Mr. Speaker, it is a pleasure for me to speak today to Bill , an act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts, COVID-19 response and other measures.
I will begin by acknowledging that we are gathered here on the traditional, unceded lands of the Algonquin people.
Since the beginning of the pandemic, the criminal justice system, like many institutions in our country, faced significant and unprecedented challenges in continuing its operations while respecting the necessary public health and safety requirements imposed by all jurisdictions. The criminal courts and court users adopted quickly and admirably to the realities of the pandemic, finding innovative ways to provide essential justice services to the public safely and effectively.
Bill would reform the Criminal Code and other related legislation to respond to some of the practical challenges identified during or exacerbated by the pandemic. These reforms would modernize and enhance the flexibility and efficiency of the criminal justice system moving forward.
Members might be wondering whether the changes proposed in Bill are still needed, given we are now well into living with COVID-19, and the fact that the courts have adapted their practices during this period. These changes remain critically important and will help address the ongoing pressures on the criminal courts brought by the COVID-19 pandemic, including the backlog of cases.
I would note that this bill is the product of significant consultations with the provinces and is supported by provincial premiers of all stripes. I understand that last month, at the federal, provincial, territorial meeting of ministers of justice and public safety, all justice ministers reiterated their support for seeing this legislation advance to help improve court operations in their provinces and territories.
The pandemic seriously affected court operations, and we have heard from lawyers and judges alike that changes are needed so that the court system does not fall further behind. Canadians need to have confidence in our justice system, and a court system that does not keep up with the times will not provide that confidence. For instance, virtual hearings and remote services have been an important aspect of ensuring access to justice for court users while coping with pandemic-related issues. This bill would enhance and clarify rules on the use of technological means in the criminal justice system.
Before I delve into the details of Bill , I would like to thank hon. Senator Pierre Dalphond for his sponsorship of the bill and leadership in working with all senators in the other place to get this bill to us.
I would also like to acknowledge the diligent work of the Senate Standing Committee on Legal and Constitutional Affairs in studying Bill and thank those witnesses who shared their views on the bill. The committee's study and consideration of witness testimony resulted in two amendments to this bill, new clauses 78.1 and 78.2, which would mandate reviews of the use of remote proceedings in criminal justice matters.
I will now turn to the changes in the bill and explain how they would address issues identified during the pandemic and seek to ensure greater efficiencies and access to justice for accused persons, victims and other criminal justice system participants.
The bill would, one, enhance and clarify the rules for remote appearances in criminal proceedings; two, revise the telewarrant process so that a wider variety of search warrants and other investigative orders may be obtained by means of telecommunication; three, allow fingerprinting of accused persons or offenders to occur at a later time than what is currently permitted and; four, improve judicial case management rules.
On remote appearances, Bill builds upon a former bill, Bill , which introduced a new general part on remote appearances in the Criminal Code, which is part XXII.01, and expanded the availability of remote appearances for accused persons, participants and judges. Notably, those amendments were developed in a prepandemic era and did not anticipate the exponential reliance on technological solutions that followed.
This bill would expand and clarify the process allowing accused persons to appear by video conference during preliminary inquiries and trials, for both summary and indictable offences, even when witness evidence is being heard, except in circumstances where evidence is before a jury. The bill would also expressly enable an accused person to appear remotely when making a plea, either by video or audio conference, depending on the circumstances. Further, the bill would clearly permit an offender to appear remotely for sentencing purposes.
The new measures addressing remote appearances include a consent requirement, so an accused person or offender and the Crown prosecutor would need to give their consent to appear in this way. In addition, all decisions to proceed virtually would be at the discretion of the court based on a number of factors the court would be required to consider. For example, courts would need to consider the right of accused persons or offenders to a fair and public hearing and the suitability of the location from which they would be appearing before allowing it.
I would also emphasize that the bill does not make virtual court hearings mandatory or change the general principle that all those who participate in criminal proceedings must physically be present in court unless otherwise authorized. Bill does not seek to replace in-person proceedings, which remain important, but instead offers alternative ways of proceeding where the technological means exist and when considered appropriate.
Bill would also enact clear safeguards to virtual appearances, some of which I have mentioned, such as ensuring judicial approval and consent of all the parties. In addition, the bill would require that accused persons or offenders who are represented by counsel and appearing remotely are given the opportunity to consult privately with their counsel. Moreover, courts need to be satisfied that an accused person or offender who does not have access to legal advice would be able to understand the proceedings and that any decisions made by them during the proceedings will be voluntary.
Given that the jury selection process can involve hundreds of people summoned to appear at the same location, many jury selections for criminal trials were postponed or delayed during the pandemic. Some jurisdictions are concerned about the delays in conducting jury trials. Bill would give courts the option to hold a jury selection process by video when both parties consent and appropriate safeguards are in place, such as ensuring the courts approve the use of a location where the technological infrastructure would be available for prospective jurists to participate in the process.
Since May 2020, the has been co-chairing the Action Committee on Court Operations in Response to COVID‑19 with the Chief Justice of the Supreme Court of Canada, the Right Hon. Richard Wagner.
The minister shared with me that, in this capacity, he has continued to learn how the pandemic has affected court operations, as well as exacerbated pre-existing issues, such as the growing backlog of cases and access to justice challenges. We are confident that Bill would contribute to efforts to address these issues by facilitating an increased use of technology in the criminal justice system.
I am aware that, during the Senate committee study of Bill , some witnesses expressed concern about the lack of technological capabilities in courthouses and correctional facilities and the inability of persons who may be vulnerable or disadvantaged to access technology, either entirely or in a private manner. I acknowledge these concerns, and the government is committed to addressing them.
Indeed, the government has made a commitment to bring our court system into the 21st century and to work with the provinces and territories in doing so. In the 2020-21 economic statement, the government announced approximately $40 million in technology investments for courts across Canada. The government has also committed to connect 98% of Canadians by 2026, and 100% by 2030.
I am equally aware that many witnesses who appeared before the Senate committee on Bill voiced their support for the reforms and considered the increased use of technology by courts and participants as beneficial and a tremendous opportunity for access to justice.
In sum, Bill strikes an appropriate balance by not making remote appearances mandatory, but rather by enabling courts to hold proceedings in a flexible way, and provide for the consent of both parties and judicial discretion. It would also ensure the consideration of the technological resources available to the courts and users. Bill would also help ensure that virtual court proceedings are held in a manner that respects the charter rights of accused persons and offenders.
I would now like to turn to the amendments to the telewarrant process provided in the Criminal Code, which currently allows a peace officer to apply for certain specific warrants by technological means when certain prerequisites are met.
Bill streamlines the telewarrant process and expands its application, including by making it available to a wider range of investigative warrants and orders, such as warrants to seize weapons, tracking warrants, and production orders for documents and financial records.
Under this more streamlined process, it will be possible for a police officer to submit a search warrant application by means of a telecommunication in writing, such as by email, without meeting the current prerequisite that requires a peace officer to show that it is impracticable to appear in person to present an application.
Police may continue to apply for a warrant by means of telecommunication that does not produce a writing, for example, by telephone. However, in this situation, the judge or justice to whom the search warrant application is presented would have to be satisfied that it is impracticable for the applicant to present the application by means of telecommunication that produces a writing, such as an email.
The revised telewarrant process would also be expanded to apply more broadly in two ways.
First, the process would now apply to the investigation of all offences, rather than indictable offences.
Second, the process would be accessible to law enforcement officials other than peace officers, notably public officers.
This would include, for example, Canada Revenue Agency officials responsible for investigating tax-related offences, who may currently apply for search warrants, and other judicial orders by personal attendants.
Similarly, the process would now be available to any justice or judge who issues a warrant, order or authorization, thereby removing the current requirement that only specifically designated justices may issue telewarrants.
Bill also harmonizes the rules regarding the execution of telewarrants and warrants obtained in person and the report required following the seizure of assets.
In particular, Bill adds an obligation for the police executing a search warrant to provide the occupant of the place searched with a copy of the warrant, as well as a new notice. This notice would contain essential information about where to obtain a copy of the report of the person's seized property and the location where such property is detained.
I note, however, that these requirements would not apply in relation to warrants authorizing a search of a property that has already been seized and is in the lawful possession of the police. This would make it clear that the officer is not required to provide the notice and a copy of the warrant to the person in charge of a police evidence locker.
The bill also makes changes to the fingerprinting process. The pandemic disrupted the ability of police to obtain the fingerprints of accused persons and offenders because of physical distancing requirements, which led to significant operational challenges for the criminal courts.
Currently, individuals charged with an offence can be ordered by police or a judge to attend at a specific time and place for the purpose of identification.
However, in most cases, if something prevents a police officer from taking fingerprints at the specified time, there is no mechanism that allows a police officer to require an individual to come back at another time. The bill addresses this and allows fingerprints to be taken at other times, where earlier attempts to do so were not possible due to exceptional circumstances like those posed by COVID-19.
The bill would not change the rules in terms of who may be subject to fingerprinting.
Further, Bill addresses judicial case management by allowing courts to make rules permitting court personnel to deal with administrative matters related to proceedings out of court, including for unrepresented accused persons.
The Criminal Code currently allows courts to make rules only for situations in which accused persons are represented by counsel. Judicial case management improves the efficiency and effectiveness of the criminal justice system. By expanding the court's ability to make such rules for unrepresented accused, Bill will assist in reducing unnecessary court appearances of those who are self-represented.
I know that the is committed to modernizing the criminal justice system and supporting the courts' technological achievements during the pandemic. I support those objectives, and we should continue to adopt technological solutions when available and appropriate.
Many of our partners and stakeholders and, in particular, our provincial partners, continue to stress urgently that these amendments are needed. I am eager to see the bill enacted in the future, and I look forward to working with our friends in all parties to get this important bill through.
Mr. Speaker, it is always a pleasure to rise on behalf of the people in Kamloops—Thompson—Cariboo. I am mindful of the fact that I cannot point out people in the gallery, even if three of them 11 and under bear a striking resemblance to me.
Today we are discussing Bill . Bill S-4 is an act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other acts, COVID-19 response and other measures.
Before I begin, and this is somewhat related to what we discussed, I want to note the pleasure I have here that I just voted for Bill , and the House unanimously, as I understand it, voted to bring Bill C-291 to committee. That bill will hopefully change the name of child pornography to “child sexual abuse material” to reflect the fact that sexual abuse of children is not pornographic but is abuse, and we should call it what it is. Words do matter. When I stood on doorsteps prior to my election, this is something I said I wanted to come to Parliament to do.
I am very happy and pleased to have partnered with my colleague and friend from to have addressed this problem at second reading. I look forward to our having a strong bipartisan effort at committee in hopes of having this bill passed by Christmas.
Bill relates to the efficiency of the criminal justice system. When we talk about efficiency in the justice system, we are often talking about inefficiency in the justice system. In fact, prior to my being elected, I contemplated doing some academic writing in law that talked about inefficiencies in the justice system and how we might address them. I am going to talk about some of those here today, some of those things that are, in fact, missing.
We cannot forget that there are people within the justice system who make it go around who really do not get the recognition they deserve. Sheriffs in British Columbia, for instance, are tasked with courtroom security. Frankly, they are underpaid for what they do. They escort people into custody. They are dealing with people on the front line, often who have just been arrested, who are coming down off of drugs, and they put their personal health, well-being and safety on the line in order to protect other criminal justice system practitioners. I thank them for it.
I thank our clerks, our judicial case managers, who keep our courtrooms running. I thank our judges, who often leave lucrative careers behind to serve the public good for the benefit of the rule of law.
When we talk about the justice system, we have to remember something, which is that times change and the law should change as well. This is most notable when we look at a section that is not contemplated here. That is section 525 of the Criminal Code. Section 525 of the Criminal Code deals with bail reviews.
I am not sure exactly when section 525 of the code was passed, but if we were to look I am sure we would see it was passed at a time when people went to trial much more quickly than they do today. Section 525 says, and I am simplifying this, that if somebody is detained on bail, they are entitled to a bail review at 90 days. How often has a trial date even been set in that time? That in itself is a bit of an issue, but sometimes it has not even been set within that time.
That was a different time. I remember looking at a homicide file from 1984 when I was practising law as a prosecutor. Around that time, a trial date would be set within two months, or three months perhaps, and somebody would go to trial often within six, seven or eight months. Times have changed. The system is backlogged. The evidence is different.
I looked at that file, which I believe was from 1984, and it looks like a file that would now be reflected with a “theft under” file, as in a shoplifting file. That was the thickness. There were a few photos of the alleged homicide and a few statements maybe a couple of pages long, and that was it.
Times have changed. Now the system is dealing with section 525, which says that somebody should not languish in custody. The reality is that a person now does not go to trial so quickly. That is the type of thing I would have liked to see addressed in Bill .
I note, as has been noted by others, that Bill is essentially the same as Bill . What changes is when the bill will come into force. I believe there is a 30-day lag period in order to allow courts to prepare. This legislation also identifies the Identification of Criminals Act.
As a bit of a sidebar, a local lawyer in Kamloops—Thompson—Cariboo, Jay Michi, has frequently told me, or at least he has told me once or maybe twice about the Identification of Criminals Act. His point has always been that it should not be called the Identification of Criminals Act, because a person is not yet convicted. Mr. Michi is now in Hansard, and his point has been made in the House of Commons.
Believe it or not, the Identification of Criminals Act could actually, as I recall, be the basis for a failure to appear in court, which could relate to detention on a primary ground of bail. It could also cause a number of issues.
When it comes to the importance of fingerprinting, a lot of people do not know this, but that is how criminal records are generally kept across Canada, through fingerprints. An FPS number is a fingerprint serial number. Somebody has their fingerprint taken, and that is how, on a CPIC record, it is called, a criminal record can be identified for somebody who has a conviction in Nova Scotia, where most good Speakers come from, or from British Columbia, where most good lawyers come from. I guess a few good lawyers have attended the University of Alberta, but we will put that aside for the time being.
What about Quebec?
Mr. Speaker, Quebec has some good lawyers as well. There are good lawyers everywhere. We will just leave that aside for now.
The importance of fingerprinting is not actually that well known, but it is very important. This is something that must be modernized.
Moving to the substance of the act, judicial systems have massive backlogs. I believe a few years ago the maximum time to lay a summary conviction offence expanded from six months to one year. I was happy to see that, but we still have a massive backlog. Trials are just not getting on.
Members may have heard the saying, “Justice delayed is justice denied.” This is problematic. A right to a fair trial is embraced within the charter text, obviously. We have often thought about an accused person's right to a fair trial that has a speedy element required, constitutionally obviously, but what about a victim's right to a fair trial? With time, memory fades. It is a proven fact. I do not know anybody who says that their memory is better a year and a half later than it was two weeks after an incident or even six months after an incident. A backlog in the justice system actually contributes to a less efficient system.
At the end of the day the court should exist to get to the truth in a just manner. If getting to the truth is not necessarily a memory contest, then we have a problem when there is a massive backlog. I remember a victim saying that to me one time early on in my career. I said the trial had been adjourned, and he asked about his right. I had to tell him that, as a victim, he did not have a right.
A lot of victims often come to the courts and say they just figured it would be adjourned. I have actually seen instances when courts generally sit for about five hours a day, if we were to compress all of the time together, and up to 12 to 15 hours of court time is crunched into that five hours. That is how much of a backlog there is. This could result in people being released back into the community who should not be released into the community.
One thing we do not generally talk about here is delay, and that delay has been discussed by the Supreme Court of Canada in a case called Jordan. The Jordan decision talked about the right to trial within a reasonable time, the constitutional right to be tried, which is within 18 months, or a year and a half, if the matter is preceded by summarily, which is considered a less serious type of offence, or 30 months, or two and a half years, by indictment.
The greater the strain on resources, the longer it takes for a trial to occur. More cases mean a greater backlog and a greater backlog means even longer, and this affects bail. The problem we have is the following. With the Jordan principle, the clock, and what I mean by clock is the time, the two and a half years, starts ticking the moment a charge is laid.
There have been expansive requirements for disclosure since the Stinchcombe decision in, I think, 1988. There have been massive changes in disclosure, to the point where disclosure is probably one of the single biggest reasons we have delays. It is one of them. We, as Parliament, have not addressed that issue. One might be asking why disclosure matters. It matters because it takes months, sometimes years, to get disclosure together on major cases. If someone, a police officer or a prosecutor, has a case, that case may have literally 30,000 pages of documents.
Because of the Jordan decision, there is a hesitation to lay a charge, because it may take a year to a year and a half, maybe two years, to get those documents together. This might include people who are dangerous, a person who, at this point in time, should not be roaming freely and should at least have conditions on bail or be detained pending their trial.
However, because of the Jordan decision, those people will often be free for the duration, so a year and a half to two years, without any conditions and without any detention. Frequently, these are the most serious cases, because the most serious cases generate the most paperwork, and the most paperwork generates the most disclosure. These are frequently homicides, so we are not talking about cases that are not serious. In fact we are talking about cases that are the most serious in nature.
I will give another example. Members have heard me talk frequently in the House about sexual offences. This is how the Jordan issue affects these offences and why we need to address the streamlining of these cases, especially for sexual offences.
I am being hypothetical here. A person has child sexual abuse material, which is what we voted on today in Bill , and has that material found on their computer. In order to prove that case beyond a reasonable doubt, a prosecutor needs to prove who owns that computer, who possessed that computer and who accessed those materials. That is typically done by an expert. Right now there are not a lot of experts out there, and it takes time to go into a hard drive. These are the same people who go into hard drives often for terrorism-related offences or for homicides, or who are looking at text messages or messages that were sent digitally.
There is a strain on resources when it comes to these sorts of things. Therefore, a person who is alleged to have committed a sexual offence against a child, like possession, production or distribution of child sexual abuse material or Internet luring, some of the most serious cases against children, will have their computer seized, and it will be 12 months or more before that computer can be analyzed. For 12 months that person is roaming the community without conditions. We are not even talking out on bail. They have no conditions at all because of the Jordan decision.
The question is this. How should Parliament respond? This is not a question of admonishing the rule of law; it is a question of how we should respond to these obviously prominent issues that are before the House in Bill . How do we respond? While Bill S-4 would make some changes, we have so much further to go.
I had 14 pages of notes and I am on page 3. I may have to cut out a bit.
An hon. member: Unlimited speech.
Mr. Frank Caputo: Mr. Speaker, it sounds like the member for and the member for would love to hear me speak more about this.
An hon. member: More.
Mr. Frank Caputo: Mr. Speaker, I am not sure if “more” is being picked up in Hansard, but I do appreciate that exhortation to speak more about this.
We, as Conservatives, will always fight for a just and appropriate system, not a legal system but a justice system. I hope every single person in the House wants a system that is just and appropriate. I am mindful of the fact that we may disagree on some points, but there are issues that we should be able to come together on. To me, sexual offences against children and bail reform are those types of issues.
This legislation amends the process for peace officers to apply for and obtain a warrant using telecommunications rather than appearing in person. The process for obtaining a warrant is rather cumbersome. An affidavit has to be sworn and that takes time. The affidavit has to be drafted and usually fact-checked. That takes time. The affidavit has to be sworn, and then it has to be submitted or brought to a justice or a judge. Times change, and this bill allows for that electronic submission.
Fingerprinting, as I touched upon, being conducted at a later date is something that a judge will now be able to determine whether it is necessary in the circumstances.
The accused and offenders appearing remotely by audio and video conference is interesting. At this point, I believe there is a provision in the Criminal Code that an accused person can be excused. This will bring a measure of efficiency, but it might not necessarily bring the efficiency we are looking for.
I am going to speak to preliminary inquiries. The issue with preliminary inquiries is due especially to disclosure being so comprehensive. It is based on incremental decisions that have expanded disclosure since the Stinchcombe decision. Disclosure is expansive.
While some lawyers may have used preliminary inquiries in the past to determine the strength of the Crown's case, they have often become, in non-serious cases, a perfunctory exercise to simply dig a bit more. That is my view of it. Preliminary inquiries were eliminated by the House, I believe, for offences with penalties of 10 years and under a few years ago.
Here is the thing: A sexual assault has a 10-year maximum so there is no preliminary inquiry. However, sexual interference, which involves a child, does. If someone sexually interferes with a child or commits an Internet-luring offence against a child, that child has to potentially testify twice.
There are some shortcuts within the Criminal Code, but I think we can talk about victimization and secondary victimization in the House, and it is time that we talk about the trauma that goes with it. Children who suffer from these types of offences are often subjected to a psychological life in prison of their own.
It is time that the system addresses this. I call on the House to remove preliminary inquiries for sexual offences, or at least streamline the process, for all victims so that they are only testifying one time so that we consider this from a trauma-informed practice.
Somebody very close to me has done a great deal of work and continues to do a great deal of academic work on the issue of access to Internet for remote proceedings. The Liberal government has repeatedly promised that we are going to see more rural Internet. For people in Kamloops—Thompson—Cariboo and for people in rural Canada, they cannot access these provisions because they do not have access to adequate Internet. There are people who need to appear remotely because they are three hours from the courthouse, but appearing remotely is not available because they do not have access to the Internet.
I want to tell the government to fix this, not only for the benefit of all involved from a quality-of-life perspective but also from a justice perspective.
Mr. Speaker, I am pleased to be here today to express the Bloc Québécois' support for Bill , formerly Bill . 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 , 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 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.
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 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 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 and the 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.
Madam Speaker, I am pleased to rise today to speak to Bill , although I have to place it in the category of “better late than never”. This legislation responds primarily to what we learned as a result of court delays during the pandemic. How quickly we forget that the court system in Canada essentially shut down completely, sometimes for weeks and sometimes for months in different parts of the country, as a result of widespread illness and the fear of illness. Essentially, we had a collapse of the court system looming.
Therefore, in this Parliament, through all-party agreement, we enacted quickly some measures that allowed the courts to keep functioning during the pandemic. Most of those measures are now appearing here to become permanent, because they were adopted on a temporary basis. They would now be made permanent in Bill .
We also tend to forget that this bill was on the Order Paper before the unnecessary election. Most of my constituents have completely forgotten we had a 2021 election. People talk to me about the last election as though it were 2019. However, this bill was one of the casualties of the Liberals' calling that election during the pandemic, and it died on the Order Paper.
Therefore, I am glad to be back here today talking about Bill and how to address delays in the court system.
It is very clear that we already had delays before the pandemic. In the period between the Supreme Court decision called “Askov” in 1990 and the decision called the “Jordan decision” in 2016, we had more than 50,000 criminal cases dismissed in the province of Ontario alone because of delays of the court system. This included literally hundreds of cases of sexual assault that were dismissed because of court delays.
Therefore, it is important that we tackle this in the long run and not find ourselves back in that situation where delays deny justice to the victims of what are quite serious and horrendous crimes, in many cases.
With the Jordan decision, the Supreme Court specified that depending on the seriousness of the case involved, a reasonable time to get to court is something between 18 months and 30 months. That is a deadline that we face in our court system. If we do not have the system functioning for that, we will see dismissals of cases again. We have large backlogs in the system as a result of the pandemic, and we are in danger of seeing more dismissals of cases again in the future if we do not get moving. That is why Bill , which would improve the efficiency of the court system, is really important.
The other thing about delays is that they affect public confidence in the justice system, both for those who have been accused, who would like to see their case dealt with in a reasonable time and who have a right to that under our Constitution, and also for victims of crime, who do not want to see cases drawn out for months and years. Victims of crime do not want to have this necessity of reliving the trauma and having what happened to them come back again and again over long periods of time, so we have this important task in front of us to try to reduce those delays.
There are some obvious obstacles that would cause delays in court. I will give credit to the government that it has tried to tackle one of those obstacles, which is filling vacancies on the bench. In doing so, the government has paid a lot of attention to making the judiciary look a lot more like Canadians as a whole, and that is a good thing.
However, there is another way of reducing delays that the government would not take up the NDP proposal on, which would be reducing the number of things that we consider criminal offences. One of the things we did was put forward the proposal that we decriminalize the personal possession of drugs. This would have taken literally hundreds of cases out of our court system in which there is no victim to the crime. Also, for cases in which we are talking about the use of very serious drugs, it would help get them into the health care system instead of the criminal justice system. Therefore, the government has not always taken our advice on the best way to reduce delays, but we are glad to see the changes that are coming forward here.
I want to talk quickly about two major changes and then two other changes in this bill.
Probably the change that is most important for the elimination of delays is the change with respect to remote appearances. Previously, there was no provision in our system for the accused to appear by video in preliminary inquiries, in trials, for lodging pleas or for sentencing, so a lot of time was spent moving accused individuals around, back and forth to the courts, so they could appear in person.
The changes here will remove the necessity that was there to make sure someone was always in person for what was sometimes two minutes of a routine proceeding, for things like lodging a plea. It will also make a change to allow those who have been selected for possible jury duty to make their appearances by video or remotely and reduce the inconvenience to members of the public who might be called to jury duty.
That is an important section of the bill, to allow the greater use of technology and remote appearances.
The second part, probably not so publicly visible but related to efficiencies in the court and policing system, is the provision for updating telewarrants. Our law before the pandemic envisioned that for a narrow range of criminal cases only, a judge could be called by phone. What we found during the pandemic was that we could use remote technologies to expand the range of cases in which a warrant could be obtained through remote methods.
Again, the bill provides for a wider variety of cases where a wider variety of technologies can be used in order to get warrants. This will save the time of both judges and police in our system.
I have a couple of things I want to mention quickly. One is the changes in case management rules for the unrepresented. One of the problems we have in our court system is that while people have the right to appear in court unrepresented, a lot of people are not exercising some kind of right. Rather, they cannot afford a lawyer to assist them in their case because they do not qualify for legal aid. Perhaps they earn just enough money to be out of the range of legal aid programs.
I think it is a significant improvement, both in terms of case delays but also in terms of justice for ordinary Canadians, who cannot always afford to get a lawyer. This would allow court administrators to provide a lot more assistance to the unrepresented.
The justification is often the court delays, but I think there is a second justification that is important there, and that is improving access to justice for those who are unrepresented.
There is obviously a better solution, and that would be to expand legal aid, so that people do not end up appearing in court on serious matters unrepresented. Again, though, that takes a lot of federal-provincial co-operation, something that is sometimes in short supply in our legal system.
The fourth thing I want to talk about, and I mentioned it briefly, is the provisions that make it easier for the public who are called for jury duty to participate remotely. Here is an area in which I think we have a lot more to do. We need to make sure jurors are not in fact penalized by serving on a jury. In our federal system, most of the rules about compensating jurors are in provincial jurisdictions, even though they are sitting on cases under the federal Criminal Code.
We need national standards on how we compensate jurors and what kinds of things they are compensated for. When we look at how people are compensated for jury duty right now, it ranges usually between $40 and $100 a day. Very few people have compensation in terms of getting paid leave from their employers. It increases people's resistance to serving on juries. There are lots of other expenses that are covered in various ways in various provinces. Are meals covered? Is parking covered? The one that is most important to me, which is rarely covered, is child care.
The Province of Quebec allows compensation for child care on a case-by-case basis. I think it is on the basis of application. That is also true in Nunavut. I believe that is the only other place where there is compensation for child care. If we really want to make sure juries represent the breadth of Canada and the face of Canada, then parents quite often are going to be very reluctant to serve if they do not have compensation for the child care that is going to be required.
Some people might say they would already be going to work so they would have child care, but we have a lot of parents who make choices about who is going to stay home and do child care. If that person is summoned for jury duty, that is a big expense.
That is something that is not in the bill, but I look forward to our taking this spirit of co-operation we have on this bill and maybe making some progress on what I would call a national standard of how jurors are compensated for serving in this country.
I want to say again that we have broad agreement on the bill. That is a good thing. It took a long time to get it here, but maybe now that we are in gear it will not take so long to get it out of here and into committee, and maybe it will not take so long in committee to get it back to the House. I share the optimistic suggestion of my Conservative colleague, who wanted to see us get this done by Christmas. I think that would be a good thing, and I think we can all work toward that.
We do not always co-operate well in the House. Sometimes our divisions keep us from dealing expeditiously with things that are real problems. I think delays in the court system are a real problem, and I am very happy all parties have come together to try to address this in Bill .
Madam Speaker, it is a pleasure to rise today to speak to an important piece of legislation. I had the opportunity to ask a couple of questions of a number of members on Bill . It is a piece of legislation that was in the House previously, but in a different form. It originated in the House of Commons, where there was a great deal of discussion about it, and it has been reintroduced to the House in the form of a Senate bill, with very few substantial changes.
Having said that, I look at the legislation as a form of modernization. I do not say that lightly. I recall a couple of instances from years ago when I was a justice critic in the Manitoba legislature. There was a great deal of talk about how we could utilize technology to ensure that our judicial system was more effective.
One thing that used to really frustrate me was, when I would drive to the Manitoba legislature from home, I would pass the courts and see all the police cars parked there due to police waiting for trial, many of whom would never even get to testify on that particular day and would be called upon to come back another day, or I would be at another facility where there was serious police traffic, all court related. I remember talking to law enforcement officers who indicated it would be far better to capitalize on some of the technology, such as video conferencing, and the positive impact that would have. I believe it would be quite effective.
When I heard about the legislation coming from the Senate, legislation that originated in the House and was then reintroduced through the Senate, I looked at it from the perspective that, at the end of day, Canadians want a system that will be there in an independent fashion, independent of politics. We very much believe in the rule of law and judicial independence, but there is still a role for legislators and parliamentarians to look at ways to improve the system. That is what we are seeing here. This legislation that the government brought forward would ensure better accessibility. It would make the system more efficient and, ultimately, more effective.
As was cited earlier, we hear a great deal about the importance of getting justice as quickly as possible. There are certain things we have learned from the pandemic. We often heard, when the pandemic was at its peak, that we should look for ways to learn from the pandemic to improve our systems. The technology can easily be brought into our judicial system. We should at least provide the opportunity for its usage. I like to think that providing that opportunity would make a difference.
Bill proposes a range of reforms that would make court proceedings more flexible while protecting the rights of all participants. The reforms would flow from important work that was done and conducted by the Action Committee on Court Operations in Response to COVID-19, co-chaired by the and Chief Justice Richard Wagner.
When we look at the tangible things coming out of the legislation, we see one would allow an accused person to appear by video conference at a preliminary inquiry, on consent of the parties and where the court considers it appropriate, including when evidence is actually being presented. In addition, it would allow an accused person to appear by video conference for trial for a summary conviction offence, on consent and where the court considers it appropriate, including when evidence is being presented.
Another important point to recognize in the legislation is that it would allow an accused person to appear via video conference for a trial for an indictable offence on the consent of parties and where the court considers it appropriate, including when evidence is being presented, except in the case of evidence before a jury.
I have two more points to highlight. It would allow an accused person to appear by video conference and audio conference for making a plea on consent of the parties and, where the court considers it appropriate, a plea by audio conference. This would only occur when the court was satisfied that video conferencing was not readily available, and the court could still inquire about the conditions of accepting a guilty plea under subsection 606(1.1), despite not being able to see the accused person, which was proposed in clause 715.234.
The last point I would make to Bill is that it would allow the offender to appear by video conference or audio conference for sentencing purposes, on the consent of the parties and where a court considers it appropriate. Sentencing by audio conference would only occur when the court was satisfied that video conferencing was not readily available, as proposed in clause 715.235.
I do appreciate the importance of video conferencing. My New Democratic friend from James Bay—