Justice Committee on Dec. 12th, 2022

[Nicolas Le Grand Alary]

Thank you for your question.

Yes, there are concerns regarding section 715.241.

We have to understand that videoconferencing has always been presented as one option among others in the kind of toolbox for holding hearings in criminal cases, if the parties consent and the judge determines that it is appropriate. A judge who denies it must even offer a justification.

With the bill, we are moving toward a situation in which videoconferencing can be imposed. For accused persons who are in custody, that may be a concern. I touched on that subject earlier in answer to a previous question.

Issues may arise, for example, relating to the ability of defence counsel to do an effective job, to advise their client and communicate with them, if they are not present.

If, for example, the lawyer is in the courtroom or their own office, the judge is in a room, and the accused is appearing by videoconference from their place of detention, there may be communication problems. There is also a concern relating to the lawyer's professional obligations to advise their client effectively.

That can ultimately have repercussions on the right to make full answer and defence. We are calling for caution. We are comfortable with the principle of videoconferencing, provided it is voluntary.

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

Where Crown counsel and counsel for the accused, where the accused is represented by counsel, and the judge presiding at the trial agree to proceed by videoconference, the Barreau believes it is an appropriate tool.

However, where one of the three participants I have just named had not agreed or had not been consulted, there would be a risk in terms of assessing evidence, the rights of accused persons.

Is that correct?

[Nicolas Le Grand Alary]

Yes. I would say there is certainly a degree of risk.

We also have to understand that the professionals who are around the table in a criminal trial can be trusted. We can trust both Crown counsel and defence counsel.

We must not think that the physical presence of the accused is going to be required, when they are in custody, just for setting a hearing date, for an adjournment, or for organizing and managing the trial.

We have to understand that it will be done when it is necessary for the accused to be present and there is some benefit to them being present, taking into account the other measures that already exist in the Criminal Code for ensuring the presence of the accused or the introduction of evidence...

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

Time is flying, Mr. Le Grand Alary. I would like you to tell us about another issue that is also closely connected with section 715.241.

We are talking about an accused who is in custody but “who has access to legal advice.”

Could you tell us quickly about the distinction that must be made between having access to legal advice and being represented by counsel?

[Nicolas Le Grand Alary]

Yes, I think there may be a bit of confusion about the terms.

Normally, if the person is represented by counsel, they actually have a defence lawyer who is working on their case.

If we take the expression as it is written, having “access to legal advice” may mean being able to call the emergency lawyer line or get ad hoc advice without necessarily being represented.

The standard here may need to be reassessed, with the terms used. As we know, the words used in a statute are very important. So perhaps some attention should actually be paid to this wording.

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

An accused who has access to legal advice has not necessary met with a lawyer, if I understand correctly, and a lawyer who meets with their client might advise the client differently than if they have only spoken to them on the telephone.

With regard to appearances, when it comes to deciding whether to appear in person or by videoconference, that may become an important issue in some trials, in my opinion, particularly when we consider the matter of the Canadian Charter of Rights and Freedoms.

Mr. Le Grand Alary, do you have any comments to make about this more specific point?

[Nicolas Le Grand Alary]

I think you have summed it up.

In fact, we don't know what the meaning of the idea of “having access to legal advice” really is.

If it includes no more than having had a telephone conversation via the emergency lawyer line, where a lawyer has reiterated the accused's right to silence and some general advice, that is obviously not the same relationship as with a defence lawyer.

As well, using that term without using the same one throughout the bill raises questions in our mind.

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

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Fortin.

Now we'll go to Mr. Garrison for six minutes.

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

Thank you very much, Mr. Chair.

I thank the witnesses for being with us today.

Madam Diab started a line of questioning that I want to follow up on. If I read the bill correctly, I think that in all but one section, using video conference or audio conference requires the consent of both the prosecutor and the accused.

I think you rightly identified that in clause 46 the new section 715.241 has one exception: If someone is in custody, they can be required to participate by video conference if no witness testimony has been taken and if they have private access to counsel.

Is that also your understanding of the bill?

[Nicolas Le Grand Alary]

Yes, there is the exception provided in new section 715.241 of the Criminal Code, which allows the accused to be required to appear by videoconference. In the other situations, it is by consent. Certain factors must also be assessed by the judge.

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

Your broader concern that appearance by video conference might become the rule would seem to me to be mitigated by the fact that everywhere else it requires consent of both the prosecutor and the accused. You're obviously saying that's not the case, but it seems to me that would militate against this becoming the common practice.

[Nicolas Le Grand Alary]

We acknowledge that this procedure is conditional on consent. However, we have to recall that section 715.221 that is created in Bill S‑4 provides that the judge must give written reasons for denying video appearance and must include those reasons in the record. If the request is denied, there must be a justification. So this is the start of a move toward an application that is solely conditional on consent.

There is the case of parties who are not represented by counsel and who might sometimes agree to it without knowing the consequences.

Again, we are not opposed to video appearance. However, apart from that, the most important point we want to make is that we want to make sure the process is carried out in accordance with the rules and that all guarantees are provided, whether they be technological or under the Canadian Charter of Rights and Freedoms. We have to make sure that everything is respected.

What we are doing is codifying, making certain measures that we adopted temporarily during COVID-19 permanent. We may not have studied all the potential consequences and possibilities. It also calls for an effort to obtain data and statistics that might reassure the legal community.

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

Thank you very much.

With regard to your concern about the technical aspects of video or audio conferencing and the sometimes substandard connections and those types of things, also in clause 46 there's new section 715.23, called “Considerations—appearance by audioconference or videoconference”.

What that section says is that

the court must be of the opinion that the appearance by those means would be appropriate having regard to all the circumstances

Do you not see this as a protection that the court can use if the technology is inadequate?

[Nicolas Le Grand Alary]

Yes. It is important that that criterion be present. If that criterion had not been adopted, we would undoubtedly have called for it to be.

We have talked a lot about the technical and technological issues, but in some circumstances there are even issues associated with the physical organization and the presence of people in the same room.

Another potential issue we have not yet addressed is that trials that take place in large cities are still being held in person, but when a person is in a somewhat more remote area, appearance by videoconference is becoming the norm. Even if people are asked to give their consent, they may do so solely for reasons of efficiency when it is not really suitable in their situation.

It is simply necessary to consider these issues and think about these measures to make sure the fundamental guarantees that must apply in these circumstances are respected.

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

Thank you very much.

I would say very clearly that I share those concerns. I think people around the table know that I'm no fan of virtual proceedings of any kind, but I feel that there are some protections here through the consent and the judge's ability to decide that the circumstances aren't appropriate.

Mr. Chair, I'll conclude my questions there.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

We'll now go to our next round for five minutes, beginning with Mr. Brock.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Chair.

Thank you, witnesses, for your attendance today.

I'm going to question you with respect to an article you prepared in April 2022. It's entitled “Comments and observations of the Barreau du Québec”. In particular, you have this paragraph:

The Barreau du Québec would like Parliament to draw a more complete picture of the real impacts of the proposed videoconferencing provisions, particularly on the objective of searching for the truth in criminal trials. Given the time constraints, we were not able to undertake an in-depth analysis of the subject, but we invite Parliament to consider this in its study of Bill S-4 and be more careful with the proposed new videoconferencing system.

With the limited amount of time I have, I'd like to give either one of you an open floor to provide a little more colour with respect to that statement.

[Nicolas Le Grand Alary]

Thank you.

In fact, there are problems that the Barreau du Québec has raised in the past concerning justice system data, the effectiveness of the measures, and even the collection of statistics. That is an element we have addressed in several other forums. The idea behind the second recommendation in the Barreau's brief is that this study be undertaken in order to obtain the figures and data to be able to assess the repercussions. We have identified some areas and situations that would have to be assessed, particularly in connection with the lawyer-client relationship.

On the question of publicity surrounding trials and public access to trials, when a person participates in a hearing via Zoom or another platform, we have to protect the right to a fair trial and the quality and uniformity of justice in all regions of Canada and even within the provinces, in the more remote towns and areas. I think it would be worthwhile for Parliament to consider these questions in order to assess the possible consequences, unless a provision is to be included for reviewing the bill in five years or within some other time after the study and after that data has been collected and it has been analyzed by Parliament. That would provide assurance that the measures adopted and proposed during the COVID-19 pandemic and subsequently made permanent are effective and that the legislation is being implemented effectively.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you.

Virtual hearings, if open to the public, can ensure the continued respect of the open court principle, but it can also affect the privacy interests of participants. While individuals can watch in-person court proceedings, few do. Virtual access may increase public viewing substantially. Remote appearances also include the possibility of livestreaming, screen grabs or recordings, which can then be distributed or posted online.

I have two questions. How should the open court principle and privacy interests be balanced in virtual hearings? Secondly, what impact could public broadcasting have on witnesses, particularly in cases of sexual assault and other more sensitive matters?

[Nicolas Le Grand Alary]

Thank you for the question.

This is one of the very important problems we have raised, in particular in the second recommendation. The public nature of hearings and trials is a fundamental principle, certainly. To go back to the earlier questions, I would say it is a problem that is going to have to be solved by technology. If trials are held by video appearance, for example, and the public could have attended, seated in a courtroom, the public has to have a way of attending if they want. It is not necessary for it to be broadcast online, as the meeting we are currently taking part in is. It is not necessary for it to be televised. The rules of access have to be the same, however. In other words, if people want to attend, they must be able to attend. An internet link could be offered, for example, but there have to be guarantees relating to screen captures and recording, among other things, that are not permitted in a courtroom.

On the second part of your question, which relates to sexual assault victims, there are provisions in the Criminal Code that allow the public or witnesses to be excluded during certain testimony. The judge will have to maintain tight control over the trial to make sure there are no problems in that regard.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brock.

Next we'll go to Madame Brière for five minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

Hello, Ms. Claveau and Mr. Le Grand Alary. Thank you for being with us this morning.

At the start, you said the pandemic had created issues and it was necessary to modernize criminal procedure. We know that the legal community is sometimes reluctant to improve or change procedures they are familiar with.

I would like you to address certain subjects again. We have talked about what was put in place during the pandemic and the positive aspect of these new ways of doing things. What is being done here is to make these new methods permanent.

One thing I am thinking of is a study that talked about someone who had driven to the location, rented a hotel room, and attended at the courthouse in the morning, only to ultimately find that everything had been postponed. If video appearance had been a possibility, the victim and their family would not have had to travel and incur that expense, and so on.

Personally, I take a very favourable view of the changes being proposed. I would like to hear your comments on that subject.

[Catherine Claveau]

If I may, I am going to start, and my colleague will be able to add to my answer.

We agree that for any interim hearing, any hearing where it is not necessary to determine the credibility of a witness, an accused or another person, videoconferencing is entirely appropriate. It avoids pointless travel, for one thing. It genuinely is an access to justice measure. We agree on that.

However, what has to be understood is that it is our role, at the Barreau du Québec, to issue warnings. That applies to everything we do. Our concerns always relate to respect for fundamental rights. When a party is testifying, that is when things can go wrong.

I'm going to let my colleague add to my answer if he wants.