Justice Committee on Dec. 12th, 2022

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

Yes. For the purpose of this discussion, should we have the discussion on clause 46 before clause 39?

[The Chair, Liberal, Randeep Sarai]

You can have the discussion, but we have to go to that at that time.

We would have to get unanimous consent to discuss that before.... Do we have it?

We have consent to discuss clause 46.

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

Thank you, Mr. Taylor, for that clarification.

I think, based on what you have said and on what the witnesses have said, that it's very clear that the scope of Bill S-4 is very important. It makes remote proceedings available in some circumstances when all parties agree to these proceedings.

Some of us have practised for some years in courtrooms, and we know that at some point, access to witnesses can be difficult. There were a number of examples cited. I think Ms. Brière brought one up as well.

I also think it's important to note that Criminal Code section 715.24 is not a new provision. It would merely re-enact a new part of the Criminal Code to clarify and consolidate the provisions on criminal proceedings.

It would also be preferable to have these existing powers located in the part on remote proceedings, because that will ensure that the court is required to take into consideration the factors set out in section 715.23. This recommendation would also undo long-standing court powers that I understand go back to 1999. In some cases, some are from the mid-2000s.

For this reason, we will not be supporting clause 46 and subsequently clause 39.

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

Thank you, Mr. Chair.

I would like to address the witnesses.

I have a problem. I do agree entirely with what my colleague Mr. Anandasangaree just said, and I agree entirely with what the witness tells us.

In fact, section 715.24 is entirely acceptable, since the court can allow the accused to appear by videoconference.

However, in section 715.241, it says “le tribunal peut permettre” and, in the English version, “the court may allow”, which does not present a problem, but it then adds “or require.” In French, it says “ou exiger la comparution”. Therein lies the rub. Section 715.241 incorporates this new way of proceeding, where the court may require the witness to appear by videoconference. It does not say “with their consent.”

First, it talks about allowing the witness to appear by videoconference if the witness requests or consents. In English, it says “the court may allow”, but it adds “or require”. I did not hear Mr. Anandasangaree or Mr. Taylor address that aspect of section 715.241.

Is it wise of us to allow the court to require an appearance?

I don't think so. That is also the opinion voiced by the representatives of the Barreau du Québec.

I would like to hear the witness's opinion about this subject, which presents a problem, in my opinion.

[The Chair, Liberal, Randeep Sarai]

Go ahead, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Not to answer Mr. Fortin's question, but discussion on these two provisions, clause 46 and then, by extension, clause 39.... We had a very abbreviated opportunity to study this bill, of course, but it has been in the Senate, so I looked at some interesting Senate testimony.

We did have the benefit of hearing from the Quebec bar this morning. For some of this, there was a long-standing need pre-COVID. Some of what we see in Bill S-4 is certainly a reflection of being in a pandemic time when there were major limitations on in-person meetings and a desire to be able to do things differently in every aspect of our lives, including the judicial.

I looked at the amendments being put forward by Mr. Fortin and at the CPC amendments. I know there's probably some conflict between the two. However, I look at that as maybe reflective of the fact that we are past the COVID pandemic lockdowns right now, and while there are many aspects that are very important in Bill S-4, there are aspects—certain presumptions that are included—that I think we may want to put the brakes on a little bit.

Today I have the unique opportunity, just because of an Air Canada flight cancelled for no apparent reason, to participate in this meeting virtually. Normally I'm there in person, so I can tell you that there are major limitations on the ability to understand what's happening in the room and get a perspective on how people are receiving what is or isn't being said, and all the non-verbal cues one might get.

That's lacking in any kind of virtual meeting. The most important proceeding, at the highest level, is going to be a judicial proceeding in which someone's life, and possibly his or her future, hangs in the balance, or one in which victims are being asked to participate in a system that all too often revictimizes them.

Without belabouring the point, I think there are some reasons that I'm very receptive to the comments made by the Barreau du Québec as well as the amendments that have been put forward, and I think I'm inclined to support them, for sure.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

Go ahead, Mr. Garrison.

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

Thank you, Mr. Chair.

I thank Mr. Taylor for the reminder for all of us that the presumption in the Criminal Code is that appearances will be in person and that what we're dealing with are exceptions. I don't share the optimism that others have about either this or future pandemics.

I also have a great deal of pessimism about the impacts of climate change as it affects all of our systems. I think having the exceptional provisions in place in advance will serve us well as we head into the future. I'm convinced that the requirement of consent by both prosecutors and the accused provides sufficient protection.

Admittedly, there's one circumstance when that doesn't apply. However, I'm also reassured by the section on “appearance by audioconference or videoconference”, where it says, “the court must be of the opinion that the appearance by those means would be appropriate having regard to all the circumstances”.

Therefore generally, with regard to amendments to Bill S-4, I will be voting against them. I think the existing protections are simply being reinforced here, and we are creating some exceptional circumstances to deal with the world we live in today. I will be voting against the amendments.

[The Chair, Liberal, Randeep Sarai]

Mr. Anandasangaree is next.

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

I'm just wondering if Mr. Taylor could give us a little bit of clarification on the language difference that Mr. Fortin identified.

[Matthew Taylor]

Sure.

If it's okay with you, Mr. Chair, I propose quickly walking through clause 46 and drawing your attention to where the proposals in the bill correspond with equivalent provisions in the Criminal Code. It is a large clause.

Proposed section 715.23 is drawn from the equivalent provision already in the code. I think this was already spoken to earlier today. It provides a set of circumstances or criteria that a court must take into consideration when determining whether to allow remote testimony.

Proposed section 715.231 requires the consent of the prosecutor and accused for participation in preliminary inquiries. That is drawn from existing subsection 537(1) of the Criminal Code.

The next provision, 715.232, deals with some reconviction proceedings. That is drawn from subsection 651(1) and requires, again, the consent of the accused and the prosecutor when the accused is not in custody or the consent of the accused where they are in custody. There are always those checks and balances that exist. There's also a corresponding subsection 802(1) in the current Criminal Code, which this provision is drawn from.

Provision 715.233 is also drawn from subsection 650(1.1). This is the provision that governs remote appearances in prosecutions for indictable offences. Again, it requires the consent of both the accused and the prosecutor.

Proposed section 715.234 deals with police and guilty pleas. Again, it requires the consent of the prosecutor and the accused. It is drawn from existing section 606 of the Criminal Code.

For sentencing, 715.235, again it requires consent of prosecutor and offender, and it is drawn from section 650 of the Criminal Code.

Proposed section 715.24 is a residual catch-all provision that addresses circumstances in which a specific rule hasn't been provided in the Criminal Code for remote appearances. It requires the consent of the accused or the offender, because it may apply to circumstances post-conviction. It is drawn from existing section 715.23.

I think the provision that has come up, proposed section 715.241, is drawn from paragraph 537(1)(k) and section 650.

Finally, proposed sections 715.242 and 715.243 are drawn from existing provisions 715.24 and section 537 and so on.

To summarize, the proposals seek to consolidate a number of different provisions that already exist. They do not propose to change the requirements, and they build in checks and balances for when remote proceedings would be possible.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you

Go ahead, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thanks, Mr. Chair.

I have a couple of things.

I certainly appreciate the testimony we're now hearing on this. We understand. However, we also heard, during our victim study, how consent of the defence and prosecution.... Oftentimes, victims are the ones on the sideline and don't have as much say in the process as some may wish to believe. It's only after going through the process that they realize how much is out of their hands.

We know there hasn't been extensive consultation with victims groups on this. My concern is.... I'm dealing with a particular case in my riding now, on a parole hearing. The victim's family has to participate virtually. That creates a hardship for them. It's not something they wish to happen, but it's happening nonetheless.

With all that said, I heard Mr. Garrison say the magic words that he's not inclined to support any of the amendments. Mr. Chair, I think we all know where we stand on it. Perhaps, in the interest of time, we'll just get to the voting part, unless Gary indicates that he'd be open to the amendments.

My quick math tells me we could just get to the voting.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

I see no more speakers.

Shall amendment BQ-1 carry?

Using my quick math, I believe the amendment is defeated.

(Amendment negatived [See Minutes of Proceedings])

Shall clause 39 carry?

[An hon. member]

On division.

[The Chair, Liberal, Randeep Sarai]

(Clause 39 agreed to on division)

Colleagues, can we regroup clauses 40 to 45 into one vote and then go to clause 46? Do I have unanimous consent?

[Some hon. members]

Agreed.

[The Chair, Liberal, Randeep Sarai]

Shall they carry?

(Clauses 40 to 45 inclusive agreed to)

(On clause 46)

We have amendment BQ-2. I want to note that if this is adopted, we cannot move to Conservative amendment CPC-1 because of a line conflict.

House of Commons Procedure and Practice, third edition, states the following on page 769: “Once a line of a clause has been amended by the committee, it cannot be further amended by a subsequent amendment as a given line may be amended only once.”

Even though we kind of know the outcome of this, we'll still put it to a vote: Shall amendment BQ-2 carry?

(Amendment negatived [See Minutes of Proceedings])

Now we can go forward to amendment CPC-1.

Does anyone want to speak to that, or should we just go to the vote?

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Chair, when I spoke earlier, I explained the reasons for Conservative amendment CPC-1. I would move the amendment.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Shall CPC-1 carry?

(Amendment negatived [See Minutes of Proceedings])

Shall CPC-2 carry?

(Amendment negatived [See Minutes of Proceedings])

Shall BQ-3 carry?

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

Mr. Chair, if I may, I would like to speak to amendment BQ-3.

That amendment refers to another aspect of the problem. It says: “If they are not represented by counsel, the accused ... must be given the opportunity to communicate privately with counsel.”

That seems to me to be important and it is different from the discussion we are now having about section 715.241. This addition should therefore be taken into consideration. In proposed section 715.243, it would add that the accused “must be given the opportunity to communicate privately with counsel.” That seems to me to be necessary if we want to protect the right of accused persons.

[The Chair, Liberal, Randeep Sarai]

I don't see any hands up, so I will put the question: Shall BQ-3 carry?

(Amendment negatived [See Minutes of Proceedings])

Shall clause 46 carry?

[An hon. member]

On division.

[The Chair, Liberal, Randeep Sarai]

(Clause 46 agreed to on division)

Colleagues, can we regroup clauses 47 to 79 into one vote?

[Some hon. members]

Agreed.