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)

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.
The enactment also provides for one or more independent reviews on the use of remote proceedings in criminal justice matters.
Lastly, the enactment also provides for a parliamentary review of the provisions enacted or amended by this enactment and of the use of remote proceedings in criminal justice matters to commence at the start of the fifth year following the day on which it receives royal assent.

Criminal Code

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I do not have a lot of insight into that, to be perfectly honest. When I look at our judicial system and look at those who need to interact with our judicial system and with all of the technologies we can use safely, effectively and appropriately, it makes a lot of sense for us to explore. It does make sense for us to try to find ways to, as members of other parties have said, prevent people from entering the judicial system.

If there are technologies we can use, and if there are modernizations we can make, then we have an obligation to do that. There are always downsides to technologies. There are always things we hear about, such as detriments that happen to society with technologies from time to time, but there are also great benefits. It is incumbent on us to take those and benefit from them.

[Eric Melillo, Conservative, Kenora, ON]

Mr. Speaker, I too wish to touch on the technology aspect of Bill S-4. With technology, obviously the Internet is a very important component of that. I know in northern Ontario and across many parts of the country, Internet access is unaffordable, is unattainable and is not reliable for many individuals.

The Liberal government has been in power for seven years, and it has made many bold promises on improving Internet access with very few results in my region and many other rural and remote regions across the country. I wonder if the member opposite has any comments on what the government should be doing to ensure Internet access is stronger across the country.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Mr. Speaker, I represent an urban riding, but as only one of two New Democrats who represent the province of Alberta. I also feel that I often need to think about the needs of progressive voters across Alberta, so I look at these things such as access in remote and rural areas.

I agree with him that what the government has done is made us promises to make Internet available, and to make broadband available, and it has not delivered on that. It has not delivered on that across the country.

If Bill S-4 is a tool we are going to use to improve our justice system, but we have not yet put in place the infrastructure to allow that tool to be accessed equally by all Canadians, that is a massive problem. The government must do more to reduce costs and make things more accessible for all Canadians in all areas of our country.

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

Mr. Speaker, I appreciated my colleague's speech, particularly when she mentioned the importance of reviewing how judges are appointed and avoiding any partisan lists.

Part of what I understand about this bill is that it is designed to avoid or reduce delays. There have been delays that have resulted in major cases being dismissed because of the Jordan decision. Again, it is nice to harness technology, but if there are not enough judges to hear cases, the issues stemming from the Jordan decision will continue.

I am wondering if my colleague has any suggestions for the government so that we do not see a repeat of issues that have occurred in the past as a result of the lack of judges.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Mr. Speaker, that is a massive problem. We see this across the country. I know that in Alberta this is a big problem. When judges are not being appointed fast enough and we do not have enough judges in place, that interferes with justice for Canadians. We have seen it happening multiple times. We have seen cases having to be cancelled, because there was not that judicial leadership.

The government needs to have a better and more transparent process in place. Another piece of this is that the public does not believe our judges are appointed in a fair, transparent and non-partisan way, so we need to make sure that is happening at both the federal and provincial levels and that we are ensuring we have the adequate level of judges available to make sure our judicial system can continue to run.

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

Mr. Speaker, I thank the cheering crowd behind me who will make my speech a lot more interesting than it would be otherwise.

I rise today to speak to Bill S‑4 and the improvements that we hope it will make to the justice system through telecommunications and technology.

When I prepare a speech, I always seek inspiration by looking at what other intelligent people have already said on the subject. In this case, I referred to what Judge Pierre Dalphond had to say. I know him more as a judge than as a senator. He said that necessity is the mother of all invention. That is how I wanted to open my speech.

I am, or was, a lawyer in life. I was a civil lawyer. That being said, there are commonalities among all types of practices. I would like to talk about some of the things I experienced as a lawyer where these measures would have made things much more effective. COVID‑19 helped to resolve some problems.

About five years ago, a partner and I tried to set up an online divorce service for people who wanted to proceed with mediation amicably but lived some distance apart. Affidavits needed to be signed in order to complete the files. We contacted Quebec's justice minister, but we did not manage to obtain permission for the oaths to be done via video conference. We tried Quebec's Register of Commissioners for Oaths and were told that it was not under their jurisdiction but instead fell to Quebec City. In short, we ended up giving up because it was far too complicated.

Every cloud has a silver lining, though. One of the first things that happened when COVID‑19 hit was that virtual swearing-in was allowed. That also prevented a gaggle of lawyers from showing up at court in the morning to set a date. Sometimes they would travel from Montreal to Saint‑Jérôme, wait an hour and a half in the hall, spend five minutes in front of a judge, set a date, return home and send legal aid a bill for $80, end of story.

When COVID‑19 hit, a solution was found to the problem of too many people showing up at the courthouse in a pandemic, and we figured out how to do everything virtually within a reasonable period of time. I do hope that Bill S‑4 will have that kind of positive impact on the way courts operate.

Here is another example from the civilian side of things, the Tribunal administratif du logement, which updated its operations a few years ago. Now all cases are digitized, because sometimes remote hearings had to be held and it was better not to move physical case files, which tended to get lost on the way from one tribunal to another. Video conferencing made the tribunal as a whole more technologically advanced, and that made things easier for lawyers, who had access to their case files online.

We hope that Bill S‑4 will have a positive impact and, more importantly, that we can avoid bad ideas masquerading as good ones. I am going to raise a few of these points.

The bill changes two main types of things. First, it clarifies and expands the rules for remote appearances and seeks to increase the use of technology in the jury selection process. It also expands the telewarrant system under the Criminal Code, allowing a wider variety of search warrants, authorizations and orders, for example, to be obtained through telecommunications.

The main areas amended by Bill S‑4 relate to juries. The bill would allow for the use of electronic or other automated means for the purposes of jury selection. It would provide for the participation, in certain circumstances, of prospective jurors in the jury selection process by video conference. This would be only in certain circumstances, with the consent and at the discretion of the court.

It would avoid certain problems. For example, when I would arrive at the courthouse in the morning and see a crowd in the entrance hall, everyone knew that jury selection was taking place. It would avoid bringing together between 100 and 500 people in the same place during a pandemic.

It would also avoid situations where the first 10 jurors to be interviewed can be hand-picked. Another advantage is that it would not result in all potential jurors being in one place together, discussing amongst themselves and giving advice to one another on how to avoid jury duty, because people can be quite creative when they do not want to serve on a jury.

There is something else that Bill S‑4 amends: It expands the opportunities for remote appearances by audio conference or video conference in certain circumstances for accused individuals and offenders. I will come back to this and the potential pitfalls. It would also expand the powers of the courts to establish case management rules that permit court personnel to deal with administrative matters for unrepresented accused persons.

Currently, only in cases where an accused is represented by counsel is it possible to communicate with a judge by video conference to deal with routine issues, which can be done much more quickly by video conference. If this measure were also applied to accused persons who are not represented by counsel, then court officials could be used instead of taking up hearing rooms and a judge's time, which could be better spent. This could potentially increase efficiency.

The bill would also permit courts to order fingerprinting, for identification purposes, at the interim release stage or any other stage of the process to avoid delays if fingerprints could not previously have been taken for exceptional reasons. For example, during the arrest, an accused—

[The Deputy Speaker, Conservative, Chris d'Entremont]

Order.

I am sorry to interrupt the member for Saint-Jean. There was a problem with the audio, but it is fixed now.

The hon. member for Saint-Jean has 14 minutes left to finish her speech.

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

Mr. Speaker, I was talking about identification processes and fingerprinting. This bill would allow it to be done at any point in the process because, in certain situations, there is not always an opportunity to do it at the time of the arrest. During the pandemic, it became clear that it is difficult to hold someone's thumb to take their fingerprint while standing a metre away.

Finally, some of the telewarrant provisions would also be replaced, to further expand the type of warrant that could be issued by telecommunication. This does not change the legal threshold for issuing the warrant. It does not change the criteria for granting warrants. It simply frees up judges and police officers who would otherwise have to meet in person to discuss whether issuing a warrant is appropriate.

There is, however, perhaps a downside to this. Since everything would happen in writing and the arguments would be sent along with an affidavit to the judge, who would then issue the telewarrant, it prevents the judge from being able to ask a police officer questions to get a little more clarification on whether issuing a warrant is appropriate. There are still some pitfalls.

There have already been discussions about this bill. Given that it originated in the Senate, the various stakeholders have submitted their recommendations. The Barreau du Québec has been working hard on this. I would like to come back to one aspect in particular, and that is the part concerning appearances by video conference.

The Barreau du Québec made some recommendations. The bill will clarify, for accused persons, the availability of remote appearances by video conference at preliminary inquiries and trials for indictable offences or offences punishable on summary conviction, including when testimony is heard, but not when evidence is presented before a jury.

Therefore, a jury trial will always take place in person, but there will be exceptions for non-jury proceedings. I would remind members that, in certain cases, video conferencing can hide certain mannerisms or amplify certain facial expressions that could be misinterpreted by a judge or lawyer and alter their perception of an individual's body language during a hearing.

It is also harder to gauge what is happening between the parties when we are not in close proximity to them. For example, if a lawyer passes their client a note, it is not possible to kick someone under the table to indicate that it would be best to keep silent in that moment. This has an impact on our ability to fully understand what is happening at a hearing.

I want to give another example from my practice. When I was working in international family law and dealing with child kidnapping cases, I had to question witnesses in France in a context where we had to make sure that they were always alone in the hearing room to avoid witness contamination. I questioned the first witness, but when I asked him to go and get the other witness because it was her turn to testify, he just pulled his wife into view. She was beside him and had heard the whole thing. There can be concerns about witness contamination, and we can assume that we will not be exempt from that risk if we proceed with Bill S-4.

This is a serious issue. For example, what happens if this kind of irregularity occurs during a trial? Would the trial have to be scrapped? Would the whole thing have to start over? That would mean wasting even more time than if all the witnesses had been there in person from the start. This is something we have to consider.

Here is another issue. People can testify via video conference with the parties' consent and the court's authorization. What happens if an accused becomes aware along the way that their constitutional rights have been violated by the fact that they made that choice, so they decide to switch? Does the whole process have to start over? Does a new hearing date have to be set if the accused is participating remotely? Efficiency can suffer because of that too, and I think that should be one of the factors we consider in our study of this issue.

Another aspect that the Barreau du Québec suggests studying is the long-term repercussions of Bill S‑4. We are still in “COVID mode”, and we still need to respond to COVID-19, but Bill S-4 will change courtroom proceedings in the long term, even after the pandemic is over. The other problem is that, rather than making remote proceedings the exception, Bill S‑4 makes them the norm. That will fundamentally change the face of our justice system.

This could affect the attorney-client relationship. What impact will this have on the lawyer's professional responsibility in recommending, for example, that the client choose to testify remotely? This question will have to be studied.

We will also need to examine the open court issue. Trials are supposed to be public in almost every case. If they are held by video conference, the average person will not have access to them. I am thinking of my colleague from Drummond because I remember how, at one time, seniors used to go and watch hearings at the courthouse and make bets on the outcome, just to pass the time. I cannot help but think of those people, who will be losing an interesting source of entertainment if the courts start operating only by video conference.

The use of video conferencing might also compromise the right to a fair trial. We spoke about non-verbal communication and how it is important in assessing witnesses' credibility. This approach may impact that.

Another issue is that this could create a disparity between large urban centres and the regions. There might be a tendency to think that, since it is easier for people who live far away to do things by video conference, then we should favour that approach for them. In big urban centres, it does not cost witnesses and parties as much to travel, so their court proceedings would always be held in person. That would create a two-tiered justice system. These are some of the issues arising from Bill S-4 that will need to be assessed over the long term.

The Barreau du Québec also recommends deleting the 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”. The Barreau du Québec is of the view that this should never be at the court's discretion, that the parties should always have to consent to proceeding by video conference and that it should not be imposed on anyone. The Barreau du Québec also recommends that, before the bill comes into force, we clarify the distinction 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.

Clients who are receiving legal advice and are in a video conference might not technically have the right to call or request their right to counsel during a trial if they are not formally represented by a lawyer. In a courtroom, they could still get legal advice from a lawyer, if one is present.

It is important to keep in mind that we need to strike a balance between the convenience of new technology and actual gains in efficiency. We can compare this to the long-term hybrid format people want for the House. When we talk to journalists about changes to the debate format here, they complain about not having direct access to witnesses. For example, when all they can see is a person talking on screen, they do not get a general sense of what is happening in the committee room. They do not see people's reactions to what the witness just said. Those reactions make journalists' work easier. They also do not have access to members leaving the House. Virtual might be easier, but it does not necessarily do as good a job of protecting democracy.

Another thing to consider is the work of interpreters. When Centre Block reopens, they might be thrown together in a room quite separate from the House and committee work. What we are hearing on the ground is that this makes their work a lot harder, because when they are considering what is being said, they look at more than just the spoken word. Emotions are important in conveying a message in another language, and this includes analyzing non-verbal cues and facial expressions, which is harder to do by video conference.

Another pitfall that must be avoided is thinking that Bill S-4 is going to solve all of the world's problems. While we may improve the issue of delays somewhat, that does not mean that everything is fixed and we can turn around and walk away.

For example, bringing into force Bill S‑4 without addressing the connectivity problems would be like trading four quarters for a dollar. It will change nothing because the system will not be equipped to properly install the technology for appearances. This will not fix the infamous Liberalist file. My colleagues have talked about that here as well. This will not necessarily address the issue of public trust in the justice system.

I spent a bit of time in Albania not that long ago. The justice minister explained that his role was not to appoint judges, but to ensure that the infrastructure or the administrative aspect of the judicial branch works properly.

He knows the statistics, the number of files that come in each day, the number of rooms and the technology required, but he is not responsible for appointing judges. We could perhaps follow the example of that country in future.

The issue of judicial vacancies has also not been resolved. Many judges are appointed in Quebec and the provinces. I am thinking of Quebec court judges. There are also the clerks, constables and others required for the orderly administration of justice. Some cases do not move forward because of delays in appointing federal or Superior Court judges.

To avoid the problems I mentioned from occurring in the future, the bill provides for a review in three and five years. The bill at least has a certain advantage. It provides for a review after three years by an independent committee, which is excellent.

Clause 78.1(1) of the bill reads as follows:

The Minister of Justice must, no later than three years after the day on which this Act receives royal assent, initiate one or more independent reviews on the use of remote proceedings in criminal justice matters that must include an assessment of whether remote proceedings

(a) enhance, preserve or adversely affect access to justice;

(b) maintain fundamental principles of the administration of justice; and

(c) adequately address the rights and obligations of participants in the criminal justice system, including accused persons.

The bill also provides for a parliamentary review at the start of the fifth year of its existence. I hope this will allow us to determine whether there were any bad ideas masquerading as good ones in the implementation of this bill.

I hope that the feedback of lawyers will be sought on this because they are the ones who will see how this is actually working on the ground. When they are not consulted enough, that is often when mistakes are made. A bill that started off with good intentions may end up being a bad bill. As I said, we are going to make permanent something that basically resulted from a temporary situation like COVID‑19.

I hope that when this legislation is reviewed in three or five years, legislators will have the humility to correct the measures that did not work rather than waiting until they are challenged in court where it will take more time and energy to correct them.

The review of the act will certainly be a useful exercise. I hope that legislators will backtrack if needed and that doing so will not be seen as a sign of failure but as a real will to advance justice, reduce delays and prevent the Jordan ruling from applying because of issues that can be easily resolved. That is my wish. Perhaps it is asking too much of politicians to show some humility, but that is my wish for this bill going forward.

[Lori Idlout, NDP, Nunavut, NU]

Uqaqtittiji, I just wanted to comment very quickly that, given that most Nunavut lawyers are legal aid lawyers, I feel that the MP for Edmonton Strathcona was perfectly in line when she made her intervention about legal aid lawyers.

I want to thank this member for her great speech focusing on Internet connectivity. Given that this bill will focus on only three specific areas for streamlining processes, can the member describe how maybe those concerns are actually not warranted, given that it is only going to be in so few circumstances?

[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.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, in acknowledging the importance of judicial independence, it is important we recognize that Bill S-4 is a reflection of the desire of a lot of provinces to make changes coming out of the pandemic, taking advantage of the technology today that is always an option. That is what the bill would provide: options for our courts to take advantage of the technology.

I am wondering if the member would concur that it is a positive thing and a reason to support the legislation.

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

Mr. Speaker, I am pretty sure everyone knows that the Bloc Québécois will support Bill S‑4, because my colleagues have said so. However, one clause in the bill states that appearances by video conference should not be optional. The Barreau du Québec actually recommends deleting that clause.

We should not see this as a solution. There are problems with distance and access to courts, and we cannot tell ourselves that we do not need to deal with the issue of access to courts because we have this band-aid solution, a plan B that lets us do things another way.

We have to make sure people always understand that they can choose between in-person attendance in court and appearing by video conference and that they are not indirectly forced to choose one over the other.

The House resumed consideration of the motion that 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), be read the second time and referred to a committee.

[Richard Lehoux, Conservative, Beauce, QC]

Mr. Speaker, I really enjoyed the speech that my colleague from Saint-Jean made earlier.

I would like to ask her a simple question. There is a lot of talk about improving technology, and this bill talks about using audio conferencing. Video conferencing is relevant, but what does she think about the possibility of using audio conferencing only?

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

Mr. Speaker, the issue as to whether it should be expanded was raised by the Barreau du Québec in the brief it submitted when debate began on this bill.

I understand that audio conferencing can be part of the solution in exceptional circumstances when video is not allowed, but it must be interpreted very narrowly. That is why I welcome the fact that the law will be reviewed in three years' time by an independent committee and in five years' time by a parliamentary committee, to see whether it is actually working and whether procedural safeguards are being maintained, which the courts may be called upon to do.

Furthermore, we could see the law evolve when it comes into force, particularly in relation to procedural safeguards and fairness. Perhaps this will be one of the sections of the law that will not hold up at that time. It remains to be seen.