THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, May 18, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:16 p.m. [ET] for the consideration of 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 Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: Senators, before we go to Bill S-4, we have to deal with a budget issue. We have before us a budget of $6,000, which we ask for annually to purchase updated Criminal Codes. Senators, is it agreed to adopt the $6,000 budget and present it to CIBA?
Hon. Senators: Agreed.
The Chair: Thank you, senators.
Senators, most of you know all this, but I’ll just remind everybody about a number of points.
If at any point, a senator is not clear where we are in the process, please ask for clarification. I want to ensure that, at all times, we have the same understanding of where we are in the process. I’ll try to go slowly, but if I’m not, please slow me down.
If a senator is opposed to an entire clause, I would remind you that in committee, the proper process is to vote against the clause as standing as part of the bill.
It would be useful to this process if a senator moving an amendment identify to the committee other clauses in this bill where the amendment could have an effect.
Finally, I wish to remind honourable senators that if there is any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote, which obviously provides unambiguous results.
Senators are aware that any tied vote negates the motion in question.
Senators, we have government officials from the Department of Justice Canada here today to answer technical questions if they arise: Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section; Shannon Davis-Ermuth, Senior Counsel — Team Lead; and Norm Wong, Senior Counsel — Team Lead, Criminal Law Policy.
Senators, are there any questions? I see no questions, so I’ll proceed.
Senators, is it agreed that the committee proceed to clause-by-clause consideration of 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)?
Hon. Senators: Agreed.
The Chair: Senators, I’m proposing that we group the clauses and we agree on 10 clauses each. If there is an amendment, and we know of them beforehand, we will not group them. Is that acceptable, senators? Okay.
Shall the title stand postponed?
Hon. Senators: Agreed
The Chair: Shall clauses 1 to 10 carry?
Hon. Senators: Agreed.
The Chair: Shall clauses 11 to 20 carry?
Hon. Senators: Agreed.
The Chair: Shall clauses 21 to 30 carry?
Hon. Senators: Agreed.
The Chair: I’m not hearing “carry.” I assume it’s carried.
Shall clauses 31 to 40 carry?
Hon. Senators: Agreed.
The Chair: Shall clauses 41 to 45 carry?
Hon. Senators: Agreed.
The Chair: Senators, shall clause 46 carry?
Senator Batters: I have an amendment to propose on that one. I propose to clause 6, pages 21 and 22:
That Bill S-4 be amended in clause 46,
(a) on page 21, by deleting lines 4 to 16;
(b) on page 22, by replacing line 5 with the following:
“means, other than a trial for a summary conviction or indictable offence, the court may allow the accused or offender to”.
The Chair: Senator, can you hold for a second? I want to make sure everybody has the amendments. Does everybody have the amendments? Yes, okay.
Senator Batters: On this particular one, honourable senators, given the substantial evidence we have heard in the Senate Legal Committee, I’m proposing this particular amendment to Bill S-4 to remove the portions of Bill S-4 which would allow the accused to appear and testify at their criminal trials by video conference.
Under this act all criminal trials, despite their severity, could be held this way; both summary and indictable trials to be conducted this way. I submit that for criminal trials where the credibility of the accused is almost always a major issue to be determined by the judge, video evidence is not sufficient. There can be many different technical reasons, but I submit that a vast problem with this is the issue of credibility.
I am certainly not proposing that all video conference ability for the accused be taken out. That’s something that’s dealt with in several sections in this particular bill. It would still be allowed under my amendment for other types of criminal court proceedings and appearances, including bail, preliminary inquiries, pleas, sentencing and other types of proceedings. Only trials would be removed from this.
In addition to the credibility concerns, I thought we actually had some helpful evidence that came forward from a number of witnesses that we had at our meetings. I want to reference a few of them because they brought a very important different perspective on this. I will start with Emilie Coyle, Executive Director of the Canadian Association of Elizabeth Fry Societies. She testified partly dealing with the issue of stigma for an accused. When I had an opportunity to question her, I said to her: “I’m concerned about how Bill S-4 allows an accused person to testify by video at summary trials . . . .” Now I know it’s also indictable. I went on to say:
. . . I think your opening remarks — and you also expanded on it a little bit just recently here — provided us with some really important context on that issue about the stigmatization that can exist for an accused testifying from jail. Because what can happen, it can cement in the trier of fact’s mind — in this case the judge — that someone being seen in a jail setting during a trial should, perhaps, remain in jail and potentially give a bias to a guilty verdict.
Ms. Coyle responded by saying:
Thank you. I’m grateful for that question, senator, and I think that stigma aspect I spoke about is really something that we don’t consider when talking about video conferencing. . . .
Again, what I said at the outset was that our society assigns judgment to people who are in prison without understanding their background.
Because we have this idea that people in prison are bad — we put bad people in prison — that that judgment that we cast upon people who are in prison would lead potentially to an outcome in trial that would not necessarily have been the outcome had that person not been in prison.
Maybe they would be able to put on a suit that their family had given them. Maybe their family would be sitting behind them in the courtroom. Just those subtle differences influence our bias.
Then when I was questioning Mr. Knox, from the Canadian Council of Criminal Defence Lawyers, I proposed to him the possibility of an amendment about taking the ability to have summary offence trials and, of course, indictable trials by video out of Bill S-4 and leaving the other types of court proceedings in it. Mr. Knox responded:
. . . I agree with you. If we do back away from this peer model that’s been developed over 150 years, there are places we could start to see how it works.
Then as well, Ms. Tache-Green from Nunavut Legal Aid also testified. You will recall that we had some significant difficulties with her ability to testify in front of us at our committee. I said to her:
. . . In your opening statement, you talked about how you were urging caution and you provided us some really important points of view, both in what you said and then in how your testimony actually came out. First of all, you talked about how 24 out of 25 communities in Nunavut don’t have technology to do a videoconference in court, which is quite alarming. Then, partway through your testimony, your face froze and it came through for us saying ’network bandwidth is low,’ and that’s when the chair wisely asked you to turn off your video so we could still hear you and we did hear you well with the audio alone. You’re in this particular position working in a legal aid office, I imagine with some generally decent connectivity, and probably a lot of the clients would not have that sort of thing. I’m wondering if you could comment a bit more on that.
Then I went on to say:
. . . I’m quite concerned about having video trials where the accused would be potentially subject to these types of situations. I’m wondering what you think about the possibility of, rather than using video for a summary trial, instead of using video if it’s to proceed, with having video for a number of different court appearances like bail, guilty pleas, sentencing and things that are generally briefer than a full-on trial, before having that. What do you think about that possibility?
Ms. Tache-Green from Nunavut Legal Aid responded:
I am very interested in your comments about perhaps holding off on making videoconferencing available for trials and starting with proceedings that have lesser jeopardy. . . .
I’m very concerned about the possibility of trials proceeding with an accused who is, of course, the person with the most at stake, being potentially cut out of the proceeding by the technology breaking down.
So we had a number of different reasons that showed when we’re expanding our ability to have technology on such critical matters as trials, perhaps we should simply start with these matters of lesser jeopardy, as Ms. Tache-Green put it, and deal with things like pleas, bail, preliminary inquiries, sentencing. All of these things would be allowed to have video conferencing but simply not trials under the amendment that I’m proposing.
[Translation]
Senator Dupuis: I’d like some clarification here, Madam Chair.
From what I understand, Senator Batters has introduced three amendments. Would she please give us the number of the amendment she’s discussing?
[English]
Senator Batters: This is the one that came on its own. This one is DB-S4-46-21-4. The other ones that are in the package of three are amendments that I’m putting forward but Senator Carignan will be speaking to those particular ones. Sorry about that.
[Translation]
Senator Dupuis: So if my understanding’s correct, we’re talking about number 46-20-19. Is that correct?
[English]
Senator Batters: No, it’s 46-21-4.
Senator Dupuis: It is 46-21-4. Okay.
Senator Batters: This was sent out as a singular amendment on its own and then there was a second email, I believe Mr. Pearson sent, that had three amendments grouped together.
The Chair: Have you found it?
Senator Dupuis: I’m still looking for it.
[Translation]
The Chair: Senator Dupuis, Marc resent it to you.
Senator Dupuis: Great, thanks.
The Chair: You’re welcome. Please tell me if you didn’t get it.
[English]
Senator White: The same for me, Mr. Pearson, if you don’t mind.
[Translation]
Senator Dupuis: So we can have an orderly discussion, could we please have the number of amendments, and would each person please identify the number of the amendment we’re discussing? Thank you.
The Chair: I think Senator Batters did that.
[English]
Senator Batters, could you repeat it?
Senator Batters: Sure. It’s DB-S4-46-21-4.
The Chair: But it’s clause 46.
Senator Batters: Yes, clause 46 on pages 21 and 22.
Senator Campbell: On page 21, deleting lines 4 to 16, and on page 22, replacing line 5 with the following? Okay, great. Thank you.
Senator Batters: Yes, that’s the one we’re looking for.
[Translation]
The Chair: Do you have any further questions, Senator Dupuis?
Senator Dupuis: No, Madam Chair.
[English]
Senator White: I have a quick question for Senator Batters. In essence, you’re arguing that all processes could be heard with the exception of criminal trials?
Senator Batters: The end of your question was cut off. What the government is proposing in this bill is to allow a number of different criminal processes happen by video, and I’m simply proposing —
Senator White: Removing trials.
Senator Batters: Yes.
Senator White: Would that include non-criminal trials, like trials under provincial statutes? Would they be included or excluded as well?
Senator Batters: This is simply an amendment to the Criminal Code which amends that part where an accused is to be present in person throughout a trial, whether that be summary or indictable, and I’m proposing that in this bill, it would amend that to allow an accused to appear, if the judge agrees, of course, but it would allow the accused to testify by video.
Senator White: I appreciate that. Thanks for the clarity.
Senator Wetston: Senator Batters, I want to confirm that the main reason you seem to be moving this amendment is because you’re concerned about findings of credibility, which is valid in any criminal trial, but not all cases turn on credibility. I was wanting to ask you why you would categorize credibility as being the main feature of continuing with the other aspects of it but eliminating trials. Also, about summary conviction trials, can you clarify that for me? Because I think you’d agree with me: It’s not always about credibility. Of course, cross-examination is an important part of that. Maybe that’s part of the reason you’re moving in this direction.
Senator Batters: First of all, as I explained when I was at the last committee hearings on Friday, this wouldn’t only pertain to summary conviction trials. It actually applies to both summary conviction and indictable trials. I had been under the mistaken impression that the government had limited the ability to have video evidence for only summary conviction trials, but no, it’s actually potentially allowed for indictable trials as well.
I started from the issue of credibility. Yes, not always but in the vast majority of criminal trials, certainly, credibility of the accused is possibly a major issue.
However, what I was bringing up in my submissions today is that after we had these capable witnesses testify, it called to mind other major problems that could exist and other major reasons to perhaps proceed slower with this type of thing, instead of running right into allowing it for the full gamut, including trials, where there are different issues and where more jeopardy, obviously, is attached for an accused. It seems like a good reason to simply allow it for all of those other types of proceedings but not yet for trials.
Senator Wetston: Thank you.
Senator Cotter: I think I understand the concerns that you have, and what I would call the narrowness of them, if I may. The existing provision before your amendment ensures that with the exception of the situation of the accused in custody in summary conviction matters, the prosecutor, the defence and the judge have the discretion not to agree to a trial by video conference. If a judge were of the view that credibility was going to be an issue and holding the trial in person was valuable, the judge maintains that authority and discretion to require an in-person trial. It seems to me in one respect — and this is kind of a riff on Senator Wetston’s point — we would be taking away the discretion of the judge if the judge thought that he or she could handle the trial just fine and that credibility could be adequately addressed either by video conference or that it wasn’t an issue. I’m concerned about the line of argument that takes away the authority of the judge to use this mechanism.
It’s a semi-question, Senator Batters. Let me just add as a postscript: I would be more sympathetic to slow walking this if we had not had the experience of COVID where, out of necessity, courts had to move aggressively to try to find and use technology to maintain effect administration of justice. My sense is that we have learned a good deal from that, and the judiciary and the Canadian Bar Association appear to be strongly supportive of this. It seems to me that expression of confidence, combined with the discretion that’s preserved in judges, makes this a reasonably safe step to take at this point. It’s kind of a rambling semi-question, but I welcome your thoughts on it.
Senator Batters: There are a few points there. Yes, there are still myriad types of proceedings that we can go ahead with in terms of video conferencing being allowed. Trials, in my view, would be the most serious of those instances, where potentially the most major circumstances could result if things really haven’t been — and also where credibility is determined and there is the most jeopardy in the finding of guilt, et cetera.
I would also make a couple of points. The Crown prosecutor does not, under the current version of the act, have to consent for summary conviction offences where the accused is in custody, which usually would be matters that are more serious than summary conviction offences where the accused is not in custody, not always but many times. As well, the representative that we had from the Canadian Bar Association who testified, he actually was not initially under the impression when he was testifying, until I was asking him the questions and reading him that particular section, that trials were included in this. With any comments he made in that respect, he had under the impression that it was for pleas and other types of situations not including trials — until I read him those sections.
Senator Dalphond: I don’t have a question. I’m going to explain why we should refuse this proposed amendment, so unless there are still other questions, I will wait.
[Translation]
Senator Dupuis: I had understood that there were objections and that certain witnesses we heard from had said they were concerned that we were switching from a system that had been established on an emergency basis to a system we wanted to make permanent. It was suggested that we should conduct studies to assess that.
Am I to understand, Senator Batters, that what you’re proposing in your amendment is that we back away from the judicial proceedings experiment we’ve been conducting for the past two years regarding trials, both by summary procedure and by indictment?
I’m trying to understand why we would do that now. I understand the testimonial evidence issue, but I’m having trouble seeing how we could justify doing that today instead of getting organized and doing a serious study.
[English]
Senator Batters: That would be the appropriate time to do the studies.
We had a witness who said, specifically, that we should be taking time to do more studies and that sort of thing before going forward with the full ability to have video conferencing allowed for accused testimony at trials. That hasn’t taken place because this has gone forward very quickly. The major component of this bill is responding to COVID, so its main purpose initially, and definitely the first time it was introduced, was to deal with COVID measures.
We’re hopefully going to be moving out of that particular time frame. During the pandemic things were done in a way that was not an ideal way to do things, because it was of necessity and emergency.
It certainly seems that where there is the ability to have good progress on things, where this type of technology is beneficial, then it is worthwhile to move ahead. That’s why I am proposing to have only trials taken out of this. I certainly wouldn’t say it is moving back the clock. I just want to make sure that we are not putting the clock on such fast-forward without the necessary studies and due diligence taking place to make sure this is being done in the best and most efficient way for everyone concerned: the victims, the accused and the justice system in general.
Senator Dalphond: I will take a few minutes to give you the full picture of the proposed amendment.
These two provisions, what is being proposed, will be related to summary trials and indictable offences. The end result of the amendment, if we adopt it, and as has been explained clearly by Senator Batters, will prevent any trial where witness evidence is going to be adduced, to be held, otherwise than in person.
Am I right, Senator Batters?
Senator Batters: Those two particular sections are just dealing with the accused.
Senator Dalphond: So the end result, if we have your amendment, is that we will have a trial when a person is charged with an indictable offence and witnesses will be called. The trial will have to be held in public in a courtroom, because a question of evidence would be at stake.
Senator Batters: No. These particular two sections, it specifically says “The court may allow an accused to appear by videoconference at a trial for a summary conviction offence.”
The second one is “The court may, with the consent of the prosecutor and the accused, allow an accused to appear.” It is just dealing with the ability of the accused. It doesn’t take away the ability, as it currently exists, to have vulnerable witnesses being able to testify by other means.
Senator Dalphond: My question is about witnesses. If your amendment is adopted, the accused will have to be in the courtroom.
Senator Batters: Yes, for a trial.
Senator Dalphond: It will be not be possible for the accused to have an indictable offence or summary offence trial by video.
Senator Batters: The accused must be present. It doesn’t say anything about other witnesses.
Senator Dalphond: No. I’m just asking the question about the accused. The accused will have to be in the courtroom. That’s the purpose of your amendment.
Senator Batters: For trial. Yes, it is.
Senator Dalphond: Thank you. Let’s speak about this.
Under the current system, you will remember that in 2019, we amended the Criminal Code with Bill C-75, to add a new part in the Criminal Code. It is called Part XXII.01, which is very short, only four provisions. It is called Remote Attendance by Certain Persons. That was the beginning of a regime with some remote appearances.
One of the provisions that we adopted at the time says that someone can appear via video. This is not as specific as the bill is now. We have other provisions that were about video appearances spread all over. The purpose of the bill is to bring all those provisions in that part of the code so that we have close to an all-encompassing regime for video and audio appearances.
During COVID, based on the general provisions which are found in these four sections, judges read that as meaning that maybe they were entitled to a video conference for indictable offences and summary trials, including where there were witnesses.
Before what has been proposed today, it was possible to have summary trials where evidence was not adduced with witnesses to be on video. What is being put before us is to make sure we extend that to also have summary trials where there will be witness evidence. This is to reflect the practice during COVID, because using the general provision, judges in many provinces and territories saw that provision as entitling them, under general provisions, to resort to it and to have appearances if it was proper to do it.
So we will be going backward compared to what we have done over the last two years. That’s my first comment.
My second comment is about the fact that this won’t apply to preliminary inquiries where the code is also amended to have preliminary inquiries through video, if the accused consents, including having evidence from witnesses. So you will have witness evidence, and that will continue to be possibly through video.
The second thing is that it will not apply to when the accused enters a plea, even if witnesses are heard. This won’t apply for sentencing, even if witnesses are heard.
What Senator Batters has targeted are only two provisions, those trials for summary convictions and those trials for indictable offences. There are other cases where there will be witness evidence where video will be used, but not for trials.
I wonder if this is the way to go. It will be confusing, I think.
What we heard from the witnesses who appeared before the committee, especially in remote areas and in the North, and I remember very well the testimony of the lawyer representing the Indigenous Bar Association, that the use of video, especially for summary proceedings, was a great improvement. Otherwise, people have to travel 500 kilometres to a courthouse in order to be present in the courtroom to hear the evidence that’s going to be presented, and they could otherwise have heard that evidence from their remote area.
He gave that example of someone who was hunting on the Quebec side of the border but living in Ontario and will be charged with hunting out of season, for example. That person would have to travel 200 kilometres to hear the evidence, because — if the amendment is adopted — that person will not be able to do it through video.
I think this is running against the principle of access to justice and making it easier for people. The same is true for indictable offences. Not only is it going backward, but it is not access to justice and an imposition on people who select to have their trial through video to have it. Remember, none of these, trials for summary convictions or indictable offences, are possible without the consent of the accused. Thank you.
Senator Campbell: I do not believe that we are turning back the clock. In fact, I don’t think that we’ve moved forward on the clock a huge amount because of COVID and because of our ability to use Zoom.
I don’t want to get between a judge and a lawyer here, but as a layperson, a trial is a big deal, especially if you are the one who is on trial.
Senator White: [Technical difficulties].
Senator Campbell: We have to consider the seriousness of this. One of the principles of Canadian justice is that you get to face your accuser. In facing your accuser, I don’t know whether we would call that credibility or whatever, but there is an element of that which is very important.
I have testified in many trials, and I understand that concept.
But, as importantly, I think that every Canadian — and I know we are always fighting this — but every Canadian needs to be able to be treated equally. After I saw that demonstration from Nunavut, which was, as Senator Batters said, probably from someplace that considered it had decent connectivity, we see that that simply is not true. It is not just Nunavut. If you go to the west coast of British Columbia, or Vancouver, you don’t have to get that far out of Dodge to run out of that connectivity.
I think that every Canadian should have the right to appear personally. Now, it may be a big step to say nobody gets to appear personally. But I’m not a firm believer that we have the technology right now to be able to do this without difficulties or problems.
We use this hunting in Ontario. That’s not the kind of thing we are talking about here. We are talking about people who live in communities where we have judges and counsel. Everybody climbs on the plane and flies there. It may be old-fashioned, but we haven’t gotten to the point yet where we can move beyond that, at least in the trial.
Now, bail hearings, sentencing, all of the rest of this, as this goes on, we are going to perfect this. We will be at the point where somebody can appear. I don’t think we are there yet.
I don’t think you can discount credibility. I believe that credibility is important in every single case. The accused, the witnesses, everybody involved; credibility, if you don’t have credibility, you are not going to win that case or you are not going to be found not guilty. I think it is that important.
I will support this amendment. I don’t believe it is a step back. I believe it is protecting Canadians from a technology that we have not perfected yet. We see it in the Senate all the time too. I will support this amendment.
Senator White: My concern is similar to Senator Campbell’s but different as well, because I’m looking at victims. I worked for 19 years in the three northern territories primarily. In those communities, their biggest complaint was their ability to actually participate in a trial.
Even when we would try to move a trial from a community to Iqaluit, Cambridge Bay, Yellowknife or Whitehorse, they would complain because the community themselves could not participate. Often the victims could not participate in the trial, in particular where they were not witnesses.
I am concerned about victims and whether or not they are being considered in this process. I appreciate that we should consider the interests of the accused. But I more consider the interests of the victim. I think we need to walk before we run. I’m not sure in the last two years that we have proven that we walk very well.
Thank you. I support this amendment.
Senator Cotter: Three or four points.
What this amendment does is to require the accused to be in court for a trial. It doesn’t actually answer Senator Campbell’s point, because it doesn’t require the accusers to be in the courtroom. They can testify by video conference, if that seems to be the way that the judge thinks the matter should proceed.
If you are that interested in wanting the person to be able to face their accusers, you have to require an amendment then that says that everybody has to show up in the courtroom. That is point number one.
Point number two, if the accused wants to face their accuser in the way that you’ve described, the accused can always insist on being there in person. They have that authority under this legislation. It seems to me that those are complete answers to Senator Campbell’s concern.
Let me go a little bit further. We talked quite a bit about credibility. But let me just remind you about the criminal justice process. The accused is not required to testify. Let me now talk about the real politic of defence counsel.
Most defence cases are tests of whether the Crown can prove their case. In a significant number of those cases the accused never testifies, for obvious reasons that we could discuss in another context. The real questions of credibility tend to be is the case made out well enough for a conviction?
If you think credibility is important, you should then say every one of those witnesses has to be there in person. But we’re not saying that. We’re saying the accused has to be there in person because implicitly we are saying we want to figure out whether we trust the accused who, most of the time, won’t even testify. That’s kind of a peculiar way of addressing credibility when, in fact, most of these cases turn on the quality of the prosecution evidence.
Lastly, and here I speak from experience, I did some criminal defence work early in my career. My specialty was speaking to sentence, which basically is another way of saying that most of my clients got convicted. I think that Senator Batters makes a fair observation about my qualities as a defence counsel, and fair enough.
But here is the point: In lots and lots of cases, what matters most is what happens in sentencing. Lots of people plead guilty. The judge is in need of the same kind of credibility assessment of an accused regarding contrition, seeking forgiveness, apology, all of those kinds of things. We don’t touch that in here. We are satisfied that that will work out fine even in the context of video conferencing, even audio conferencing here if video conferencing is not available.
So if we assert that in-person is necessary, we’ve carved out an awfully big chunk of that and said, “Oh, that doesn’t matter.” So we would have to go all-in on this question. My sense is that the system is feeling comfortable that we have made good progress here.
Given the checks and balances of either the judge, the prosecutor or the defence counsel saying, no, we need in-person here; that seems to me to protect against the risks that we have been speaking about.
I will actually oppose the amendment. I appreciate that it is advanced in good faith. But I am confident enough about where we have gotten to go with what is in the basics of the legislative proposal.
Senator Batters: Quickly to respond to a few points, when Senator Cotter says most of the time accused do not testify, I am not sure that I would say “most;” some, for sure, but I am not sure that I would say, “most.” Certainly, of course, the Crown must always prove their case. That’s critical.
But what I have proposed here is basically a cautious approach, sort of a compromise situation. I think that there are some situations that, yes, just as everyone has said, there is always the ability in a sentencing procedure — as Senator Cotter was talking about — then the judge could certainly indicate that, no, it is actually going to be required to be in-person and not to be by video. It is not like that precludes any of this, this particular act. But the trial is the most serious point of all, and where the most jeopardy attaches.
With respect to Senator Dalphond’s point earlier about the witness who talked about allowing this and it could be quite helpful as an access-to-justice issue, that witness was Mr. Bartleman from the Indigenous Bar Association.
I note that when I was asking him about this, particularly referencing northern Saskatchewan where I said that many Indigenous people lived there, of course, and they have had drastic problems with the technology. I was wondering if he had any comment about that area, and he said that, yes, there are technological gaps, major ones. The Indigenous Bar Association, on the one hand, signals and applauds this act for moving in favour of greater accessibility through video conferencing.
But then he said, however, it also notes its concerns that if the promises found within this bill are not matched by concomitant investments into technology, and not simply internet connectivity technology — which I believe the other senators pointed out — could take some time to catch up, but also training and how that technology is used, and developing a measure of comfort with that technology, this effort will be, for lack of a better term, stunted. It will not be as effective as it could be. That’s a major qualification that he made on that particular issue, and certainly we’ve seen that.
I also wanted to point out that not only have we seen Zoom difficulties in that particular committee meeting with the witness from Nunavut but also in our own chamber. We’ve seen major Zoom difficulties with senators who are from Montreal and Toronto. You don’t even have to be from a smaller rural setting or a northern community or something like that. We’ve seen major problems from the largest cities in Canada.
I think we do have a long way to go in developing the technology. Certainly, the federal government has made promises about improving technology and internet broadband across the country and that sort of thing, but none of those things have come to fruition yet.
[Translation]
Senator Boisvenu: I listened carefully to what senators Dalphond, Campbell and White said.
They put me in mind of something related to this. I asked a judge who appeared here whether any studies had been conducted on the management of trials by videoconference, and there didn’t seem to be any; directives were issued, but no studies were done.
Senator Dalphond says that judges have been able to hold trials and appearances by videoconference since Bill C-75 was passed. I believe that’s true, but do we have any studies that show there haven’t been failures in that regard? What Senator Batters is ultimately proposing is that we adopt a more cautious approach. I’m concerned because no studies have been done on the subject in the past two years when it was possible to hold such appearances.
Senator Dupuis: Under the proposed amendment, we would revert to the in-person system for the trial phase; we want to remove the trial part from the present system, which was put in place as a result of the COVID-19 pandemic.
It seems to be taken for granted that the in-person system works very well. That’s absolutely not the case, in rural regions, remote communities or indigenous communities. At any event, I can tell you that’s the case for Quebec.
If the in-person system worked so well, and if we were all convinced of it and the studies showed it, that would be one thing. However, the studies prove the opposite: It doesn’t work well.
We now want to eliminate part of the present system, which provides for the use of videoconferencing — Senator Dalphond referred to this — which we proposed in 2018-19, even though no studies have been conducted on the impact of removing the option of conducting a trial by videoconference.
The lack of studies has been criticized, and this is exactly what we’re being asked to do: to remove part of the present system without having had the opportunity to study the impact of doing so.
I’ll conclude by saying that we’ve learned from the human rights case law of the past 40 years that substantive equality among people doesn’t mean that everyone has to receive the same treatment, in the same way, or that we all have to be treated the same way.
In some cases, substantive equality may mean that a trial is held by videoconference or in person. Consequently, it can’t be said that you’re being treated fairly because you’re being tried in person but unfairly if you’re tried by videoconference. That’s not what the case law tells us.
Consequently, I can’t support this amendment.
Senator Dalphond: To piggyback on what Senator Dupuis just said, the present section 715.23 of the Criminal Code permits appearances by audioconference or videoconference where the court so orders. This provision was used more creatively during the pandemic and is now proposed to be replaced by codified provisions stating that such appearances may be allowed solely with the consent of the accused and the Crown in most cases.
Second, it must be understood what a summary trial is. It isn’t necessarily a major affair that lasts two hours; it may be conducted in 15 minutes before a judge. Documentary evidence is adduced, and a witness may produce documents but won’t even be questioned at length on their content. Now accuseds would be required in all cases to be present in the court closest to their homes. What will happen is that, if the burden on the accused is too great, they will simply plead guilty and fail to appear because they’ll still be able to plead guilty without being present in court.
The section on pleadings by videoconference is still valid; Senator Batters doesn’t propose to amend it. Consequently, the result will be as follows: People who don’t wish to take a day or two off work to go to court, or who are subject to physical restrictions and so on, will be forced to plead guilty.
It seems logical to me that we should reject the amendment. I understand the intent and the reason for raising the question, but, as Senator Wetston said, that train left the station long ago. What’s proposed here isn’t that all trials should be virtual; there are no concerns on that point because the general principle is still stated in section 715.21 of the Criminal Code:
Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so personally.
The principle still favours the in-person trial, with multiple exceptions granted with the consent of the accused. I think this is a system that represents the best of both worlds.
[English]
Senator Pate: I agree with the sentiment behind this. I’m curious as to whether any of the other amendments that people see would address some of the procedural protections that I think are at the heart of what you’re proposing. Because I share — as you can no doubt tell from some of the questions of the witnesses — the concern that this has been developed principally for the system to make it easier to administer justice from the state’s perspective and is not necessarily focused on the protection of the accused and others who are part of it.
I know talking about this particular amendment is a bit beyond the scope, but some of the other amendments might address some of these issues, if I’m reading them correctly.
The Chair: Ms. Morency, do you want to say anything?
Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: Apologies, Madam Chair, I regret I wasn’t able to hear much of what Senator Pate was saying. If it’s agreeable, could I ask my colleague, Ms. Davis-Ermuth, to encapsulate what the existing law is? I think that will also help to speak to the point that Senator Dalphond just made about the existing starting position that Bill S-4 maintains.
Shannon Davis-Ermuth, Senior Counsel — Team Lead, Department of Justice Canada: Thank you. As Ms. Morency pointed out, Senator Dalphond has mentioned these provisions. But I’ll mention a few technical effects that might result if this particular motion were carried.
Because the proposal in the motion would be to remove the provisions relating to trials that would be relocated and modified and put into the new part on remote proceedings, there is one clause that has already been passed or carried. That’s clause 38, which would repeal part of section 650(1.1).
That subsection right now is a provision that does expressly allow the accused person to appear remotely at trial except where evidence is being presented. Because that has carried, that would be repealed from the bill unless that can be reversed. So that’s one area that could be viewed as a step backward because that’s a provision that has been in place since 1994.
Because the motion would take away the amendments in Bill S-4 that would specifically speak to trials, indictable and summary conviction trials, that would undo that authority the courts currently have to allow accused persons to appear this way.
Then looking forward to a clause of the bill that has not been voted on yet, looking ahead a little bit, there’s clause 51 in relation to subsection 2.1 of section 800 of the Criminal Code. That’s a provision that currently allows in-custody accused persons to appear remotely for parts of their trial, and that’s with the consent of the accused and if allowed by the court. That’s the provision that currently does not require the consent of the prosecutor.
That’s why, in proposed section 715.232(b) there’s a distinction between (a) and (b) — if the accused is not in custody, the consent of the prosecutor is required. But if they are in custody, it’s not. The reason for that is that has already been the law under the Criminal Code since 1997. So the bill does not propose to change that because there haven’t been any concerns identified from prosecutors to date about not having the ability to consent in those particular cases.
One of the considerations, as I mentioned, is that this motion would take away some of the express authorities that currently exist in the Criminal Code to have trials where evidence of a witness is not being heard, and as Senator Dalphond has also mentioned during the course of the pandemic.
Two things were at play during the course of the pandemic. There were the conditions of the pandemic that urged greater scrutiny of the provisions of the Criminal Code that allow remote appearances for different proceedings and different purposes, and then there was also the arrival of the amendments in Bill C-75 that expanded the ability for remote appearances.
To date, many courts have found that they do have the authority under the existing provisions of the Criminal Code to hold entire trials with the accused persons appearing remotely. One of the ways they’ve done that is under section 650(2)(b) of the Criminal Code, which allows the accused person to not be present for parts of their trial under certain circumstances. They’ve also done it with section 715.23 of the Criminal Code, which was enacted with Bill C-75 in 2019, sometimes in combination with those two and sometimes with one of them alone.
If I may, one of the potential benefits that the committee might consider in relation to the fact that many of these trials are already being heard is what Bill S-4 proposes to do by putting these two particular provisions in the part of the code dealing with remote appearances, is it puts them squarely there. It provides the clear path to do so, but it also does it in the context of the other safeguards that exist that are in this section that speaks to things like access to counsel and make it very clear which types of considerations the court should consider.
Not to say that the courts haven’t been considering those things already and that they don’t know what needs to be taken into consideration, and there are many existing principles of justice that they already take into consideration and are required to do so when exercising their discretion. But now those factors that are in the proposed section 715.23 of the Criminal Code would clearly apply when they’re making these decisions, and some of those other provisions that I had mentioned that are in the current Criminal Code don’t expressly provide that type of guidance to courts in terms of factors to consider when making these types of decisions. Thank you.
The Chair: Thank you. Senators, is it your pleasure to adopt the motion in amendment?
Senator Batters: First of all, with respect to what the Justice official was just saying, she was saying that apparently it’s correct that the Crown prosecutor has the ability to consent where it’s a summary conviction trial and the accused is in custody. But if that’s true, then they’ve confused even the Canadian Bar Association, who in their brief indicated that they thought that was an amendment that should happen, is the ability for the Crown prosecutor to consent where the accused is in custody for summary conviction trial. I just point that out.
Also, Senator Dupuis, when she was giving recent remarks, it’s actually precisely for those types of reasons that Senator Dupuis noted that the current in-person system is not working perfectly and there are many improvements that could be made. That’s why I’m proposing this kind of a cautious approach, which would allow video conferencing for many of those different types of criminal proceedings — pleas, sentencing, preliminary inquiries — those types of things. And simply trials is the one that I think is currently just a little bit too far.
As well, Senator Carignan very smartly reminded me that the Barreau du Québec, they are people who are working on the ground in the criminal justice system every day and they are opposed to video testimony for accused at trial. Thank you.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
[Translation]
Senator Dupuis: No.
[English]
The Chair: We’ll have roll call.
Mr. Palmer: The vote is on the motion in amendment. Shall it carry?
The Honourable Senator Jaffer?
Senator Jaffer: No.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: Yes.
Mr. Palmer: The Honourable Senator Clement?
Senator Clement: No.
Mr. Palmer: The Honourable Senator Cotter?
Senator Cotter: No.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: No.
Mr. Palmer: The Honourable Senator Harder?
Senator Harder: No.
Mr. Palmer: The Honourable Senator Pate?
Senator Pate: No.
Mr. Palmer: The Honourable Senator Wetston?
Senator Wetston: No.
Mr. Palmer: The Honourable Senator White?
Senator White: Yes.
Mr. Palmer: Yes, 4; no, 8.
The Chair: Honourable senators, the motion is defeated.
Honourable senators, I’m going to have the clerk verify what the next step is, because we have amendments on the same clause. The next amendment, Senator Batters.
Senator Batters: I believe this next one — and I’ll start by reading the number so everyone gets it correct — is DB-S4-46-20-19.
I’m going to read it out and then ask Senator Carignan, who has prepared this one —
The Chair: Just to clarify for everybody, Senator Batters is moving the motion because she’s the member, but Senator Carignan will explain it.
Senator Batters: Thank you. As he is the critic of this bill. This particular one, it’s for clause 46, page 20:
That Bill S-4 be amended in clause 46, on page 20,
(a) by replacing line 19 with the following:
“715.23 (1) Before making a determination to allow or re-”;
(b) by replacing lines 32 and 33 with the following:
“lic hearing;
(e) the nature and seriousness of the offence;
(f) whether the technology is available to ensure a stable connection that allows for presenting exhibits and for full participation in the proceedings;
(g) the accessibility of the proceedings to the public;
(h) the security of the proceedings and those participating in them; and
(i) whether conditions can be established to ensure that the court and parties can evaluate the credibility of witnesses.
(2) If the court allows or requires an accused or an offender to appear by audioconference or videoconference, it may establish any conditions on that appearance that are appropriate in the circumstances.”.
[Translation]
Senator Carignan: Before continuing with this amendment, I had another amendment. It may be more logical to consider the other one first, the one that would add a section 715.223, which provides for the possible revocation of consent.
[English]
Senator Batters: Senator Carignan was saying it’s most logical to start with a different one. Sorry, you had to listen to me read that long one. That is shorter. This is DB-S 4-46-20-17:
That Bill S-4 be amended in clause 46, on page 20, by adding the following after line 17:
“715.223 (1) If any provision in this Part requires the consent of a prosecutor, an accused or an offender, that consent may be revoked at any time.
(2) The revocation of consent under subsection (1) does not affect the validity of any proceedings that occurred prior to the revocation.”.
[Translation]
Senator Carignan: Thank you, Senator Batters, for presenting that amendment. That’s the first time in 12 years that I haven’t been able to move an amendment as a member of the committee.
Listening to the witnesses and reading the transcripts, I really wondered about the nature of free and informed consent. Having spoken with practising lawyers, and having practised myself, I can say that people involved in a trial are surprised at the way the proceedings are conducted. They may give consent, but I’ve often heard people say, “Had I known, I’m not sure that…” or “Had I known, I would probably have…” When that occurs in the course of a criminal trial, it may be too late to say, “Had I known, I wouldn’t have proceeded…” or “Had I known that the technology wasn’t up to snuff and that that would cause credibility problems…” Even if people are being advised by a lawyer — they don’t even have a lawyer in some cases — they realize, as they see how the proceedings are being conducted, that they could affect them and have greater consequences than they had imagined.
As for the practical problems raised by the Barreau du Québec, particularly by Mr. Marchand during his testimony before the committee, I think it’s important to have a specific provision permitting the revocation of consent. That circumvents the entire issue of free and informed consent. Simply put, the accused or prosecutor realize that there are problems and that they aren’t comfortable with the process and then decide to revoke consent. The entire process then continues in person, and nothing previously done is nullified.
I think that’s a satisfactory way to solve the problem. You may tell me that the judge can terminate the process. Yes, the judge may terminate the process, but he isn’t required to do so. The judge’s assessment may not be one that the accused would share. In a fair and equitable trial, it seems to me that the prosecutor and the accused must have the option of revoking their consent.
[English]
The Chair: Does anybody else want to speak?
Senator Dalphond: I understand the spirit and intent behind it as explained by Senator Carignan, but I think it’s unnecessary and as a matter of fact I can see some odd effects with that.
It’s proposed to add to the general provisions additional provisions. We already have in the bill, at page 20, section 715.222, a new provision called cessation, which says that:
If the court allows or requires a person’s appearance or participation by audioconference or videoconference under this Part, it may, at any time, cease the use of those technological means and take any measure that it considers appropriate in the circumstances to have the person appear at or participate in the proceedings.
So that will apply to the accused. That will apply to any person, and that could be a witness or even a third party participating.
But this is under the control of the court. What has been proposed to us is if any of the accused or the prosecutor decide to change their mind that it’s automatic. I think it’s better that it be left in the hands of the court to manage it, especially when you come to the end of a trial after three days and it’s time for the arguments and one party says they don’t want to be on video anymore because it would be good to adjourn and to bring me to the courthouse two weeks from now and to reschedule, or two months from now. I would prefer that it be through the management of the court through the judge rather than being an absolute right of any party, including the Crown, who may decide they won’t have the accused now present in the courtroom because they want to force him to drive and come to the courthouse, whatever the reasons they have.
I understand the idea, but it’s built into the system. I will conclude by saying that remember before the general principles there is a section called principles, where the principle is that everything is in person except otherwise authorized. If the accused says, “Judge, I want to stop being on video — I want to be in the courtroom,” this is the principle, and the judge will have to act accordingly.
I think I prefer to leave it at the discretion of the court, not to be an absolute right of the Crown or the accused.
Senator Batters: I support this amendment. I think it’s a good exercise in making sure that we proceed in a more cautious way. And I think what Senator Dalphond said, yes, it is the court that would determine whether that would cease and therefore the judge — not the accused that we’re supposed to be the most worried about — including what if it’s a very bad technological situation yet the court doesn’t agree and the court thinks no, no, we’ve gone this far; we’re not stopping there. There could be many reasons — not the Crown prosecutor who in some situations can consent to it, but the court. In most cases that might be perfectly fine, but I can certainly foresee situations where it may not be and I think this is a good fail-safe situation.
[Translation]
Senator Dupuis: I have a question for Senator Carignan.
How are we to reconcile section 715.222 proposed under Bill S-4, which would grant the court discretion to cease the use of technological means and to take any measure that it considers appropriate in the circumstances, with your second subsection, which adds the following: “The revocation of consent under subsection 1(1) does not affect the validity of any proceedings that occurred prior to the revocation?”
How do you reconcile your addition in subsection 2 with the discretion that’s already granted to the court to determine the effect it will have, for example, on the cessation of the videoconference?
Senator Carignan: It’s an essential factor that the judge must consider in determining that effect. The issue of consent is an essential ingredient that must not be left to the judge’s discretion. I don’t know whether that answers your question.
Subsection 2 provides that the revocation of consent doesn’t affect the validity of any proceedings that occurred prior to the revocation. Here we want to avoid the effect that Senator Dalphond referred to. In other words, it won’t affect any part of the trial that has been conducted to that point and won’t call the trial as a whole into question. It won’t be possible to use this provision to cause delays, to try to start the process over from scratch or to invoke the judgment in Jordan to explain any delays. Any such delays wouldn’t be attributable to justice, the administration of justice or the prosecutor but rather to the accused’s decision. That’s the idea behind this notion in subsection 2.
You may discern two different schools of thought here: first, that of Senator Dalphond, who was a judge and who trusts the judge and the judgment of his present and former colleagues, and, second, that of the practitioner, which is more my own, in which I will make sure I know what’s good for me. That will depend on me alone. At any event, I’ll be the one who bears the consequences of my decisions. These are two completely different visions. The purpose of my amendment is to ensure that consent is free and informed. In the event of unforeseen circumstances that affect the accused or prosecutor in the way the trial is conducted, we would be ensuring that consent may be revoked. The judge would then be bound by the decision of the Crown or of the defence to revoke consent.
Senator Dupuis: Senator Carignan, how would subsection 2 be applied if the prosecutor gave his consent? When you say that wouldn’t affect the validity of any proceedings that occurred prior to the revocation, what happens if the prosecutor consents and then withdraws his consent?
Senator Carignan: The idea is not to start over from scratch. Let’s say the prosecutor decides to revoke his consent upon discussions with the victim. The evidence is before the court, several witnesses have been heard and concerns have emerged about the credibility of the trial, the impact it may have on the victims, for example, and the decision is made to conduct the trial in person rather than by videoconference. That can’t have the effect of annulling the testimony. What has been done cannot be erased.
Senator Dupuis: We’ve just received the text, so I’m on the same page with you.
Senator Carignan: I understand, and I’m trying to explain it to you.
Senator Dupuis: Your answer clarifies the matter in my mind. Based on the way it’s expressed in the subsection (1), if any provision in this part requires the consent of a prosecutor, is there a provision in this part that requires consent?
Senator Carignan: Yes, there are certain provisions.
Senator Dupuis: There are provisions that allow people to appear by videoconference. They say that it has to be with their consent.
Senator Carignan: So it requires consent.
Senator Dupuis: It provides the possibility for an accused to consent.
Senator Carignan: Precisely.
Senator Dupuis: But it doesn’t require their consent. Perhaps it’s a problem with the wording.
Senator Carignan: According to the wording of the bill — and Senator Dalphond or the officials could clarify this — my understanding is that consent is required. It’s an essential condition. Without consent, there can’t be a videoconference.
Senator Dupuis: That means there can’t be a videoconference without the accused’s agreement.
Senator Carignan: Or the prosecutor’s.
Senator Dupuis: In some instances, the prosecutor too. Okay. That answers my questions. Thank you.
[English]
Senator White: Thank you very much for your explanation, Senator Carignan. I want to make sure I am clear. If we are three days into a trial, your amendment suggests that if the accused decides they would like a continuance in person, then the three days aren’t lost. They just continue the trial as any other continuance except it would be done in person? Is that what you are suggesting, there is no loss of the work that has been done up until that point?
Senator Carignan: Yes.
Senator White: That is a nice succinct answer.
The second part is — and now I shall put it to you a little bit more — that realistically what we are talking about here are the rights of the accused to make decisions and, as they often do in trials, to change their minds, often from not guilty to guilty or other avenues they have now. We are suggesting that this is a new strategy. I think a lot of people will not fully understand what they are getting involved in. They may be sitting in a jailhouse video conferencing room, not with their lawyer, who is also on a screen, with no ability to have a discussion one-on-one, and while the trial is continuing, they may say they don’t feel they are getting as fair and complete a trial as they would expect in an in-person session, and they would like to change their mind. That’s really what you are suggesting here, in essence, is to improve the rights of the accused?
Senator Carignan: Yes.
Senator White: I support your amendment. Thank you.
Senator Dalphond: I think it is important to understand these new provisions. There are old provisions that are applicable now that, in some cases, can even force the use of video conference, but we’re not talking about that. We are talking about a new regime that authorizes the accused to ask for it. If the accused is in custody, that it has his sole consent, which is required, and the judge has to approve and determine the conditions pursuant to which the remote appearance will be done. So it has to check a lot of things.
But in the other cases, except in custody, the Crown also has to consent to the request of the accused. If the Crown refuses to consent, the motion cannot be presented to the judge to authorize it, so the Crown can prevent it. The end result will be that the Crown is making it clear that the accused has to show up in the courtroom. That’s going to be not a remote appearance but in person. That’s the principle. It is always the accused that drives the process.
Here, with the amendment, the Crown could decide that it will withdraw its consent, and, therefore, what the accused obtained first will be taken away from him or her, even if the accused wants to continue to be in a video conference. I think this is against the spirit of what we are trying to achieve here.
I remind you that the big principle, the guiding principle is always section 715.21, which is that it is in person. Remote is the exception. It has to be asked for. It has to be with the consent of the Crown, in most cases. It has to be with the authorization of the court under certain conditions.
Thank you.
[Translation]
Senator Carignan: Of course, if you’re proposing a subamendment to remove the mention of the prosecutor, I would not be opposed to that. I’m assuming that those from whom it might be difficult to obtain free and informed consent are the accused and the offender.
While I assume that the prosecutor’s consent is normally relatively free and informed, and that they should be familiar with what is involved, I can’t exclude the possibility that there might be circumstances that are difficult to anticipate. Indeed, as you may have read in the testimony given by Mr. Marchand, of the Barreau du Québec, who works in the field, all kinds of unforeseen situations can arise, such as technical problems or logistical problems.
And even the Crown prosecutor might experience problems of this kind which, they feel could affect the trial. The intent of my amendment is mainly to provide for the free and informed consent of the accused and the offender. The prosecutor is included because it can be an issue for the prosecutor too, although much less often.
Senator Dalphond, if you are proposing a subamendment to withdraw the question for the prosecutor, I would not be opposed to that, but I think that it might apply on both sides.
Senator Dalphond: I’m not proposing an amendment. I understand that we have to draft this quickly, and that there is not enough time to examine each and every aspect of these sections. What I’m saying is that this section does not belong in the proposed legislation.
Senator Carignan: That’s the problem at the outset [Technical difficulties] in S, rather than in a chamber of sober second thought.
[English]
Senator Cotter: I am sympathetic to this amendment, particularly for the principle that’s being advanced and Senator Carignan’s description of it primarily being to accommodate an accused person who would be far less likely to be a participant in the process than the prosecutors, who know the game. They are able to say at the outset if they think a video conference would work in this kind of case or if it won’t.
My only concern is the way in which the withdrawal of consent. Sometimes it might be a prosecutor, but it could be an accused who may withdraw consent for tactical reasons. I don’t know how to deal with that. There is a process in relation to lawyers and conflict of interest that the Supreme Court of Canada embraced called the unreasonable withholding of consent. That is then judicially determined. It is in a different context regarding lawyers and conflict of interest. It’s a good idea; I don’t know whether it’s functional here. If it is, it probably has to be put into the hands of a judge.
Maybe because this is the question for an accused person, we shouldn’t make a judgment on whether it is reasonable or not. My own concern is the degree to which somebody might choose to use the withdrawal of consent to disrupt the proceedings. If I could get my head around that, I think I would be fully supportive of Senator Carignan’s amendment. If he or others have a thought on that, I would welcome it.
[Translation]
Senator Carignan: I think that if, historically or in practice, we understand that it is being used for dilatory or tactical purposes, it would always be possible to introduce an amendment and fall back on our position. There are amendments that propose conducting a study on the application of the bill. I get the impression that this amendment will be adopted. I don’t want to jump the gun, but it could be something to be studied if there are any implementation problems.
Senator Dupuis: Senator Carignan, we could instead decide to stick with section 715.222, which allows the court the discretion to allow the revocation for one reason or another. It could be studied, and the manner in which this judicial discretion is in fact being exercised could be monitored.
Could we ask the Justice Canada representatives to tell us what impact this amendment would have on the bill? More specifically, but not exclusively, with respect to section 715.222?
[English]
The Chair: Before the Justice officials, we will hear from Senator White first.
Senator White: I was going to ask the same thing — if we could ask Justice what the appropriate thing is, but I am good.
Ms. Morency: Ms. Davis-Ermuth will answer.
Ms. Davis-Ermuth: Thank you very much.
With respect to all of the senators, a number of the effects that we have considered have been fairly thoroughly mentioned. Most of the effects, such as — the main thing we wondered about was the possibility of this being used to disrupt proceedings. In general, what we have heard from judges over the course of the pandemic is that they have felt they could have more control over the efficiency of proceedings if more was left to their discretion and if fewer things turned on the ability of the parties to consent. They felt they could have more control over their proceedings — the type of control that they traditionally had — if they could hear submissions from parties about the reasons for why they wanted to proceed in certain ways but, ultimately, that the judges had the discretion to make these decisions.
It is usually within their inherent jurisdiction to control the proceedings, and there are a number of factors they have to take into account when they do that. They have to balance the fairness of the proceedings, access to justice and those other factors that we’ve discussed.
Another thing, in examining the motion — and some of this has come to light during the discussion and some of the questions that have come into play — would be the effect of subsection (2). It says that it does not affect the validity of any proceeding that occurred prior to the revocation. We’re not sure if there are possibilities for unintended effects or confusion over the meaning of this subsection. It’s possible that if the reason for them revoking their consent is that there were technological difficulties with the proceedings or problems with the proceedings to that date, they might have grounds to challenge the validity of the proceedings. So this subsection is not a guarantee that the validity couldn’t be challenged.
We think it probably means that it is just trying to give assurance that, just because you revoked consent, you don’t start from the beginning again. That might not be clear, and this might require some litigation to ascertain.
The other thing that I was wondering, based on some questions that Senator Dupuis asked, is that if you have this validity clause in proposed section 715.233 but you don’t have it in section 715.222, do you raise the question of “Well, because it is not in 715.22, does that mean that if the judge does change the mode of proceedings, it does affect the validity?” Would you need that clause added to 715.222 as well, or does it create an imbalance between the two? What’s the significance of it only being in one place?
Having just seen this fairly recently, those would be the two main effects that the department would highlight for the committee.
[Translation]
Senator Boisvenu: My question is for you, Senator Carignan. I would imagine that if we were to reach the end of a proceeding and the accused decided to adjourn, that would have an impact on the victims. I want to understand whether the amendment you are suggesting would be more in favour of the defence, meaning the accused, than in favour of the Crown and the victim.
Senator Carignan: It’s impossible to answer that because it has nothing to do with whether it is in favour of one or the other, and pertains strictly to the circumstances.
I think that the purpose of a trial is for justice to be done, and for people to perceive that justice has been done. So if there are technological or practical problems that lead to neither party being at ease with the manner of proceeding, it’s better to have the revocation option.
One might well imagine that for the person claiming that these elements are causing an equity issue or are harmful to their trial, the court could well say: “You had the opportunity to revoke and you didn’t.” If people have the power to revoke ipso facto, it could eliminate the excessive use of appeals against technology-related issue.
If it’s left to the judge’s discretion, as Senator Dalphond suggested, it would provide an additional reason for appealing, because it would require a decision from another judge. That would give the accused an additional reason to challenge a judge’s decision.
As you can see, you can take one side or the other. It’s always possible to find gaps. The goal is to ensure that the process is equitable. If the accused or the prosecutor sees that there are some factors with which they are not comfortable and to which, had they known certain things they would not have consented, then they have to be able to revoke their consent. That would return us to the principle of an in-person trial. Senator Dalphond said so on several occasions: We’re back to the basic principles.
Senator Boisvenu: I never studied law as you did, but I understand that this decision is one the defence can make.
Senator Carignan: Absolutely.
Senator Boisvenu: Is this principle also applicable to a direct victim, such as a victim of sexual assault attending the trial? Can the victim have the same opportunity to say that the videoconference is not working and for the Crown prosecutor to then require the trial to resume in person?
Senator Carignan: That’s why I included the prosecutor, for the reasons I explained earlier. A victim who is not at ease will be able to discuss it with the Crown prosecutor, who could then revoke consent, simply to put the victim more at ease. That’s the reason for also including the prosecutor.
Senator Boisvenu: Thank you.
[English]
Senator Batters: I wanted to echo something that Senator White alluded to briefly when he was making his comments earlier on this amendment and pointing out the importance that — and that is what would be lost during video testimony between the accused and the accused’s counsel is the ability for them to have that direct connection, where they’re able to have those kinds of conversations immediately, in person, right side by side during a trial. Again, as one of my colleagues earlier was saying that Crown prosecutors and counsel will know how these types of things go. But that could be something that’s very different, and the accused — until they are right in that situation — may think this is a great way to go on this particular trial, to have an ability to testify by video and not have to be there in person. But they might really realize once they are actually into a trial proceeding that this is something very difficult and that it is not getting better.
Senator Carignan has explained that the previous proceedings would not be lost, but from then on they would be able to have that type of in-person connection if they found it necessary.
Senator Harder: I have not been a former judge nor have I been a lawyer, but I do think that this legislation has the right principles and the right balance. I would not support the amendment because it unbalances the balance that is there. I would support Senator Carignan’s support for the review mechanism, because we will see whether or not the judges have exercised the discretion and examinations. But it seems to me that the misanthropy of Senator Carignan versus the judges is the very same misanthropy that led to excessive mandatory minimums.
[Translation]
Senator Dalphond: I think that these provisions should all be understood within the entirety of the proposed legislation.
The basic principle is an in-person appearance, accompanied by a number of exceptions that are only possible if the accused so requests. When the accused makes the request and it is granted, the judge needs to ensure that pursuant to section 715.243, the accused or the offender appearing by audioconference or videoconference and who is represented by a lawyer must have the opportunity to communicate in private with that lawyer.
We have heard a lot of testimony, as Senator Batters has mentioned, according to which there was sometimes no video arrangement that would allow an offender to speak with their lawyer in confidence, out of the hearing of guards or others. If this is clearly not possible, such matters need to be taken into consideration by the judge before authorizing the videoconference.
If it turns out that during the trial, it’s no longer possible to be in communication with the lawyer, then the judge will clearly be required to put an end to the videoconference appearance and ask that the accused be present in person.
I believe that it’s important to remember that: The overriding principle is always the one that requires the accused to participate in the trial in person, unless the accused has requested otherwise. It’s important to remember that 95% of all these charges and proceedings are before provincial court judges, including summary offences. That means that if anything goes wrong, one can immediately appeal to the higher court to stop the trial and obtain an appropriate order to resume.
I therefore think that there are adequate guarantees in the system. I have confidence in the judges, Senator Carignan, but I also have confidence in the levels of appeal to correct any potential errors by the former.
[English]
The Chair: Senators, is it your pleasure to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: We will do a roll call.
Mr. Palmer: The vote is on the motion in amendment.
The Honourable Senator Jaffer?
Senator Jaffer: No.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Campbell?
Senator Campbell: No.
Mr. Palmer: The Honourable Senator Clement?
Senator Clement: No.
Mr. Palmer: Honourable Senator Cotter?
Senator Cotter: Yes.
Mr. Palmer: The Honourable Senator Dalphond?
Senator Dalphond: No.
Mr. Palmer: The Honourable Senator Dupuis?
Senator Dupuis: No.
Mr. Palmer: The Honourable Senator Harder?
Senator Harder: No.
Mr. Palmer: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Palmer: The Honourable Senator Wetston?
Senator Wetston: No.
Mr. Palmer: The Honourable Senator White?
Senator White: Yes.
Mr. Palmer: Yes, five. No, seven.
The Chair: Honourable senators, the motion is defeated.
On this same clause, there is another motion. Senators, we have to stop at 6:15 p.m. May I please ask steering to stay behind?
Senator White: Madam Chair, I have another meeting at 6:15.
The Chair: Senator Boisvenu, can you stay?
[Translation]
Senator Boisvenu: Yes.
The Chair: Senator Dalphond? Briefly.
[English]
Senator Dalphond: Yes.
[Translation]
Since it’s a videoconference…
The Chair: Really!
[English]
Senator Batters: This next amendment is DB-S 4-47-23-4. It’s the lengthy one that I read earlier, so I’m not going to reread it. This is the one that starts with Bill S-4 being amended in clause 47 on page 23 by adding the following after line 4. That’s the one I read earlier, and I’ll let Senator Carignan explain it.
[Translation]
Senator Carignan: The Canadian Bar Association has recommended the addition of factors that judges must take into account, including the availability of technology and the accessibility of proceedings. The trial has to be public, of course, and you are well aware that I place a greater emphasis on this public aspect. As for other factors, there is the security of proceedings and participants, and the opportunity to allow for an assessment of credibility. Some criteria may be only implied, for example, but a public trial is equitable with respect to the rights of the accused but that’s not necessarily the case. I subscribe to the Canadian Bar Association’s recommendation, and have had some amendments stemming from their recommendations drafted.
I believe that it’s important to pay attention to what members of the Bar are saying. It’s an organization that represents tens of thousands of attorneys who spend time every day in court, have experienced the technologies and the pandemic, and have seen the various problems that arise in practice. They therefore have a great deal of experience in the field and they are making recommendations about what criteria would help to cover all situations that are likely to occur. Given their credibility and the reasonableness of what they’re asking for, I would like to propose this amendment.
I’m talking about the amendment to section 715.23, which proposes the addition of paragraphs (f), (g), (h), (i) and subsection 2. The concept is based on the Canadian Bar Association recommendation.
Senator Dupuis: What does subsection 2 of this amendment mean?
Senator Carignan: It really means anticipating the unforeseeable.
Senator Dupuis: I have a question with respect to the list you have added, because there is already a list in section 715.23, namely paragraphs (a) to (e) on page 20 of the bill. If I have understood you correctly, you are suggesting the addition, after paragraph (e), of paragraphs (f), (g), (h) and (i), which would provide a set of conditions or circumstances that the court would have to take into account to decide on the issue.
Senator Carignan: That’s correct.
Senator Dupuis: So in subsection 2, you’re adding that the court may, having regard to all the circumstances, establish all appropriate conditions pertaining to the appearance; what does that mean?
Senator Carignan: Here’s an example: We’re in a videoconference and wondering whether the witness is alone in the room, whether answers are being suggested, and whether someone is giving them notes. What we are wondering is whether it would be possible to have a 360o view with a camera to ensure that the person is alone in the room. During the adjournment, in terms of witness credibility, are we ensuring that the witness is not being influenced and speaking to someone else? Indeed, when witnesses are excluded, they can’t discuss the case with anyone else, and should the judge be taking certain specific measures to ensure that the witness is not communicating with someone on the outside and that a degree of monitoring is being exercised, given the nature of the case? It amounts to the power awarded to the judge to set conditions appropriate to the circumstances.
Senator Dupuis: I’d like to know why, in subsection 1, it says the following: “if the court is of the opinion that it would be appropriate having regard to all the circumstances.” It means, among other things, that in accordance with the current list, paragraphs (a) to (e), to which we want to add paragraphs (f), (g), (h) and (i), the court may give consideration to the fact that the means were indicated with due regard to the circumstances. I’m trying to understand what subsection 2 is adding; it seems to me that it’s not adding anything, even with the expanded list, given that the court can already take into account all conditions and circumstances that it wishes, including the list in section 715.23… It appears to introduce a different kind of provision. So have we just been speaking about conditions appropriate to the circumstances in subsection 715.23, which would be your subsection 1 with the additions you have proposed? Then, we would add something that looks like it’s introducing different circumstances or conditions…
Senator Carignan: I understand what you’re getting at. In subsection 1, “appropriate having regard to all the circumstances” pertains to the judge’s decision of whether or not to authorize proceeding by videoconference. In the final paragraph of subsection 2, which mentions “that are appropriate in the circumstances,” it’s about how to apply the videoconference decision, such as technical considerations or measures with respect to how to conduct the videoconference. In subsection 1, it’s a condition to authorize the videoconference and in subsection 2, it’s about how to conduct the videoconference.
[English]
The Chair: Senators, it’s obvious that we are not going to finish. Normally, I would prefer to go to steering. The clerk has been working really hard to see if we could find some time tomorrow. We were told no. Don’t shoot the messenger, but we have Friday. If it’s not on Friday, then it won’t be when we come back because we can’t even find another two hours for the BIA. So it will be the following week.
I’m in your hands. Are we interested in Friday or when we come back?
Senator Dupuis: When we come back.
The Chair: Okay.
I’m going to stop the discussion now because we will probably be doing the whole thing again. Senators, you all have been very patient and this has been a good and respectful discussion. I want to thank each and every one of you. I’m sorry we didn’t finish today. We’ll see you in a week’s time. Thank you, senators.
(The committee adjourned.)