Justice Committee on Dec. 12th, 2022

[Nicolas Le Grand Alary]

I think Ms. Claveau has identified the issue very well.

The example you gave was a very good one. Of course, we will never object to witnesses being spared having to travel when it is just a pro forma date and everyone knows the trial will be postponed. In that kind of situation, the lawyers will certainly work together and arrange with the court for those hearings to be held by videoconference.

However, where there are fundamental matters in issue, where there is testimony, where the presence of the accused is necessary, and where it is known that the trial will be held on a specific date, as Ms. Claveau said, then the parties can be alerted and it can be ensured that the proper procedure is followed.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

Last week, in fact, the chief justice made a strong statement in La Presse. She pointed out that some trials had been delayed or even cancelled.

Do you think that Bill S-4 might improve things, to achieve its primary objective of reducing delays, and helping out in this labour shortage?

[Catherine Claveau]

That will certainly be the case for hearings with no witnesses, when travel can be avoided and it is manageable. There still has to be a minimum of management in courtrooms. So there has to be a clerk on site to coordinate it all.

The bill will help things, but will obviously not be enough to eliminate all the problems associated with the labour shortage and delays.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Mr. Le Grand Alary, did you want to add something?

[Nicolas Le Grand Alary]

No. I think it has all been said.

The bill does have to be seen as one tool among others. Obviously, it is not a panacea.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Very good. Thank you.

You talked about witness credibility. I would now like to know your opinion of interpretation, which is a widely used service, as we know.

Do you believe that proceeding by videoconference may create problems for interpreters or that the issue is primarily the proper understanding of all parties to the trial?

[Nicolas Le Grand Alary]

We don't have any data about interpreters, translation and video appearances.

However, I will tell you that in general, there are problems relating to note taking by stenographers, recording of the proceedings, and transcription. On platforms like Zoom, Teams, or other software, the connection is often lost and problems with the sound happen, for example. Sometimes mics are not turned on and are then turned back on. The problems this causes are different from the ones encountered in a courtroom.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Tell our interpreters here about it. They are very familiar with that.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Brière.

We'll go to our last round of questions. Mr. Fortin, you have two and a half minutes.

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

Thank you, Mr. Chair.

Don't I have the floor for three minutes, rather than two and a half?

In any event, I won't waste 30 seconds on arguing pointlessly.

Madam Bâtonnière and Mr. Le Grand Alary, you are both welcome to answer my questions.

I want to come back to section 715.241, which provides that the court may require virtual appearance by an accused without necessarily obtaining their consent. I am wondering about the impact that may have on wait times, as Ms. Brière raised. I wonder whether a decision like that could be appealed. Based on that alone, a person might claim they did not get a fair trial since they were unable to appear in person or present argument before the court.

First, in your opinion, might that result in more frequent and more numerous appeals?

Second, what impact might it have on the public's confidence in the administration of justice?

[Nicolas Le Grand Alary]

Of course, the accused's absence could become a determining factor in relation to the effectiveness of counsel and of counsel's advice, the right to counsel, or another of the rights guaranteed by the Canadian Charter of Rights and Freedoms. In a case like that, there could be an appeal on that basis.

However, virtual appearances can be beneficial in first appearances, when the accused is still in custody and the purpose is simply to set dates for the release hearing, also called the “bail hearing”. It might mean that wait times could be reduced.

It can be beneficial for the accused in some regards, but yes, it can pose problems. It is therefore important to retain the consent requirement.

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

I would ask you to comment in the few seconds that remain. As you said earlier, your second recommendation raises the problem of uniformity in the administration of justice. The situation in cities is completely different from the situation outside urban areas. You are right to suggest that this could become the norm outside urban areas.

Does the Barreau have more specific statistics or information about legal proceedings outside urban areas?

[Catherine Claveau]

Thank you for the question.

Unfortunately, we don't have, and we find that unacceptable. That is one of the requests we have made to the authorities in both departments of justice. We do not have the neutral, centralized data that would enable all justice system participants to take stock of what is missing and in what regions, and determine where the needs are. That is unfortunate and we find it unacceptable.

We are therefore not in a position to give you that information. We would like to assemble it, together, to find an authority that would let us have that data so we could implement permanent solutions to improve access to justice and cut wait times.

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

Thank you, Madam Bâtonnière and Mr. Le Grand Alary.

[The Chair, Liberal, Randeep Sarai]

In the spirit of Christmas, you got the 30 seconds you requested, Monsieur Fortin.

[Voices]

Oh, oh!

[The Chair, Liberal, Randeep Sarai]

I want to thank all the witnesses for their testimony. It has been very informative.

We are now going to switch to our clause-by-clause consideration. We'll just take a few seconds to transition to some of the other video conference guests we have, and we will have our in-room guests come forward as well.

Thank you.

[The Chair, Liberal, Randeep Sarai]

We'll resume.

We'll be doing clause-by-clause consideration.

From the Department of Justice, we have Matthew Taylor, director and general counsel, criminal law policy section.

Do we have anyone online, Mr. Clerk?

We also have Normand Wong, senior counsel, criminal law policy section, by video conference.

I have some considerations. I'd like to provide members of the committee with some instructions and a few comments on how the committee will proceed with clause-by-clause consideration of Bill S-4.

As the name indicates, this is an examination of all the clauses in the order in which they appear in the bill. I will call each clause successively, and each clause is subject to debate and a vote.

If there are amendments to the clause in question, I will recognize the member proposing it, who may explain it. The amendment will then be open for debate. When no further members wish to intervene, the amendment will be voted on. Amendments will be considered in the order in which they appear in the bill and in the package each member received from the clerk.

Members should note that amendments must be submitted in writing to the clerk of the committee. The clerk has advised me that if you want an amendment resulting from the testimony we just heard, you can still send it to the clerk in writing and we shall consider it.

The chair will go slowly to allow members to follow the proceedings properly. Amendments have been given an alphanumeric number in the top right corner to indicate which party submitted them. There is no need for a seconder to move an amendment. Once moved, you will need unanimous consent to withdraw it.

During debate on amendments, members are permitted to move subamendments. These subamendments must be submitted in writing. They do not require the approval of the mover of the amendment.

Only one subamendment may be considered at a time, and that subamendment cannot be amended. When a subamendment to the amendment is moved, it is voted on first. Another subamendment may then be moved, or the committee may consider the main amendment and vote on it.

Once every clause has been voted on, the committee will vote on the short title, the title and the bill itself. If amendments are adopted, an order to reprint the bill may be required so that the House has a proper copy for use at report stage. That report contains only the text of any adopted amendments, as well as indications of any deleted clauses.

We'll begin the clause-by-clause study. Before I call clause 1, in the interest of time, and given that there are no amendments to most clauses, I seek the unanimous consent of the committee to regroup clauses for the purpose of voting, starting with clauses 1 to 38. We'd then debate the amendment on clause 39 and group subsequent clauses as we go along.

Is there unanimous consent?

[Some hon. members]

Agreed.

[The Chair, Liberal, Randeep Sarai]

Thank you.

(Clauses 1 to 38 inclusive agreed to)

(On clause 39)

We have amendment BQ-1.

Do you want to speak to it, Mr. Fortin?

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

Thank you, Mr. Chair.

Amendments BQ-1 and BQ-2 go together.

In amendment BQ-2, we are proposing to delete lines 7 to 11 on page 22, to reflect the recommendations made by the Barreau du Québec relating to the problem associated with section 715.241, which deals with mandatory appearance by videoconference. That section seems to us to be a bit counterproductive. That is the idea behind recommendations BQ-1, BQ-2 and BQ-3.

I am not going to add to what was said earlier. The bâtonnière and the lawyer who accompanied her clearly described the problem associated with requiring someone in custody to appear by videoconference. It opens the door to possible appeals and undermines public confidence in the sound administration of justice. It also appears to me to be a major breach of the protections granted by the Canadian Charter of Rights and Freedoms.

If an individual who is in custody agrees to appear virtually, there is no problem. However, provisions as worded in section 715.241 open the door to anything at all if, for some reason, the judge then imposes it on an accused who is not represented by counsel. A lawyer can say, a month or a year later, that their client consented without being aware of the effects of their consent and without having an opportunity to meet with counsel because they were in custody. The lawyer can say that the court compelled an appearance by videoconference.

Bill S‑4 is a fine bill that proposes a modern way of proceeding and, overall, respects the parties' rights. I am going to agree to Bill S-4, but there is this one hitch that seems to me to pose a serious problem. I think we must protect ourselves from it.

In amendment BQ-1, we want to make an amendment by replacing, for consistency, line 19 on page 18, where it refers to sections 715.231 to 715.241. Because I am going to propose that section 715.241 be eliminated, an amendment has to be made there.

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

We'll go now to Mr. Anandasangaree.

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

Mr. Chair, I would like to get a sense from Mr. Taylor as to what the impact of....

I'm going to say that we work with clause 39 first, and then when we have a discussion on 46, we get his comments on clause 46.

[Matthew Taylor, General Counsel and Director, Criminal Law Policy Section, Department of Justice]

Thank you.

Good morning.

I'm hoping that someone could provide me a copy of that motion, because I don't have the BQ motions. I gather it relates to section 650 of the code, but if I could have a copy, that would help.

I think I understand. To me, this looks like a consequential amendment to another substantive amendment that will come later, and specifically to remove reference to certain proposed sections in the bill.

If I understand correctly, the concern relates to the remote appearance provision, meaning this clause and clause 46 of the bill, and maybe I can start with some general information.

The first thing I would point out to the committee is that clause 45 of the bill re-enacts a provision that already exists in the Criminal Code—or would re-enact a provision that already exists in the Criminal Code—which states the principle that as a general matter, proceedings would be done in person. That's the starting point. Then, what clause 46 proposes to do is to consolidate and clarify a bunch of different rules that already exist in the Criminal Code with respect to remote appearances.

In effect, when I say “consolidate”, there are provisions, for example, as in clause 39, in section 650 of the Criminal Code. There are provisions in other clauses of the bill that are being opened, such as section 537 of the Criminal Code and section 800 of the Criminal Code, that all deal with the rules around remote appearances. Bill S-4 doesn't propose to change those rules, so to the extent that an individual can appear by video conference, Bill S-4 doesn't propose to change that.

If I understand as well the concern around proposed section 715.241 with the requirement of an accused to appear in in a situation where there isn't consent provided, that is simply a re-enactment of existing rules. It doesn't change the law in that respect.

The goal here is really to ensure that if an individual in custody is going to appear in a proceeding, the court ensures they have access to legal advice before they do so.

I know that's a lot of different pieces of information, but I think the main point to convey is that Bill S-4 really seeks to consolidate and clarify existing laws around remote appearances.

[The Chair, Liberal, Randeep Sarai]

Do you have anything else to add, Mr. Anandasangaree?