Mr. Speaker, I am pleased to be here today to express the Bloc Québécois' support for Bill S‑4, formerly Bill C‑23. Bill S‑4 was requested by many provinces and justice system stakeholders seeking to benefit from the lessons learned during the pandemic.
Bill S‑4 seeks to amend the Criminal Code by introducing provisions to make the system more effective. The pandemic was disastrous on many levels. We all agree on that. We certainly hope never to see it again; that goes without saying.
We also all learned from this crisis, and we can certainly try to benefit from the lessons learned. We worked virtually over the past two years like we never have before. This way of doing things certainly has some disadvantages. I will come back to that. However, there were some benefits that we cannot ignore. Our justice system could most definitely be improved through the use of this little-known or often misused tool. Bill S‑4 proposes instructions to ensure that the proceedings that can be carried out remotely are managed and used effectively.
This bill proposes to allow for the use of electronic or other automated means for the purposes of the jury selection process. It also proposes to expand, for the accused and offenders, the availability of remote appearances by audioconference and videoconference in certain circumstances and to provide for the participation of prospective jurors in the jury selection process by videoconference in certain circumstances.
The bill would expand the power of courts to make case management rules permitting court personnel to deal with administrative matters for accused not represented by counsel and it would 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.
Finally, it would 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.
Bill S-4 also 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.
Finally, Bill S-4 makes related amendments to other acts and also provides for independent reviews on the use of remote proceedings in criminal justice matters.
It also provides for a parliamentary review of the provisions enacted or amended by this act, and of the use of remote proceedings in criminal justice matters, to begin at the start of the fifth year after it receives royal assent. There is a review of the whole process after five years. I think that is very wise, given that many of the provisions in Bill S-4 are new.
Bill S-4 is basically a tool. As we have seen here in the House and elsewhere, working remotely definitely has its advantages, but it also has significant drawbacks. Like any tool, it must be used judiciously. It has limitations that must be considered. When the time comes to assess a witness's credibility, body language is an important element that the judge wants to take into account. In remote proceedings, that type of language is redacted, so to speak. In my opinion, it is an important element that could, in some cases, radically change the outcome of a trial, particularly when the evidence consists of contradictory testimony.
Once again, like any tool, it must be used with discernment. A screwdriver is very useful; so is a hammer. However, if we use a hammer to drive in a screw we will have a problem. If we use a screwdriver to pound a nail, we will have another problem. In each case, we must determine what is appropriate. This is not a cure-all. In that regard, the Quebec bar association urges us to be cautious with certain provisions. I will come back to that.
However, proceeding remotely in some cases will accelerate the judicial process. It will minimize time wasted and postponements. We often see courtrooms packed with people in the morning waiting to appear, and then half the cases may be postponed for various reasons. If the proceedings are held remotely, delays due to postponements will be reduced, and the same applies for administrative matters, which do not require lawyers to appear in person. That already exists and is already being used to manage cases where parties are represented by lawyers. Under Bill S‑4, this could also apply when the parties are unrepresented. We will have to examine how to proceed, because this does pose certain challenges.
I think it is a useful measure that will reduce travel, inconvenience and often the frustration of people facing a judicial system that is manifestly too slow and opaque and that imposes costs and travel that could well be avoided. It is therefore a good thing if, I repeat, it is used with discernment.
I mentioned the drawbacks, including issues around witness and juror credibility. In a jury trial, the lawyers selecting jurors have to evaluate the candidates based on factors that are not always technical. Lawyers listen to them, ask them questions, consider their answers and also take into account their body language and the way they answer. In many cases, that is how they decide whether to accept or reject a potential juror.
The same goes for witnesses. There have been many trials in which key evidence consists of contradictory testimony. How are judges to decide whether one witness is telling the truth and the other is lying? Judges will use the witnesses' answers, certainly, as well as their body language. They will consider how witnesses react. They get a sense of people's credibility based on many criteria that are not necessarily explicitly stated in written procedures. It is important for judges and lawyers working on a trial to have face-to-face access to witnesses and potential jurors.
Could they not in some cases be heard virtually? I think so. Could jurors not in some cases appear virtually? I think so, but that has to be determined with the consent of the parties and not systematically imposed in every trial.
There is also talk of the problem of hacking. We know that we are constantly having to deal with hackers. We all receive unsolicited emails and proposals. I often receive messages warning that I have been summoned for a trial at a certain location and that I have to click on a link or the world will come to an end. All sorts of things like that happen, so our computer systems are not always as safe as we might think. Even banks get hacked. We saw that roughly two years ago when Desjardins suffered a data breach. Holding trials virtually is one thing, and we need to be careful, but Bill S‑4 also talks about telewarrants, meaning a warrant to conduct a search of someone's home.
If we computerize all telewarrants, warrants obtained virtually, and if we proceed based on a virtual model, are we not exposing ourselves to piracy and perhaps searches or actions of a legal nature that would be contrary to the interests of litigants, contrary to what we are trying to achieve in the administration of justice? I think we need to ask the question. I do not want to be an alarmist. Once again, I see Bill S‑4 as a positive thing, but I am just saying that we do need to ask some questions. It is not a panacea. It must not be applied without careful consideration.
There is the issue of regional disparities. As we saw during the pandemic, not everyone in Quebec, nor elsewhere in Canada, has equal access to computer systems. It is rather lacking in some regions.
Some people are able to work at home all day with two people on computers and hold meetings with multiple people without any issues. Others have a hard time making a phone call without being interrupted. That also has to be taken into consideration.
It is also the mandate of our federal government to ensure that everyone in Quebec and Canada has proper Internet coverage, but we are not there yet. Admittedly, the government is working on it, but there is still a long way to go. That has to be taken into account if we want to computerize the justice system, so how can we do that?
Once again, I think that, before we impose virtual proceedings, we need to make sure that we have the consent of the parties. If someone says, “Just a second. Where I live, we do not have very good coverage and I will not be able to follow along”, then perhaps the proceedings need to be held in person.
There is a process, and adjustments will have to be made. We need to take that into account, even though I think that Bill S-4 is an important step forward for the administration of justice.
Speaking of compromises, the Barreau du Québec submitted a brief in April that set out four recommendations. I want to read them because I think they are sensible.
The first recommendation from the Barreau du Québec is:
Exclude testimonial evidence from the new videoconferencing system. Testimonial evidence must be heard with all parties present.
As I was saying earlier, for the purpose of observing body language alone, I think it is important to see people.
The second recommendation is:
Carry out an in-depth study on the potential impact of making measures developed in a pandemic context, namely, those relating to technology and the automation of procedures, permanent in the Criminal Code. Carry out an in-depth study on the impact of videoconferencing on:
The attorney-client relationship...
It is a matter of professional responsibility for the attorney to properly represent the client and to ensure that he or she fully understands the brief and explains to the client what he or she believes is in the client's interest.
... and confidentiality.
Again, we know that the Internet and computers are not 100% secure, and this could lead to unwanted challenges and drawbacks.
Open court (Canadian Charter of Rights and Freedoms).
This is set out in the Canadian Charter of Rights and Freedoms, and we have to take that into account. I will come back to that.
The right to a fair trial (Canadian Charter of Rights and Freedoms).
Quality and consistency of justice (regional disparities in resources, Indigenous realities, self-representation).
Regional disparities in resources also affect the right to a fair trial and the quality and consistency of justice. What about indigenous realities? Are indigenous communities equipped to hold trials remotely? Can they do that? It is hard to be sure, but probably not all of them can. For people who self-represent, it is one thing for a lawyer at home or participating remotely to handle case management, but it can be problematic for a self-represented individual to deal with one, two or three lawyers in addition to a judge and a clerk, all participating remotely. At the very least, it can weigh down the process instead of streamlining it. We have to give that some serious thought.
The Barreau du Québec's third recommendation is as follows:
Delete new proposed section 715.241 of the Criminal Code, which allows the court to “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.”
I said it earlier. I think that, as long as everyone agrees, it is perfect. Going virtual is the appropriate tool. If all the parties agree and the judge agrees, that is what should happen. However, there is an issue if not everyone agrees. The proposed section 715.241 allows the court to require the accused to appear by video conference. This seems to me to be a potential problem, and I believe that the Barreau du Québec is right to warn us about this aspect.
The fourth recommendation of the Barreau du Québec reads as follows:
Clarify the distinction in Bill S‑4 between an accused who has “access to legal advice” and one who is “represented by counsel” in a context where only accused persons with representation can communicate with counsel.
Having access to legal advice is a vague concept. Access when and on what subject? What exactly are we talking about? Does having had access to a lawyer yesterday to discuss a number of issues mean that the individual is prepared to deal with any and all situations that may arise during a trial? That is not a given. This will have to be clarified, as Bill S‑4 is not very clear in this regard.
An accused who is represented by counsel and an accused who has access to legal advice seem to be given the same credit or treatment. I think we will have to take a closer look at that.
As I stated, the Bloc Québécois will support the bill and probably move amendments in committee. We shall see, but I think that this bill should be referred to a committee.
Having said that, I would be remiss if, in the last five minutes at my disposal, I did not bring to the attention of the House other major problems that need to be addressed to achieve sound and efficient administration of justice. We must not forget about them. Bill S‑4 is not a cure-all. I have spoken at length about the issue of connectivity in all regions, so I will not say any more about it. Still, it is an important aspect and is one of the things we must work on if we want to have an efficient virtual legal system.
There is also the question of judicial vacancies. Several positions are still vacant. I was speaking with a Quebec Superior Court judge two or three weeks ago who told me that there are about 15 vacancies in Quebec. I do not know what our government is waiting for to fill those judicial vacancies. It seems absurd to me. It is not even the federal government that pays those judges, it is Quebec. I should say, rather, the federal government does pay them, but it does not pay for the infrastructure, the clerks and the courtrooms. All associated costs are assumed by Quebec. There are vacancies, and our government has failed to fill them. It is a serious problem. A sound administration of justice requires sufficient resources on the ground, and judges are the primary resource we need.
We have spent a lot of time talking about the issue of appointing judges based on the “Liberalist”, and we will come back to that again. It does not make sense that, to this day, the Minister of Justice and the Prime Minister are still trying to reassure me that the “Liberalist” is used only after receiving applications that are deemed suitable. I personally believe that it should never be used, because partisan appointments, or appointments tainted by partisanship, are unacceptable in our society.
Finally, we recently talked again about the matter of secret trials, and that issue was in the news again yesterday. The Minister of Justice says he cannot tell us how many secret trials there are. He cannot even tell us whether there are any. I can understand that things need to be done differently than the charter dictates in some cases to keep witnesses safe, but it is certainly not acceptable for things to be done in a secret, non-transparent way like they are now. These trials need to be governed by the provisions of the charter. As members know, there can be a departure from the charter in exceptional circumstances that can be justified in a free and democratic society. I can accept that, but it cannot be done just any which way. When the Minister of Justice says that he cannot tell us how many of these trials are happening or even whether any such trials are happening or how the process works, that is a problem. This is not the wild west. Things need to be organized better. It is unacceptable for the government to operate like that.