Mr. Speaker, I was talking about identification processes and fingerprinting. This bill would allow it to be done at any point in the process because, in certain situations, there is not always an opportunity to do it at the time of the arrest. During the pandemic, it became clear that it is difficult to hold someone's thumb to take their fingerprint while standing a metre away.
Finally, some of the telewarrant provisions would also be replaced, to further expand the type of warrant that could be issued by telecommunication. This does not change the legal threshold for issuing the warrant. It does not change the criteria for granting warrants. It simply frees up judges and police officers who would otherwise have to meet in person to discuss whether issuing a warrant is appropriate.
There is, however, perhaps a downside to this. Since everything would happen in writing and the arguments would be sent along with an affidavit to the judge, who would then issue the telewarrant, it prevents the judge from being able to ask a police officer questions to get a little more clarification on whether issuing a warrant is appropriate. There are still some pitfalls.
There have already been discussions about this bill. Given that it originated in the Senate, the various stakeholders have submitted their recommendations. The Barreau du Québec has been working hard on this. I would like to come back to one aspect in particular, and that is the part concerning appearances by video conference.
The Barreau du Québec made some recommendations. The bill will clarify, for accused persons, the availability of remote appearances by video conference at preliminary inquiries and trials for indictable offences or offences punishable on summary conviction, including when testimony is heard, but not when evidence is presented before a jury.
Therefore, a jury trial will always take place in person, but there will be exceptions for non-jury proceedings. I would remind members that, in certain cases, video conferencing can hide certain mannerisms or amplify certain facial expressions that could be misinterpreted by a judge or lawyer and alter their perception of an individual's body language during a hearing.
It is also harder to gauge what is happening between the parties when we are not in close proximity to them. For example, if a lawyer passes their client a note, it is not possible to kick someone under the table to indicate that it would be best to keep silent in that moment. This has an impact on our ability to fully understand what is happening at a hearing.
I want to give another example from my practice. When I was working in international family law and dealing with child kidnapping cases, I had to question witnesses in France in a context where we had to make sure that they were always alone in the hearing room to avoid witness contamination. I questioned the first witness, but when I asked him to go and get the other witness because it was her turn to testify, he just pulled his wife into view. She was beside him and had heard the whole thing. There can be concerns about witness contamination, and we can assume that we will not be exempt from that risk if we proceed with Bill S-4.
This is a serious issue. For example, what happens if this kind of irregularity occurs during a trial? Would the trial have to be scrapped? Would the whole thing have to start over? That would mean wasting even more time than if all the witnesses had been there in person from the start. This is something we have to consider.
Here is another issue. People can testify via video conference with the parties' consent and the court's authorization. What happens if an accused becomes aware along the way that their constitutional rights have been violated by the fact that they made that choice, so they decide to switch? Does the whole process have to start over? Does a new hearing date have to be set if the accused is participating remotely? Efficiency can suffer because of that too, and I think that should be one of the factors we consider in our study of this issue.
Another aspect that the Barreau du Québec suggests studying is the long-term repercussions of Bill S‑4. We are still in “COVID mode”, and we still need to respond to COVID-19, but Bill S-4 will change courtroom proceedings in the long term, even after the pandemic is over. The other problem is that, rather than making remote proceedings the exception, Bill S‑4 makes them the norm. That will fundamentally change the face of our justice system.
This could affect the attorney-client relationship. What impact will this have on the lawyer's professional responsibility in recommending, for example, that the client choose to testify remotely? This question will have to be studied.
We will also need to examine the open court issue. Trials are supposed to be public in almost every case. If they are held by video conference, the average person will not have access to them. I am thinking of my colleague from Drummond because I remember how, at one time, seniors used to go and watch hearings at the courthouse and make bets on the outcome, just to pass the time. I cannot help but think of those people, who will be losing an interesting source of entertainment if the courts start operating only by video conference.
The use of video conferencing might also compromise the right to a fair trial. We spoke about non-verbal communication and how it is important in assessing witnesses' credibility. This approach may impact that.
Another issue is that this could create a disparity between large urban centres and the regions. There might be a tendency to think that, since it is easier for people who live far away to do things by video conference, then we should favour that approach for them. In big urban centres, it does not cost witnesses and parties as much to travel, so their court proceedings would always be held in person. That would create a two-tiered justice system. These are some of the issues arising from Bill S-4 that will need to be assessed over the long term.
The Barreau du Québec also recommends deleting the 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”. The Barreau du Québec is of the view that this should never be at the court's discretion, that the parties should always have to consent to proceeding by video conference and that it should not be imposed on anyone. The Barreau du Québec also recommends that, before the bill comes into force, we clarify the distinction 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.
Clients who are receiving legal advice and are in a video conference might not technically have the right to call or request their right to counsel during a trial if they are not formally represented by a lawyer. In a courtroom, they could still get legal advice from a lawyer, if one is present.
It is important to keep in mind that we need to strike a balance between the convenience of new technology and actual gains in efficiency. We can compare this to the long-term hybrid format people want for the House. When we talk to journalists about changes to the debate format here, they complain about not having direct access to witnesses. For example, when all they can see is a person talking on screen, they do not get a general sense of what is happening in the committee room. They do not see people's reactions to what the witness just said. Those reactions make journalists' work easier. They also do not have access to members leaving the House. Virtual might be easier, but it does not necessarily do as good a job of protecting democracy.
Another thing to consider is the work of interpreters. When Centre Block reopens, they might be thrown together in a room quite separate from the House and committee work. What we are hearing on the ground is that this makes their work a lot harder, because when they are considering what is being said, they look at more than just the spoken word. Emotions are important in conveying a message in another language, and this includes analyzing non-verbal cues and facial expressions, which is harder to do by video conference.
Another pitfall that must be avoided is thinking that Bill S-4 is going to solve all of the world's problems. While we may improve the issue of delays somewhat, that does not mean that everything is fixed and we can turn around and walk away.
For example, bringing into force Bill S‑4 without addressing the connectivity problems would be like trading four quarters for a dollar. It will change nothing because the system will not be equipped to properly install the technology for appearances. This will not fix the infamous Liberalist file. My colleagues have talked about that here as well. This will not necessarily address the issue of public trust in the justice system.
I spent a bit of time in Albania not that long ago. The justice minister explained that his role was not to appoint judges, but to ensure that the infrastructure or the administrative aspect of the judicial branch works properly.
He knows the statistics, the number of files that come in each day, the number of rooms and the technology required, but he is not responsible for appointing judges. We could perhaps follow the example of that country in future.
The issue of judicial vacancies has also not been resolved. Many judges are appointed in Quebec and the provinces. I am thinking of Quebec court judges. There are also the clerks, constables and others required for the orderly administration of justice. Some cases do not move forward because of delays in appointing federal or Superior Court judges.
To avoid the problems I mentioned from occurring in the future, the bill provides for a review in three and five years. The bill at least has a certain advantage. It provides for a review after three years by an independent committee, which is excellent.
Clause 78.1(1) of the bill reads as follows:
The Minister of Justice must, no later than three years after the day on which this Act receives royal assent, initiate one or more independent reviews on the use of remote proceedings in criminal justice matters that must include an assessment of whether remote proceedings
(a) enhance, preserve or adversely affect access to justice;
(b) maintain fundamental principles of the administration of justice; and
(c) adequately address the rights and obligations of participants in the criminal justice system, including accused persons.
The bill also provides for a parliamentary review at the start of the fifth year of its existence. I hope this will allow us to determine whether there were any bad ideas masquerading as good ones in the implementation of this bill.
I hope that the feedback of lawyers will be sought on this because they are the ones who will see how this is actually working on the ground. When they are not consulted enough, that is often when mistakes are made. A bill that started off with good intentions may end up being a bad bill. As I said, we are going to make permanent something that basically resulted from a temporary situation like COVID‑19.
I hope that when this legislation is reviewed in three or five years, legislators will have the humility to correct the measures that did not work rather than waiting until they are challenged in court where it will take more time and energy to correct them.
The review of the act will certainly be a useful exercise. I hope that legislators will backtrack if needed and that doing so will not be seen as a sign of failure but as a real will to advance justice, reduce delays and prevent the Jordan ruling from applying because of issues that can be easily resolved. That is my wish. Perhaps it is asking too much of politicians to show some humility, but that is my wish for this bill going forward.
