Justice Committee on Dec. 12th, 2022

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 44 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the order of reference of November 24, 2022, the committee is meeting to begin its study on Bill S-4, an act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other acts in relation to the COVID-19 response and other measures.

Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room and by using the Zoom application.

I would like to take a few moments for the benefit of the witnesses.

Please wait until I recognize you by name before speaking. For those participating via video conference, click on the microphone icon to activate your mike, and please mute yourself when you're not speaking.

There is interpretation. For those on Zoom, you have the choice at the bottom of your screen of “floor”, “English” or “French”. For those in the room, you can use the earpiece and select the desired channel.

I remind everyone that all comments should be addressed through the chair.

For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can, and we appreciate your patience and understanding in this regard.

On our agenda today, we will proceed with Bill S-4. First we'll hear from the Barreau du Québec. Then, right afterward, per the motion adopted last Thursday, we'll do the clause-by-clause study. We also need to reserve a few minutes to complete our review, in camera, of the draft report on the subject matter of Bill C-28. As you all know, we have to report it before December 16.

Before Mr. Fortin asks me, I believe all the witnesses' mikes have been tested.

[Some hon. members]

Oh, oh!

[The Chair, Liberal, Randeep Sarai]

Both witnesses have been tested for sound quality.

For our first item of business today, we have, by video conference, from the Barreau du Québec, Catherine Claveau, bâtonnière, and Nicolas Le Grand Alary, lawyer, secretariat of the order and legal affairs.

We welcome you to the committee. Thank you for accepting our invitation on short notice. You have the floor for five minutes.

[Catherine Claveau, Bâtonnière du Québec, Barreau du Québec]

Mr. Chair, committee members, I will introduce myself again. My name is Catherine Claveau, and I am the Bâtonnière du Québec. I am joined by Nicolas Le Grand Alary, who is a lawyer with the Secretariat of the Order and Legal Affairs of the Barreau du Québec.

Thank you for inviting the representatives of the Barreau to testify before you concerning Bill S‑4.

For over two years, the COVID‑19 pandemic has created issues and imposed constraints on the criminal justice system. The courts have managed to adapt to the challenges that faced them while complying with the Canadian Charter of Rights and Freedoms.

The objective of Bill S‑4 is to modernize criminal procedure by giving the courts broader powers regarding the conduct of criminal proceedings and allowing them to make orders.

Like other legislative initiatives, Bill S‑4 aims to make the solutions relating to the administration of justice that were implemented in order to respond to the problems experienced during the COVID‑19 pandemic permanent. The impact of these amendments, and particularly the anticipated benefits, must therefore be evaluated well beyond the pandemic context. While the Barreau supports any measure that facilitates access to justice and the efficiency of criminal trials, the quality of the justice done must remain a priority.

One of the bill's provisions is the possibility of appearing by videoconference at various stages of the trial, whether the trial proceeds summarily or by indictment. That possibility is conditional on the consent of the prosecutor and the accused and the permission of the court, which must determine whether proceeding remotely is appropriate. Remote trials are therefore imposed as the rule rather than the exception.

While there are numerous advantages to using technological methods for holding a trial, we wonder about the impact of this new rule. More specifically, we are concerned by the effects of videoconferencing on assessing a witness's credibility. The assessment of testimonial evidence, particularly in emotionally charged cases, lies in the nuances and details. In our opinion, the virtual nature of testimony could affect the ability to do the assessment during an examination.

In an in-person trial, something as simple as a note passed to the lawyer, or a look aimed at a lawyer by the judge or a witness, can send cause the lawyer to veer off course and have a major impact on their strategy and the outcome of the trial. The fact that the parties and their representatives are in close proximity during the trial is not to be disregarded, from the perspective of lawyers who are carrying out their client's instructions. It can be hard to determine whether that proximity will be helpful or otherwise before the trial begins. We therefore recommend that the bill provide that all testimony be heard in person.

We are also concerned about lawyers' professional responsibility to their clients, for example when they are unable to communicate with the clients in real time in a way that preserves the confidentiality of their discussion.

Our last concern is that if the principle of trials by videoconference is incorporated into the bill it will be implemented at the expense of people who live in remote areas, for whom travel may be expensive and more complicated to undertake.

The measures introduced by the bill could therefore vary widely in their application in Quebec, where the availability of resources differs from one region to another. On that point, we would point to the issues associated with self-representation by accused persons who will be appearing virtually.

To summarize, we are afraid that the new status assigned to video appearance in the Code will institute a two-tier justice system, depending on the region, and compromise the lawyer-client relationship.

In addition, the new section of the Criminal Code states: — the court may allow or 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 believes that this new section is problematic. We therefore recommend that this proposal be deleted. It is our opinion that the parties must always have the option of asking to proceed in person if they wish.

Denying accused persons who are in custody that option raises serious issues regarding the right to make full answer and defence and the right to a fair trial.

That is an overview of the main issues that the Barreau du Québec wanted to raise with the committee in its consultations on Bill S‑4. We hope that our presentation has contributed to your study, and we are now prepared to answer questions from committee members.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Claveau.

We'll now go to our first round of questions.

Mr. Caputo, you have six minutes.

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

Thank you, Ms. Claveau.

I apologize that my French is not good enough to address you in French.

I have some questions for you. Please don't take them as adversarial. I approach these questions in a spirit of dialogue and a desire to learn a little bit more.

I'll start with an area that's a bit contentious, in my view, and that's testimony by video. I really want to get your opinion on something here. Are you familiar with section 486.2 of the Criminal Code? I don't expect you to know it just off of the top of your head.

[Catherine Claveau]

If I may, I am going to give the floor to my colleague Nicolas Le Grand Alary, since he is in a better position to answer substantive questions than I am.

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

Sure.

Section 486.2 says in a nutshell that when there's somebody with a disability, or you have a child, for instance, I believe it's what we call a “presumptive” application. I'm not sure what the French equivalent would be. The judge is presumed to grant the order that the person can appear outside the courtroom for testimony. In that case, this is often when we're dealing with sexual offences against children.

I'm just trying to reconcile how, in this instance, Parliament has said we're okay with a child testifying by video, and presumed to testify by video, or a person with a disability. Do these credibility issues apply equally when we as Parliament have already conferred this power, this authority, on a trial judge to allow a child to appear by video in any event?

[Nicolas Le Grand Alary, Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec]

Good morning.

Thank you for your question, Mr. Caputo.

Although we don't want to start listing examples regarding the assessment of witnesses' credibility, we would nonetheless like to mention the issues that can also apply in the case of victims or other witnesses. We are talking about video appearance systems, that sometimes have flaws in terms of the bandwidth or the technology. There may be audio problems and questions may have to be repeated. So it is not just a question of assessing credibility by looking at the witness's face or body language. There really are issues relating to the actual introduction of testimony. With respect to the section of the Criminal Code you are referring to, the witness is normally in another room and testifies on a closed-circuit monitor or behind a screen. Other measures, in particular in sexual assault cases, also apply to adult witnesses, not just children.

Those are not the same issues as in the case of video appearances. When witnesses are in very remote areas, there may be technological issues. There may also be operational issues. Sometimes, accused persons and witnesses are in the same room when they appear, because there is only one room where the Zoom platform can be used. However, if the trial were held in person, they could be separated.

I think it is very easy to reconcile, because they are not exactly the same issues.

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

Okay. Thank you.

I'm just going to clarify your answer, sir. Do I have it right that your issue comes with the technology gap, then, and not in the evaluation of credibility? Do I have that right?

[Nicolas Le Grand Alary]

I would say it is a combination of the two. There is an issue when it comes to credibility. The technology gap can create problems in terms of credibility, but that is actually not the only issue.

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

Okay. To me, that seems like an issue that comes within the proper administration of justice. For example, when courts are conducting trials, the expectation is that the facilities will be up to par. I'm questioning whether as Parliament we should be considering the provision of technology, when really that should be a given in the circumstances, should it not?

[Nicolas Le Grand Alary]

You are entirely correct; that is one of the difficulties.

Often, what the Barreau du Québec says in parliamentary committees is that even if we agree on the purpose of the provision of a bill, it has to be implemented effectively and efficiently, it has to work, and the necessary tools have to exist. If we are not able to ensure that those tools are present, to ensure the proper conduct of a whole host of proceedings relating to the administration of justice, Parliament should perhaps specify, in the factors that must be assessed, that there must be sufficient guarantees in relation to the technology, for example.

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

Hypothetically, if a high-definition feed could be provided, would you be okay with that?

[Nicolas Le Grand Alary]

In terms of the administration of justice, I think so. However, we haven't talked here about the lawyer's presence with the accused. When the accused is participating remotely in a trial and is not in the same room as the other participants, as the judge and lawyers in particular, that can prevent effective communication between the accused and their lawyer. However, when witnesses are participating in a trial that is held completely remotely, in certain circumstances that have been fully explained here, then there is certainly a technological challenge.

[The Chair, Liberal, Randeep Sarai]

Thank you.

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

Thank you. I'm out of time.

[The Chair, Liberal, Randeep Sarai]

Thank you.

We'll go to Ms. Diab for six minutes.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you, Mr. Chair.

I would like to welcome today's witnesses and thank them for being here.

The issue is one that I am a bit familiar with from my days in my own province of Nova Scotia, particularly, quite frankly, in the last couple years, given the fact that we've had COVID. I know quite a bit of investment has happened in the justice system with regard to technology, video conferencing and all of that in courts.

It may not be enough. I would say to you that it's probably never enough. There's always more work to be done. I know we've moved a lot in the last eight years to make it much friendlier by providing the opportunity for video conferencing and so on when witnesses—

It's not witnesses, really. I believe the bill says that parties have to agree to it, so this is an option; it is not a requirement in the bill.

In the spirit of dialogue, as my colleague Mr. Caputo said, I would say that some of the changes here seem to be taking us backwards from how we have tried in the last number of years to modernize the court system, which is a good thing. Can you comment on that?

How do you feel about that? I don't know if you're aware, but do you feel that other barrister societies across the country would share your view? I certainly haven't heard that, but I would like to get your feedback.

[Nicolas Le Grand Alary]

Thank you for your question.

We are not aware of the positions taken by other law societies in Canada, but we have the same objective as the committee when it comes to Bill S‑4: to improve the justice system and adopt the positive lessons learned from the pandemic. As you said, there has been an ongoing effort to modernize the courts for several years now. It continued and accelerated during the pandemic because of public health requirements, for example, when hearings in person could not take place.

I would reiterate that we are not opposed to continuing that effort, but the bill provides for certain tools used during the pandemic to be implemented permanently for the future.

What the Barreau du Québec is proposing is that we step back a little and assess the effectiveness of these measures. Have they shown that they allowed for the procedural guarantees and rights guaranteed by the Canadian Charter of Rights and Freedoms to be respected? That is the reason we are here today.

We agree on the objective of the bill, in large part, but we still want to point out certain problems.

You said that it would remain an option. That's true: the judge must decide it, with the consent of the parties. However, the judge must justify the denial, if that is the case. There therefore seems to be an opening for video appearances to become the norm and not the exception. We wanted to draw your attention to that as well.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Right.

Thank you for your answer.

I understand your qualms.

I believe maybe the good will outweigh the bad in the bill that is currently proposed.

My understanding is that the bill came forth as a result of Canada working with provincial and territorial ministers across the country. I believe it has also gone to the senators, who probably did their job as well, and it's come back before us.

Certainly the reality that I was aware of on the ground when I was looking at the criminal justice system in my own province was that many were—“crying” is a hard word, and I don't know what English word to use—advocating to have those types of opportunities if at all possible, because appearing was just so difficult for so many, depending particularly on whether people were in custody. There are very many situations. Again, it is an option that is available. That would be my comment there.

Were there any other concerns? You may have talked about that, Madame Claveau, but I'll ask Monsieur Le Grand Alary. Would you have any other big concerns that you haven't noted yet?

[The Chair, Liberal, Randeep Sarai]

Answer very quickly, please. You have 10 seconds,.

[Nicolas Le Grand Alary]

For one thing, there are Charter-related problems, since we are talking about fundamental rights, we must not forget. There are also challenges in connection with public trials. Normally, a person can attend a trial, that is, be present in the courtroom. However, trials held by videoconference are sometimes less accessible. We also have to think about that.

[The Chair, Liberal, Randeep Sarai]

Thank you.

We'll go to Monsieur Fortin for six minutes.

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

Thank you, Mr. Chair.

Thank you for being here, Madam Bâtonnière and Mr. Le Grand Alary. I'm pleased that you are here this morning to testify.

As my colleague Ms. Diab pointed out, you appeared before the Senate previously, last spring, as part of the study of Bill S‑4. I am satisfied that the Senate has done a thorough job. However, the committee also has a job to do, and we have to do it just as thoroughly. I don't think we can rely solely on the work done by others.

You have raised important issues in relation to Bill S‑4. What I understand is that you have the same concern as Parliament and many justice system participants. We want to modernize the justice system to allow working by videoconference where it is useful. Videoconferencing is an excellent tool that should be used when the time is right, which is the key.

In your third recommendation, you raised the subject of section 715.241, which allows the court to require a videoconference hearing where the accused has not necessarily consented.

What would the consequences of a provision like that be if it were not amended?