THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Monday, June 13, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:02 a.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 Mobina S. B. Jaffer (Chair) in the chair.
[English]
The Chair: Senators, today we are resuming our 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).
We have with us to answer technical questions only, two officials from the Department of Justice Canada, and we welcome Shannon Davis-Ermuth, Senior Counsel — Team Lead; and Normand Wong, Senior Counsel — Team Lead, Criminal Law Policy.
Senators, we left off on clause 46, where we had begun discussing the amendment labelled DB-S4-46-20-19. I would ask Senator Batters to give a short recap of the amendment.
Senator Batters: Thank you very much. This particular one responds exactly to the recommendation in the Canadian Bar Association’s brief. It is dealing with adding the different criteria listed in the amendment given here — it would add those criteria in the context of the testimony of the accused or the offender. That would be regarding technologies, whether the proceedings are accessible to the public, security of proceedings and those participating in them, and whether conditions can be established to ensure that the court and parties can evaluate credibility of the witnesses.
In addition to the factors recommended by the Canadian Bar Association, this amendment adds one factor, which is not in their brief, on assessing credibility of the witnesses. The addition of that criterion is an alternative to the Quebec Bar’s — the Barreau du Québec — recommendation to prohibit the presentation of testimonial evidence other than in person.
As you said, Madam Chair, the consideration of this particular amendment started in committee at our May 18 meeting and it’s ongoing.
This amendment, I should say, is actually brought forward by Senator Carignan, who is not a member of this committee, but he is the sponsor of the bill, so he asked me to put it forward for him, and we had discussed it in some depth already at the previous meetings, and there is a brief recap. Thank you.
The Chair: Thank you, Senator Batters. Senator Dalphond, you can also brief us on what you were saying about this amendment last time to refresh people’s memory. You were talking about the discretion of the judges, senator.
Senator Dalphond: Are we on number 3 or number 4?
The Chair: We are on clause 46.
Senator Dalphond: Article 46. Yes. Okay. I think I heard 24-4, so I think it was a mistake.
The Chair: No. It was the page. I was talking about the page.
Senator Dalphond: Thank you. I didn’t speak last time, so I don’t have to refresh whatever I said. I read the transcript. I think Senator Carignan explained it. Senator Dupuis was questioning him when we stopped.
If Senator Dupuis has completed her questions, I will have a question for the officials.
The Chair: Senator Dupuis is not here as yet. Go ahead with your question, Senator Dalphond.
Senator Dalphond: I understand the purpose of what Senator Carignan said. I don’t know if he’s attending.
The Chair: He’s not.
Senator Dalphond: He wanted to implement the Canadian Bar’s suggestions, and I thank the Canadian Bar Association for these suggestions as well as Senator Carignan for putting them forward. However, we have to understand that this is coming in a section that is dealing with, on page 46, outlining some criteria that have been used in other sections of the act. So if we do make amendments here, there might be some problems. I would like the officials to comment on this.
The Chair: Senators, if this amendment carries, then we do have clause 47 that also has amendments if these carry.
Senator Dalphond: But there are others that were not subject to that bill that will have to be amended. I would like to ask the question to the officials.
The Chair: Sure.
Senator Dalphond: If you can authorize me.
The Chair: Absolutely. Go ahead.
Senator Dalphond: I will invite the officials to comment because I believe this draft, what has been proposed, is copied from existing provisions elsewhere in the Criminal Code. So would you please explain where it is found elsewhere, and what would be the consequence if we amend one or two and we don’t amend the other one?
Shannon Davis-Ermuth, Senior Counsel, Team Lead, Department of Justice Canada: Thank you very much for the question. I’m just checking my notes. There is a list of a considerable number of sections that use these criteria, as Senator Dalphond mentioned, and as the chair mentioned. One of them is proposed section 715.25 in clause 47, but these criteria, prior to being added to this section of the Criminal Code with Bill C-75, were modelled on other provisions in the code — I apologize, my list is escaping me right now; I did prepare a list for this — such as the provisions in relation to witnesses, and those are in section 714 of the Criminal Code.
The listed conditions that are in the sections right now are not the only conditions that courts can consider. It’s an inclusive list so that it is open to courts to consider other factors.
One other thing that the committee might want to consider is whether the types of conditions that the Canadian Bar Association is suggesting adding would be covered by the existing conditions, and whether there’s any danger in getting super prescriptive with a number of conditions but not with others, because once the list starts getting longer and very specific in some areas, courts may be less likely to consider some other factors that might be relevant in those particular cases.
I apologize. I’m not sure why I’m not coming up with that list. I thought I put it in my documents last night.
Senator Dalphond: If I can assist you, I retrieved my list myself, another list. I see the judges, section 715.26; participants, 715.25; and witnesses, 714.1.
Ms. Davis-Ermuth: Thank you very much, yes.
If the committee is considering changing the list and these provisions that are being amended, it may also want to look at the conditions in those other sections as well to see if it will create any kind of imbalance to have these mentioned in these particular sections, as opposed to the others, which are not being touched by this bill.
The Chair: Senator Dupuis, you have some comments on this, on the last section. We didn’t finish in the last meeting. It’s on DB-S4-46-20-19. It’s clause 46.
[Translation]
Senator Dupuis: I have no comment. Thank you.
[English]
Senator Dalphond: Just to wrap up, the list that she has provided in the bill is a non-exclusive list. It says, “. . . by the means that would be appropriate having regard to all circumstances including . . . .” So we have a list there. It’s judicial discretion. I know that it’s a matter of style. Some people like the common law to be long-style; they provide a lot of exceptions, and then they say, “ . . . and other exceptions if possible.” That’s probably subparagraph (2), which has been proposed. That’s another way of drafting.
I would suggest we keep the proposed way of drafting because, otherwise, we’ll have to revisit many other sections, and it may result in inconsistencies. I also would like to mention that some of these criteria are repetitive, for example, accessibility of the proceedings to the public; it’s already said there. It says that the trial has to be public. That is repetitive of what has already been said in paragraph (d), “the accused or offender’s right to a fair and public hearing.” In a sense, sometimes, when we want to say too much, we repeat ourselves.
I would stick to that list to avoid any doubt. I would conclude by saying that, for example, I have the Guidelines on Access to Hearings During the COVID-19 Pandemic that were issued by the Superior Court of Ontario. I have a judgment from the Alberta Court of Queen’s Bench that provides for security of participants, for example, and it’s also very familiar for those who attend courthouses that you have measures that are implemented under the current code to protect the safety of witnesses and participants. For example, at the courthouse in Montreal, all the criminal proceedings are held on specific floors where you have gates that you must go through, like at the airport, before you can walk into these courtrooms. The system is used to dealing with these issues. Thank you.
The Chair: Senator, just for clarification, you are saying that we should not amend this section?
Senator Dalphond: I would recommend that we do not need to amend.
The Chair: We do not? Anyone else? Any other comments?
Senator Batters: I would respond that this was obviously very carefully considered by the Canadian Bar Association, people who deal with these issues every single day. We bring these witnesses in front of us for good reason. They can tell us exactly what’s happening and how they see that these particular bills could be modified to make them better and to make their lives as defence counsel, Crown counsel, other types of participants in the legal system, better and more workable. These are the exact things that they said are needed.
There are a few other issues, like the issue that Senator Dalphond just raised about the right to a fair and public hearing for the accused in the one section, and whether the proceedings are accessible to the public. I think that is actually a difference. Some of these parts that are potentially going to be added here dealing with technology and security and those types of issues, as well as specifically about credibility — those are things where, particularly on the technology, we saw the downfalls of using these types of technology here. So it’s then put into it.
Referring to COVID guidelines, that’s not Criminal Code. That’s just what courts have put into place during a very difficult situation to deal with some of these issues and to deal with security, of course. I was practising law on a regular basis not that many years ago, but the courts, of course, have had different security measures. That doesn’t necessarily mean that, with the change in technology, there couldn’t be additional things that are needed, and that’s why, I think, the Canadian Bar Association, which represents so many lawyers across the country and has really looked at this in a thorough way — I think that their provisions make a lot of sense, and that’s why they’re putting them forward.
The Chair: Anything else? No? We’ll have the roll call vote.
Mark Palmer, Clerk of the Committee: Senators, for clarity, we’re voting on the motion DB-S4-46-20-19.
The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: No.
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: Abstain.
Mr. Palmer: The Honourable Senator Harder?
Senator Harder: No.
Mr. Palmer: The Honourable Senator Pate?
Senator Pate: Yes.
Mr. Palmer: The Honourable Senator White?
Senator White: Yes.
Mr. Palmer: Yeas, 3; nays, 5; abstentions, 1.
The Chair: Honourable senators, the motion in amendment is defeated.
That’s clause 46, and because that has been defeated, honourable senators, shall clause 46 carry?
Senator Batters: I think it’s a different amendment, a different section, right? The second amendment that I have to explain today. Is that correct?
The Chair: We’re just talking about clause 46, senator.
Senator Batters: Okay. Thank you.
The Chair: Senators, I’m going to ask again. Shall clause 46 carry?
Some Hon. Senators: Carry.
Senator Batters: On division.
The Chair: Carried, on division.
Senators, we now go to clause 47. For all senators, it’s DB-S4-47-23-4.
Senator Batters: On this one, this is again —
The Chair: Senator Batters, I don’t want to be rude. I don’t want to cut you off, but it’s almost the same as the previous one.
Senator Batters: That’s right, yes.
The Chair: I want all senators to know it’s exactly the same as we just voted down. Do you still want to proceed with this, Senator Batters?
Senator Batters: Yes.
The Chair: Okay.
Senator Batters: I’ll just read the text of the amendment first. Again, this is one brought forward by Senator Carignan, the critic of the bill. Sorry if I said “sponsor” for that first one; I meant to say “critic.” He is not a member of the committee, so I’m presenting it for him.
This one reads:
That Bill S-4 be amended in clause 47, on page 23, by adding the following after line 4:
“(3.1) Paragraphs 715.25(2)(e) and (f) are replaced by the following:
(e) the accused’s right to a fair and public hearing;
(f) the nature and seriousness of the offence;
(g) whether the technology is available to ensure a stable connection that allows for presenting exhibits and for full participation in the proceedings;
(h) the accessibility of the proceedings to the public;
(i) the security of the proceedings and those participating in them; and
(j) whether conditions can be established to ensure that the court and parties can evaluate the credibility of witnesses.
(2.1) If the court allows or requires a participant to appear by audioconference or videoconference, it may establish any conditions on that appearance that are appropriate in the circumstances.”.
For this particular one, the Canadian Bar Association wrote after their testimony to Senator Carignan that this particular amendment to 715.25 was necessary to supplement the amendment to 715.23, which, yes, was just voted down, but this would, again, incorporate the recommendation in their brief. For this particular one, this would be adding those criteria to participants. Participants — just to remind everyone — excludes the accused, the offender and witnesses. So a participant could therefore be like an interpreter or the public, those types of things.
As such, the Canadian Bar Association thought that this was something that was necessary to be done. There may be different considerations that committee members were evaluating when they determined whether those types of considerations were necessary for the accused, but the committee members here may consider that those types of considerations are appropriate in dealing with participants, who have, obviously, less vested interest than the actual accused.
Senator Dalphond: I don’t want to belabour the point. I won’t repeat what I said except to clarify what Senator Batters said. There is no amendment proposed by the government in this section, 715.25. They’re proposing some amendments that were not contemplated by the government; and two, she said, “the definition of participant.” I will read what it says:
In this section, participant means any person, other than an accused, . . . a witness, a juror, a judge or a justice.
We’re talking about other people who are not witnesses. That may be public participants; that may be the bailiff attending the court and security guards and all those types of things. I don’t think it’s really necessary to elaborate these additional criteria in the provisions which have already existed since 2019. Thank you.
The Chair: Any others? If not, we’ll go to a roll call vote.
Mr. Palmer: The Honourable Senator Batters?
Senator Batters: Yes.
Mr. Palmer: The Honourable Senator Boniface?
Senator Boniface: No.
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 White?
Senator White: No.
Mr. Palmer: Yeas, 1; nays, 8.
The Chair: Honourable senators, the motion in amendment is defeated.
Shall clause 47 carry?
Some Hon. Senators: Carried.
Senator Batters: On division.
The Chair: Honourable senators, shall clauses 48 to 50 carry?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: Shall clauses 51 to 60 carry?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: Shall clauses 61 to 70 carry?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: Shall clauses 71 to 77 carry?
Some Hon. Senators: Agreed.
Senator Batters: On division.
The Chair: We go to clause 78.
Senator Cotter: This is a proposed amendment to supplement the existing bill to call for the responsibility of the Minister of Justice to initiate one or more independent reviews of the use of remote proceedings in criminal justice matters. Senator Dalphond and I have had a brief dialogue, and my suggestion with respect to this amendment is that it require the minister, no later than three years from the date that the bill receives Royal Assent, to initiate such reviews. With the consent of the committee, I would like to make a modest adjustment to the proposed amendment, which would be in the first three lines of the proposed section 78.1(1):
The Minister of Justice must, no later than three years after the date on which this Act receives Royal Assent . . . .
That is an amendment that is not inconsistent with initiatives that are also presented in other bills to require that the government — and I think ultimately parliamentarians — be attentive to the effects of the proposed bill itself. That’s for the committee’s consideration. Thank you, Madam Chair.
The Chair: Senator Cotter, I’m not trying to be pedantic, but you don’t need our permission because you had not moved the motion. So you can put “three years” without any issues.
Senators, the “one year” will be “three years.”
Senator Dalphond: Thank you, Senator Cotter. The government is supportive of that amendment because the three years and the review within the next five years, a report, are consistent with what was done in the Cannabis Act in 2018 and in the amendments to the impaired driving provision.
The Chair: Senators, I want you to get an idea — I’m not speaking against this amendment, Senator Cotter; I just want you to know. We put parliamentary reviews in, but they are not carried out really well. I’m hoping that in the fall we can get some time to look at this. The analysts and the clerk and I have been working on bringing a short study to you on this issue, and I want the analyst to take a few seconds to explain what is happening with the parliamentary reviews, just for your information.
Julian Walker, Analyst, Library of Parliament: Certainly, I would be happy to share some of our research. The Library of Parliament has been aware for a number of years that statutory reviews — they can be parliamentary reviews, sometimes they’re done by the minister, sometimes they’re done by independent bodies — we’ve been keeping track of these. There are a lot of review provisions in legislation that already exists that have not received that review.
One of our colleagues in the Law Clerk’s Office from the Senate — his name is Charlie Feldman; some of you may be familiar with him — published a paper on this very topic that’s available from the library. It’s called, Much Ado about Parliamentary Review. It examines all of these issues, but we have also been keeping track. We have a chart that is about 25 pages long, and without giving specific numbers, most of these reviews, especially the parliamentary reviews, are not necessarily happening on the time they are. We’re keeping an eye on this so that at some point the committee may wish to look at that further and come up with some thoughts. Thank you.
The Chair: Senator Cotter, this was not at all on your amendment. I just thought the senators should have this information. It has nothing to do with your amendment.
[Translation]
Senator Dupuis: First, I have a question for Senator Cotter, and I also have one for the Justice Canada lawyer who is with us today.
Senator Cotter, does your wording ensure that the department will indeed conduct a review? The analyst has just confirmed one of my concerns. Depending on the wording we choose, the government will have full discretion to conduct a legislative review or not.
With that in mind, I would like to ask Senator Cotter this question. As to the wording of his amendment, what assurance do we have that the department will not have the discretion to launch the review or not? I will then ask the same question to the Justice Canada official appearing here today. Thank you.
[English]
Senator Cotter: I have three thoughts here. One, I recognize that it appears that in various circumstances, ministers of various departments tend to ignore or not move expeditiously with respect to provisions similar to what appears here. I am hopeful in two respects: One is that I like to think of the Minister of Justice and Attorney General as having the greatest affinity to law and that they would, therefore, follow legal prescriptions like those presented in this amendment.
Second, I think this topic is of significance to a wide range of influential participants, not just the ministry itself and the minister but also the judiciary and their interest in whether the amendments that get acted upon here are actually proven to be effective in terms of the administration of justice. When one thinks about the roles and responsibilities, for example, of chief justices in the administration of their courts, there are important participants in the justice system who have a significant stake in the success or shortcomings of the initiatives that might get undertaken over the next few years in respect of this amendment.
I also think that the profession itself and certain components of active civil society have a significant interest in the successes that these amendments might bring to efficiencies in the administration of justice or vulnerabilities that might be created. I’m sure that the Canadian Bar Association will be attentive to these questions, as will victims’ rights communities and people who are responsive to the concerns of prisoners who may have effective or not very effective remote access to proceedings, depending on whether the legislation is implemented effectively.
There will be a number of voices who will, if I can put it bluntly, want to know, and this will, perhaps more than some of the other types of provisions that were just spoken to and about which, I guess, Charlie has written — there is a greater degree of hope for responsiveness here.
To be honest, I had not been appreciative of the idea that ministers of governments have simply ignored legislative directives to do these sorts of things, and it troubles me that this has happened in the past. I don’t know the process by which one holds a minister accountable for failing to initiate a review. In a case like this, I think the matter is important enough, and it’s in the hands of the Justice Minister, so we can have more confidence than, perhaps, usual. Thanks.
[Translation]
The Chair: Senator Dupuis, do you have another question for Ms. Davis-Ermuth?
Senator Dupuis: Yes, I do have another question. I have a lot of confidence in individuals subject to the law, be they victims, witnesses or members of the bar. What I observe, however — and I am not the only one —, is that certain legislative reviews are not conducted, for various reasons.
A very topical example is medical assistance in dying. If the Senate had not intervened with regard to the terms of the amendment, the review that was supposed to take place would not have been conducted. Even in the case of minority governments, as we have seen in recent years, there are no more incentives or pressure from social groups to obtain these reviews that are considered essential. I find that very troubling as regards the administration of justice.
My question for the Justice Canada official is the following: Technically speaking, and assuming that we agree to this amendment, what obligation would the justice minister have to conduct this review? Would there still be ministerial discretion?
Ms. Davis-Ermuth: Unfortunately, I do not know what happens if the department does not conduct the mandatory reviews, but I completely agree with what Senator Cotter said about the relevance and importance of studies regarding the scope of Bill S-4. Even without such a clause in Bill C-75, the department is already planning internal research to evaluate trends and reforms regarding remote appearances.
After Bill C-75 was passed, not enough research was done on this issue, and little information was obtained about it, and I know that Justice McDonald appeared before the action committee to speak to this. There are also other federal-provincial working groups that are studying this issue. I think that the proposed new clause in the bill is being reviewed and researched, which is generating a lot of interest.
Senator Dupuis: Madam Chair, I would like to return to the witness. Thank you for your effort to cover this very technical question. Does the wording chosen by Senator Cotter in his amendment ensure that a review will be required? I am not talking about interest in doing it, ministerial evaluation or administrative evaluation. I am talking just about the words and the use of the words. In your opinion, will it create an obligation for the department to launch a review or not? Thank you.
Ms. Davis-Ermuth: As a criminal law expert, I cannot answer your question. I do not know whether the department would be required to conduct a review under Senator Cotter’s wording. I can do some research though and get back to you with a written answer.
Senator Dupuis: Thank you.
[English]
The Chair: Ms. Davis-Ermuth, can you please give us a response also as to why previous reviews have not taken place? What is the reason? What is the system that has been set up? What is happening? If you can please include that in your response, I would appreciate that.
Ms. Davis-Ermuth: Will do.
The Chair: Senator Cotter, you still have your hand up. Is that an error?
Senator Cotter: I apologize for jumping in again ahead of Senator Batters, who has had her hand up for a while.
Just on this point, in the conversation I had in the development of this proposed amendment, in my previous life, I was more experienced with the phrase, “where the minister shall do A, B or C.” I was advised that the modern language for the biggest form of requirement is the word “must.” For that reason, I included the word “must” in the first line of the proposed amendment. Thanks.
Senator Batters: I just wanted to remind the committee that we have had the Minister of Justice responsible for a number of very significant reviews on major government legislation with significant, serious consequences, like the medical assistance in dying bill, which they never got to review before they brought in a second bill. The marijuana one also. We will see when these reviews happen, but I really feel like at this point, every single time there is a bill which could potentially have consequences, I’m getting quite tired of putting a review situation on it. The review does not happen, and then the government kind of just throws up their hands. I don’t know if they think they don’t have enough time.
We’re also dealing with a justice minister who has nearly 60 judicial vacancies to fill. I guess he has a lot on the go, but these types of things, I feel like it’s really disrespectful to our committee when we put such a review in place. I’m hesitant, frankly, to put a review on this, even though I think it’s needed. If they can’t get to something like assisted suicide review on time, or these other major bills, how can they get to this one on time?
The Chair: Senator Batters, not that I’m defending the justice minister, but these are not reviews just from this present justice minister. They are also reviews from previous justice ministers.
Senator Dalphond: I guess we should notice that the motion of Senator Cotter is about an independent review, not a parliamentary review, and the terms used are very strong. Within three years the minister must get that review in progress, and that review must lead to a report that has to be filed no later than five years. It’s subparagraph (2), “The Minister of Justice must, no later than five years after . . . .” So I believe that the Attorney General of Canada understands what “may” and “must,” what “shall” and “may” mean, and I assume that the Attorney General of Canada will, of course, do the same thing.
Many comments were made about parliamentary review, which is my amendment, which is the next amendment. The amendment of Senator Cotter is very strong. I can hardly speak of a harder amendment. Sorry for the pun.
The Chair: You already said that, Senator Dalphond.
Senator Harder: I want to be very brief and support the amendment because of the force of its language, and I would rather have the amendment than not have the amendment.
As to previous unrespected language of Parliament, there are opportunities for parliamentary committees to initiate reviews if they choose to, and there are ways of holding ministers to account, at least publicly, which we can use if we choose to. So I think it’s a red herring to debate previous fallibilities and we should support this because of its language.
The Chair: Senators, I want to apologize to you. I didn’t mean to challenge what Senator Cotter was doing. I just wanted you all to get information about reviews. It was nothing to do with his motion.
[Translation]
Senator Dupuis: With regard to review, I wish to clarify that it is not a question of confidence or lack of confidence. I think today we tend to create more and more mechanisms that will require governments to be accountable to the public. That is what evaluation is about.
I understand Senator Cotter’s amendment very well. I just wanted to clarify that it is not a question of liking it or not liking it. It is a question of making governments accountable.
[English]
Senator White: At the end of the day, our job is to decide whether a review is recommended. The government’s job is to fulfill it if we do. If they don’t, that’s a different discussion. I don’t know that we can have a long discussion about that. I do recommend maybe that our committee look at a research piece going forward as a committee that actually identifies the number of times over the past 10 or 15 years where recommendations or amendments were made to have a review, and when they were failed, and what happened as a result because I do think it’s a problem with governments, not government.
The Chair: The analyst, the clerk and I have been working on this. We have a piece ready to do the study. Unfortunately, as you know, in the Legal Committee we have not had an opportunity; but as soon as we can and over the summer, we will share with you Mr. Feldman’s paper and the reviews and all the details so that as soon as we are able to do a review on this, we will.
[Translation]
Senator Boisvenu: First, I fully support this proposed amendment. Like my colleague Senator Batters, I am rather skeptical about the willingness of Minister Lametti to conduct these reviews.
The Canadian Victims Bill of Rights was passed in 2015. A section in it says “a committee of Parliament is to be designated or established for the purpose of reviewing the Canadian Victims Bill of Rights . . .” That review was supposed to be conducted in 2020. It is now 2022 and nothing has been done yet. A House of Commons committee was supposed to invite witnesses to provide testimony.
I think this has to be included in the bill, with the word “must” and not “may.” There is a big difference. Thank you.
[English]
Senator Batters: I just wanted to make a couple of points. First of all, Justice Minister Lametti has been in his particular role for three and a half years, and also, with respect to what Senator Harder said, those of us who have been on the Legal Committee for many years know that we certainly challenge the minister at every turn to speak about studies that may not be under way yet or reviews that may not be under way or were significantly delayed. We also take that opportunity with the government leader in the Senate at different opportunities.
As for this committee initiating a review process ourselves, in the last two and a half years, with COVID, unfortunately with our Zoom Parliament restricting the number of committee hearings we can hold, we have not had time in those last two and a half years to do those types of review mechanisms ourselves because all of our time has been consumed with government bills generally, especially given that we only have one two-hour meeting generally per week instead of at least the two we used to have previously. This committee, I think, does very good work in holding the government and the minister to account on those important matters, but we have been hamstrung in some ways on doing that.
The Chair: Senators, is it your pleasure to adopt the motion in amendment?
Some Hon. Senators: Yes.
Senator Batters: On division.
The Chair: Thank you. Senators, there is another amendment on the same clause by Senator Dalphond. For those who are wondering, we can have both these amendments. They can both be put in. As you know, we just studied Senator Cotter’s amendment. It was an independent review. Senator Dalphond’s amendment is on parliamentary review.
Senator Dalphond: We agreed, Senator Cotter and myself, that the parliamentary review has to be considered and has to be one of the factors. I understand the limits of parliamentary review, and I’m sure that we will discuss that. However, it’s no reason not to ask for parliamentary review. That’s all. Thank you.
The Chair: Is there any other input? Can you move your motion, Senator Dalphond?
Senator Dalphond: I do move:
That Bill S-4 be amended on page 37 by adding the following after line 7:
“Review of Act
78.1 (1) At the start of the fifth year after the day on which this Act receives royal assent, the provisions enacted or amended by this Act are to be referred to a committee of the Senate and a committee of the House of Commons that may be designated or established for the purpose of reviewing the provisions.
(2) The committees to which the provisions are referred are to review them and the use of remote proceedings in criminal justice matters and submit reports to the Houses of Parliament of which they are committees, including statements setting out any changes to the provisions that they recommend.”.
That would probably become 78.2, not 1.
The Chair: No. The clerk was saying we will leave both as 78.1. We’ll pass the motion.
Senator Dalphond: I would add that the provision is drafted in such a way that it is not necessarily a special joint committee. Each house can act on its own. The Senate could do the review even if the House of Commons does not receive it, trying to make sure that something is happening.
The Chair: Senators, is it your pleasure to adopt the motion in amendment?
Senator Batters: On division.
Some Hon. Senators: Yes.
The Chair: Thank you, senators. Senators, that completes our amendments. Shall clause 78 carry as amended?
Senator Batters: On division.
Some Hon. Senators: Agreed.
The Chair: Shall clause 79 carry?
Senator Batters: On division.
The Chair: Senators, shall the title carry?
Senator Batters: Agreed.
Some Hon. Senators: Agreed.
The Chair: Shall the bill carry as amended?
Senator Batters: On division.
The Chair: Is it agreed that the Law Clerk and the parliamentary counsel be authorized to make technical, numerical and typographical changes and adjustments for the amendments adopted by the committee?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report? There are a number of observations.
Hon. Senators: Yes.
The Chair: Senators, I have the first few observations. Does everybody have the observations in front of them?
One of the many things we have heard about is delaying justice. I wanted to set that out in the observation under “Delays in Criminal Proceedings” — several witnesses had also suggested that during the Delaying Justice study we completed in 2017. The observation reads:
Several witnesses during the committee’s study of Bill S-4 stressed the continued importance of reducing delays in criminal proceedings, and urged the committee to undertake a follow-up study. . . .
I’m not going to read the rest of it.
Senators, is it agreed that we look at doing a follow-up study on issues of delays?
Hon. Senators: Agreed.
The Chair: Senators, next is one that had been put in earlier, “Ensuring Fair Trials and Protecting the Legal Rights of Accused Persons.”
Everybody has that observation in front of you. Do you want me to read it, senators?
Senator Batters: That would be a good idea, since the public will not otherwise know what you’re reading.
The Chair: That’s a good idea, senator.
Many witnesses noted that remote appearances by audio or video conferencing can improve efficiency in the justice system and promote access to justice. Some noted however that these should only be used when appropriate and should not replace in-person proceedings when those would better ensure fair hearings and protect the legal rights of accused persons. Judges will retain the option to order in-person proceedings at any time.
Should this observation carry, senators?
Hon. Senators: Agreed.
The Chair: The next one is, “Court Interpretation.”
Many witnesses noted that the use of virtual appearances could expand the ability to access interpreters across Canada who are not locally available during judicial proceedings. Access to interpretation is an essential element of ensuring procedural fairness and avoiding court delays. This being said, virtual interpretation should not replace in-person interpretation when the latter is necessary to ensure a fair trial. Witnesses emphasized the need for investment in technology and other resources to allow for effective simultaneous interpretation during virtual judicial proceedings and to ensure in-person interpretation remains available as needed.
Senators, should this observation carry?
Hon. Senators: Agreed.
The Chair: The next one is, “The Legal Rights of Accused Persons in Custody.”
Some witnesses underscored the importance of protecting the legal rights of accused persons in custody during virtual proceedings, particularly how these apply to privacy, security, confidentiality, and the ability of an accused to confer with defence counsel. They raised concerns that these rights were not being sufficiently respected.
Should this observation carry, senators?
Hon. Senators: Agreed.
The Chair: We will go now to Senator Cotter’s observation.
Senator Cotter: This is a brief observation. It argues for an urgent observation encouraging commitment of investments in technology and facilities to ensure appropriate access to proceedings.
My concern, and I hope the concern of other members of the committee, is that essentially what the opportunity for remote access to hearings and proceedings does is that it expands the courtroom to other locations.
While it would be typical for the judge to maintain attentiveness to her surroundings in terms of the regular courtroom and have expectations related to privacy and opportunities for lawyers and accused persons to be able to have private dialogues, the extension of the courtroom now — through this virtual model — to other locations essentially calls for the same kind of principled consideration to those locations as an extension of the courtroom.
We had heard testimony from witnesses that that was not the case in many sets of circumstances where remote hearings, whether they were taking place in correctional centres or penitentiaries, were made available.
This is an observation to say that it is the responsibility of the Government of Canada to ensure that that expanded courtroom, if I may call it that, meets standards that are appropriate and responsive to vulnerable communities, including those who are incarcerated. That’s the purpose of that observation.
Thank you.
The Chair: Thank you, Senator Cotter.
Shall this observation carry?
Hon. Senators: Agreed.
The Chair: The last observation is from Senator Dupuis.
[Translation]
Senator Dupuis: I will read out my observation:
The committee notes that the purpose of Bill S-4 is to make provisions introduced during the COVID-19 pandemic permanent. Emergency measures had to be adopted for the judicial process to continue to operate by electronic means, as in‑person proceedings were out of the question. These include the possibility of remote appearances by audio or video conference, the use of electronic or other automated means for the jury selection process, the participation of prospective jurors by video conference, the application and issuance of search warrants, authorizations and orders by various means of telecommunication.
The committee recognizes that the use of technology has become part of the judicial system and will continue to be used in the administration of the judicial process.
Several witnesses expressed concern about the continued use of such measures. The members of the committee are equally concerned about the decision to make such measures permanent without studying the impact of such measures: 1) on the fundamental rights of individuals who have been charged or detained, marginalized individuals, victims and witnesses; 2) on certain stages of the judicial process, including the presentation of evidence.
The committee considers that the choice of the accused to consent to the use of such measures must be the only factor that triggers the use of such measures, unless the court deems the absence of consent contrary to the interests of justice.
Thank you.
Senator Dalphond: Would the senator agree to a change in the interest of clarity?
Certain provisions were introduced by the courts during the pandemic, while others were introduced as of June 21, 2019 further to Bill C-75.
I am wondering if we could add some nuance. I agree with the second paragraph. The third paragraph says: “Several witnesses expressed concern . . .” Instead of “the continued use,” it could say “the use of such measures,” because I think some lawyers were referring to measures that had been in effect since 2019.
Senator Dupuis: Yes.
Senator Dalphond: Similarly, perhaps we should replace the first sentence to focus instead on the use of measures, some of which were introduced during the pandemic.
Senator Dupuis: Yes.
[English]
Senator Batters: Thank you. I wanted to say that we don’t too often have this many observations on bills expressing this much concern with a number of different parts of the bill where the bill has passed.
So it’s for many of these reasons — the concerns about how technology will be dealt with, how accused people will be dealt with, all of these kinds of things, concerns about how fundamental rights and the actual criminal justice system will fare under this type of situation — that Senator Carignan and I brought our particular amendments.
I just wanted to point that out that it isn’t typical that our committee have this number of observations, but it certainly expresses the concerns that we heard. I’m accepting of those for that reason, but I also just wanted to say that I really hope the government actually pays attention to these observations, unlike with too many other bills we’ve seen where our observations, again, seem not to have been heard properly.
The Chair: Senators, is it agreed that we accept this observation?
Hon. Senators: Agreed.
The Chair: Senators, is it agreed that the steering committee finalize these observations, taking into account today’s discussions?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report this bill, as amended, with observations, to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you, senators, for all your patience.
We will not have a meeting on Wednesday to continue with Bill S-4 since we have finished studying Bill S-4. In the afternoon, we will do clause by clause on Bill S-210, Senator Miville-Dechêne’s bill.
(The committee adjourned.)