THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, April 27, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:14 p.m. [ET] to study Bill S-4, 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).
Senator Pierre-Hugues Boisvenu (Deputy Chair) in the chair.
[Translation]
The Deputy Chair: I am Senator Boisvenu from Quebec, and I have the pleasure of chairing this meeting. I am filling in for Senator Jaffer. Today’s meeting is a hybrid meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
If you run into any technical difficulty, particularly with the interpretation, please let me or the clerk know, and we will do our best to get the problem resolved.
[English]
I would like to mention that our chair, Senator Jaffer, is not here today. We wish her well and we hope she will be with us soon.
I would like to take a few minutes to introduce our committee members today.
[Translation]
Senator Dalphond, sponsor of the bill, from Quebec; Senator Carignan, critic of the bill, from Quebec; Senator Batters from Saskatchewan; Senator Cotter from Saskatchewan; Senator Campbell from British Columbia; Senator Clement from Ontario; Senator Wetston from Ontario; Senator Dupuis from Quebec; Senator Harder from Ontario; Senator Pate from Ontario; and Senator Patterson from Nunavut.
Please let me know if you do not have questions; otherwise, we will go one by one through the list of senators.
Today, we are beginning our study on an important bill, Bill S-4, 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).
Appearing today is the Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada. With him are Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section; and Shannon Davis-Ermuth, Senior Counsel and Team Lead. We will also have Jos Normand Wong, Senior Counsel and Team Lead, joining us for the second hour by video conference.
We will now get started. Welcome, minister. The floor is yours. You have five minutes for your opening statement.
David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, senators. We are gathered today on the traditional territory of the Anishinabe Algonquin nation.
[English]
Senators, Canada, like the rest of the world, has been dealing with the COVID-19 pandemic for over two years now.
Necessary public health measures have significantly impacted the operation of our criminal courts and the administration of our justice system. Notwithstanding the tremendous operational challenges, the people working within our criminal justice courts have done an incredible job of stepping up and adapting to these unprecedented times.
Here are some examples: Many courthouses have had to reconfigure their courtrooms to accommodate in-person proceedings by installing plexiglass barriers, physical distancing markers and hand sanitization stations. Where reconfiguration was not possible, some courts used larger spaces such as community centres that could accommodate physical distancing.
Investments in technology, the use of electronic documents and an increase in virtual proceedings have all made a difference and represent a great leap in justice system modernization from pre-pandemic days. However, not all courts are able to operate at a pre-pandemic capacity. Capacity issues and resulting delays affect witnesses, victims and their families and, of course, defendants.
As you know, all people accused of a crime have a right to be tried within a reasonable time under section 11(b) of the Charter. To date, most courts have considered delays resulting from the pandemic to be exceptional circumstances as defined by the Supreme Court of Canada in the 2016 R. v. Jordan decision. As a result, pandemic delays have generally not resulted in cases being dismissed for delay.
However, as the system continues to deal with the effects of the pandemic, the Crown and justice system are expected to demonstrate that they are adopting reasonable measures to mitigate delays. My Bill C-5 is one of those measures which hopefully will help reduce delays in the criminal justice system. The bill that we’re talking about today, Bill S-4, is another important element.
[Translation]
Bill S-4 is part of the solution. It seeks to increase the security and efficiency of criminal proceedings by giving courts more flexibility in response to the challenges that the pandemic has brought to light. It reflects the feedback received from my provincial and territorial counterparts, as well as stakeholders. I am also aware of the challenges faced by the courts through my work on the Action Committee on Court Operations in Response to COVID-19, which I co-chair with the Right Honourable Richard Wagner, Chief Justice of Canada.
The reforms contained in the bill fall into two broad categories. The first category seeks to clarify and expand availability of remote appearances, as well as increase the use of technology in the jury selection process.
The second seeks to update and expand access to the telewarrant regime provided for in the Criminal Code, making it possible to obtain a wider variety of search warrants, authorizations and orders by a means of telecommunication.
[English]
I will now address the first category of amendments, relating to remote appearances.
Although these reforms will further facilitate the use of audio and video conference appearances by accused persons and offenders, they will not change the general principle that all persons involved in the criminal court process must physically appear in person, unless otherwise authorized. Currently, the Criminal Code’s general remote appearance regime provides guidance on when persons can appear remotely when there are no other specific provisions addressing these particular situations. Currently, situation-specific provisions are dispersed throughout the code.
In an effort to make this regime clearer, Bill S-4 relocates many of the remote appearance provisions in the Criminal Code to the general part of the code that deals with remote appearances. The bill also clarifies and expands the availability of certain remote appearances with related safeguards, such as consent requirements, the ability to communicate with counsel and factors for courts to consider when deciding whether to authorize a remote appearance.
The bill will also permit prospective jurors to participate in the jury selection process by video conference, in certain circumstances, as long as the parties consent. There will also be safeguards, such as only authorizing the court to require prospective jurors to participate remotely if an approved location with the necessary technology is made available for such participation. If no approved location is provided, such as where the court permits jurors to participate from home, the court would also need to give prospective jurors the option to physically attend the courtroom for their participation.
This latter point is intended to ensure that those who do not have access to the appropriate technology, or who have a limited understanding of the technology, continue to be able to participate in the jury selection process and may ultimately form part of the jury.
[Translation]
I will now turn to the second category of reforms. Under the existing telewarrant regime, police officers may apply for and obtain a limited number of warrants and other investigative orders by telephone or other means of telecommunication, when appearing in person before a judge or justice would be impracticable.
Since its adoption in 1985, the regime has proven to be an effective tool to support criminal investigations, despite having a limited scope. That has been especially true during the pandemic. The bill expands the telewarrant regime to cover a wider range of search warrants, orders and judicial authorizations.
The bill also streamlines the telewarrant regime by allowing applications for a warrant to be made to a judge or justice by means of telecommunication that produce a writing, such as email, without the need to state why it would be impracticable to appear in person before a judge or justice. Hence, an application could be made by means of telecommunication that produce a writing on the same basis as an in-person application.
These amendments allow for a better use of police and judicial resources, while ensuring that pandemic-related health measures are respected. I want to make clear that judicial safeguards will still apply.
The Deputy Chair: Sorry to interrupt, minister, but could you wrap up your presentation in the next minute?
Mr. Lametti: All right. I’ll go straight to the conclusion.
[English]
This bill provides for greater flexibility of warrants. Other important changes: We’ve listened to the provinces and asked for a 30-day delay after it receives Royal Assent in order for provinces to implement the changes.
I’m happy to answer your questions. More than usual, fellow colleagues, I will turn to my officials today because of the technical nature of the bill, but I will, as always, do my best to answer the questions personally when I can. Thank you.
[Translation]
The Deputy Chair: Thank you, minister.
Senator Dalphond: Minister, you won’t be able to get out of answering my question because it’s not a technical one.
In recent parliaments, we’ve seen more and more government bills being brought forward directly in the Senate. In some cases, those bills have met with obstacles in the House of Commons.
Can you tell us why the government decided to introduce Bill S-4 in the Senate and whether any factors help mitigate the roadblocks that seem to crop up when some bills are introduced in the Senate?
Mr. Lametti: Thank you for the question, Senator Dalphond, and especially for sponsoring this bill. In this case, it is only in the interest of getting Royal Assent as soon as possible.
This is a bill that is needed. I just spoke this week to the chief justices and provincial court judges across Canada. They are the ones who handle 80% of the criminal cases across Canada. So it’s very important for them to get this reform. The bill does not directly affect the finances of the country. So we can start by introducing it in the Senate.
Our government is ambitious: there are many bills, including those introduced by my colleagues and myself, before the House of Commons. We think it is more efficient to do it this way. I hope to get this bill through more quickly by first introducing it in the Senate.
Senator Dalphond: I have another question about funding. Here, we are very much promoting the use of new technology, but not all courthouses are equipped with these new technological means.
Is there a budget that is set aside, potentially, to support provincial technology shift initiatives?
Mr. Lametti: Thanks for the question. We will work with our provincial and territorial counterparts. Indeed, this bill is the result of suggestions made primarily by Ontario and Quebec, and supported by the other provinces and territories.
In the 2020-21 Economic Statement, we announced approximately $40 million in technology investments for courts across Canada. However, it is clear that we must continue to work with the provinces to ensure that services are provided. Your colleagues will no doubt ask this question, but we also need to look at connectivity in general, across Canada.
Senator Dalphond: Thank you.
[English]
Senator Batters: Mr. Lametti, a significant impetus for your government’s Bill S-4 is to better manage criminal court delays, which continue to be a major problem in Canada. For six and a half years, minister, your government has been criticized for failing to fill judicial vacancies promptly, including by this Senate Legal Committee. The number of federal judicial vacancies across Canada during your administration generally fluctuates between about 40 to 60, and that’s after this long in office. The most recent number, on April 1, is an unacceptably high 58 judicial vacancies.
Minister, you continue to create new judicial positions, as you did in this month’s budget, but you just can’t seem to fill them. I’m not sure if perhaps the trusty Liberalist database is down. Minister Lametti, filling judicial vacancies is solely in your government’s power. You can certainly help to lessen the critical problem of criminal court delays in Canada, which can result in serious criminal charges like murder and sexual assault being dropped.
Why is your government still so deficient at filling judicial vacancies six and a half years after taking power, and more than three years after you became justice minister?
Mr. Lametti: Thank you for the question, senator. I obviously disagree with the basis for your question. I think we’ve done a very good job of filling judicial vacancies. Through two general elections — and the first one in particular — we weren’t used to the fixed election dates. The next time around, I think we will be clearly filling vacancies until the writ is dropped, which wasn’t the case in 2019, which is the cause of the largest number of, I suppose, backlogs from the period from 2016 to now.
I have been successful, as you have noted, in getting additional judicial vacancies, and we have put into place a rigorous process. That rigorous process, when it comes to creating judicial appointments and refilling the judicial appointment committees across Canada and making them representative, takes time. They have two-year mandates. We have appointed over 500 judges of very high quality.
I do not use Liberalist. I’ve made that clear publicly a number of times, both in and outside of the House of Commons. That presumption is false. It’s a merit-based process, and I’m very proud of the judges that I and our government have appointed.
Senator Batters: Your Prime Minister’s office has previously admitted using Liberalist, from their point of view.
Anyway, you’ve given me the same answer on judicial vacancies prior to the 2021 election. You gave me that answer about the 2019 election, and we’ve now since had another election that your government called, so that was obviously in your own power, but I want to move on to another thing.
Five years ago, this Senate Legal Committee produced an excellent, lengthy and comprehensive report after an 18-month study into criminal court delays in Canada. It contains so many helpful common-sense measures to help combat criminal court delays. Our report was called Delaying Justice is Denying Justice, and it was prescient in many respects, especially on technology.
Minister, you didn’t mention this key report in your opening remarks today. I hope you haven’t forgotten about it. So my question is this: When you were drafting this bill, why didn’t you employ many more of the very helpful measures that were recommended by our Senate Legal Committee in that report?
Mr. Lametti: Thank you for reminding me of the report, of course, it’s an important report and it is a resource that we have.
This particular bill was the result of particular provinces and territories telling us what they needed during the pandemic. So this particular bill represents a consensus of provisions that were suggested by the provinces, in particular, and were very much supported by the judiciary, both on the action committee, indirectly, as well as the other consultations I’ve had with members of the judiciary in support of this bill.
This is meant to address telecommunications, COVID and making the system more efficient to address these delays. It doesn’t preclude further reform, senator.
Senator Cotter: It’s nice to see you again, Mr. Lametti. You’re spending so much time with senators that I presume you’re interested in applying. There’s a process.
Mr. Lametti: It’s on my bucket list, senator.
Senator Cotter: There are lots of views that the courts and judges move slowly in response to changes in society, but my impression, based upon observations of the leadership of our courts, is that it’s been remarkably responsive in circumstances that nobody would have anticipated with the pandemic. I see this bill as a constructive way of building on those achievements.
But it does raise some questions. I have eight of them, although I’ll save some for your colleagues a bit later — maybe some of the larger ones.
The first one is a concern about the criminal justice system, more generally, and its impact on Indigenous people. I am thinking of that, in particular, in Saskatchewan but not exclusively. Commonly, people who get caught up in the administration of justice end up committing what are often referred to as “offences against the administration of justice,” such as not being able to show up, failing to show up, breach of probation — all of those. In Saskatchewan, it used to be said that for every offence, another four tenths of an offence would be committed under those circumstances.
I’m worried, particularly in the context of Indigenous people, whether these changes and challenges around technology for many accused, potentially accused people, will make things worse.
Can you respond to that and also the degree to which you have done an assessment of implications for Indigenous people in those regards?
Mr. Lametti: Thank you for that question, Senator Cotter. It’s an important one.
We do think this bill will help. The first step in addressing a number of those concerns that we took as a government was Bill C-75, with a particular focus on what have been properly called “administration of justice offences” that have created that revolving door in the criminal justice system, which is particularly acute with respect to Indigenous people.
We think this will help, particularly because a number of those administrative justice offences are for people who are already incarcerated or in the criminal justice system. This will help move those hearings through more efficiently so as to not create further impediments.
Obviously, this isn’t the last word. There is Bill C-5, which directly attacks overrepresentation of Indigenous and racialized Canadians in the criminal justice system. And that’s not the end point, either. We simply need to weed out systemic discriminatory factors — systemically racist factors, quite frankly — that lead to the overincarceration of Indigenous peoples, as well as the manner in which they are treated within the system.
Senator Cotter: It’s been commonly the case that some of the best ideas for modifications to the criminal justice system have come out of the criminal law side of the Uniform Law Conference of Canada that meets pretty much every summer; I don’t know if they’ve been able to meet so much recently. Were these changes screened, or did you get feedback from the Uniform Law Conference of Canada? Particularly, I am not just interested in what the provinces had to say but also defence counsel, who are often a good source of wise choices.
Mr. Lametti: We have consulted widely with defence counsel. My understanding is that the measures are consistent with what the Uniform Law Conference of Canada was suggesting, but I will ask Ms. Morency for more specifics on the consultation.
Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: I can confirm that the telewarrant regime changes proposed by this bill were very much endorsed by the Uniform Law Conference of Canada. The ULCC has been meeting throughout the pandemic, but virtually, but they very much support this. Those reforms have also been supported by the Steering Committee on Justice Efficiencies and Access to the Justice System, which is a group of provincial leadership, judges, academics and stakeholders.
Senator Clement: Hello, minister.
I pivoted to virtual hearing two years ago. I worked for a legal clinic in Cornwall. I am a poverty law lawyer, so the concerns I have are around how this is going to impact people who don’t have access to technology and don’t have the literacy skills to manage the first step in the process. The work I’ve done is administrative law, not criminal law, but poverty is the same for clients. They also have all kinds of other issues.
Do you have concerns about this? What have you built into this process to deal with that?
Mr. Lametti: Thank you, senator, for the question. It’s an important concern.
The in-built structure of the bill allows for judicial flexibility, based on context, giving additional tools that technology might provide, only where they are appropriate in context — only where they will not be an impediment. So where they will make things more efficient, by all means, but the principle is that where there’s an issue of competence or access to the technology, then the judge will not use them.
The question of consent is always important here, and specific attention is paid to making sure that it’s consent with appropriate legal advice being given.
Carole, I’m not sure if you want to add any detail to that. But that’s the overarching general principle here, senator, and it runs throughout the piece of legislation.
Ms. Morency: As the minister said, a number of safeguards have been built into the process: consent of the parties; discretion of the court; and the right to consult with counsel, as appropriate; and then the court is always going to be given the discretion to take a look at the circumstances as they unfold and to adjust depending on the specific circumstances.
Senator Clement: My next question is around technology and investments in technology.
The system requires, not just general initial setup but maintenance and the training of staff to manage those things. It’s been hard for some people to pivot in the use of that. It has been hard for Legal Aid practitioners to do that as well.
Is your government talking about that? When I say “technological investments,” I mean digital storage, anti-hacking mechanisms — the wide spectrum of technology.
Mr. Lametti: I think the answer is yes, we are talking about that. As I mentioned in my response to Senator Dalphond’s question, we have put some money into the system for the provinces to use for technology. Certainly, the larger question of standards and the kinds of protections that are there for data and other things, they permeate all of what we do but in particular here.
I have successfully gotten additional money for legal aid to the extent that might help with respect to access to justice in both criminal matters in this particular case but also in immigration and refugee law.
I will continue to work with the provinces. We have a good relationship at the FPT level. This is an issue that is on the table at every FPT meeting, and there is also good collaboration now. We’ve established the working group, co-chaired by the Chief Justice of Canada and myself, which includes court administrators from across Canada and establishes a dialogue with respect to what best practices might be. We’ve produced a number of documents on best practices, and they have been found to be useful in the pandemic. It looks like that vehicle is going to transition toward issues like modernizing the court and technological issues.
[Translation]
Senator Dupuis: Minister, welcome to the committee. My question is about the action committee that you just mentioned, which you co-chair with Justice Wagner.
You say that this is a bill that responds to provincial requests. Are there things in this bill that were proposed by Ottawa and rejected by the provinces? In other words, was the degree of consensus which Ms. Morency referred to high, or were there elements that you had proposed but had to withdraw because there was no support?
Mr. Lametti: Thank you for your question. Indeed, the base was mostly composed of proposals from the provinces and — Ms. Morency could correct me if I am wrong — came mostly from official letters from Ontario and Quebec, which had different proposals, and with the support of the other provinces and territories.
We looked at the proposals and accepted the ones that had consensus among the provinces. We therefore chose the means that had the most significant support. I believe that this is the basis of a good bill. During consultations with other stakeholders and with the judiciary, we saw that this bill received very strong support.
Senator Dupuis: Thank you. The confidentiality issues related to the memoranda to cabinet are very well understood. However, would you be willing, as you have done on occasion when you testified before the committee, to table a summary of the gender-based analysis plus that I imagine was done by your department?
Mr. Lametti: Yes, with pleasure.
Senator Dupuis: I have one last very short question. There is one thing that is hard to follow in successive Criminal Code bills. I take as an example section 36, where it is provided that a provincial court judge could decide that “the charge should be prosecuted by indictment. . . .”
Is there, somewhere in your department, some sort of chart that would allow us to judge, based on, for example, the recommendations made in the Senate report, the overall plan you are pursuing with respect to what we consider to be the need for a review of the entire Criminal Code?
Do you have an overall plan or a document that might help us understand how Bill C-75, and its successor, Bill S-4, fit into a vision? Many people recognize that there is a desire for a review of the entire Criminal Code.
Mr. Lametti: Ms. Morency could correct me, but that is what was done with Bill C-75, which was passed before my tenure as minister. It was a comprehensive reform with a coherent vision in this case. Bill S-4 is part of that vision, in the sense that it is a compression. We will be adding certain aspects to the bill to complete what we had in Bill C-75.
Such studies have surely been done at the Department of Justice. I’ll turn the floor over to Ms. Morency.
[English]
Ms. Morency: The main part of Bill S-4, which continues from Bill C-75, deals with the remote appearances. Bill C-75 modernized — thankfully so — and enabled the courts to deal with this through the pandemic. Some technical amendments and clean-up corrections are in this bill from Bill C-75. For the bulk of the other reforms, there is a little bit on fingerprinting, which is also a carry-over from Bill C-75. We can provide that in writing to the committee.
[Translation]
Senator Dupuis: Thank you.
[English]
Senator Pate: Minister, Bill S-4 encourages an increased reliance on telecommunications, as you’ve already identified. I’m wondering whether you see an end date to some of these measures, given that you’ve indicated they are a response to the COVID pandemic in particular. As well, how do you plan to monitor the implementation of them?
Many of us have been in prisons, in particular, and seen how the due process entitlements are completely interfered with. You see open doors, easy access, lack of confidentiality and privacy. I’m curious how you plan to monitor to ensure that the access concerns are met but as well that the due process and privacy entitlements are also monitored. How do you see people, if those are breached, being able to access justice in response given that that’s already an impediment and an issue?
Mr. Lametti: Thank you, senator. To be honest, I don’t see an end date. These changes are the kinds of changes that will continue moving forward if they work. Of course, we will continue to monitor. We will work with the provinces and territories as well as with the correctional services system.
Given the level of support that exists both from the provinces and from the judiciary — at the provincial court in particular but also at the superior court level — we’re in a good place to monitor how the changes are implemented. We also necessarily have to monitor how the technology is implemented because the technology changes so rapidly that it puts me, or the person sitting in my chair, in a constant dialogue with provincial and territorial counterparts in terms of meeting those needs. Believe me, I hear it when a particular provincial attorney general feels there are not enough resources in the system to meet technological demands.
There isn’t a written plan in that sense. There’s an ongoing monitoring that we will do. There are a number of things, as Ms. Morency mentions, that are completing things that were in Bill C-75, for which we advocated and which will be further refined with respect to this bill.
Given the buy-in from provincial and territorial governments and leadership groups on this, I think we’re in a good place to monitor it moving forward. We will be making sure that we continually refine it for the better as we move along. The concerns about privacy and the concerns about fairness are critical. I share those concerns. Certainly, for my part, I will make sure that we keep an eye on that.
Senator Pate: How do you see the monitoring, given we already know of these breaches, in addition to the issues that have been raised by my colleagues Senators Cotter and Clement? There are additional issues for those who are incarcerated which, up until now, have not even been monitored under these provisions.
Mr. Lametti: It forces me to work with the Minister of Public Safety, who has carriage of the prison system. I do that. Look, as we say in Quebec, it’s une obligation de moyens, and I will continue to do my best to make sure we improve that. I understand that there are deficiencies in the system. I hope that the technology will help solve some of those deficiencies, but more than anything the cooperation behind this bill will help get us better results moving forward.
[Translation]
Senator Carignan: Excuse me for being late.
Minister, twice in two days; it is always a pleasure to meet you.
Mr. Lametti: With a little more distance this time.
Senator Carignan: We are more in agreement on this bill. Even though I am the critic, I think there are still some major advantages to this bill. I will certainly support amendments, things that can be reworked, but in principle, I think it’s a good bill.
I would like to know how the provinces reacted and what their questions and comments were, to ensure that as the critic, we can come up with proposals that are constructive and that respect the will of the provinces and to ensure that they are taken into account. In this regard, I asked for a copy of the exchanges your office had with representatives of the various provinces on the bill, and I was told that they could not be sent to me without the authorization of the provinces.
Would it be possible to commit to doing what’s necessary to obtain the authorization of the provincial representatives so that I can have a copy of these representations, so that we can have a complete picture of the issue and can take it into account? That way, perhaps we can come up with proposals from the various regions.
Mr. Lametti: I am happy to make that commitment, Mr. Senator. We can start with the two basic letters from Quebec and Ontario. We’ll get the minutes of the federal-provincial meetings. We will try to get the permissions and provide you with the documents.
Senator Carignan: It’s much appreciated. Thank you. That was my only question.
[English]
Senator Patterson: Welcome, minister. I’m from Nunavut, formerly the NWT, where there is a very long tradition, as you would know — Judge Sissons, and Judge Morrow, whom I had the privilege of travelling with on circuit and as a legal aid lawyer — of bringing justice to everyone’s door.
I’d like to raise two concerns that I would ask you to comment on. First, we have serious language and cultural barriers to obtaining true, informed consent. I know consent is required for these proceedings, but sadly, there are no Inuit lawyers in the defence bar in Nunavut despite several tranches of law school programs that have been run. One experienced practitioner told me, commenting about this bill, that there is a real risk that technology has the potential to turn the court system in Nunavut into a satellite operation where counsel practice remotely in the territory from locations in southern Canada, which would, of course, threaten that all-important tradition of personal interaction.
Second, and it has been raised already, the limit of available technology has to be recognized. And I’m not talking about the capacity of courts to receive signals, minister. I’m talking about the serious limitations of broadband in Nunavut in particular. I was told by an experienced practitioner that Parliament should be wary of passing legislation that depends on technology that is not available in our jurisdiction.
I would appreciate your comments on those two points, please.
Mr. Lametti: Thank you, senator. It is a critically important question. I have had the privilege of seeing the court system in Iqaluit and the technological advances that they have made, and I have had the technology that is currently in use explained to me. It is ahead of a number of other places in Canada.
That being said, you are absolutely correct that broadband connectivity is generally a challenge. We have said as a government that we would connect 98% of Canadians by 2026, and 100% by 2030 and investing roughly, I believe, $2.5 billion in addition to other sums invested by previous governments, Liberal and Conservative, to get there.
That’s still not going to be enough, and the technological challenges are going to remain, but as a government we’re committed to trying to fix that. I understand the breadth and depth of that problem, and I think our government has.
The answer to the first question is more complex in the sense that the technology is available. I’m aware of the critique that this could turn justice into satellite justice. We’re relying on the discretion of judges to not do that. These are enabling provisions. They’re not mandatory provisions in the sense that where the technology is available, where the judge is satisfied, where the accused consents. On that consensual basis and discretionary basis, it is my view that it won’t turn into that, and the principles already in place in the Nunavut system, which I have seen firsthand, will continue not just to apply but also to be improved.
I think raising the fear and the concern is an important step in making sure it doesn’t happen.
I’ve also witnessed firsthand one of those law programs that the University of Saskatchewan ran in Iqaluit, and they’ve had a cohort of graduates and they are staying in Nunavut. And hopefully not just USask — I’m smiling at Dean Cotter — but other law faculties will collaborate with governments not just in Nunavut but in the other territories and remote regions to make sure there are more lawyers, because that’s a critical problem.
[Translation]
The Deputy Chair: If I may, before we move on to the second round, I’d have a question for you.
What impact will this reform have on victims, witnesses and jurors? The notion of distance between witnesses and jurors will often be used by video conference. Historically, in trial, the non-verbal aspect is often an important element for defence or Crown lawyers. What will the impact be on the historical proximity between the juror, the accused and the testimony of the victims?
Mr. Lametti: We believe that this will help if the system is more effective and more sensitive. With regard to jurors, it’s only in jury selection that we’ll work remotely. The principle that a juror must be able to see the participants and especially the accused is still valid. I don’t know whether Mr. Morency would like to add anything, but we don’t reduce the distance when it is necessary to do justice, especially for victims.
[English]
Ms. Morency: Victims do not benefit from a system that is plagued by delays. Providing processes and means to enable the system to proceed more efficiently, including through the pandemic and coming out of the pandemic will benefit not only the accused but also victims and build confidence in the justice system.
Senator Batters: Minister, your bill allows an accused to testify at their trial by video, if I am understanding correctly. I know there are limitations to that, but the fact remains there are some potential serious criminal trials, including by summary conviction, that could be dealt with under this scenario. I’m wondering if you have concerns. I know that this applies not to jury trials but to judge alone trials. However, do you have concerns about the ability of judges in certain circumstances to properly assess the credibility of an accused where they’re appearing only by video and not in person?
Mr. Lametti: Thank you for the question, senator. It’s an important question. We are relying on, I think, the judgment and good sense of judges. If they can’t assess credibility, if they can’t conduct a fair trial using any one of these technological supports, then they shouldn’t be doing it. That, plus the consent that an accused and the accused counsel have to give; obviously, those are safeguards that are built into this whole act. They should work, I think, quite effectively to make sure that a scenario where a judge can’t assess credibility, for example, because of the distance would never happen. That trial would simply have to happen in person.
It’s not in the interests of individual judges, the accused, and victims for those kinds of trials to take place if the system is in any way unable to meet those concerns. And those are baked into the system, so I’m pretty confident that they will be fine.
I’ve already mentioned the kind of support that exists across the system here, both with respect to stakeholders, counsels, judges, provincial administrators, provincial counterparts and territorial counterparts, but I would also reinforce that by saying a number of these measures have been tried in part by a number of different provincial courts, and it seems to be working.
Senator Batters: Does the crown prosecutor also have to consent to a trial by video for the accused where there could be credibility issues? I can’t actually fathom a situation where with potentially unstable internet and all of that sort of thing, and can there be a change made — I guess I’m asking two questions. Number one, the Crown prosecutors, whether they have to consent as well and also, is it something that has to be determined before the trial starts to take place, or can the judge determine at some point during the trial, that no, this is not working, the accused is going to have to come in person?
Mr. Lametti: It’s my understanding that the Crown prosecutor would have to consent. As for a change during, I suspect that consent is the answer there as well. If there’s an initial plan that is then changed, it would require the consent of the parties.
Senator Batters: I want a little more than that I suspect. I want to know.
Ms. Morency: Yes, consent from both parties to proceed remotely and the discretion of the court to agree that it’s appropriate to proceed remotely in the circumstances of that case, and they can proceed. If it’s during the proceedings, my understanding is that if circumstances change that the court would still have the discretion to reassess. Is that correct?
Shannon Davis-Ermuth, Senior Counsel, Team Lead Department of Justice Canada: Yes. In clause 46 of the bill, at the very beginning in section 715.222, there’s a cessation provision. It’s already in the remote proceeding provisions now, but this just moves it up front so that it applies globally in the part of remote proceedings. There is a cessation provision that says that if the court does agree to remote proceedings, to a person’s appearance or participation by audio or video conference under this part, that they can at any time cease the use of those technological means and take any measure that they consider appropriate in the circumstance to continue the proceedings in another fashion.
Senator Batters: With respect to jury selection, being that you changed those proceedings in the previous bill, would that also be something that is always done by video now, or just could be? Because, again, the judge then is the one who has a role in determining whether — and there can be situations where the judge would have a definite benefit of assessing that person in person rather than by video.
Mr. Lametti: The answer is could be. It is a tool available to a judge. It’s a completion of Bill C-75, as you rightly point out. It could be, and it’s there to address the very real challenges that came during COVID of empanelling juries in particular in a safe fashion, so not bringing whole groups of people for jury selection and therefore exposing them to the virus; for example, allowing them to do teleconferencing, so that people can stay home.
Senator Batters: We’re now two years past COVID so, you know, we’re having people getting together at major concerts.
Mr. Lametti: It’s evolving, that’s true.
Senator Cotter: I have two questions, if I may. One of them focuses on this bill and maybe one of its implications. When courts sit in person, the judge is there to observe how things go, and if some observer at the back pulls out their cellphone to video proceedings, the judge can be in control of that.
When these proceedings are occurring in public, that is people can watch, they’re also in a position, without the judge ever knowing, to film or video or capture a portion of what is going on and post it on the internet or whatever. I’m wondering whether that’s a concern, and whether this is actually the beginning of us, almost by default, deciding that we need to move to open courts where journalists can watch or film the proceedings, since it’s sort of gotten out of control, and liable to be out of control. Your thoughts on that?
Mr. Lametti: Fair concern, Senator Cotter. The open court principle in terms of having an open court is certainly preserved, we feel, in this piece of legislation. The technology sadly does facilitate inappropriate taping. That’s probably something that we’re going to have to deal with.
But I think there’s a general view among the judiciary that they can handle it at this stage. I don’t know if either of my colleagues want to point to specific provisions, but it is something that we will have to deal with moving forward.
Ms. Davis-Ermuth: I’ll add to that. There are provisions in the code that allow for closed hearings in certain circumstances or publication bans. Those types of things would still apply to these proceedings so they would have some power over what is broadcast in specific circumstances.
Also the broadcasting of proceedings is covered in many cases by provincial and territorial laws. I don’t have the specific reference here with me right now, but Ontario, for example, does have a law. There is an ability. Courts will be reminding people when they tune into these proceedings about not being able to record and that that would be breaking the law. There’s an ability, if there’s an egregious use of that taping, to follow up on it.
Senator Cotter: It does feel like a bit of an “Achilles heel.” My second question, if I have time, is a bit larger one, and part of it flows from the observations that Senator Pate has made here and elsewhere. We’re looking at ways to try to streamline and move things through the criminal justice system in a more timely way and not face problems with Jordan, and delays and all the rest of it, and more charges being laid.
One of the options that is available, and used in a number of provinces but not across the country, is charge approval. A charge is not laid until prosecutors give the thumbs up. When you look at the statistics in British Columbia, for example, that process tends to weed out before a charge is even laid, perhaps as many as 10% of the charges police contemplate. That produces an enormous saving in the system.
Do you have a position on that? Are you able to urge your colleagues to move in that direction in order to improve the timeliness of the justice system and enable the prosecutors to work on cases that are proceeding, rather than the ones that when they look at the file they throw them out?
Mr. Lametti: As you know, both the investigative function and the prosecutorial function have been hived off. That was done under the Conservative government before us, and I think it was a good thing that it was done under Rob Nicholson, who was the minister at the time. I guess that’s part of the answer.
In principle, I like those kinds of discretionary decisions as they are made, provided that that there is a degree of reflection there to make sure they’re not inadvertently or systemically racist in the way they work, because that’s always a fear.
I have introduced Bill C-5 currently in front of the House, which with respect to simple possession charges makes a diversion from the criminal justice system the baseline reflection. So obviously I’m sympathetic to the kinds of agreements that can take place between prosecutors and police with respect to the period before the charge. We need to look at all of those moving forward, particularly where a criminal justice response isn’t the best response.
[Translation]
The Deputy Chair: Mr. Minister, Senator Cotter’s question is an interesting one with respect to the release of videos that could be produced under the new system.
Would it not be possible to encourage the broadcasting of court proceedings, which has been demanded for years by the media and certain groups? Basically, there is a risk that these videos would end up on social networks; as soon as you have something visible through technology, it will be distributed.
Wouldn’t the ideal solution be to eventually make the video available to the public?
Mr. Lametti: That’s a good question. Obviously, it’s a challenge brought about by technological change.
What I would add to the discussion we just had with you, Mr. Chair, but also with Senator Cotter, is the independence of the judiciary. That’s a basic principle of our system: the ability to manage. Yes, we have the principle of open procedures, but we also have the independence of the judge in this case. That’s something that has to be considered when assessing the issue.
[English]
Senator Patterson: Minister, I think consent is a real critical issue here and, of course, it’s really important in medical circumstances that great care is taken. One practitioner I talked to about this bill says there’s a very real risk associated with the new wording of section 650, that people will acquiesce to being physically absent for meaningful parts of their trial because they are disengaged from and indifferent to the process or believe that it will lead to expediency, a fast, if not fair trial.
When I was asking you about this issue earlier, you said, if I understood you right, that the onus is on judges to ensure that there is informed consent. But when I look at section 715.23, there are some factors the court has to consider in allowing appearance by video conference and audio conference. It doesn’t seem to include what I would call the degree to which the accused or offender has been able to give informed consent. There are five criteria there, and they don’t seem to include that, what I think is important consideration. I wonder if that is spelled out in the bill, if I missed it somewhere else.
Mr. Lametti: My understanding, senator, before turning it over to my colleagues, is that we’re paying particular attention with respect to consent, to people who are represented by counsel. That, too, is a safeguard that is built into the system. But I will turn it over to either Ms. Davis-Ermuth or Ms. Morency.
Ms. Davis-Ermuth: Thank you. You’re right; the bill doesn’t specifically address informed consent, and as the minister has indicated, with persons who are represented by counsel, then hopefully they will be able to assist their clients with that determination. One thing that we’ve noticed, many courts have published throughout the pandemic different guidelines about how they will hold remote proceedings, in particular the Ontario court — and I’m trying to remember which level it was. I believe it was the Ontario Court of Justice just released some very detailed guidelines, that they’re going to use going forward at this point in time.
One of the things that they mentioned, as they’re talking about which types of proceedings work better for remote proceedings, because that’s something they’ve noticed over time, is these ones help with efficiencies, these ones we find are better in person, that type of thing, is they do have some different assessments, depending on whether or not the accused persons are represented by counsel, for some types of proceedings they feel might be better in person. They are, I think, trying to make sure as they make these decisions that they take into consideration the ability of the accused to make these consent-type decisions.
Senator Patterson: Thank you.
Senator Clement: I want to come back to the issue of stakeholders. These changes are here to stay. It feels like this is where we’re going. I heard Ms. Morency talking about consulting with groups and academics. Are you talking to actual clients who have been through the system, who have lived experience? Is that part of the consultation process?
Mr. Lametti: We speak to defence association lawyers, so people who represent those people. Ms. Morency, can you add?
Ms. Morency: I think a lot of what you see reflected in Bill S-4 is informed very much by a constant continuous discussion we have had with our provincial and territorial counterparts. Generally, we have these fora, but specifically in the context of the pandemic, where officials from all the different points in the criminal justice process were brought together — so to Senator Pate’s point, on the corrections side, on the policing side, like all of those points were brought together with the view to try to identify what’s not working now and what is working well from Bill C-75 that doesn’t go far enough and we need to do more.
I think that’s how we’ve been able to really draw from that. Plus we’ve been looking at case law that has been reported throughout the pandemic, to see how things have been playing out in real time. It’s a process whereby we’re just trying to bring together all of the sources. We didn’t go out and have public engagement on these types of issues specifically, but worked with the key FPT and critical stakeholders to try to bring it together. As the minister said, in particular, the national action committee has brought an insight that we don’t normally get to have in the normal FPT fora.
Senator Clement: Talking to real folks is helpful, too. I know all those folks are real but —
Senator Pate: I want to follow up on Senator Clement’s point. The last time I was at the Ottawa-Carleton Detention Centre, it was actually the staff and then the prisoners who raised the concern that oftentimes defence counsel find it easier not to have to go out to the jails. As we were standing there, we could hear all of the events happening, all of the hearings happening. I don’t know how often there have been any consultations with staff, administrators, as well as the prisoners. But staff were raising the fact that they had concerns that people were pleading guilty to charges in large part because they didn’t want the details read out so that other prisoners or staff could hear what the details of the charges were.
It strikes me as a huge due process issue. Hence the reason I was asking the question. We’ve also heard that in federal penitentiaries, for parole hearings, which is not part of this process, obviously, but strikes me it would be a concern right across the country in provincial and territorial jails, and unfortunately, not necessarily raised by defence counsel.
Mr. Lametti: That’s obviously a fair concern, and we will bring that back, and we’ll reflect on that. There have been some points of contact, as you know, with the carceral system. And privacy is critically important, as well as fairness in the process itself.
Certainly raising it, I think I said this with Senator Patterson as well, just raising it is something that we now can sensitize judges and other participants with respect to those issues, but we can look and see how we can improve that.
Senator Pate: Thank you.
[Translation]
The Deputy Chair: Mr. Minister, I’d like to thank you for being with us. It has been an excellent discussion and, we’ve had some very good questions. We will continue to study Bill S-4 to try to improve it, as our mandate requires.
Mr. Lametti: Thank you.
[English]
The Deputy Chair: So we will start the second panel. I understand it will be more technical. I invite you, if you want to ask questions to our witnesses, let the clerk know.
[Translation]
Senator Dalphond: I won’t actually have any questions because I have had several hours of technical briefings. I’ll leave it to my colleagues to ask their questions and get answers.
[English]
Senator Cotter: I would like to return to the issue about open courts. It does strike me that this is a bit of a problem. I wonder if you might elaborate more.
The judges, when it is in-person; at least they know who is in the courtroom. Given the way in which the technology will be used, they won’t even know who are the observers in the courtroom. There may be provincial laws and court rules. But it just seems like the potential to be able to post some exchange that occurs between defence counsel and a witness is going to be tempting for some people.
These days it feels like the world has become even more overwhelming, with people disregarding other people’s rights and all the rest of it, that we are liable to see a lot of that. That leads to the view that I was expressing, and the deputy chair, Senator Boisvenu, that this is almost forcing open courts by default.
If I’m a judge, and people are going to be posting everything that I’m experiencing when I do this trial, I might as well move to the idea that all these courts can be videoed and shown in public. I would be interested in the degree to which that had raised concerns in your consultations and dialogue. It’s an unintended consequence that we’re going to end up with in the next few years.
Ms. Davis-Ermuth: Thank you for your question.
It is an issue that has come up from the start that people had been wondering about. As with many things in the pandemic everybody is thinking, how do we do this now? From our observations, many courts have handled it in different ways.
At this point, what we’re seeing with a lot of the hearings is that there is a bit of control in terms of who can access the hearing. You need a code. You need to call in. You need to register, those types of things. With that type of thing, it’s possible for people to cheat the system.
We do see an attempt by courts to have some type of control and to try to continue the sense of the seriousness of the court and that they want to see decorum. That’s one of the things that we’re seeing in some of the rules that are coming out.
I also think, depending on the nature and the sensitivity of a particular hearing, they may be more cautious in terms of how they keep track of who is there, who is monitoring and what types of warnings they give them.
I think that we haven’t seen an indication that people are wanting to go to complete open court because there does — as you, yourself have raised — continue to be concerns in terms of judges who might be concerned about people playing videos. But there are also witnesses who would have concern with their testimony. It’s stressful enough to go to court in a courtroom, let alone knowing that it’s going to be broadcast. We do see attempts to try to have some control and to impose some rules on that at this point in time.
[Translation]
The Deputy Chair: I’d like to ask a supplementary question to Senator Cotter’s question, but I’ll go after Senator Cotter.
[English]
Senator Cotter: In some ways, Senator Boisvenu has predicted the future on this question.
My other question relates to one aspect of what is available here, and that is there’s actually the ability for audio conferencing for sentencing, with consents. That strikes me as uncomfortable compared to all of the others, when you think about any of the issues of believability, contrition and all the rest of it.
Is there a reason why we opted to say even audio conferencing will be okay if video conferencing might not be available? It just strikes me that we’re getting to the point where we’re below the basic minimum of solving this technology problem.
Ms. Davis-Ermuth: Thank you for that question as well, senator.
The reason for that is there have been some circumstances where it might be the sentencing hearing that is the next step before somebody gets released, if they have not been able to have an in-person hearing.
From what we’ve seen in the judicial decisions, we’ve looked at where these types of considerations have been made, is that just because it’s in the Criminal Code does not mean it’s going to be used frequently.
The types of factors that they consider in those types of circumstances are things like have I already seen this person in‑person? Do we have an ongoing relationship? And this is just like the last step, and there’s some reason why we’re not able to do in-person, or they don’t have access to video at this point in time. But delivering the sentence in this way would allow them to get to that next step and move forward.
So with all of these things, we’ve talked about consent needing to be there. But there are a number of other factors that the judges have to consider in the particular circumstances to make sure that it would be appropriate.
[Translation]
The Deputy Chair: Actually, courthouse courts are public. People can go to courthouses, go into courtrooms and listen to a trial. You even see people walking from one room to another and watching with curiosity.
Are you telling us that tomorrow morning people who would like to attend a trial by video conference will have to have prior permission, or that there will be a public access code that will allow thousands of people to watch the trial by video?
Ms. Davis-Ermuth: From what I understand, trials are public, but there are still limits for some trials. For example, there has to be enough room in the room, and so on. It’s the same with technology. You have to have a code to access the hearing. It’s not publicly available on YouTube, for example. People will have to enter the “technology room”. Sometimes there are also limits on the number of people who can participate in the hearings. It depends on the technological capabilities available.
[English]
Senator Campbell: I don’t want to be the old guy here, but I was a coroner for 20 years, and for 20 years, I held inquests with the same power as the sitting judge of the B.C. Superior Court with a jury. The thing I really worry about this, and I think we’ve seen it with hybrid, is losing the ability to read the room, the witness, the counsel and the jury.
I know that this is modern and all the rest of it, but I think we’re losing a part of our justice system. I don’t see that this is going to make it any more open for anybody to go to a courtroom. I agree that if my courtroom got too crowded, I would simply open another courtroom beside me and screen it into there. We have found ways of doing all of this.
I worry about the security. I worry that you actually can say there will only be X number of people under very limited circumstances; we rarely say that in courtrooms. There are circumstances where we limit it or even hold the witness’s identity.
So my question is this: Has it been studied enough for us to measure the benefits of what’s going on here versus what we’re going to lose by that person-to-person interface? Again, I don’t want to be the old guy in the room, but it’s of concern to me, because it’s one of the strengths of our system that we work face to face, and I’m just wondering if we have measured that and really compared it.
Ms. Davis-Ermuth: Thank you for your question, senator. To be frank, no, there haven’t been studies that can quantify those types of things. What has happened is that over the course of the pandemic, as there has been experimentation by necessity, there have been observations. Many of these things have been done. Not everything, necessarily, has been done, like the jury selection proceedings, but they’ve been experimenting.
When Bill C-75 amended the remote appearance provisions, they didn’t go this far at that time, and nobody could have known that people would have even been open to trying that in a few months.
The intention of the bill is not that this will become the normal way of proceeding. The intention is to ensure that there is a clear legislative path to do this where it would be appropriate. Many people, judges, defence counsel and Crown included, are making the same observations you’ve made about how it’s not necessarily going to be appropriate in a lot of cases. All of those factors are there for the judges to consider. It’s not intended that this will be the norm, particularly in some of the serious cases where there may be more sensitivities, like Senator Batters has mentioned. It’s not intended this will be the case for all cases.
Also, where there are particular concerns about broadcasting a particular trial or a particular witness’s testimony, those could also be factors that would go toward whether the court would hear witnesses or hold the proceedings remotely in that particular case.
This is just to have a clear legislative path to do those types of things in the cases where it seems appropriate to do so.
Senator Campbell: Is there a process in place to allow that to happen — for the judge to say, “No, I want everybody here in my courtroom”? Also, is there a challenge for that to happen in that process?
Ms. Davis-Ermuth: Is there a process for the judge to not agree to hold it this way?
Senator Campbell: Yes.
Ms. Davis-Ermuth: Yes, it is all at the discretion of the judge.
Senator Campbell: Can I challenge that? How do I go about challenging that decision?
Ms. Morency: We would have to get back to you to see if any of the existing appeal processes might apply to these powers. We will undertake to answer that.
To underscore my colleague’s point, this is an adaptation by necessity, recognizing that even as we come out of the pandemic, there will still be challenges for the system to process any backlog. To the extent that these new tools and the expanded opportunities to use remote appearances will assist in some regard for those issues on a go-forward basis — again, it’s an opportunity; it’s not mandatory. The safeguards that are built in right now will continue on a go-forward basis.
Finally, I agree this is an important issue we will want to look at closely with our provincial and territorial counterparts as we go forward, as well as with the judiciary in terms of the minister’s comments about the national action committee — and all of this — to see how all of this is playing out on a go-forward basis.
I understand the concerns around how the court controls the process. Ms. Davis-Ermuth described a bit of that, and she mentioned there are existing provisions in the Criminal Code that apply now. If someone breaches a publication ban or if someone breaches the court’s direction around what can’t be done and someone will control their decorum in the court, the court has authority: contempt of court and publication ban penalties. We’ve dealt with that for many years through broadcasting and the old-fashioned media, such as print journals and social media — a lot of that together.
Senator Clement: I want to stay on the topic of data collection. It’s not just old guys who have that question, Senator Campbell.
I get the feeling that we’re going to stay in this place and go forward with the technology. I’m telling you that I don’t think that any of the tribunals I appeared before want to go back to the old world; they want to stay virtual.
How are we collecting data? I know you said there wasn’t exhaustive study at this point. Are we now collecting data around breaches, complaints and all of that stuff? Is there a systematic way that we’re collecting data so that the data can inform any changes going forward?
Ms. Davis-Ermuth: Do you mean data in terms of how the remote proceedings are carried forward?
Senator Clement: Correct, and what complaints are being made by the judiciary, the people who are engaged in this process, the public — all of that stuff.
Ms. Davis-Ermuth: At this point, as has been mentioned, our primary means has been consultation discussions in a number of fora. There have been a lot of continuing education programs and panel discussions within the legal profession, in addition to the other FPT forum and the action committee — those types of things that have been mentioned. There have been discussions at the Uniform Law Conference of Canada. Like was asked earlier, in addition to discussing telewarrants, there have been continuing discussions on remote proceedings and how it’s occurring.
At this point, it’s not in the formal sense of a study being done. Our other big source of information is case law and discussions on decisions that are being made and those types of things. It is something that could be done in the future. I think it would be a qualitative type of study, but the department is continuing to monitor it as much as possible, as well as looking comparatively at how other countries are handling these situations.
Senator Clement: Yes, I was going to ask you about that. Are there any countries you’re looking at in particular with this legislation?
Ms. Davis-Ermuth: We’ve looked at countries with similar legal systems — the U.S., the Commonwealth, those types of things — just to see. Questions have come up in terms of, for example, should jury trials be done this way? Is anybody else doing it and how is it going — those types of things. As much as possible, there have been comparisons made and looking at what other countries are doing and how it’s going and what the feedback is.
Senator Clement: So it’s ongoing. Thank you.
[Translation]
Senator Dupuis: I have two questions. The first concerns subclause 36(1) of Bill S-4. I talked about it earlier. Subsection 555(1) is amended with “by indictment.” There was an issue to be resolved, a confusion with the Superior Court of Quebec. Can you explain to me the exact nature of the change introduced by subclause 36(1), please?
Ms. Davis-Ermuth: Thank you very much for that question, Madam Senator. It’s a technical question, which is actually a follow-up to Bill C-75. It’s an amendment to what was done in Bill C-75. Excuse me.
Senator Dupuis: I understand that Bill C-75, at subsection 555(1), stated, “the charge should be prosecuted in the superior court,” and is now changed to “the charge should be prosecuted by indictment.” Could you please give me the reason for that change?
Ms. Davis-Ermuth: Thank you. Before Bill C-75 came into force, as you mentioned, section 555 dealt with situations where a trial in the provincial court could be turned into a preliminary inquiry. Former Bill C-75 made consequential amendments to section 555 to restrict preliminary inquiries for offences punishable by 14 years or less. These changes required the creation of a process of choice, as in some cases a trial could no longer be turned into a preliminary inquiry.
Former Bill C-75 also made other amendments to section 555 to update, amend and clarify the legislation. These changes referred to the Superior Court and, in so doing, did not fully take into account the fact that a judge of the Court of Quebec, which is not a superior court, has jurisdiction to act as a judge without a jury with respect to indictable offences. This change recognizes that using the term “Superior Court” did not work in Quebec.
Senator Dupuis: Thank you. My second question is on clause 46. Senator Patterson referred to the changes to section 715.23, in other words, the five situations that would allow an appearance by audioconference or video conference. Therefore, the court has to make a judgment as to whether it’s appropriate, given a number of circumstances. It’s the first of these five elements that I’m particularly interested in: “(a) the location and personal circumstances of the accused or the offender;”. What is meant by “personal situation”?
Ms. Davis-Ermuth: Yes.
Senator Dupuis: My follow-up question is, can’t the “personal circumstances” element not include a person’s ability to understand what universe they’re in, what exactly they’re accused of, and possibly their ability to give informed consent? I was surprised that there was no reference to this element as something that should be included in the personal circumstances of the person, the accused or the offender.
The Deputy Chair: Do you have a quick answer?
Ms. Davis-Ermuth: The quick answer is that this aspect is not amended by this bill. That was put in place in Bill C-75. The only change is that it includes “the offender” as well.
Senator Dupuis: It doesn’t say what you mean by “personal circumstances.”
Ms. Davis-Ermuth: I think it depends on the case before the court.
Senator Dupuis: Thank you.
[English]
Senator Batters: Earlier, Ms. Morency was talking about adaptation by necessity. We’re now more than two years after the start of COVID. Almost everyone is lifting limits on gatherings and events. We’re seeing 20,000 people gathering at hockey games and concerts in Canada. This bill was originally introduced as Bill C-23 in the House of Commons more than a year ago, and it really didn’t move on the Order Paper over there after that time. Now it’s reintroduced in the Senate, and I understand it is relatively unchanged, perhaps entirely unchanged. It’s still a long road until the passage of this bill; yet it was introduced primarily to deal with handling the COVID pandemic in a better way. I mean it’s just so late in the going. What real benefit does it provide in that respect?
I agree there are some things, as I referenced earlier, issues of technology and that sort of thing, and many other issues that we should be looking to our previous court delay study to have these types of things dealt with in a better way going forward. Having practised in both areas of criminal trials and also tribunals, I personally see a big difference in the use of virtual technology between those two things, especially when a judge is having to assess credibility.
I know that you’re here just representing the department. You’re the officials. I obviously didn’t have unlimited time to ask Mr. Lametti this, but what real benefit does it provide in dealing with COVID issues when we’re really, as far as mandating different things and gathering limits, we’re kind of getting to the end of that?
Ms. Davis-Ermuth: Thank you for your question, Senator Batters. I think part of the answer to that question is, as Senator Clement has said, at this point, it seems like there is no going back. These are the types of proceedings that courts had been seeing — in some cases have been able to hold; in other cases, would like to be able to hold. With the pandemic, there have been many suspensions of proceedings. We hear that courts are concerned about their ability to deal with it. Bill C-75 was passed; we started to implement it, and then the pandemic hit. There wasn’t even a chance to benefit from those changes. Now we have something that slows things down even more.
They’ve been starting to experiment with some of these things. The feedback that we’re getting across the board from provinces and territories and judges is that they feel these types of modernizations and adjustments to the way business is carried on now would help them with their efficiencies and dealing with their backlogs.
Senator Batters: I agree with some of those types of efficiencies. I just personally have a real problem with the ability of a judge to assess credibility in any criminal trial. Credibility is always an issue. If it’s going to be something that’s accepted by the judge, the prosecutor, the accused in such limited situations because they determine that a particular trial is not going to be difficult to assess, I just see that as potentially becoming something that’s in there, but I’m really not sure how many judges are going to be comfortable with assessing credibility by video.
Ms. Davis-Ermuth: Thank you. I mentioned before and I wasn’t confident of the level of court, but it’s Chief Justice Morawetz in the Ontario Superior Court of Justice who has issued some guidelines that are somewhat helpful in getting a sense of what the future might look like in this particular court, what types of proceedings are they looking to do and thinking might work with these types of things and what factors they are considering across the board.
We could share a link to those guidelines to help get a sense. This is one particular court. What we really found, including panels we participate in and the type of feedback, is that people have different opinions and judges have different opinions. There are some judges who would feel as you feel. There might be some other judges who might have said sometimes seeing somebody on a screen enables a better view than they might get in a courtroom. I’m not saying that’s always the case or offering that as proof of something, but just saying what we’ve heard varies across the board in terms of some people find these proceedings work better for them and some people don’t.
Senator Dalphond: I have seen in the past some victims who would ask not to appear before the judge but in a different room from where they will appear in the courtroom on a screen. So this is already part of the functioning of some criminal trials.
I’ve also seen when we move from a stenographer to recording that some judges were opposed to it, but they adjusted by not saying anymore what they used to say saying to remove that from the transcript. So they could not remove that anymore. Now we’re moving to a recording at a higher level, but it’s going to be kept by the court as the voice recordings are kept now.
I understand the problem would be the access for those who are not in the courtroom and would like to see what is going on. Some class action courts are already open so that you can stay home and watch the courtroom proceeding. Maybe there would be some adjustments and new rules to be adopted. But the trial can be held virtually with the judge sitting in the courtroom with one or two lawyers. This is not under the control of the court; the feeds, the image, the scenery.
To come back to another concern. For a jury trial, it is always going to be in person. There is no way it can be otherwise except for a remote witness or somebody who died and was recorded before.
In other trials — judge alone — the accused has to accept to go that way. This is the first step. If the accused doesn’t want to go that way, it won’t happen.
Second, even if the accused and the Crown accept to go that way, the judge has to agree. As Senator Dupuis pointed out, section 46 makes it clear that the general principle is that the judge can refuse if he feels that assessing credibility is critical. It could be victims or complainants or the accused, then the judge will order the witnesses, or most of the witnesses, to appear before them. Unless I misunderstood the thing, we’re not going full-fledged virtual, there are a lot of requirements to get to a fully virtual hearing.
I read it a few times. I want to make sure I did not misunderstand anything.
Ms. Davis-Ermuth: Thank you, senator. It is a great question.
Senator Dalphond: It’s more a comment, correct me if I’m wrong.
Ms. Davis-Ermuth: A great answer. One of the things that’s helpful to keep in mind in looking at these is a lot of the provisions that we’re talking about, like 715.23, it’s not a question of are we going to have the trial entirely remotely, but that is in relation to the accused person. There are other provisions in terms of whether or not the judge will preside remotely and the Crown would be considered a participant. If counsel wants to participate remotely, then they would have to consider each aspect differently. There are some different considerations.
An area not touched by this bill are considerations on whether or not witnesses could appear remotely and that’s in the area of section 7.14 of the Criminal Code. There are some cases where the accused might not consent to appear remotely, but the judge might still preside remotely and the Crown might preside remotely, and the accused might be the only one in the courtroom. That is already the case with some criminal courts now.
Senator Pate: I’m not an old guy, an old gal. Aspiring. I’m curious as to what data is available about the delays. I know it has been asked in a few different ways, but there has to be some data available as to the delays that have occurred because of the pandemic. It may not all be in yet, and I’m not suggesting it’s your responsibility to gather it all, but when do you expect to have the data that actually shows us what the delays have been in what parts of the system and what the reasons are?
Included in that, I’m wondering if there will be some documentation of how many people who were rendered or were already homeless and may not have had access to the internet for some of the reasons my colleagues have already laid out. Will there be any accounting for how many of those may have had the administrative breaches that were raised as issues?
It strikes me, in addition to the hacking issues and all the other issues that have been raised, there are some very real issues around access to justice for those who, as we’ve already talked about, are in more remote locations. Although we can get the internet on the space station, we don’t seem to have it throughout this country.
I’m curious to how that is being documented. If there isn’t a plan to do it, maybe why and how? Back to my question that I asked the minister, how will this be remedied when there are wrongs? How will people know how to get that remedy? Right now, I don’t see how individuals in those circumstances would know how to access that. They won’t even know about this bill, let alone figure out how to get remediation.
Ms. Davis-Ermuth: Thank you for your question, Senator Pate. As you alluded to, unfortunately we don’t have the data right now, but we are not the best people to expand on the plans. Our colleagues from Statistics Canada would be better able to speak about that type of data. We have been speaking with them and trying to get the information that we can. I know that they have plans and have been in communication with their counterparts across the country, because for the most part, data on the criminal justice system delays comes from the provinces and territories themselves. I do know that our colleagues from Statistics Canada have been working on that.
In terms of the question of administrative breaches, that’s also something they’re looking to track information on. Because Bill C-75 had some amendments in that area we are trying to have some of those breaches — where it may have been out of somebody’s control whether that breach occurred — tracked to see the effect of those particular amendments in Bill C-75. Those are the judicial referral hearings that they have the option of having as well as not laying charges. They are looking to collect those types of data.
Then probably the provinces and territories that would need to speak to a problem like backlogs. That is one of the things they have to do, because they have a limited time to deal with cases. They have to triage and try to make sure that they’re dealing with the most important cases. Those might be some of the cases they would look to resolve in another way outside of the judicial system.
Ms. Morency: Some provinces’ courts have their own data. I know we’re aware of a couple, and we can provide a link to that from one of the Ontario courts where they’ll track some of the progress. I took a quick look at one of those last night in Ontario, and if my recollection is correct, the data was early days in the pandemic, so it probably will take a bit of time before they can really assess the true impacts of how everything is working during the pandemic in advance of whatever reforms Parliament might enact here. Those are the main sources. And then, to my point, I think this is obviously an area where — as we did following Bill C-75 — have to work closely with the provinces and territories, whether it’s through in-house data sharing, to get a better sense of how things are working on the ground and then to work with our colleagues at Statistics Canada to try to get a better sense.
Senator Clement: I have a similar feeling to that of Senator Batters around this credibility issue. Having sat through these virtual hearings and seeing the administrative tribunals struggle with a witness that’s crying, it’s difficult to proceed. While I think there’s no going back, I also worry about what that means, and that’s why the issue of data is so important. I’m looking forward to maybe hearing from Statistics Canada on this so we can feel more comfortable.
I heard you, Ms. Davis, in answer to a question from Senator Patterson around consent, which is an important piece here — we need consent — but there was no discussion around informed consent. Can you explain how this bill speaks to consent and why it doesn’t define it further than how it is set out in this bill?
Ms. Davis-Ermuth: Yes. At this point many of the provisions on consent were already in the remote appearance provisions. Most of them have been relocated and possibly expanded in terms of the contents of that particular provision. We hadn’t received any information that there had been challenges in determining the meaning of consent. However, there is case law. I don’t have it with me here today, but it is something that the courts are in the practice of assessing.
Senator Clement: That’s ongoing as well, then.
Ms. Davis-Ermuth: With a lot of these things, because these provisions hadn’t been used very much, many of them were new, and there wasn’t the same appetite or need to use them to the extent that they’re being used, so there wasn’t a lot of case law at the very beginning of the pandemic on many of these provisions, and then there was a proliferation. We’ve been following the case law and the developments, looking at how successfully they’re able to be used and continually assessing whether there are other issues in using them.
Senator Clement: Thank you.
Senator Cotter: This question is going to be about the degree to which judges are trying to become better trained, given they’re going to be dealing with people in a different format than they have historically done.
There’s an awful lot of data out there that shows that no one is very good at assessing credibility of people. There are some studies that secret service agents are the only ones that are good at it, and we usually don’t ask them to be judges — I think that may be wisely so. So many people end up getting wrongfully convicted on the basis of an inaccurate assessment of credibility. And, quite frankly, on the other side of the coin, quite a few people are probably wrongly acquitted for the same reason. This seems to me to present the opportunity for that problem. We do our best — everybody does their best — but there’s not a particular magic skill to knowing when people are telling the truth or not. But there seems to me in this dimension of the way in which see witnesses or see the accused testifying in a remote way to make that even more difficult. I’m wondering whether you know of or whether judges have been encouraged to try to get some professional development to understand the additional challenges that Senator Campbell was talking about that get added into the piece when all you’re able to see is somebody’s head on the screen when they’re testifying.
Are we familiar with what the judiciary has been thinking about, or whether there’s encouragement, or if the National Judicial Institute is giving some thought to this? Before you answer, I want to apologize to all the former judges in the room, in various capacities.
Ms. Davis-Ermuth: I haven’t heard anything about that type of training. What we have heard is that they had a hard time prior to the pandemic. They had a hard time having uptick with use of technology, so it was kind of like a non-starter, because there were many. I think it’s a bit of a process. Now that we’ve gotten to the point where it was a necessity, people are starting to use it more, and there seems to be an assessment in terms of what we need to do now. The first step is to make sure everybody can use the technology, and the next step is to figure out what we can do with it, what makes sense, that type of thing. I don’t have information about where they are with their training at this point, though.
Senator Cotter: On the technology approach, I was glad to hear you referencing Chief Justice Morawetz and the Superior Court of Ontario’s work, as it is generally thought of — at least within the judiciary — as a best practice approach. Credit there to the new Chief Justice. That’s encouraging. If that’s the degree to which you or other courts are modelling their approaches, that probably deserves applause.
Ms. Davis-Ermuth: There’s a show, and I think it was the CBC. The three Chief Justices in Ontario were interviewed about remote technology and remote work in the courtroom and how it was going, and that’s a very interesting show in terms of hearing their views on remote proceedings and what is appropriate.
[Translation]
The Deputy Chair: As we know — and as you can tell from our discussions — this reform will affect hundreds of players in our justice system. I am convinced that you have consulted widely. We can think of the provinces, which are responsible for administering justice.
Do you have a table of your consultation process that possibly includes a summary of the position of those who were consulted? Has any work been done on that front in the department?
Ms. Morency: As the minister just said, the people who have been consulted since the beginning of the pandemic are the provinces and territories, the main stakeholders, the players in the criminal justice system, the members of the Action Committee on Court Operations. We don’t have a chart like you’re asking for.
The Deputy Chair: My concern is about victims’ groups, which are an important part of the legal sphere. Have you consulted the victims’ groups?
Ms. Morency: It’s true that we’re working with the provinces and territories. I’ll continue in English.
[English]
We have a working group of directors providing services to victims. Throughout the pandemic, that working group has had a very intense focus on the impacts the pandemic is having on victims through the whole of everything that is happening in the courts. For example, victims not necessarily being able to appear at a parole board hearing, initially not at all, and then after they were able to appear virtually. We’re working through that process to get a better sense up front of what is happening in each province and territory, what they are doing to support victims through the process and what we can do through federal resources such as the victims’ fund to support and help them to deliver services. I am happy to say that I think we will hear more about that through the Victims and Survivors of Crime Week that will be celebrated in the week of May 15. It has been a concern for all of those providing services to victims.
[Translation]
The Deputy Chair: I’d like to thank our witnesses, as well as our senator colleagues. We have learned more about this bill, and we will continue our work in the coming weeks. Thank you very much.
(The committee adjourned.)