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.

The House resumed from November 17 consideration of the motion that Bill C‑291, An Act to amend the Criminal Code and to make consequential amendments to other Acts (child sexual abuse material), be read the second time and referred to a committee.

Criminal Code

[The Speaker, Liberal, Anthony Rota]

It being 3:18 p.m., pursuant to order made on Thursday, June 23, the House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C‑291 under Private Members' Business.

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

Vote #221

[The Speaker, Liberal, Anthony Rota]

I declare the motion carried. Accordingly, the bill stands referred to the Standing Committee on Justice and Human Rights.

(Bill read the second time and referred to a committee)

[Kamal Khera, Liberal, Minister of Seniors]

moved 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.

[Gary Anandasangaree, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, it is a pleasure for me to speak today 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.

I will begin by acknowledging that we are gathered here on the traditional, unceded lands of the Algonquin people.

Since the beginning of the pandemic, the criminal justice system, like many institutions in our country, faced significant and unprecedented challenges in continuing its operations while respecting the necessary public health and safety requirements imposed by all jurisdictions. The criminal courts and court users adopted quickly and admirably to the realities of the pandemic, finding innovative ways to provide essential justice services to the public safely and effectively.

Bill S-4 would reform the Criminal Code and other related legislation to respond to some of the practical challenges identified during or exacerbated by the pandemic. These reforms would modernize and enhance the flexibility and efficiency of the criminal justice system moving forward.

Members might be wondering whether the changes proposed in Bill S-4 are still needed, given we are now well into living with COVID-19, and the fact that the courts have adapted their practices during this period. These changes remain critically important and will help address the ongoing pressures on the criminal courts brought by the COVID-19 pandemic, including the backlog of cases.

I would note that this bill is the product of significant consultations with the provinces and is supported by provincial premiers of all stripes. I understand that last month, at the federal, provincial, territorial meeting of ministers of justice and public safety, all justice ministers reiterated their support for seeing this legislation advance to help improve court operations in their provinces and territories.

The pandemic seriously affected court operations, and we have heard from lawyers and judges alike that changes are needed so that the court system does not fall further behind. Canadians need to have confidence in our justice system, and a court system that does not keep up with the times will not provide that confidence. For instance, virtual hearings and remote services have been an important aspect of ensuring access to justice for court users while coping with pandemic-related issues. This bill would enhance and clarify rules on the use of technological means in the criminal justice system.

Before I delve into the details of Bill S-4, I would like to thank hon. Senator Pierre Dalphond for his sponsorship of the bill and leadership in working with all senators in the other place to get this bill to us.

I would also like to acknowledge the diligent work of the Senate Standing Committee on Legal and Constitutional Affairs in studying Bill S-4 and thank those witnesses who shared their views on the bill. The committee's study and consideration of witness testimony resulted in two amendments to this bill, new clauses 78.1 and 78.2, which would mandate reviews of the use of remote proceedings in criminal justice matters.

I will now turn to the changes in the bill and explain how they would address issues identified during the pandemic and seek to ensure greater efficiencies and access to justice for accused persons, victims and other criminal justice system participants.

The bill would, one, enhance and clarify the rules for remote appearances in criminal proceedings; two, revise the telewarrant process so that a wider variety of search warrants and other investigative orders may be obtained by means of telecommunication; three, allow fingerprinting of accused persons or offenders to occur at a later time than what is currently permitted and; four, improve judicial case management rules.

On remote appearances, Bill S-4 builds upon a former bill, Bill C-75, which introduced a new general part on remote appearances in the Criminal Code, which is part XXII.01, and expanded the availability of remote appearances for accused persons, participants and judges. Notably, those amendments were developed in a prepandemic era and did not anticipate the exponential reliance on technological solutions that followed.

This bill would expand and clarify the process allowing accused persons to appear by video conference during preliminary inquiries and trials, for both summary and indictable offences, even when witness evidence is being heard, except in circumstances where evidence is before a jury. The bill would also expressly enable an accused person to appear remotely when making a plea, either by video or audio conference, depending on the circumstances. Further, the bill would clearly permit an offender to appear remotely for sentencing purposes.

The new measures addressing remote appearances include a consent requirement, so an accused person or offender and the Crown prosecutor would need to give their consent to appear in this way. In addition, all decisions to proceed virtually would be at the discretion of the court based on a number of factors the court would be required to consider. For example, courts would need to consider the right of accused persons or offenders to a fair and public hearing and the suitability of the location from which they would be appearing before allowing it.

I would also emphasize that the bill does not make virtual court hearings mandatory or change the general principle that all those who participate in criminal proceedings must physically be present in court unless otherwise authorized. Bill S-4 does not seek to replace in-person proceedings, which remain important, but instead offers alternative ways of proceeding where the technological means exist and when considered appropriate.

Bill S-4 would also enact clear safeguards to virtual appearances, some of which I have mentioned, such as ensuring judicial approval and consent of all the parties. In addition, the bill would require that accused persons or offenders who are represented by counsel and appearing remotely are given the opportunity to consult privately with their counsel. Moreover, courts need to be satisfied that an accused person or offender who does not have access to legal advice would be able to understand the proceedings and that any decisions made by them during the proceedings will be voluntary.

Given that the jury selection process can involve hundreds of people summoned to appear at the same location, many jury selections for criminal trials were postponed or delayed during the pandemic. Some jurisdictions are concerned about the delays in conducting jury trials. Bill S-4 would give courts the option to hold a jury selection process by video when both parties consent and appropriate safeguards are in place, such as ensuring the courts approve the use of a location where the technological infrastructure would be available for prospective jurists to participate in the process.

Since May 2020, the Minister of Justice has been co-chairing the Action Committee on Court Operations in Response to COVID‑19 with the Chief Justice of the Supreme Court of Canada, the Right Hon. Richard Wagner.

The minister shared with me that, in this capacity, he has continued to learn how the pandemic has affected court operations, as well as exacerbated pre-existing issues, such as the growing backlog of cases and access to justice challenges. We are confident that Bill S-4 would contribute to efforts to address these issues by facilitating an increased use of technology in the criminal justice system.

I am aware that, during the Senate committee study of Bill S-4, some witnesses expressed concern about the lack of technological capabilities in courthouses and correctional facilities and the inability of persons who may be vulnerable or disadvantaged to access technology, either entirely or in a private manner. I acknowledge these concerns, and the government is committed to addressing them.

Indeed, the government has made a commitment to bring our court system into the 21st century and to work with the provinces and territories in doing so. In the 2020-21 economic statement, the government announced approximately $40 million in technology investments for courts across Canada. The government has also committed to connect 98% of Canadians by 2026, and 100% by 2030.

I am equally aware that many witnesses who appeared before the Senate committee on Bill S-4 voiced their support for the reforms and considered the increased use of technology by courts and participants as beneficial and a tremendous opportunity for access to justice.

In sum, Bill S-4 strikes an appropriate balance by not making remote appearances mandatory, but rather by enabling courts to hold proceedings in a flexible way, and provide for the consent of both parties and judicial discretion. It would also ensure the consideration of the technological resources available to the courts and users. Bill S-4 would also help ensure that virtual court proceedings are held in a manner that respects the charter rights of accused persons and offenders.

I would now like to turn to the amendments to the telewarrant process provided in the Criminal Code, which currently allows a peace officer to apply for certain specific warrants by technological means when certain prerequisites are met.

Bill S-4 streamlines the telewarrant process and expands its application, including by making it available to a wider range of investigative warrants and orders, such as warrants to seize weapons, tracking warrants, and production orders for documents and financial records.

Under this more streamlined process, it will be possible for a police officer to submit a search warrant application by means of a telecommunication in writing, such as by email, without meeting the current prerequisite that requires a peace officer to show that it is impracticable to appear in person to present an application.

Police may continue to apply for a warrant by means of telecommunication that does not produce a writing, for example, by telephone. However, in this situation, the judge or justice to whom the search warrant application is presented would have to be satisfied that it is impracticable for the applicant to present the application by means of telecommunication that produces a writing, such as an email.

The revised telewarrant process would also be expanded to apply more broadly in two ways.

First, the process would now apply to the investigation of all offences, rather than indictable offences.

Second, the process would be accessible to law enforcement officials other than peace officers, notably public officers.

This would include, for example, Canada Revenue Agency officials responsible for investigating tax-related offences, who may currently apply for search warrants, and other judicial orders by personal attendants.

Similarly, the process would now be available to any justice or judge who issues a warrant, order or authorization, thereby removing the current requirement that only specifically designated justices may issue telewarrants.

Bill S‑4 also harmonizes the rules regarding the execution of telewarrants and warrants obtained in person and the report required following the seizure of assets.

In particular, Bill S-4 adds an obligation for the police executing a search warrant to provide the occupant of the place searched with a copy of the warrant, as well as a new notice. This notice would contain essential information about where to obtain a copy of the report of the person's seized property and the location where such property is detained.

I note, however, that these requirements would not apply in relation to warrants authorizing a search of a property that has already been seized and is in the lawful possession of the police. This would make it clear that the officer is not required to provide the notice and a copy of the warrant to the person in charge of a police evidence locker.

The bill also makes changes to the fingerprinting process. The pandemic disrupted the ability of police to obtain the fingerprints of accused persons and offenders because of physical distancing requirements, which led to significant operational challenges for the criminal courts.

Currently, individuals charged with an offence can be ordered by police or a judge to attend at a specific time and place for the purpose of identification.

However, in most cases, if something prevents a police officer from taking fingerprints at the specified time, there is no mechanism that allows a police officer to require an individual to come back at another time. The bill addresses this and allows fingerprints to be taken at other times, where earlier attempts to do so were not possible due to exceptional circumstances like those posed by COVID-19.

The bill would not change the rules in terms of who may be subject to fingerprinting.

Further, Bill S-4 addresses judicial case management by allowing courts to make rules permitting court personnel to deal with administrative matters related to proceedings out of court, including for unrepresented accused persons.

The Criminal Code currently allows courts to make rules only for situations in which accused persons are represented by counsel. Judicial case management improves the efficiency and effectiveness of the criminal justice system. By expanding the court's ability to make such rules for unrepresented accused, Bill S-4 will assist in reducing unnecessary court appearances of those who are self-represented.

I know that the Minister of Justice is committed to modernizing the criminal justice system and supporting the courts' technological achievements during the pandemic. I support those objectives, and we should continue to adopt technological solutions when available and appropriate.

Many of our partners and stakeholders and, in particular, our provincial partners, continue to stress urgently that these amendments are needed. I am eager to see the bill enacted in the future, and I look forward to working with our friends in all parties to get this important bill through.

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

Mr. Speaker, that was a very comprehensive review of Bill S-4. My question relates to timing.

During the pandemic we worked very quickly in this House to allow the use of technology to try to compensate for the restrictions from the pandemic, yet this bill was prepared and on the Order Paper in the last Parliament. This is identical; it is the same bill in this Parliament, yet it took the government almost a year to get it back in front of us.

I just want to ask the parliamentary secretary why there has been a long delay, when we all know this is something that will help alleviate court delays?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Mr. Speaker, I can assure my friend opposite that the government has been working very hard on a number of very important criminal justice matters, including with my friend from Esquimalt—Saanich—Sooke. We look forward to working with him on the passage of Bill S-4.

This is something that has already passed the Senate, so in many ways we are working on the bill backwards. The Senate has passed it. Now it is in the House, and it is up to us to get it passed as soon as we can.

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

Mr. Speaker, it is always a pleasure to rise on behalf of the people of Kamloops—Thompson—Cariboo. From what I can see, the bill addresses a number of outdated inquiries. It obviously would have been best if some of these matters could have been addressed, as my colleague from the NDP mentioned, somewhat earlier.

One question I have, which I may touch on a little later, relates to preliminary inquiries and whether the member has any opinion as to whether preliminary inquiries and the eligibility for preliminary inquiries should be modified, given the strains our current system is under.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Mr. Speaker, the bill allows for the accused to appear virtually in respect of preliminary inquiries, provided all the parties agree to it.

As to his question about possibly changing the routines for inquiries, I look forward to having a conversation with him, as we all often do, and to having a broader discussion on how that could be incorporated in our criminal justice system. That is something we will definitely be open to discussion on.

[Luc Thériault, Bloc, Montcalm, QC]

Mr. Speaker, the Bloc Québécois supports this bill to modernize the system.

The Barreau du Québec made a series of recommendations, especially with respect to testimonial evidence being given in person.

Can my colleague tell us whether this recommendation will be fully implemented? What is the advantage and the essential nature of this Barreau du Québec recommendation that all evidence be given in person? Is that possible?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Mr. Speaker, the bill has gone through the Senate. It was introduced by Senator Dalphond, who is an eminent jurist in his own right and has a great deal of experience in the court system. As Bill S-4 moves to committee, we definitely look forward to working with my friend opposite on amendments potentially proposed by the Quebec bar association and others. This is the second reading of this bill, and as it goes to committee we will engage and work with all parties to get this done.

[Blake Desjarlais, NDP, Edmonton Griesbach, AB]

Mr. Speaker, I will ask a question with regard to the technology that is being used, and the intersection of that and accessibility.

There is a saying where I come from that says we do not put the cart before the horse. That does not mean we do not support this, but we have to make sure the communities that need the support most actually get it. We know that rural, remote and first nations communities currently have bad connectivity.

What do we tell those communities to ensure we maintain accessibility for first nations people, when right now they do not have that?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Mr. Speaker, I addressed most of my friend's concerns in my speech. First and foremost, we are investing in technology. We have invested $40 million in the criminal justice system to modernize this technology. We have also committed to ensuring that there is rural connectivity across Canada.

What is important for colleagues to understand is that Bill S-4 would allow for virtual hearings where appropriate, where it is not impeded by Internet access or technological limitations, and it is really subject to the consent of the parties involved, including both the accused and counsel, as well as the Crown.

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

Mr. Speaker, Bill S-4 is yet another piece of legislation that the Department of Justice is looking at. I know the member has been a very strong advocate for Bill C-5 and has a few thoughts on it that would be of benefit in terms of reinforcement. We recognize that when it comes to Bill S-4, the modernization is an absolute. It is relatively non-controversial and should pass. There has been time on it in the Senate already.

I know the member has some very strong thoughts on Bill C-5, and I would ask him to maybe provide a different perspective on another piece of legislation that he is bringing through.