Bill C-23 (Historical)

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)

This enactment amends the Criminal Code to, among other things,
(a) allow for the use of electronic or other automated means for the purposes of the jury selection process;
(b) expand, for the accused and offenders, the availability of remote appearances by audioconference and videoconference in certain circumstances;
(c) provide for the participation of prospective jurors in the jury selection process by videoconference in certain circumstances;
(d) expand the power of courts to make case management rules permitting court personnel to deal with administrative matters for accused not represented by counsel;
(e) permit courts to order fingerprinting at the interim release stage and at any other stage of the criminal justice process if fingerprints could not previously have been taken for exceptional reasons; and
(f) replace the existing telewarrant provisions with a process that permits a wide variety of search warrants, authorizations and orders to be applied for and issued by a means of telecommunication.
The enactment makes amendments to the Criminal Code and the Identification of Criminals Act to correct minor technical errors and includes transitional provisions on the application of the amendments. It also makes related amendments to other Acts.

Public Complaints and Review Commission Act

[Dave Epp, Conservative, Chatham-Kent—Leamington, ON]

Mr. Speaker, it is always an honour and privilege to bring the voice of Chatham-Kent—Leamington to this place, and today it is to put some comments on the record regarding Bill C-20, an act establishing the public complaints and review commission and amending certain acts and statutory instruments.

Before I get into the content of the bill, I want to begin by thanking the women and men who wear the uniform to keep Canadians safe.

Canadians expect accountability. They expect law and order, and they expect strong oversight mechanisms to ensure that there is no abuse of power. We recognize that our RCMP and CBSA agents put themselves in the possibility of harm's way every time they put on the uniform.

Canada and the U.S. share the world's longest, undefended border, and we as Canadians share this border with a country that owns more firearms than they have citizens. This is part of a different culture and a different history, and that is not the subject of today's debate.

The point I am making is that the CBSA has received much attention recently, and we look to them for their role in preventing gun violence, particularly in our cities. We ask that they address the issue of criminals smuggling illegal guns into this country, and we know that this activity is often also tied up with drug smuggling and trafficking. We ask that these people, along with law enforcement, put themselves in harm's way to keep us safe, and for that I want to thank them.

Let us look at the content of the bill.

The legislation would rename the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police, or RCMP, to the public complaints and review commission, which I will refer to as the PCRC. Under its new name, the commission would also be responsible for reviewing civilian complaints against the CBSA. The bill's goal is to ensure that all of Canada's law enforcement agencies have an oversight body.

What I really do like about the bill is that it would codify timelines for the RCMP and CBSA responses to the PCRC. We have all heard of complaints that went into the civilian body, but then there was no response back. The reports, reviews, recommendations, and the information sharing between the RCMP and the PCRC, and the CBSA and the PCRC would be mandated and codified. The bill also stipulates annual reporting by the RCMP and CBSA on actions taken in response. This would be a further mechanism to ensure action follows complaints. As well, the bill would mandate reporting of disaggregated race-based data, provides for public education and provides for a statutory framework to govern the CBSA responses to serious incidents.

By way of some further background, the bill was introduced in the 43rd Parliament as Bill C-3. However, it did not pass second reading. It was introduced very late in the session and died on the Order Paper when that unnecessary election was called. In the 42nd Parliament, it was known as Bill C-98, but it died awaiting a vote in the Senate.

I want to put on the record that Conservatives have supported this legislation at each stage. I also want to note that this legislation appears to be straightforward and meets its objectives, but the newly created PCRC can only recommend disciplinary action and cannot enforce it. There will still need to be a further step as this process unfolds.

Conservatives believe in upholding the dignity of our borders and ensuring that our Canadian Border Services Agency is properly resourced, both in manpower and equipment. The civilian review commission should improve oversight and help the CBSA be an even more effective agency in its duties and functions, similar to the function of the renamed Civilian Review and Complaints Commission for the RCMP.

As I stated earlier, Canadians expect effective oversight of federal law enforcement agencies, but what is disappointing is the length of time it has taken to get this done. The Liberals promised oversight in the 2015 election, then squandered two Parliaments in fulfilling their promise. Now, one month before Parliament breaks, the House is supposed to hurry up and pass this legislation. We are supportive, as we have been in the past, but we will review it, and we will do our job in this place. We have always stood for the security of Canadians and will continue to do so.

I live in Leamington, only 45 minutes away from the Windsor-Detroit border. I have crossed that border to the U.S. numerous times. By and large, I have had many good experiences and professional interactions with CBSA staff as I returned to Canada either from travelling to the U.S. or abroad, or just from an evening or afternoon in Detroit.

However, several years ago, while my four daughters were still quite young, my wife did not have such a pleasant experience. It was some time ago, in 2003 during the SARS outbreak, so there are similarities to today's times. My brother-in-law, a Canadian, was working in St. Louis at the time and flew to Detroit to come back to Canada to renew his status paperwork.

While my wife answered the questions asked by the CBSA agent, the agent assumed some information regarding my brother-in-law’s citizenship that he had not confirmed through questioning. Frustrated once he learned of his error, he swore at my young children, and literally threw the paperwork of six people into the van. I was not there; I was tied up elsewhere, so my wife took my four young daughters, a credit to her, into the U.S. to pick Darrell up. This agent now demanded that the paperwork be returned in a different order.

If the PCRC would have been in existence then, it would have heard from us, and this officer’s conduct would have been reported. This is a relatively minor incident in the scheme of things that could have happened, but there is a role for this oversight agency.

This situation occurred 19 years ago, so some time has gone by, but I know that it has been seven years since an idea for this oversight body was introduced in this place. The government campaigned on that promise. Let us hope it will not take 19 years to get this promise to Canadians completed.

Yesterday, in the House, we debated Bill S-4, a bill that enjoyed support at second reading on all sides of the aisle. Bill S-4 was Bill C-23 in the last Parliament, which also did not see the light of day in this chamber, but I digress. It seems that good bills do not receive good priority for this file in this place, but we will leave that for another day.

Bill S-4 asks to improve the efficiency of our court system through bringing in the use of video and other changes to address the huge backlog of cases. This backlog, of course, was exacerbated by the pandemic. We have all heard the expression “justice delayed is justice denied”, and the Jordan decision by the Supreme Court has codified this expression.

My purpose is not to redebate yesterday’s work in this chamber. Bill S-4 is off to committee, and hopefully it will be improved through amendments. Then hopefully it will be quickly returned to this place for third reading. My point in raising Bill S-4 is that during debate, several statistics were tabled during the interventions and I found them troubling.

There has been a 32% increase in violent crime since 2015. There were 124,000 more violent crimes last year than in 2015. There were 788 homicides in Canada last year. There were 611 in 2015, a 29% increase.

As we have heard before, there has been a 92% increase in gang-related homicides since 2015 and a 61% increase in reported sexual assaults since 2015. Police-reported hate crimes have increased 72% over the last two years, and 31,000 Canadians lost their lives to overdose between 2016 and 2022. There have been 7,169 deaths from opioid overdose in Canada in 2021 alone, and 21 people are dying per day from overdoses. Before the pandemic, it was 11.

Thus far, this is the record of the government when it comes to keeping Canadians safe over the past seven years. At their core, Bill S-4 and Bill C-20 are pieces of legislation that take us in the right direction. This cannot happen soon enough. I hope they now receive the priority they deserve.

Criminal Code

[Ziad Aboultaif, Conservative, Edmonton Manning, AB]

Madam Speaker, I am pleased to rise today to speak to 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).

The judicial system has been facing a series of delays in cases proceeding to trial, which has been made worse by the COVID-19 pandemic. The Conservatives have raised concerns about the delays and the potential for criminals to walk free due to the Supreme Court's Jordan decision, which said that no more than 18 months can pass between the laying of a charge and the end of trial cases in provincial courts, or 30 months for cases in superior courts.

We have raised our concerns over the delays in the judicial system a number of times during the pandemic, both in the House and through the media, so it is good that the Liberals are finally listening. I understand that sometimes they have different priorities.

The court system scrambled to adapt and learn how to function during the pandemic, and it was obvious that changes were needed. I could have made this speech at the height of the pandemic, when the need was very urgent. The government recognized the need then and introduced Bill C-23, but it was obviously not a priority. That bill died on the Order Paper when the House was dissolved by the Liberals for their unnecessary election. However, as with many efforts of the government, I suppose we can consider it to be better late than never, though it seems sometimes that on truly pressing issues, such as inflation, for the Liberals to do anything, it is more never than late.

It is indeed important to support the courts in the technological transition that has been stimulated by the COVID-19 pandemic. It is also important to be as prepared as possible for a future pandemic or similar disruptions.

In the past two years, we have all discovered new ways of doing business. Some of those ways have been beneficial, others arguably not as much. So too is the case with this bill.

For justice to be truly done, it must be seen to be done. Any citizen has the right to attend court and observe the proceedings. In the past, that has naturally been a right that could be limited by the physical space of the courtroom. Allowing virtual proceedings would change that limitation while bringing with it the issue of controlling the dissemination of images from the proceedings. We have gone from cameras not being allowed into a courtroom to everyone having the ability to take screenshots or even videos of the proceedings.

There is no doubt that the COVID-19 pandemic has been felt throughout our criminal justice system. Problems that perhaps we did not realize we had have been brought into focus. A modernization of the system is long overdue. The pandemic has shown us that action is very necessary now.

With the technological tools that are now available to us, it makes sense to allow, as this bill would, peace officers to apply for and obtain a warrant using telecommunications rather than having to appear in person before a judge. This would not take away from the necessity of the officer to answer any questions as to whether the warrant is really necessary. The legal necessities would not change, but there is a savings to the taxpayer and the environment in the officer not having to drive to appear before a judge.

We are all aware that the criminal justice system has been subjected to delays in proceedings, and sometimes that was exacerbated by the pandemic. While justice delayed is justice denied, no one wants to see a criminal walk free because the system could not bring them to trial fast enough.

The reforms suggested in this bill are small but incremental. It is important to remember that the fundamentals of justice would still be being observed, and that the increased use of teleconferencing in the courts would not take away from the fundamental rights of the accused to appear in person, but many, given the choice, might prefer to appear by video conference. This, incidentally, could reduce their legal fees since their lawyer would not have to be with them at the courthouse waiting for their case to be called.

One thing that concerns me with these reforms is the issue of fairness. I am not sure how the government can address that. Appearing by video in court proceedings requires access to technology that, at this point, is not available to every Canadian. Not everyone has the financial resources to own a computer. Not everyone has high-speed Internet access available to them. Certainly, the government does not have the resources to provide that.

At the same time, I recognize that there are other different burdens that come with having to make a court appearance in person that could bring with it the expense and hardship of travel. I am not certain how we can provide equal access to the justice system for all Canadians, but I know we have to try to keep improving the system until we get it right.

One area where I have serious concerns is the proposal in the bill that would allow the jury selection process to be done by video conference in some circumstances. While this would certainly make it less onerous for prospective jurors to take part in the selection process from their home or workplace, it does raise some privacy concerns. While technology makes remote appearances possible, technology could also be used to subvert the process, not to mention the right of an accused to see those who are to pass judgment on his or her case.

In Canada, an accused has a right to be tried by a jury of his or her peers, but there are times when, for security reasons, the jurors are anonymous. With the availability of facial recognition software, it is easy to imagine that prospective jurors appearing by video conference could be easily identified. This could leave them open to harassment or attempts to influence a jury's decision. That may sound unlikely, but if we are concerned for the administration of justice, it must be considered. Has the government considered how to deal with this issue?

This bill is not perfect, but neither is our justice system. The question we as parliamentarians must ask ourselves is this: Does the legislation make positive improvements to the administration of justice in our country, even if it is not perfect? If so, then we should probably support it.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Madam Speaker, I will be sharing my time with my colleague, the member for Haliburton—Kawartha Lakes—Brock.

The pandemic taught us many things. It taught us about how viruses spread or do not spread, whether asymptomatic victims of a virus can be contagious, whether vaccines prevent us from being infected or only prevent us from being very sick when we are infected and also what effects isolation has on mental health. The jury is out on many of these issues. People will be writing Ph.D. theses on the lessons we learned or failed to learn from the COVID-19 experience, but it is not just medical and scientific things that we learned through the COVID-19 years.

We also learned that we could do business differently. More and more people are working remotely and that kept many businesses afloat during the most severe periods of lockdowns and restrictions. Admittedly, working remotely works better in some sectors than others. In my profession of law, for example, working from home or from the office was completely seamless, or from my cabin, for that matter. My clients did not typically ask me where I was, as long as I was serving them. My clients did not tell me where they were. I did not ask. They did not tell me, and it did not matter in most instances. I remember that, after a lengthy conversation with a client one morning, I suggested that we meet for lunch that afternoon and he said it was a five-hour flight from Hawaii where he was and that would be difficult to do. I did not know and it did not matter. Business was seamless in some sectors.

This was before the pandemic, but the pandemic accelerated the need for us to become more and more digital in the way we do business, and that is why we are here today. We are looking at draft legislation that originated in the Senate, Bill S-4, an act to amend the Criminal Code to allow for the use of electronic means, for example, to select a jury and allow jurors to participate in hearings via video conferencing. It would allow us to expand the availability of remote appearances by video conference and/or audio conference, and it would modify case management rules, fingerprinting procedures and the issuing of warrants, such as search warrants, just as examples. There is a long, exhaustive list of what this bill would reform in our judicial system. All of this was born out of the pandemic. None of this is novel and very little of it is controversial.

Conservatives have always supported finding new and innovative ways for government operations to be more efficient and cost-effective, but we must raise some concerns.

For video conferencing to be effective, it must be reliable. We have seen even here in the nation's capital, in Ottawa, where one would think the Internet would be world class, that hybrid meetings often get interrupted because a participant in the meeting, perhaps a witness at a committee, gets frozen or the audio is so bad that our highly qualified and professional interpretation teams cannot make out what is being said. It is one thing if a parliamentary or Senate committee is disrupted because of technological deficiencies, but it is quite another when it is a criminal trial and a person's rights, freedoms and liberties are at stake. We must get it right.

That brings me to reflect on a big challenge we have in Canada, particularly in some parts of this vast country, and that is Internet connectivity. Canada's Conservatives have been calling for an end to the digital divide between urban and rural areas in our country. Every aspect of our 21st-century economy is becoming increasingly dependent on the Internet and, therefore, we must ensure that everyone has access to good, reliable broadband.

Canada's productivity metrics lag those of our main competitor nations, our trading partners. For every $100, for example, that an American worker pumps into the economy, the Canadian counterpart contributes only $67. That is a big productivity gap. The Minister of Finance has acknowledged that gap and on several occasions called it our Achilles heel.

In the recent fall economic statement, she said, “We will continue to invest in tackling the productivity challenge that is Canada’s economic Achilles heel.” Earlier in the year, in delivering her budget, the Minister of Finance had this to say about Canada's lagging productivity. She said, “we are falling behind when it comes to economic productivity.... This is a well-known Canadian problem and an insidious one. It is time for Canada to tackle it.”

I could not agree with that more. It is time for us to tackle our productivity lag, and a good place to start would be to vastly improve our Internet accessibility, not only here in Ottawa, not only in my community of Langley where it is far from perfect in some areas, but across the country and particularly in rural areas. We can talk to any worker, any tradesperson, any health care worker, professional, trucker or teacher. They will all tell us that the best way to improve productivity is to get better tools, and the Internet is anyone's tool these days, including for the legal profession, our criminal justice system and our courts. There is nothing special about courts. They need to conduct business like everyone else.

Getting back to Bill S-4, an act to amend the Criminal Code, to improve efficiency in our courts, we want to move them toward greater use of electronic tools in jury selection, in jury participation, in witness appearances and even in the appearances of the accused, when the accused and the Crown both agree. We support these measures, but we must listen to the experts.

In her May 2021 report to the standing committee, our former federal ombudsman for victims of crime, Ms. Heidi Illingworth, had this to say on this specific topic. She said, “many courthouses across [the country] have old infrastructure, and implementing videoconferencing has been a challenge. For some in remote areas, bandwidth and internet access remains an issue.”

Ms. Illingworth was saying this in a study being conducted by the justice committee on formerly Bill C-23. Bill S-4 is almost a mirror image of it. Bill C-23 had the support of all parties, but it got bogged down because the government called an election that nobody wanted and was not necessary. That is for another day.

Ms. Illingworth had this to say in support of increasing the availability of technology. She said, “It is my hope that these measures will help to relieve the pressure on the courts by leveraging video and teleconferencing technologies to help speed up filings and hold hearings in an inclusive and efficient way.”

She was the ombudsman for victims of crime. In that capacity, she had this to say in support of victims. She said, “ensuring access to internet service across Canada would address concerns regarding access to justice for victims of crime during COVID-19, by ensuring that victims have a means to participate in the process should they so choose”, but she also warned, “Unfortunately, not all Canadians have equal access to the internet.”

I am hearing from many people in my home province of British Columbia about how important good access to the Internet is for Pacific economic development, which is something I have a great deal of interest in, but that too is for another day.

Today, I am speaking in support of improving access to justice through Bill S-4. It is a step in the right direction. We will be supporting it. I look forward to a deeper dive into the details of Bill S-4 at committee. I welcome any questions.

[Christine Normandin, Bloc, Saint-Jean, QC]

Mr. Speaker, the bill does not cover everything. That is another complaint from the Barreau du Québec: There should be an in-depth review of the criminal and penal system, rather than doing it bit by bit.

In the previous Parliament, the House considered Bill C‑23, which is a previous incarnation. Before that, there were bills C‑75 and C‑5. The Criminal Code is always reviewed piecemeal, turning it into a massive, inscrutable tome with sections that refer three sections ahead and eight sections back and a bunch of case law to help understand what is going on. It is impossible to make heads or tails of.

I agree wholeheartedly with the idea of a more comprehensive review of the Criminal Code. On the issue of connectivity, yes, adding more telecommunications may be a good idea, but it will not apply everywhere, unfortunately.

As for legal aid, even though it is not under federal jurisdiction, I think there is always room for discussion, because there are disparities between the provinces.

[Stéphane Lauzon, Liberal, Argenteuil—La Petite-Nation, QC]

Madam Speaker, my colleague across the aisle asks an excellent question.

She listed bills that are part of the reform of the judicial system, but she forgot Bill C-23, which was introduced last year and is a precursor of Bill S-4, the bill we are studying today. It is fair to say that there have been changes since the last legislature.

All of this is thanks to the consultations we conducted with major stakeholders, including the provinces and territories, which took part in the decision-making process and helped us amend the former bill and come up with Bill S-4. It is a step in the right direction.

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Speaker, the hon. member has hit on a great point. We have all heard the expression “justice delayed is justice denied”, and in our country currently, under the Jordan principle, justice delayed can result in a case being completely thrown out. The Supreme Court has ruled that if a case is taking too long, charges have to be dropped against an offender.

That is why I call into question the government's narrative on the urgency of this. This bill, as I mentioned in my speech, was introduced originally as Bill C-23 a couple of years ago. What happened in the intervening time? An unnecessary election reset the clock, and here we are today studying Bill S-4.

The Conservatives support Bill S-4. There are some necessary improvements in there, but we need to maintain our focus on supporting victims and their families.

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Speaker, I listened to the member's speech, and he mentioned the need for urgency in passing this particular piece of legislation. There was a previous version of this legislation, Bill C-23, that was introduced back in 2021. As the member knows about the procedures and how this place works, when there is an election it wipes clean the slate of all the bills that are currently on the Order Paper.

The member is concerned about urgency. Did the member express his concern to the Prime Minister before he called the snap election in 2021 and wiped this bill completely off the radar?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Mr. Speaker, I am pleased to be here today to express the Bloc Québécois' support for Bill S‑4, formerly Bill C‑23. Bill S‑4 was requested by many provinces and justice system stakeholders seeking to benefit from the lessons learned during the pandemic.

Bill S‑4 seeks to amend the Criminal Code by introducing provisions to make the system more effective. The pandemic was disastrous on many levels. We all agree on that. We certainly hope never to see it again; that goes without saying.

We also all learned from this crisis, and we can certainly try to benefit from the lessons learned. We worked virtually over the past two years like we never have before. This way of doing things certainly has some disadvantages. I will come back to that. However, there were some benefits that we cannot ignore. Our justice system could most definitely be improved through the use of this little-known or often misused tool. Bill S‑4 proposes instructions to ensure that the proceedings that can be carried out remotely are managed and used effectively.

This bill proposes to allow for the use of electronic or other automated means for the purposes of the jury selection process. It also proposes to expand, for the accused and offenders, the availability of remote appearances by audioconference and videoconference in certain circumstances and to provide for the participation of prospective jurors in the jury selection process by videoconference in certain circumstances.

The bill would expand the power of courts to make case management rules permitting court personnel to deal with administrative matters for accused not represented by counsel and it would permit courts to order fingerprinting at the interim release stage and at any other stage of the criminal justice process if fingerprints could not previously have been taken for exceptional reasons.

Finally, it would replace the existing telewarrant provisions with a process that permits a wide variety of search warrants, authorizations and orders to be applied for and issued by a means of telecommunication.

Bill S-4 also makes amendments to the Criminal Code and the Identification of Criminals Act to correct minor technical errors and includes transitional provisions on the application of the amendments.

Finally, Bill S-4 makes related amendments to other acts and also provides for independent reviews on the use of remote proceedings in criminal justice matters.

It also provides for a parliamentary review of the provisions enacted or amended by this act, and of the use of remote proceedings in criminal justice matters, to begin at the start of the fifth year after it receives royal assent. There is a review of the whole process after five years. I think that is very wise, given that many of the provisions in Bill S-4 are new.

Bill S-4 is basically a tool. As we have seen here in the House and elsewhere, working remotely definitely has its advantages, but it also has significant drawbacks. Like any tool, it must be used judiciously. It has limitations that must be considered. When the time comes to assess a witness's credibility, body language is an important element that the judge wants to take into account. In remote proceedings, that type of language is redacted, so to speak. In my opinion, it is an important element that could, in some cases, radically change the outcome of a trial, particularly when the evidence consists of contradictory testimony.

Once again, like any tool, it must be used with discernment. A screwdriver is very useful; so is a hammer. However, if we use a hammer to drive in a screw we will have a problem. If we use a screwdriver to pound a nail, we will have another problem. In each case, we must determine what is appropriate. This is not a cure-all. In that regard, the Quebec bar association urges us to be cautious with certain provisions. I will come back to that.

However, proceeding remotely in some cases will accelerate the judicial process. It will minimize time wasted and postponements. We often see courtrooms packed with people in the morning waiting to appear, and then half the cases may be postponed for various reasons. If the proceedings are held remotely, delays due to postponements will be reduced, and the same applies for administrative matters, which do not require lawyers to appear in person. That already exists and is already being used to manage cases where parties are represented by lawyers. Under Bill S‑4, this could also apply when the parties are unrepresented. We will have to examine how to proceed, because this does pose certain challenges.

I think it is a useful measure that will reduce travel, inconvenience and often the frustration of people facing a judicial system that is manifestly too slow and opaque and that imposes costs and travel that could well be avoided. It is therefore a good thing if, I repeat, it is used with discernment.

I mentioned the drawbacks, including issues around witness and juror credibility. In a jury trial, the lawyers selecting jurors have to evaluate the candidates based on factors that are not always technical. Lawyers listen to them, ask them questions, consider their answers and also take into account their body language and the way they answer. In many cases, that is how they decide whether to accept or reject a potential juror.

The same goes for witnesses. There have been many trials in which key evidence consists of contradictory testimony. How are judges to decide whether one witness is telling the truth and the other is lying? Judges will use the witnesses' answers, certainly, as well as their body language. They will consider how witnesses react. They get a sense of people's credibility based on many criteria that are not necessarily explicitly stated in written procedures. It is important for judges and lawyers working on a trial to have face-to-face access to witnesses and potential jurors.

Could they not in some cases be heard virtually? I think so. Could jurors not in some cases appear virtually? I think so, but that has to be determined with the consent of the parties and not systematically imposed in every trial.

There is also talk of the problem of hacking. We know that we are constantly having to deal with hackers. We all receive unsolicited emails and proposals. I often receive messages warning that I have been summoned for a trial at a certain location and that I have to click on a link or the world will come to an end. All sorts of things like that happen, so our computer systems are not always as safe as we might think. Even banks get hacked. We saw that roughly two years ago when Desjardins suffered a data breach. Holding trials virtually is one thing, and we need to be careful, but Bill S‑4 also talks about telewarrants, meaning a warrant to conduct a search of someone's home.

If we computerize all telewarrants, warrants obtained virtually, and if we proceed based on a virtual model, are we not exposing ourselves to piracy and perhaps searches or actions of a legal nature that would be contrary to the interests of litigants, contrary to what we are trying to achieve in the administration of justice? I think we need to ask the question. I do not want to be an alarmist. Once again, I see Bill S‑4 as a positive thing, but I am just saying that we do need to ask some questions. It is not a panacea. It must not be applied without careful consideration.

There is the issue of regional disparities. As we saw during the pandemic, not everyone in Quebec, nor elsewhere in Canada, has equal access to computer systems. It is rather lacking in some regions.

Some people are able to work at home all day with two people on computers and hold meetings with multiple people without any issues. Others have a hard time making a phone call without being interrupted. That also has to be taken into consideration.

It is also the mandate of our federal government to ensure that everyone in Quebec and Canada has proper Internet coverage, but we are not there yet. Admittedly, the government is working on it, but there is still a long way to go. That has to be taken into account if we want to computerize the justice system, so how can we do that?

Once again, I think that, before we impose virtual proceedings, we need to make sure that we have the consent of the parties. If someone says, “Just a second. Where I live, we do not have very good coverage and I will not be able to follow along”, then perhaps the proceedings need to be held in person.

There is a process, and adjustments will have to be made. We need to take that into account, even though I think that Bill S-4 is an important step forward for the administration of justice.

Speaking of compromises, the Barreau du Québec submitted a brief in April that set out four recommendations. I want to read them because I think they are sensible.

The first recommendation from the Barreau du Québec is:

Exclude testimonial evidence from the new videoconferencing system. Testimonial evidence must be heard with all parties present.

As I was saying earlier, for the purpose of observing body language alone, I think it is important to see people.

The second recommendation is:

Carry out an in-depth study on the potential impact of making measures developed in a pandemic context, namely, those relating to technology and the automation of procedures, permanent in the Criminal Code. Carry out an in-depth study on the impact of videoconferencing on:

The attorney-client relationship...

It is a matter of professional responsibility for the attorney to properly represent the client and to ensure that he or she fully understands the brief and explains to the client what he or she believes is in the client's interest.

... and confidentiality.

Again, we know that the Internet and computers are not 100% secure, and this could lead to unwanted challenges and drawbacks.

Open court (Canadian Charter of Rights and Freedoms).

This is set out in the Canadian Charter of Rights and Freedoms, and we have to take that into account. I will come back to that.

The right to a fair trial (Canadian Charter of Rights and Freedoms).

Quality and consistency of justice (regional disparities in resources, Indigenous realities, self-representation).

Regional disparities in resources also affect the right to a fair trial and the quality and consistency of justice. What about indigenous realities? Are indigenous communities equipped to hold trials remotely? Can they do that? It is hard to be sure, but probably not all of them can. For people who self-represent, it is one thing for a lawyer at home or participating remotely to handle case management, but it can be problematic for a self-represented individual to deal with one, two or three lawyers in addition to a judge and a clerk, all participating remotely. At the very least, it can weigh down the process instead of streamlining it. We have to give that some serious thought.

The Barreau du Québec's third recommendation is as follows:

Delete new proposed section 715.241 of the Criminal Code, which allows the court to “require an accused who is in custody and who has access to legal advice to appear by videoconference in any proceeding referred to in those sections, other than a part in which the evidence of a witness is taken.”

I said it earlier. I think that, as long as everyone agrees, it is perfect. Going virtual is the appropriate tool. If all the parties agree and the judge agrees, that is what should happen. However, there is an issue if not everyone agrees. The proposed section 715.241 allows the court to require the accused to appear by video conference. This seems to me to be a potential problem, and I believe that the Barreau du Québec is right to warn us about this aspect.

The fourth recommendation of the Barreau du Québec reads as follows:

Clarify the distinction in Bill S‑4 between an accused who has “access to legal advice” and one who is “represented by counsel” in a context where only accused persons with representation can communicate with counsel.

Having access to legal advice is a vague concept. Access when and on what subject? What exactly are we talking about? Does having had access to a lawyer yesterday to discuss a number of issues mean that the individual is prepared to deal with any and all situations that may arise during a trial? That is not a given. This will have to be clarified, as Bill S‑4 is not very clear in this regard.

An accused who is represented by counsel and an accused who has access to legal advice seem to be given the same credit or treatment. I think we will have to take a closer look at that.

As I stated, the Bloc Québécois will support the bill and probably move amendments in committee. We shall see, but I think that this bill should be referred to a committee.

Having said that, I would be remiss if, in the last five minutes at my disposal, I did not bring to the attention of the House other major problems that need to be addressed to achieve sound and efficient administration of justice. We must not forget about them. Bill S‑4 is not a cure-all. I have spoken at length about the issue of connectivity in all regions, so I will not say any more about it. Still, it is an important aspect and is one of the things we must work on if we want to have an efficient virtual legal system.

There is also the question of judicial vacancies. Several positions are still vacant. I was speaking with a Quebec Superior Court judge two or three weeks ago who told me that there are about 15 vacancies in Quebec. I do not know what our government is waiting for to fill those judicial vacancies. It seems absurd to me. It is not even the federal government that pays those judges, it is Quebec. I should say, rather, the federal government does pay them, but it does not pay for the infrastructure, the clerks and the courtrooms. All associated costs are assumed by Quebec. There are vacancies, and our government has failed to fill them. It is a serious problem. A sound administration of justice requires sufficient resources on the ground, and judges are the primary resource we need.

We have spent a lot of time talking about the issue of appointing judges based on the “Liberalist”, and we will come back to that again. It does not make sense that, to this day, the Minister of Justice and the Prime Minister are still trying to reassure me that the “Liberalist” is used only after receiving applications that are deemed suitable. I personally believe that it should never be used, because partisan appointments, or appointments tainted by partisanship, are unacceptable in our society.

Finally, we recently talked again about the matter of secret trials, and that issue was in the news again yesterday. The Minister of Justice says he cannot tell us how many secret trials there are. He cannot even tell us whether there are any. I can understand that things need to be done differently than the charter dictates in some cases to keep witnesses safe, but it is certainly not acceptable for things to be done in a secret, non-transparent way like they are now. These trials need to be governed by the provisions of the charter. As members know, there can be a departure from the charter in exceptional circumstances that can be justified in a free and democratic society. I can accept that, but it cannot be done just any which way. When the Minister of Justice says that he cannot tell us how many of these trials are happening or even whether any such trials are happening or how the process works, that is a problem. This is not the wild west. Things need to be organized better. It is unacceptable for the government to operate like that.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, it is always a pleasure to rise on behalf of the people in Kamloops—Thompson—Cariboo. I am mindful of the fact that I cannot point out people in the gallery, even if three of them 11 and under bear a striking resemblance to me.

Today we are discussing Bill S-4. Bill S-4 is 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.

Before I begin, and this is somewhat related to what we discussed, I want to note the pleasure I have here that I just voted for Bill C-291, and the House unanimously, as I understand it, voted to bring Bill C-291 to committee. That bill will hopefully change the name of child pornography to “child sexual abuse material” to reflect the fact that sexual abuse of children is not pornographic but is abuse, and we should call it what it is. Words do matter. When I stood on doorsteps prior to my election, this is something I said I wanted to come to Parliament to do.

I am very happy and pleased to have partnered with my colleague and friend from North Okanagan—Shuswap to have addressed this problem at second reading. I look forward to our having a strong bipartisan effort at committee in hopes of having this bill passed by Christmas.

Bill S-4 relates to the efficiency of the criminal justice system. When we talk about efficiency in the justice system, we are often talking about inefficiency in the justice system. In fact, prior to my being elected, I contemplated doing some academic writing in law that talked about inefficiencies in the justice system and how we might address them. I am going to talk about some of those here today, some of those things that are, in fact, missing.

We cannot forget that there are people within the justice system who make it go around who really do not get the recognition they deserve. Sheriffs in British Columbia, for instance, are tasked with courtroom security. Frankly, they are underpaid for what they do. They escort people into custody. They are dealing with people on the front line, often who have just been arrested, who are coming down off of drugs, and they put their personal health, well-being and safety on the line in order to protect other criminal justice system practitioners. I thank them for it.

I thank our clerks, our judicial case managers, who keep our courtrooms running. I thank our judges, who often leave lucrative careers behind to serve the public good for the benefit of the rule of law.

When we talk about the justice system, we have to remember something, which is that times change and the law should change as well. This is most notable when we look at a section that is not contemplated here. That is section 525 of the Criminal Code. Section 525 of the Criminal Code deals with bail reviews.

I am not sure exactly when section 525 of the code was passed, but if we were to look I am sure we would see it was passed at a time when people went to trial much more quickly than they do today. Section 525 says, and I am simplifying this, that if somebody is detained on bail, they are entitled to a bail review at 90 days. How often has a trial date even been set in that time? That in itself is a bit of an issue, but sometimes it has not even been set within that time.

That was a different time. I remember looking at a homicide file from 1984 when I was practising law as a prosecutor. Around that time, a trial date would be set within two months, or three months perhaps, and somebody would go to trial often within six, seven or eight months. Times have changed. The system is backlogged. The evidence is different.

I looked at that file, which I believe was from 1984, and it looks like a file that would now be reflected with a “theft under” file, as in a shoplifting file. That was the thickness. There were a few photos of the alleged homicide and a few statements maybe a couple of pages long, and that was it.

Times have changed. Now the system is dealing with section 525, which says that somebody should not languish in custody. The reality is that a person now does not go to trial so quickly. That is the type of thing I would have liked to see addressed in Bill S-4.

I note, as has been noted by others, that Bill S-4 is essentially the same as Bill C-23. What changes is when the bill will come into force. I believe there is a 30-day lag period in order to allow courts to prepare. This legislation also identifies the Identification of Criminals Act.

As a bit of a sidebar, a local lawyer in Kamloops—Thompson—Cariboo, Jay Michi, has frequently told me, or at least he has told me once or maybe twice about the Identification of Criminals Act. His point has always been that it should not be called the Identification of Criminals Act, because a person is not yet convicted. Mr. Michi is now in Hansard, and his point has been made in the House of Commons.

Believe it or not, the Identification of Criminals Act could actually, as I recall, be the basis for a failure to appear in court, which could relate to detention on a primary ground of bail. It could also cause a number of issues.

When it comes to the importance of fingerprinting, a lot of people do not know this, but that is how criminal records are generally kept across Canada, through fingerprints. An FPS number is a fingerprint serial number. Somebody has their fingerprint taken, and that is how, on a CPIC record, it is called, a criminal record can be identified for somebody who has a conviction in Nova Scotia, where most good Speakers come from, or from British Columbia, where most good lawyers come from. I guess a few good lawyers have attended the University of Alberta, but we will put that aside for the time being.

[Drew Lafond]

Sure, I can chime in on this one.

On Bill C-22, again, we've had a lot to say to the minister's office on this point specifically. Our written correspondence outlines that while we're pleased to see some changes that reflect some of the calls to action—specifically, call to action 32—there's nothing of any substantive or systemic value in Bill C-22 or Bill C-23.

We've raised 16 points—10 immediate action points need to be addressed today. They need to be addressed immediately. They've been studied extensively and repeatedly and, again, set out in 21 commissions, reports and studies over the last 30 years. The problem we have with Bill C-22 and Bill C-23 is that the scope of their focus is too narrow and doesn't focus on any of the systemic items that we've identified need to take place immediately.

Just to name a few—I've named 10 already in my initial presentation—there are others that we've communicated: addressing over-policing and over-criminalization of indigenous peoples; implementing a multi-pronged indigenous de-escalation strategy; and ensuring appropriate systems are in place for carefully and systemically investigating reports of crime and violence against indigenous victims. These are systemic items that have been identified on numerous occasions, and what we lack right now is the implementation.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Madam Chair.

I'm going to resist the temptation to use my entire six minutes to applaud this panel. I think it is very important that they've directed our attention to the root causes of delays in the system and to the importance of protecting constitutional rights.

We will have opportunities in Parliament to discuss other bills that deal with some of these questions, and I hope that we will see these witnesses come back to give us further input on Bill C-22 and Bill C-23.

I want to take the time today to talk about one of my concerns: that our shift to the Zoom platforms during COVID, while necessary in an emergency, may make some fundamental changes in our justice system, which I believe will disadvantage indigenous people, racialized Canadians and those who live in poverty.

I'd like to hear from each of the witnesses what they think about this shift of platforms and its impact on those who are most marginalized in the justice system already.

Maybe I will start with Mr. Sealy-Harrington.

[Chris Lewis, Conservative, Essex, ON]

Thank you.

My last question is also for you, Mr. Brown. I'm sorry. I'm not trying to pick on you, sir. I really respect...and I was listening to your testimony very, very much in depth.

The federal government has introduced Bill C-23 to try to address some of the backlog. Do you have any other thoughts or feedback on the legislation as it was introduced?

[Arif Virani, Liberal, Parkdale—High Park, ON]

I have just a minute left here, but I'll confess to you that you asked for a conversation to take place, and conversations have already taken place. Some of the changes that I put to you at the start of my questioning already exist in Bill C-23. That bill is the product of conversations. We don't have any instances of any provincial leaders or attorneys general asking the federal minister to invoke the notwithstanding clause.

You'll forgive me for thinking that maybe this is a bit ideological, because we know it's been used by certain governments, including by the government in the province where I am located. I know you've been a candidate for the provincial Conservatives in Ontario and a candidate for the federal Conservatives. So is your interest in invoking the notwithstanding clause simply based on ideological perspectives?

[Mark Farrant]

I absolutely agree with that statement. This is the third time we have tried to see this bill and this amendment to the Criminal Code pass. There is no reason it should not be added to Bill C-23.

I have spoken to members across all parties. I've spoken to members of the judiciary. I've spoken to lawyers, both Crown and defence, across the country, who all agree that this is a common sense piece of legislation that would demonstrate to Canadians another investment in jury duty and an important contribution to post-trial recovery.

Many jurors have said that it wasn't the trial, nor was it the evidence, that hurt them mentally; it was the emotional trauma of reaching a decision or not being able to reach a decision in a truly public and difficult case.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you.

I would concur that the amount of funding we're talking about here with respect to juror pay and with respect to implementing other recommendations that would go a long way to support jurors is a pittance, having regard to the firehose of money that we have seen showered in this budget. Some of it very much needed funding; I don't want to minimize that reality. This, though, would be a mere pittance.

Another area that you cited is mental health and issues around mental health that jurors face in going through, in some cases, horrific trials, including stressors from not being familiar with the judicial system and being away from family and work, among many other factors.

One recommendation in the report from 2018 was to carve out an exception to the jury secrecy rule. Right now, jurors who are suffering from mental health issues arising from their jury service aren't able to talk about all aspects of their jury service, namely the deliberation process, which often can be the most stressful aspect.

I introduced a bill in the last Parliament to implement the recommendation to carve out a narrow exception to the jury secrecy rule so that jurors who are suffering from mental health issues could consult a mental health or other medical professional bound by confidentiality, thereby protecting the integrity of the jury secrecy rule while ensuring that jurors can get the help they need. There was again unanimous support for that bill, but it died in the Senate prior to the last election. I worked with Senator Boisvenu to introduce a bill in the Senate, but it's been stuck there.

The government has introduced Bill C-23, which touches on issues around jurors in a COVID context. Would you see it as beneficial that Bill C-23 be expanded to include the substance of what is in now Bill S-212 so that we can get this done, finally, which is something everyone seems to agree to?