions is that where the search warrant application is submitted by means of telecommunication that produces a written document, such as by fax or email, a peace officer will no longer be required to meet the current preconditions if it is impracticable to appear in person before a justice to make an application for a warrant.

However, of course, a police officer could still make an oral application for a search warrant by means of telecommunication — by phone, for example — if he is located in an area where it is not accessible or where access to the internet is not possible or is impracticable.

The bill also provides for a uniform approach to the duties associated with the execution of search warrants and to post‑seizure reporting requirements regardless of whether the search warrant was obtained by technological means or by personal attendance. Once more, we are going to formalize the practices.

It is also important to signal that the committee added two new clauses to the bill. The first amendment, proposed by Senator Cotter, will require the Minister of Justice to initiate one or more independent reviews on the use of remote attendance in criminal justice matters no later than three years from the date the bill receives Royal Assent, and report back to each house of Parliament within five years. This significant amendment will provide an opportunity to assess the impact of remote-attendance provisions introduced by Bill C-75 and by Bill S-4 after some years of experience.

The second amendment, which I moved myself, would require a parliamentary review of the impact of the remote-attendance provisions, including, obviously, the reports of the independent reviewers at the start of the fifth year after Royal Assent.

[Translation]

Finally, I hope that these measures that have now been added to the bill will reassure certain representatives, mainly those of the Barreau du Québec, who were concerned about the bill’s implementation without a careful enough study of the possible consequences. I wish to highlight that the committee included in its report a certain number of observations. It suggested, in particular, that the delays in the criminal justice system be re‑examined given the importance of this issue for many of the witnesses we heard from. We all recognize that delays have serious consequences for both the accused and the victims. This is a problem we must tackle on an ongoing basis.

Other observations deal with the importance of ensuring legal interpretation services of good quality, investing in the technology needed to have quality remote appearances, ensuring the availability of facilities in several locations in Canada to guarantee access to remote proceedings for everyone, and putting in place measures to ensure respect for the fundamental rights of the accused persons in custody, those who are marginalized, the victims and the witnesses.

I understand that the bill’s proposals reflect the needs of our criminal justice system as formulated by the provinces and territories in the consultations held by the Department of Justice with all stakeholders responsible for the administration of justice, and other key stakeholders in Canada, including the special committee I talked about earlier. Bill S-4 proposes a set of targeted reforms that are reasonable, measured and widely supported by Canada’s legal community. For those reasons, I invite all of you to support Bill S-4.

[English]

I understand that the observations that were made by the committee should be considered as calls to action for the federal government, the provinces and the territories, as well as other key stakeholders in the criminal justice system across Canada, including counsel and judges.

In conclusion, Bill S-4 proposes a targeted set of reforms that are sensible, measured and broadly supported by the legal community across Canada. For these reasons, I invite you all to adopt third reading of Bill S-4 in the coming days in order to send it to the House of Commons for their consideration and sober second thought, I suppose, by the members of the other place.

Thank you, meegwetch.

Hon. Denise Batters: Senator Dalphond, thank you for that explanation.

In your speech, you referenced the testimony of Alain Bartleman from the Indigenous Bar Association, but you did not set out today how Mr. Bartleman had actually made an important proviso when he expressed support, in a general way, for this particular act potentially being quite helpful as an access to justice issue. I asked him about that when he testified in front of the Legal Committee. I’ll read this so it’s correct. I note that when I was asking him about this, particularly referencing northern Saskatchewan, where I said that many Indigenous people live, of course, and they have had, “. . . drastic problems with the technology.” I was wondering if he had any comment about that area. He said:

Yes, there are technological gaps — major ones — and the Indigenous Bar Association, on the one hand, signals and applauds this act for moving in favour of greater accessibility through video conferencing.

But then he said:

However, it also notes its concerns that if the promises found within this bill are not matched by concomitant investments into technology — and not simply internet connectivity technology . . . could take quite some time to catch up, but also training in how that technology is used and in developing a measure of comfort with that technology — this effort will be, for lack of a better term, stunted. It will not be as effective as it could be.

Senator Dalphond, as I said then, that’s a major qualification that he made on that particular issue, and certainly we have seen that. We saw some dire examples just even in our Senate Legal Committee with a witness from Nunavut legal aid who had a very good office and, you would think, good connectivity, and she had a terrible time.

We have, of course, seen the same problems many times with senators testifying from many different places in Canada, including some of the largest cities, not even necessarily rural or remote locations.

Getting back to what Mr. Bartleman said, would you acknowledge that he acknowledged that the Government of Canada absolutely needs to make major investments in technology, and we haven’t really seen those efforts come to fruition yet? I wonder if you have any insight into when the government will actually fulfill their promises on that.

Thank you.

Senator Dalphond: Thank you, Senator Batters, for this excellent question.

I have already acknowledged these challenges in my speech, and I said that it was a call to action for the federal government, the provinces and the territories. As we know, in our constitutional system the administration of justice is a matter which is under the jurisdiction of the provinces and the territories. Therefore, the federal government can assist and can even provide financing, but, at the end of the day, the operation of courthouses — except federal courthouses — will always remain under the jurisdiction and responsibility of the provinces.

Also, remember that the minister, when he appeared before the committee, mentioned that they committed — I forget how many — millions of dollars in the previous budget for improvements to access to justice, and that could be used for that purpose. I certainly agree with you and with the observations made by the committee that not only should we have access to what we call remote attendance for all those who would like to avail themselves of that option, but that option should be made available on an equal basis to all Canadians who would like to use it. Therefore, we must be sure that especially in the Northwest Territories, where the distances are so big, they also have access to quality internet and equipment in order to participate remotely. Otherwise they will have to travel again over long distances sometimes just to appear to plead guilty on a summary conviction charge, which doesn’t really make sense.

(1530)

Thank you for your question and observations. I think the committee also picked it up.

Senator Batters: Senator Dalphond, with respect to the particular issue of broadband technology across Canada, this is a promise the federal government has made a number of different times over the last few years — to improve broadband technology across Canada. Obviously, we’re not necessarily just dealing with courthouse administration of justice here. We’re dealing with broadband technology so that many different people across Canada can properly access these tools. Mr. Bartleman pointed out the need for a drastic improvement in these major gaps that we see across Canada — not only in rural and remote areas, but certainly that is the most pronounced area.

Since you’re the sponsor of this particular federal government bill, and the government has made major promises — including in the last election campaign — about expanding broadband technology, what is the update as to when that is going to happen? How much money will be promised for that and when?

Senator Dalphond: I think maybe the question is beyond even the domain of the justice minister. I know that in the budget, a lot of money was committed to providing access to broadband to all Canadians everywhere, especially in remote areas.

I know that in Quebec, there was an agreement between the federal and provincial governments to extend quality internet access to remote areas all across the province. I hope that similar programs are moving forward. Certainly, I acknowledge — with you — that the Northwest Territories is still not a province but a kind of federal structure, so the federal government could certainly be more precise and send more money in particular to that area to assist in providing broadband.

Maybe that is a question more for the finance minister than for the justice minister. I have the honour to speak on the justice minister’s behalf only for this bill, and not the running of his department or the government.

[Translation]

Hon. Renée Dupuis: Senator Dalphond, did I understand you correctly when you said earlier that the committee is concerned about the fact that technology is not a quick fix for the future of the court process? The witnesses that we heard from said that technology could be useful in some cases, if some very specific criteria are met — for example, if the accused has a place where they can not only confer with counsel but also do so privately, which is not currently the case.

In fact, did we not hear other witnesses say that technology would not solve all the problems? In some regions of Canada, it is just as difficult to hold an in-person hearing as it is to hold a remote one. We are faced with a situation where it is difficult to travel to the courthouse and just as difficult to hold a remote hearing because the technology is not reliable enough.

Am I correct in saying that you raised this concern and that is why one of the committee’s observations involves a request for an impact study? The situation created by the COVID-19 pandemic forced courthouses and the entire judicial system to adapt. However, we need to look very closely and carefully at these impacts over the coming years.

Senator Dalphond: I thank Senator Dupuis for the question and for her very useful comments. I have nothing to add. I made reference to this in my own speech. Senator Dupuis, there’s no doubt that the committee’s observations on this are important. You made a very significant contribution. I commend Senator Cotter’s initiative in proposing that one or more independent committees review the implementation of these provisions after three years. I think we’re in a period of transition. As Senator Wetston said, the train has left the station and we can’t go back in time, but we can absolutely make adjustments and improvements along the way. That is why these studies are important. Over the next five years, we have a duty as parliamentarians to review this issue and make sure that it progresses in the right direction, without unintended consequences. You are absolutely right.

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