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

[Rachel Bendayan, Liberal, Outremont, QC]

Mr. Speaker, I thank my hon. colleague for his question, but he obviously did not read Bill S‑4. That is not what we are debating in the House today.

I would be happy to discuss that with him further. I understand very well the issue he raised. However, since it is not part of the bill we are discussing today, I think we should stick to the current topic of debate.

[Xavier Barsalou-Duval, Bloc, Pierre-Boucher—Les Patriotes—Verchères, QC]

Mr. Speaker, I listened closely to my colleague's speech on Bill S‑4, among other things.

My colleague spoke at length about the justice system, and I think it is important that we have a strong one. In that regard, there is something that Quebec has been calling for for years but that my colleague did not mention in her speech, nor did I see it in Bill S‑4, which is before us today. I am talking about the whole issue of judicial appointments. Why is it that Quebec judges are appointed by the federal government?

I think it would make sense for Quebec to choose the judges who will be ruling on cases involving Quebeckers. I wonder if her government is open to agreeing to this long-standing request of Quebec's. Is there any chance that might happen one day?

[Rachel Bendayan, Liberal, Parliamentary Secretary to the Minister of Tourism and Associate Minister of Finance]

Mr. Speaker, I am pleased to be speaking 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 at second reading today.

Bill S-4 would reform the Criminal Code and related acts in order to modernize the criminal justice system here in Canada. The bill seeks to provide courts with greater flexibility in the manner in which they conduct their business, while respecting the rights of all participants in our justice system. As a former litigator, I understand and truly believe in the importance of doing this. While I will detail some of the specific measures included in the bill in my speech today, I would like to take a moment to speak more broadly about why modernizing our justice system is so critical, particularly at this time.

Let us take, for example, gender-based violence. Gender-based violence is on the rise. Frontline organizations saw increases in gender-based violence of about 20% during the pandemic. Domestic violence, in particular, is on the rise. We are at the beginning of our 16 days of activism against gender-based violence. Access to justice is a critical piece of solving this puzzle. We have seen backlogs in the courts due to the pandemic. We have seen increases in the demand for our justice system and, in particular, for the time of our judges. Therefore, freeing up resources and ensuring that judges are available in the courts in order to do the work that Canadians need them to do is of fundamental importance in respect of gender-based violence and all forms of violence in this country. Bill S-4 would go a long way toward ensuring that our justice system is not only modernized but is in fact streamlined, and that additional resources are available for litigants who require them.

I will now speak more specifically to the telewarrant-related amendments of Bill S-4, which have been well received by many witnesses. Witnesses noted that these new provisions would simplify the warrant application process, improve access to judicial services and, very importantly, save police resources.

Under the current Criminal Code provisions on telewarrants, peace officers can apply for and obtain only certain investigative warrants by telephone or other means of telecommunication. The telewarrant regime was enacted in the Criminal Code in 1985, so it is time to reform that system.

It is important to remember that the telewarrant regime was established to provide law enforcement with greater access to judges for the purpose of obtaining search warrants. It was established to make it easier to meet some of the challenges associated with policing in a country so vast that the nearest courthouse can easily be 1,000 kilometres away.

The telewarrant provisions have been amended only occasionally since they were first enacted. For instance, they were amended in 1994 to allow for an applicant to request a search warrant by a means of telecommunication capable of rendering the communication in written form. The purpose at the time was to accommodate new forms of written communication, including the fax machine.

During the pandemic, the courts were able to rely on new technologies to reduce the health risks to those involved in the judicial system. This experience demonstrated the important role that technology can play in addressing challenges in the criminal justice system. Accordingly, the expansion of the telewarrant process would provide greater flexibility in how the courts and police can meet the requirements for obtaining investigative tools without having an impact on judicial protections that apply to the issuance of search warrants and other judicial authorizations.

Judges and justices of the peace will continue to rule on these matters in the manner they deem to be most appropriate. With this approach, we are modernizing our judicial system to make justice more efficient and freeing up time and resources for our judges and law enforcement.

Let us talk again about gender-based violence. We know that it is growing at a very alarming rate, and that access to justice is fundamental for women. We are embarking on the 16 days of activism against gender-based violence and we must make the necessary changes to our justice system to ensure better access to justice for all. That is fundamental.

The amendments to the telewarrant process address the following issues. First, the current telewarrant regime is available for only some warrants and investigative orders under the Criminal Code, such as a general warrant or a warrant to obtain blood samples in impaired driving cases. However, the telewarrant regime cannot be used for many common judicial authorizations sought by law enforcement, such as warrants to seize firearms, warrants for trafficking devices and orders to produce data.

In addition, at the present time, telewarrants, as opposed to warrants obtained by personal attendance, may be issued only in respect of indictable offences, and telewarrant applications may be made only to specially designated justices. Furthermore, while public officers responsible for enforcing federal statutes may apply for Criminal Code search warrants and other judicial authorizations, they can do so only by applying in person.

Given the limited scope of the telewarrant process, police officers spend countless hours on the road and waiting outside the office of the justice of the peace at the courthouse to get warrants that cannot currently be requested by a means of telecommunication.

Bill S-4 replaces the current provisions on telewarrants with a simplified, standardized process that will apply to a wide variety of search warrants, orders and investigative authorizations, while maintaining the protective measures for the issuance of judicial authorizations.

One key element of this new process is that where the search warrant application is submitted by means of a telecommunication that produces a writing, for example, an email, a peace officer will no longer be required to meet the existing precondition that is in place right now, that it has to be impracticable to appear in person.

The current in-person search warrant application process often involves hand delivery of applications by police officers at the courthouse, without even an interaction with a judge. By removing the impracticable appearance in person requirement, search warrant applications submitted in written form will be treated in the exact same way, whether they are submitted electronically or in person.

However, the police officer's ability to make an oral application for a search warrant by phone, for example, will be maintained in situations in which it is impracticable to present the application electronically, for example, where the officer is in a remote location with no Internet access. These changes to the current law on accessing telewarrant regimes promote the use of written applications as a standard approach to be followed by law enforcement when applying for their authorizations.

In closing, making it possible to obtain a wider variety of search warrants and other judicial authorizations through technological means will make the criminal justice system more effective by reducing the number of cases where law enforcement is required to obtain those judicial authorizations in person and to physically submit requests for search warrants.

[Irek Kusmierczyk, Liberal, Windsor—Tecumseh, ON]

Mr. Speaker, I appreciate the stated support for this important bill.

Certainly, this is about modernizing Canada's justice system. It is one step, but it is a concrete step. I know that my colleague would appreciate the fact that Bill S-4 was informed by dialogue between the federal government and the provinces and territories. Bill S-4 is a product of the Action Committee on Court Operations in Response to COVID-19, which was chaired by the justice minister and the chief justice. Collaboration and consultation are at the heart of this bill, and it is just one piece of the fuller modernization of the Canadian criminal justice system.

[Irek Kusmierczyk, Liberal, Windsor—Tecumseh, ON]

Mr. Speaker, first and foremost, I respect very much the work of my hon. colleague. We sit together at the OGGO committee, and I really enjoy working with him and collaborating on projects.

Bill S-4 would take concrete steps to make the Canadian justice system more participatory. It would remove many barriers. It would allow more rural, northern and remote communities to access and participate in Canada's justice system. It would allow more Canadians with disabilities to participate, for example, in the jury selection process. It would also allow a lot of parents, the moms and dads who face barriers in terms of child care, to participate in the Canadian justice system.

I can tell the member about our government's record and the historic investments in expanding broadband to rural and remote communities across Canada. We have put record amounts of funding through the universal broadband fund. These are exactly the types of measures and concrete steps we are putting forward to make sure that Canadians from coast to coast to coast, in urban areas and rural and remote areas, are able to fully participate in the life of our country, and that includes the Canadian justice system.

[Irek Kusmierczyk, Liberal, Parliamentary Secretary to the Minister of Employment]

Mr. Speaker, I will be sharing my time today with the member for Outremont.

I am pleased 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. Bill S-4 addresses issues that the COVID–19 pandemic has brought to light regarding the ways in which criminal trials are conducted in this country. It also builds on past government initiatives, including Bill C-75, which came into force in 2019 and made significant progress in modernizing our criminal justice system, including by facilitating the appearance of accused persons, lawyers and judges by audioconference or video conference throughout the criminal justice process. Bill C-75 also enacted Criminal Code amendments to improve the jury selection process.

Bill S-4's amendments support the increased use of technology in criminal courts across Canada, including in the following areas: remote appearances for accused persons and offenders, remote participation of prospective jurors and the use of technology in a jury selection process. My remarks today will focus on the amendments relating to the use of technology during the jury selection process.

As many members know, a jury is a group of randomly selected citizens who act as the fact-finders in criminal trials, replacing the judge in this role when accused persons exercise their subsection 11(f) charter right to a jury trial after being charged with certain offences. It is the civic duty of all Canadians over the age of 18 to serve on a jury if selected. Jurors make critical contributions to the criminal justice system in Canada, and the Supreme Court of Canada has held that a jury reflects the common sense, values and conscience of the community.

Subsection 11(d) of the charter also guarantees an accused person an independent, impartial and representative jury. The Criminal Code sets out the procedural rules regulating jury trials and jury selection and includes safeguards that reflect this charter right.

The jury selection process is a hearing held for the purposes of selecting qualified members to form the jury. Typically, persons referred to as prospective jurors are identified and summoned in accordance with provincial or territorial laws, and directed to attend at a specified courthouse or other location at a specified date and time in order to partake in a jury selection process. Being summoned for jury duty does not necessarily mean that a person will be asked to serve on the jury. However, compliance with the summons is mandatory, and people may only be excused from jury duty for certain reasons, including where it would cause personal hardship for them to serve.

The COVID–19 pandemic and public health requirements for physical distancing posed significant challenges for the jury selection process since it sometimes involves several hundred people being physically present in the same location at the same time. Bill S-4's amendments provide courts with the flexibility to hold jury selection processes with prospective jurors appearing by video conference rather than in person. These amendments aim to not only address the challenges caused by the pandemic, but also optimize the jury selection process beyond the pandemic and moving forward.

Importantly, a key aspect of Bill S-4 will be increased efficiency of the justice system, facilitated by the use of technology. The amendments enable a court to allow or require prospective jurors to participate by video conference so long as the court considers it appropriate and the accused person and Crown prosecutor consent to the jury selection process occurring this way.

Where a court allows a prospective juror to participate by video conference, it would be that individual's choice whether they want to participate in person or remotely. Where the court requires prospective jurors to participate in a jury selection process by video conference, it will need to approve a location that is equipped with the technological infrastructure for them to participate by those means, such as a community centre or a courtroom set up with the requisite equipment.

If the court does not approve such a location, it will only be able to permit prospective jurors to participate by video conference from another location, such their home or office, if they choose to participate that way. However, in this case, the court will also need to provide the option for prospective jurors to participate in the jury selection process in person.

These amendments aim to maintain the representativeness of the jury selection process in two ways.

First, they facilitate the participation of persons in the jury selection process by reducing the burdens and barriers of attending in person. Although participating by video conference from home or the office would not eliminate the need to take time off work, it would likely lessen the time commitment required compared to commuting to the courthouse and waiting sometimes several hours for the process to commence. This can facilitate the participation of prospective jurors living in rural or remote areas by minimizing travel time and costs, and help those who need to find child care or who hold precarious employment by reducing the time required for child care or the time they need to take off work. These changes would both reduce the burden for individual jurors and enhance the efficiency of the overall system.

Second, the changes would ensure that persons who do not have access to adequate video conferencing technology or who have a limited understanding of the technology will continue to be able to participate in the jury selection process and ultimately form part of the trial's jury.

Our government recognizes that there is a digital divide in Canada and that many Canadians, particularly those in rural and remote areas, do not have adequate access to a high-speed and stable Internet connection. Although the government is committed to closing the divide, the amendments would ensure that at least a properly equipped location or an option to appear in person will always be available to prospective jurors to ensure participation by as many Canadians as possible.

The bill's amendments to the jury selection process also include important safeguards. As mentioned previously, prior to permitting or acquiring prospective jurors to participate by video conference, both the accused person and the prosecutor will need to consent to such an order being made. Also, the court will need to determine that making such an order is appropriate by considering listed factors, including the challenges related to the in-person participation of prospective jurors, their privacy and security, and the accused person's right to a fair and public hearing.

I would also like to take a moment to touch on the related proposals that would permit the use of electronic or automated means to randomly select prospective jurors during the jury selection process. The current process is both time- and resource-intensive, as it requires a large number of physical cards with juror identification information on them to be manually created for each prospective juror and then manually drawn as well. This amendment would provide courts with the option of a more efficient and less resource-draining process. Along with the amendments previously discussed, it also aims to optimize the jury selection process beyond the COVID-19 pandemic.

I believe this bill helps transform and modernize our criminal justice system while ensuring respect for all persons involved in the criminal court process, including accused persons and prospective jurors. A more efficient justice system will benefit all Canadians, and I ask that all members of the House support the passage of this bill as quickly as possible.

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

Mr. Speaker, there should always be an appropriate consequence for a crime that is committed, but I want to shy away from that and refer to the fact that Bill S-4 is really about the partial modernization in which our judicial system would be able to incorporate video conferencing or video taping to assist the system. We learned that through the pandemic. Could the member reaffirm, which I understand to be the case, that the Conservative Party will be supporting the legislation and getting the important feedback on it once it goes to committee?

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Madam Speaker, my colleague from Alberta did not speak an awful lot about the bill at hand. There was not an awful lot there on Bill S-4, so I certainly hope later on today, as I do my speech, I am afforded the same leniency to expand upon thoughts.

One thing he did talk about was the attack on an RCMP officer, and I think everyone in the House finds it incredibly appalling to hear that. From my perspective as an Albertan, I remember last year when the RCMP officers in Coutts were threatened with illegal guns and with crime.

I wonder why the member has such a different perspective on what should have been done in that situation. Why the Emergencies Act should not have been enacted? Why we should not have done everything we could to protect those RCMP officers? Why the different perspective for what should be done to protect RCMP officers in his community?

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Madam Speaker, I am happy to respond to that. When it comes to the administration of justice within my constituency, the RCMP members, the hard-working men and women who wear the Serge, are the ones facing the consequences of Liberal mismanagement. The reason it has such a close correlation to Bill S-4 before the House is because it is fundamentally associated with access to justice.

I talk about many of these things, and made it very clear in Facebook Live, and I have been happy to endeavour to expand Canadians' access to this place, as is fundamental. Democracy is not simply about election day, but each and every day in between. It certainly has been an interesting experiment. I found it interesting, but very disappointing, that members specifically of the Liberal Party would hate any attempt to be progressive in the ability of Canadians to access our democracy.

The rule of law is fundamental to a modern functioning democracy, and we are seeing an erosion of that. We need to prioritize access to justice in every way possible. In some ways that has to do with ensuring there are video conference options and that administrative details can be sorted out so there are no unnecessary delays.

Our Criminal Code was written by Prime Minister John Sparrow back in the 1800s, although it has been updated significantly since then over the course of our country's history. We need to ensure it is updated to ultimately ensure that Canadians have access to justice, that victims are protected and that those who commit crimes face the time that is due them.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

I would remind members that points of order have to be used judiciously as well. I ruled on the point of order that the hon. member for Fundy Royal put forward.

I want to remind members that they are to ensure that they are speaking about the bill that is before the House. I understand that there is some latitude, but the hon. member is actually going over that as well.

I want to remind the hon. member to stick to the debate on Bill S-4.

[Chris Bittle, Liberal, St. Catharines, ON]

Madam Speaker, I rise on a point of order. I know the hon. member is reading comments off Facebook, but we should be focused on the bill, which is Bill S-4. It does not deal with the RCMP, or the brass or whatever his constituents are thinking. It is nice he is responding to that, but he needs to be relevant and he needs to speak to the bill before us.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Absolutely, Madam Speaker.

We see how the Liberal government is refusing access to justice for Canadians.

Bill S-4 has some practical steps to ensure that my constituents would see a small step forward to be able to access the court system through things like video conference and whatnot. However, this is in the context of the larger trend where we have the Liberals more concerned about tanks on our streets than ensuring that Canadians have justice.

Somebody watching made the comment that we need time that fits the crime. We have a justice system, as is being highlighted by some of those who are commenting, where instead of prioritizing the rights of victims, in some cases those whom have seen absolutely devastating crimes, including sexual assault or a firearm being discharged with intent, the Liberals are eliminating sentences.

My constituents have made it very clear. The Liberals like to say that somehow we do not support justice or whatever the case is. There is one party in the House that stands up for victims, and that is the Conservative Party. That is increasingly clear, as we see the Liberals demand that somehow a soft-on-crime approach is a good way to stand up for victims of crime. That could not be further from the truth. We see a backlog within the court system that is leaving serious crimes without even seeing their day in court.

Imagine a victim, such as a senior in my constituency who came to me with respect to being held up at gunpoint. This was with an illegal gun, and it was not by a law-abiding firearms owner. That individual skipped bail, and in less than four hours they were back on the street. There were threats made against RCMP officers in my constituency, and we saw that within less than a day somebody who had threatened the life of an RCMP officer was back out on the street. This has a very significant correlation to the way that we have access to justice in this country.

I would suggest that the Liberals pay close attention, because there are many victims. These are not traditional Conservative supporters. I am not talking about just the folks I represent in rural Alberta. I am talking about folks from Liberal ridings who in some cases have reached out to Conservatives and said they are frustrated with that Liberal approach.

Somebody in the comments asked when the Prime Minister is going to resign. Certainly, I would have a whole host of constituents who would be very interested in finding the answer to that question.

Here is another example. Somebody on Facebook highlighted that the government spends more time persecuting law-abiding firearms owners than it does those who perpetrate serious crimes, including serious gun crimes. The hypocrisy that is demonstrated in that on a daily basis has contributed to that erosion of trust that is taking place within our system. This is something that I hope that the Liberals listen to very closely.

An erosion of trust is something that is very difficult to earn back. That is not something that is simply a platitude, a campaign-platform promise or whatever the case is. It takes time, it takes effort and it takes a demonstration. I have said this before in this place and I will say it again: If the Liberals are good at one thing it is politics, but when it comes to actually governing they fail each and every time.

In fact, I find it very interesting that, whether it be on the issues directly related to Bill S-4, which has a lot to do with access to the justice system and that sort of thing or the host of other concerns that MPs in this place hear on a regular basis, we see that over the past seven years the—

[The Assistant Deputy Speaker, NDP, Carol Hughes]

I want to remind members that the debate is on Bill S-4. I also want to remind members and make sure that, although there is a bit of latitude during members' speeches, their speeches should be relevant to the bill that is before the House. I am sure the hon. member for Battle River—Crowfoot will bring it back to the bill itself.

The hon. member for Battle River—Crowfoot.

[Chris Bittle, Liberal, St. Catharines, ON]

Madam Speaker, I rise on a point of order. On a point of relevance, I know the Conservatives love to defend the convoy, but we are not talking about the illegal occupation of Ottawa or the Emergencies Act. We are talking about Bill S-4. I wonder if the hon. member could get back to talking about the bill.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Madam Speaker, as always, it is an honour to join in the important debates and discussions that take place in the House and to be able to discuss the wide variety of issues, both directly and indirectly, addressed through Bill S-4.

I will be streaming this speech live on Facebook, where I will endeavour to not only address some of the very important aspects of Bill S-4 but also endeavour to take feedback and comments from those who are watching on Facebook. My Facebook handle is “@dckurek”. I look forward to addressing some of the comments and concerns that constituents bring forward.

Bill S-4 would codify some of the dynamics that existed during the course of COVID. These are things like video appearances and certain technical and administrative challenges associated with the circumstances around offices being closed, for example, the fact that the fingerprinting could be a delayed process and a whole host of administrative concerns.

I would highlight and encourage those watching live on Facebook to share their stories as well about some of the dynamics associated with rural crime. Access to justice is something that is not unique to rural Canadians. This did not start in 2020 with COVID, and it certainly has not repaired itself as we have seen life get back normal.

My constituency, for example, as many who are watching from there will know, is about five hours from corner to corner, and it is hours to the nearest courthouse. In many cases, the response time of law enforcement to very serious crimes is measured in hours or even sometimes in days. It is an important context in which we see this soft-on-crime approach.

I happen to agree with a statement that was made the other day by one of my Conservative colleagues that this is a hug-a-thug approach. It is really unfortunate, because we are seeing that my constituents are facing the consequences of that soft-on-crime approach by not seeing our justice system as a system that serves justice. In fact, the most common statements that I receive from constituents are that we do not have a justice system, and that it is simply a poor excuse for a legal system.

I certainly see the Liberal record over the past seven years as being one that piles on failure after failure, whether it be Bill C-5, which would eliminate a whole host of sentences for very serious crimes, or the justice minister, with an astounding level of ignorance and arrogance, who simply says that we will leave it up to the judges. I have more examples than I could fit in days of debate about where the justice system does not actually bring about the punishments that should certainly fit the crime, and we are seeing a massive erosion of trust in the system.

I see, specifically, a member from the government who seems to be participating in my Facebook live. I thank him for his viewership and amplification of the sound, common-sense Conservative message that certainly resonates with Canadians.

I would note something that I think is especially relevant. There is an astounding level of ignorance displayed by the Liberals, and this was highlighted just the other day. The rule of law, to them, seems to be this plaything. I would like to read a text message sent from the Minister of Public Safety that was revealed at the Emergencies Act inquiry commission. The parliamentary secretary who just commented on my feed should maybe pay attention to this. It says:

...you need to get the police to move....

And the CAF if necessary....

Too many people are being seriously adversely impacted by what is an occupation. I am getting out as soon as I can. People are looking to us/you for leadership. And not stupid people. People like Carney, Cath, my team.

The reply goes on to say, “How many tanks are you asking for...I just wanna ask [the Minister of National Defence] how many we've got on hand.”

The response from Canada's Minister of Public Safety was, “I reckon one will do.”

That is astounding, and I would suggest disgusting, that the Liberals would suggest that pulling out tanks to bring to the streets of our capital city would, in any universe, be an acceptable practice. We see how—