THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
OTTAWA, Friday, May 13, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 9:30 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.
The Chair: Honourable senators, I’m Mobina Jaffer, a senator from British Columbia and I have the pleasure of chairing this committee. Today we are conducting a hybrid meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
If you have technical difficulties, particularly with interpretation, please let the chair or the clerk know and we will do our best to solve the problem.
I’d like to take a few minutes to introduce the committee members who are participating in the meeting today: Senator Boisvenu, co-chair of the committee, Senator Batters, Senator Campbell, Senator Clement, Senator Cotter, Senator Dalphond, Senator Dupuis, Senator Harder, Senator Pate, Senator White, Senator Wetston and Senator Carignan, the spokesperson for the bill.
A reminder for senators, please only signal if you have a question. Otherwise all members are on the list of questioners. You have four minutes.
Senators, I want to thank you for being here today. If you come from the West, this is especially hard, and I apologize to my colleague in B.C. for the early time we started. The steering committee really appreciates all your support.
May I please ask that you stay a little longer when we finish this meeting as I want to just inform you of the schedule for May and June? Thank you, senators.
Senators, today we continue our study 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).
Today we are happy to welcome the Canadian Bar Association, David Parry, Lawyer; Canadian Association of Chiefs of Police, Howard Chow, Co-chair, CACP’s Law Amendments Committee; Isabelle Massé, Member, CACP’s Law Amendments Committee; and Barreau du Québec, Catherine Claveau, batonnière du Québec; and Michel Marchand, Lawyer.
David Parry, Lawyer, Canadian Bar Association: Thank you very much. Good morning. My name is David Parry. While I’m a prosecutor at the downtown Crown attorney’s office, I speak to you today in my capacity as a member at large of the CBA’s criminal justice section, and I thank you for this opportunity.
The Canadian Bar Association is a national association of over 36,000 members, including lawyers, law students, notaries and academics.
The Criminal Law Section comprises Crown and defence counsel from every part of the country. We appear in criminal courts daily and have been at the forefront of our courts’ adaptation to increased virtual proceedings during the COVID-19 pandemic. Our current views come from this balanced and unique perspective.
Put succinctly, CBA supports Bill S-4 and its objective of modernizing several sections of the Criminal Code. The brief that we submitted outlines some specific recommendations and concerns we have based upon our day-to-day experiences as practitioners. However, they are not meant in any way to detract from our overall support.
There is no doubt that increased use of technology for remote appearances can enhance access to justice. They enable accused persons and witnesses to Zoom into court rather than travel to court, which, of course, is particularly important in more rural or northern jurisdictions. They open up opportunities for parties to call witnesses, especially expert witnesses that may not have been previously available. They expand the choice of counsel available to accused persons.
They can increase the ways in which justice is seen to be done for the public, and they are particularly useful for brief administrative appearances such as set-date appearances and trial confirmations.
Nonetheless, care must be taken to ensure that remote hearings do not become a lesser cousin of in-person appearances. Solemnity of proceedings ought to be respected, and a trial judge must still be able to exercise their inherent jurisdiction to control their own proceedings.
There is also an important public aspect here of maintaining the legitimacy of court and trial processes and how the public would view a serious matter proceeding with a poor internet connection, meaning a transcript that cannot be produced; witnesses testifying from Burger King; someone pleading guilty to an impaired driving charge from the driver’s seat of a car; or recordings made of witnesses testifying or other justice system participants to be disseminated on YouTube, all things that I regrettably have seen in the past two years.
Again, none of this is to detract from our support of Bill S-4, but I say these things merely to highlight the need to ensure adequate safeguards to remote appearances and to ensure that there are sufficient resources that are provided to create these technologies.
As we write in our brief, there are concerns over the representatives of jury selection process if it should become remote.
Consent of the parties, in particular consent of the accused, must be the operating principle for all remote hearings. Nevertheless, while formal consent to the parties is required, remote hearings in practice cannot become automatic because they are simply more convenient to any particular justice sector participant. They are a very important tool, but it goes without saying that many accused persons, many witnesses and many members of the public with an interest in the proceedings may not have access to the technology or a suitable location from which to appear.
That’s why we highlight in our brief the need for these adequate investments that I spoke about and the need for video conferencing infrastructure, which is vastly superior to audio conferences.
I would like to briefly address some of the procedural considerations. Whether a matter will proceed remotely is something that must be decided early given the scheduling considerations and arrangements that have to be made for accused persons and witnesses. However, trial judges are rarely assigned in advance in many jurisdictions, so it begs the question: Who is adjudicating this question of whether a hearing is remote at the trial scheduling phase? How can potential issues be resolved in advance rather than on the first day of trial?
These are important gaps, in our submission, in the proposed legislation and our brief details some of the proposals we have in that regard.
Finally, I would like to address one of the issues we raise in our brief about the Identification of Criminals Act. While it may seem like a minor point, it’s a very important one, that is the requirement to fulfill a fingerprint summons when no charge is ultimately filed with the court.
The CBA has long raised issues around collateral consequences of involvement in the criminal justice system. The invasion to one’s privacy of having fingerprints taken when there is no charge before the court, and the effect this can have on a vulnerable person’s psychological integrity cannot be underestimated. This area truly is a lacuna in the legislation and it must be addressed in a formalized manner. Thank you and I look forward to your questions.
The Chair: Thank you very much, Mr. Parry. We now go to Deputy Chief Constable, Howard Chow, and Isabelle Massé, members of the Canadian Association of Chiefs of Police’s Law Amendments Committee.
Mr. Chow, we both come from the same province, and we were just remarking that — I’m not trying to embarrass you — not only have you gotten up early, but you’re also in uniform. Thank you very much for doing all of that for our committee. We will now hear from the Canadian Association of Chiefs of Police. I understand you will start and then Ms. Massé will finish? Thank you.
Howard Chow, Co-chair, CACP’s Law Amendments Committee, Canadian Association of Chiefs of Police: That’s correct, thank you. In my day job, I’m the deputy chief of the Vancouver Police Department.
Good morning and thank you for the opportunity to address this committee on behalf of the Canadian Association of Chiefs of Police, or CACP. Over the past two years, the world has been coping with COVID-19, and society has had to adapt to the challenges of the pandemic. The criminal justice system has also had to make adjustments to ensure justice continued to be served. As we appear to be returning to pre-COVID conditions, there are opportunities to entrench some of the positive adaptations that emerged during the pandemic.
Overall, the CACP supports Bill S-4 and its intention to make changes that will improve the administration of criminal justice while standardizing modernized procedures. In the interest of time, today, we will focus only on two areas of this bill, telewarrants and fingerprinting of individuals.
On telewarrants, our position is that we adopt the recommendations outlined in Bill S-4 to expand the telewarrant process to all search warrants and judicial authorizations. During the pandemic, there were significant limitations to the warrant process because of localized public health restrictions. As a result, concessions were made provincially to allow a more efficient process to obtain warrants.
Officers were no longer required to meet face to face with judicial justices to present information to obtain a warrant. The resource and time savings are apparent for large urban centres, but even more pronounced for remote locations where access to a judicial justice may often be hindered by distance, severe weather and road conditions.
Security and privacy concerns have been identified as impediments. However, police agencies are aware of the security structures that must be in place to handle such communication. We are already experienced in implementing such security practices when handling classified information.
It’s important to note that the proposed changes will not affect legal thresholds to obtain warrants or judicial authorizations. The judge from whom the authorization is sought will still have to ensure the legal threshold is met.
The CACP agrees with the removal of an explanatory requirement to describe why it is not practicable to obtain a warrant through conventional means. In some instances, the requirement meant that the application would have to be sworn, creating additional staffing challenges. More importantly, removal of this requirement will help mitigate defence challenges.
I will now let my colleague, Ms. Isabelle Massé, speak to the proposed changes related to fingerprinting. Thank you.
Isabelle Massé, Member, Law Amendments Committee of the CACP, Canadian Association of Chiefs of Police: Good morning, everyone. The CACP supports the legislative amendments related to fingerprinting.
In this regard, the CACP contends that the new paragraph 2(1)(c) of the Identification of Criminals Act eliminates any restrictive interpretation of the term “criminal offence” for the purpose of the enforcement of this act. The State can therefore fingerprint a person charged with a hybrid offence, regardless of the mode of prosecution selected by the prosecutor at the pre-authorization stage of complaints, in provinces where this system is in place. As a result, this amendment ensures consistency in the application of identification measures across Canada.
It should be noted that the legislative amendments introduced in Bill C-75 have considerably increased the number of hybrid offences under the Criminal Code. It would be undesirable for the effect of this reform of the Criminal Code to be the inability of the police to fingerprint individuals charged and prosecuted by way of summary conviction.
That being said, the police have observed a high percentage of accused persons not showing up on the date set for their fingerprints to be taken. The two-year pandemic only exacerbated this problem. In this context, it is important for the State to be able to benefit from additional opportunities for fingerprinting throughout the justice process, when the procedure could not previously be completed.
The CACP welcomes the possibility for a judge, at any stage of the judicial process, to issue a summons, requiring an accused or offender to appear for fingerprinting, when exceptional circumstances have prevented the fingerprinting process on previously scheduled dates.
In addition, the CACP would like to emphasize the importance of the new power granted to judges when making release decisions, allowing them to order an accused to appear at a later date for fingerprinting, when fingerprints were not obtained prior to the individual’s appearance before the court. We believe this new power will best serve the interests of criminal justice.
In conclusion, the pandemic revealed some weaknesses in the Canadian justice system. During this period, the use of digital technology has increased significantly and has been welcomed in many areas of society.
However, in many respects, the Canadian justice system has failed to take advantage of this technology in a meaningful way. Opportunities for improvement remain and we believe that the tele-warrant and fingerprinting proposals are important examples of adapting to the health situation. A return to old practices would, in our view, be a step backwards.
The Chair: Thank you, Chief of Police Chow and Madame Massé. We appreciate it.
We now go to Catherine Claveau, bâtonnière du Québec, and Michel Marchand, Lawyer.
Catherine Claveau, Bâtonnière du Québec, Barreau du Québec: Thank you, Madam Chair. Good morning, members of the committee. I am Catherine Claveau, a lawyer and the Bâtonnière du Québec. With me is Michel Marchand, a defence lawyer and a member of the Barreau du Québec’s group of criminal law experts.
Thank you for inviting the Barreau du Québec to testify on the subject of Bill S-4.
The objective of Bill S-4 is to modernize criminal procedure by allowing the courts to exercise broad powers in the way they conduct criminal proceedings and make orders. As in the case of other legislative initiatives, the proposed amendments seek to modernize and facilitate criminal trials.
Among other things, Bill S-4 aims to make permanent the solutions that were widely set up to respond to the problems encountered in the administration of justice during the COVID-19 pandemic.
The Barreau du Québec supports the objective of modernizing the justice system. On that point, technological solutions are essential tools to address problems with accessing justice and can improve the efficiency of criminal trials.
With that said, we believe that the impact of the amendments made by this bill and its anticipated benefits must be evaluated well beyond the context of the pandemic in which those solutions were conceived.
We believe that any effort intended to facilitate access to justice must also ensure quality. More specifically, it must give full effect to the procedural guarantees entrenched in the Canadian Charter of Rights and Freedoms.
Those guarantees are essential to a criminal trial, the outcome of which may jeopardize one of the fundamental values of our society: individual freedom.
The Barreau therefore believes a more thorough study of the impact of the measures proposed in Bill S-4 on constitutional guarantees such as the right to public hearings, to make full answer and defence, and to a fair trial, and the equality of all before the law, is necessary in order to support the bill.
Other factors, such as the impact of the proposed measures on counsel’s performance of their duty to represent and compliance with their ethical obligations, also have to be considered.
Relying on its mission to protect the public, the Barreau believes that the bill as introduced raises a number of questions and could undermine the support that actors in the judicial system might give the proposed reform, particularly when it comes to the proposed new video appearance system.
Without more information about the impact of video appearance on criminal procedure guarantees, we suggest that the principle of appearance in person be retained, at the very least for hearing testimony.
In addition, the Barreau proposes other solutions in relation to the principle of video appearance proposed by the bill, in particular relating to the rules that apply when an accused is in custody.
The Barreau makes one last recommendation, in this case for clarification, relating to an accused’s opportunity to communicate with a lawyer, depending on whether they are receiving legal advice or are represented by counsel.
We sincerely thank you for allowing us to be a part of the discussions on this important bill, and we are now available to answer your questions.
The Chair: Thank you very much to all of you for making yourselves available today. We are specifically happy that the Barreau du Québec is here with us as well. Thank you for being here.
I have a question for Mr. Parry and Ms. Claveau, and it has to do with interpretation.
In the past, one of the witnesses appearing before the committee discussed Bill S-4 and explained that the influence toward technology could accentuate pre-existing concerns. I’m practising law, and often the judge is asking me to interpret because there is a lack of interpreters. This is when people are visually present. Do you have any concerns about interpretation for the accused when it’s remote? If you could start, Mr. Parry.
Mr. Parry: Thank you for that question. The concern that is often raised is that there are two types of interpretation. There is simultaneous interpretation for the accused, but we also have to bear in mind other types of interpretation for witnesses or a truly bilingual proceeding.
It comes back to ensuring that the technology is in place, and when these questions or issues are decided in advance, that these are discussed and contemplated then rather than on the first day of trial. For example, I have seen situations where an interpreter comes but there is no technological capability to have simultaneous interpretation. Had that been factored into the analysis at an earlier stage, then that could have been avoided.
That’s one aspect. The second aspect is that increased remote appearances open up more opportunities for interpreters to be available from across the province or across the country. But again, that can’t just become a more convenient alternative and, therefore, becomes almost a de facto norm. There needs to be infrastructure and investments in place to ensure that remote appearances work and that we’re not just on a slippery slope of saying that because we can do everything remotely now, why do we actually need to ensure that there are adequate resources for in-person appearances? Thank you.
The Chair: Thank you, Mr. Parry.
Ms. Claveau: I’m going to let my colleague answer, since he practises criminal law and will be in a better position to answer the question than I am.
Michel Marchand, lawyer, Barreau du Québec: Good morning. Thank you for giving me the floor and for the invitation this morning.
Regarding interpretation, it obviously complicates matters that are already problematic, particularly since we don’t yet have the technology for hearings to be recorded. Everything has to be recorded, so in some places, if interpretation is simultaneous, it won’t be recorded because two people are talking at the same time. Very often, we have consecutive interpretation, whereby one person speaks, then we wait while the interpreter relays what was said, and so on, so that all hearings are completely recorded if there is an appeal later.
That’s a problem I encountered in the past still do; not all courthouses, at least in Quebec, are able to provide recorded simultaneous interpretation.
What I meant by that is that in the case of testimony, it certainly complicates the entire process. The position of the Barreau du Québec, as Ms. Claveau said earlier, is to have more impact studies, particularly regarding the evidence heard, the testimony. This is a major concern of the Barreau du Québec and the one you raise in relation to interpreters complicates matters in that regard.
Senator Carignan: I’m trying to reconcile the recommendation of the Canadian Bar Association and the recommendation of the Barreau du Québec on the subject of witnesses.
I understand that the Canadian Bar Association would be prepared to use videoconferencing when there are witnesses if the parties consent, and that can have a certain impact. However, in the case of the Barreau du Québec, there seem to be reservations. They would not necessarily use videoconferencing, even if there is consent, because there might be technical problems with interpretation or communication that will mean there can be other kinds of problems later that might cause delays or appeals, or interfere with the appeal process, because the recordings are not precise.
So you recommend not using videoconferencing when there are witnesses for that specific reason; do I understand the two positions correctly?
Ms. Claveau: In part, but I also think we can think of the concrete example of an accused or an individual who is not represented. The person might consent, for example, to doing it all by videoconference for reasons of convenience or cost, but is that person sufficiently aware of the full impact it might have on their fundamental rights? Testimony given by videoconference by a person who is not represented raises another very important question for us, which is body language. This is a hugely important aspect. That’s why we strongly recommend that for testimony, the parties should be required to be present.
Senator Carignan: Is there not some advantage in terms of access to justice? Let me explain: for an accused represented by counsel, there is also the question of costs that comes into play at a certain point. Maybe the client will say they’re prepared to assume some risk of transcription error or failure, because the trial is done by videoconference. They might decide that it will cost them $2,000 less for that proceeding and they will then be able to go all the way if they save some money, because without saving money, they won’t be able to pay their lawyer at the end of the day. There really are some advantages, aren’t there?
Ms. Claveau: Certainly. You have to understand that we are in favour of modernizing the justice system and of videoconferencing in principle. Where we have reservations is that we are making measures permanent based on the experience of the last two years, when we were in the throes of a crisis and a pandemic. There needs to be more study of all the impacts on fundamental rights, and more time needs to be taken to undertake studies. Maybe the final result will be the same, but we believe that the two pandemic years do not constitute a lengthy enough period to measure the impact on fundamental rights.
Senator Carignan: And what’s more, the technology was brought in in a rush to varying degress depending on the region.
Ms. Claveau: Indeed.
Senator Carignan: Quite. Thank you.
Mr. Parry: At the end of the day, we talked about whether there should be presumptions of in-person or presumptions of virtual, or how we’re going to figure that out.
The key theme here is consent and flexibility. We can all think of different categories of witnesses. For example, a police officer, where credibility is really not at issue because it’s a continuity officer, or it’s just truly reciting a very small part of the case. That might be something that could be by video conference. There is, then, another witness where there will have to be an in-depth credibility assessment of that witness.
It’s not black and white. Part of the proceedings could be hearing that officer remotely and then the witness in person.
This is what we detail in our brief. There needs to be a mechanism up front for addressing these issues and additional factors that are considered in the various sections, subsections 715.23 and 715.25, those additional considerations added, and that a judge is given the opportunity early on to set conditions for a remote appearance. I’ve seen it countless times where people show up on the morning of and there are problems and issues, and it is not all clear and hasn’t been canvassed. That’s where a lot of the problems lie.
Senator Boisvenu: Thanks to all our witnesses this morning; your presentations are very interesting. This modernization bill presents a very big challenge, in terms of both the law and technology.
My question is for the representatives of the Barreau du Québec. A little earlier, Mr. Parry said that videoconferences should be based on the consent of the accused. You are undoubtedly aware of the fact that there is a crime victims’ bill of rights in Canada that talks about the right to information and the right of participation.
Should the right that the accused would be given, to voluntarily choose appearance by videoconference, also apply to victims, in the sense that they be given the right to participate in a trial by videoconference or not?
Ms. Claveau: That’s an excellent question. We didn’t consider that aspect in our brief. However, with your permission, we could get back to you with an answer later.
Senator Boisvenu: You make a good suggestion when you say a study on fundamental rights should be done. I understand that you are thinking about the accused, but should that study not take victims’ rights into account?
Ms. Claveau: My opinion is yes. The primary mission of the Barreau du Québec is to protect the public. We are thinking not just about the accused, but about the public in general. Yes, it could be expanded to protect victims and witnesses who are very important at hearings in matters of criminal law.
Senator Boisvenu: Ms. Massé, you talked about the difficulty of fingerprinting for two years because of the pandemic. Do you have figures on the percentage of fingerprinting done over the last two years? Has there been an enormous decline or did it stay as it was before the pandemic?
Ms. Massé: I do have statistics that I can give you for Quebec. We have figures for 2017 to 2021. We can see a significant drop in fingerprinting after two notable decisions of the Superior Court, particularly in the decision of the Superior Court of Quebec in Lapointe in 2019. We saw a drop in fingerprinting at that point; with the beginning of the pandemic, we saw another decline in fingerprinting.
On the other hand, we saw fingerprinting rise again after the decision in Lapointe in March 2021. As you know, that decision had a major impact in Quebec in terms of digital fingerprinting for people charged and prosecuted by summary conviction. Since 2021, we have seen a rise in digital fingerprinting again and better personal protection for police when they do biometric identification.
Senator Boisvenu: Thank you.
Senator Batters: Thank you very much, all of you, for testifying today. I want to clarify a few things since I have such capable witnesses who can help me with this today.
When I first looked at this, I had a major concern about the ability of the accused to testify by video. There are many trials where credibility will be an issue, and I think it is very difficult to determine that. For some reason — I don’t know if it was something that I heard about this bill or something that I read — I had been initially under the impression that this would only be applicable for summary conviction offences. However, after looking at the act last night, I see it that it is for both summary conviction offences and indictable offences with the limitation of not for jury trials.
First of all, I want to get your confirmation on that. Also, I see, Mr. Parry, that the CBA brief indicates you have a concern that the prosecutor’s consent is not required in one circumstance, and that would be for a summary conviction trial where the accused is in custody.
I was surprised to learn that last night when I was looking at this act, because I specifically asked Justice Minister Lametti, when he was at our committee a week ago, whether the Crown prosecutor had to consent to the accused testifying by video, and Minister Lametti responded, “It is my understanding that the Crown prosecutor would have to consent.” Then I said, “I want a little more than that I suspect. I want to know.” Then his senior official said,
Yes, consent from both parties to proceed remotely and the discretion of the court to agree that it’s appropriate to proceed remotely in the circumstances of that case, and they can proceed.
I am a little concerned that Mr. Lametti did not give us the correct answer on that. So, Mr. Parry, could you please confirm for me that this bill would apply to both summary and indictable trials except, I know, not by jury? Also, could you please confirm that the prosecutor’s consent is currently not required under this bill for summary trials where the accused is in custody? Frankly, those could be the more serious cases.
Mr. Parry: Yes. Thank you for those questions, senator. My understanding is that there was no limitation on whether these provisions would apply strictly to a summary conviction. It could also apply to indictable offences and the trial of indictable offences. That’s on the first question.
On the second question, my understanding — and perhaps I got this wrong as well — is that there was no Crown consent required for in-custody guilty pleas. It didn’t seem to me that it was for trials. It was just for the guilty pleas of in-custody persons. Again, I apologize if I got that part wrong.
What I would say generally about those two considerations, if we move to a model of consent here, of flexibility, is that the parties and the trial judge are best placed to know their case. As I said in response to Senator Carignan’s concerns, these things don’t have to be all or nothing. There can be certain witnesses — and I’ve done this in the context of my practices — that do testify remotely, and then we shift to in-person for witnesses when credibility is at issue, and then we make submissions by video conference and so forth. If you take that model of flexibility and consent, the parties can typically reach an agreement: this witness has to be in person; we all agree this is the key witness. Or we all agree that this part can be done remotely because it is not a particularly contentious part of the trial.
I think the end result is that more flexibility is granted to the parties. Also, the more power that the trial judge has to control these issues up front and to make certain conditions up front can go a long way to resolving some of these issues, so nobody is caught off guard, and nobody is surprised by anything when the trial comes about.
Senator Batters: I understand that you are a prosecutor, so I wanted to point out clause 715.232, which states:
The court may allow an accused to appear by videoconference at a trial for a summary conviction offence
(a) if the accused is not in custody, with the consent of the accused and the prosecutor; and
(b) if the accused is in custody, with the consent of the accused.
It does not say “prosecutor” in that one, and then under “Trial — indictable offence,” it says:
The court may, with the consent of the prosecutor and the accused, allow an accused to appear by videoconference at a trial for an indictable offence.
It is not talking about other types of proceedings; it is specifically talking about trials there. Another big concern I have about allowing an accused to testify at trial, and the difficulties of determining credibility is we’re talking about a potentially lengthy time of an accused testifying at a trial. This is not generally a 20-minute Zoom call kind of thing.
Would you agree, Mr. Parry, that an accused at their trial could often be hours testifying? Expecting the ability to properly assess that during that length of time and to have internet connections remain stable, et cetera — could you just briefly comment on that?
Mr. Parry: Yes, I would agree with that it can take hours.
I understand your comments now about where the Crown consent is not required. I had understood it was under the section that deals with pleas and sentencing. That is where the consent was not required, but I see the point for the indictable issues as well.
Again, though, I think it comes back to this model of consent here in that everybody knows where we are best placed and how trials can be done.
There is a provision, as well, that a matter can proceed remotely, and that if, for any reason, a judge decides that it can no longer continue remotely, then the issue can be revisited and the proceedings could continue in person, for example.
Senator Clement: Good morning, and thank you to our witnesses. My questions are for Ms. Claveau, from the Barreau du Québec; I very much appreciate your comments about the need to do a more thorough study. As an organization, have you collected data over the last two years that you have shared or discussed among yourselves? Without a thorough study, I’m not comfortable with this. I’d like to see a study, but what discussions should we prioritize in connection with this bill? That would be my second question.
Ms. Claveau: Thank you for your question. We unfortunately have no thorough study available to us in order to be able to make perhaps more permanent recommendations. The important thing is to relate everything to our mission, which is to protect the public, and to ensure that when an individual is on trial for a criminal matter, all their fundamental rights are respected, that is, their right to make full answer and defence, a fair trial, and a public hearing, respect for decorum, the introduction of evidence, the search for the truth, the quality of the testimony, and various technological resources. These are all factors that we believe are very important to consider in order to determine whether the new provisions relating to videoconferencing are capable of satisfying those fundamental rights, of justifiable factors.
We must not be setting up a two-tier justice system; we all know that the quality of Internet service varies from one place to another. So a person who agrees to their trial being done by videoconference is at a disadvantage if the equipment doesn’t allow for a trial to be held with decorum or for all the nuances to be perceived. These are but a few examples, senator. We still need to do more studies and get to the bottom of things.
Senator Clement: Thank you.
Senator Wetston: I will direct this question to Mr. Parry.
You identified some issues regarding gaps, particularly in the early part of a proceeding that might be audio or done by teleconferencing. I wanted to explore something I think you would be familiar, which is that, invariably, when some of these new legislative reform occurs, both on the civil and criminal side, you often see the bench and bar working very closely together to iron out many of the administrative and procedural procedures associated with ensuring the legislation is implemented appropriately in the interests of justice and the accused, primarily.
Could you elaborate a bit more on this issue that you raised and potentially recognize, agree or disagree with my suggestion that I think the bench and bar can work out a lot of the details associated with the proper administration of justice?
Mr. Parry: Yes, senator. Thank you so much for that question.
There are two aspects to my reply. First, I wholeheartedly agree that the bench and the bar can resolve many of these issues. The tension comes in regarding the upfront issues — we call them that. Will they be delegated to off-the-record discussions, such as through judicial pretrials where things are all sorted out or by creating some sort of mechanism for an increased power of a judicial pretrial judge to make certain orders to sort things out at that initial stage? That latter element is done off the record, and that would have to be when things are not necessarily contentious.
That is one power, and that would be where the bench and the bar can work together to say, “We all understand the ground rules, and we all understand that, during pretrials, these things can be decided, we can make orders and so forth.”
The challenges is, first, where these are not on consent or where there are contentious issues — additionally, the interpretation of some jurisdictions — that the order actually has to be made by the trial judge specifically. We then have to get into the possibility of having some sort of a hearing that takes place before the actual trial where, if these things can’t be agreed on, they have to be litigated. Unfortunately, that’s something where, as much as the bench and the bar can’t work together, sometimes differences can’t be resolved. That’s why we have judges to hear the arguments and make those decisions.
The challenge is that if there is a strict interpretation — which I’ve seen in some jurisdictions — that only the trial judge can do it, then that creates a huge scheduling problem. You can think that it might need a half-day hearing for a one-day trial and other kinds of problems along those lines.
In the brief, we say that you create that mechanism that any judge of a competent jurisdiction can hear it, so it doesn’t need to be a trial judge, or you vest a pretrial judge with more case-management powers under the Criminal Code so they can make those binding orders and so forth. Those might be ways to address those issues up front, in addition to developing those practice guidelines in each jurisdiction that the bench and the bar can come up with together.
Senator Wetston: Thank you.
I would ask a similar question to Mr. Chow, specifically regarding the relationship between the police and the Crown, having to do with a lot of issues — fingerprinting, warrants and other matters. Are you in a similar position, where details can be worked out carefully between police forces and the Crown in a similar way with respect to a number of administrative matters? My suggestion would suggest that is the case, recognizing the different responsibilities.
Do you have a quick comment on that, Mr. Chow?
Mr. Chow: That is very much the case. We do that on an ongoing basis, and we continually evolve and improve on things, much like other sectors. Arguably, you could say that happened at the beginning of COVID relative to now in how we’ve improved in our use of Zoom in meetings and all the troubles we had earlier.
Undoubtedly, there will be growing pains, but other sectors are doing this and have resolved it. When we look at access to justice and the requirement to have justice met, we ask about the other sectors like remote areas and people who can’t make court dates or who suffer huge costs to go from a small town into a larger centre to attend court.
Those are some of the things we’ve seen from the policing side. But I’m very sensitive to what Ms. Claveau and Mr. Parry have said regarding some of the quorum issues that also come into play.
Senator Pate: Thank you to all the witnesses for appearing and for the work you do.
To pick up on Senator Wetston’s comments and also Mr. Parry’s indication that he would like to see some safeguards and amendments, particularly in light of the fact that we don’t have research in Canada — but given the research that has been conducted, particularly in the U.K. that shows both an adverse impact on the defendant’s rights and the effectiveness of counsel in cases where more video conferencing is used, particularly in criminal cases, and the issues that many of us — probably including some of you — have witnessed first-hand when you see the video conferencing facilities available in remand centres, and provincial and territorial jails. There are some real concerns about privacy, coercion and all of the issues you have raised.
What are the kinds of safeguards and amendments you would suggest we make? We will start with Mr. Parry, but I am happy for the other witnesses to also weigh in. Thank you.
Mr. Parry: Thank you, Senator Pate. The safeguards that the CBA recommends, which are detailed in the brief, are creating a section — I believe it’s 715.23. It would also have to extend to the participant section at 715.25 as well — is having a wider range of factors that can be considered. For example, in our brief I think we listed three of them: Whether the parties have the necessary technology and stable internet connection and so forth, special considerations about open courts, and security concerns.
The bottom line is that if you create a wider range of interests that must be considered at that initial stage when these sorts of issues are being decided, then hopefully, the participants are more attuned to issues such as, okay, this is a very sensitive proceeding, where there is a witness who is testifying against somebody who might be dangerous and there might be a fear of reprisal. That is an explicit factor that could be considered if a provision such as security concerns is incorporated.
Senator Pate: Sorry to interrupt you, Mr. Parry. I did read that in your brief and my apologies for not being more clear in my question. What I was meaning is in terms of who will do that in terms of the particularities? Right now, there are those kinds of measures that exist, obviously, with the existing use of video conferencing for bail hearings and the like. Yet my first-hand observation, as well as that of others, is that there is nobody really checking that and nobody monitoring that those safeguards are actually in place.
Mr. Parry: Yes, I would agree with that. The bottom line is that — if it comes to in-custody, there are going to have to be those investments that are made for the technology. Fortunately or unfortunately, it is going to fall upon the participants and the trial judge, in many ways, to govern the proceedings. That’s why again — I have maybe said this too many times — if these issues can be litigated early, arrangements can be made for witnesses to attend a courthouse in a remote jurisdiction, or to attend a secure location such as a police station or whatever other conditions are attached to that. We can’t fall into the trap that this is just remote or in-person. There are degrees there. There are steps that can be taken early on to maintain the integrity of the proceedings.
Again, if you vest more of the participants and the judges to make those conditions and to canvass those issues early on, that’s how you get those safeguards in place, not waiting until a later stage, when an accused person shows up from a remand facility on a telephone and says, “We don’t have video. If you want your bail hearing, it is going to have to be by phone.”
Senator Cotter: I have two questions. I think the first is primarily for Mr. Parry, but I would welcome views from Ms. Claveau as well. I would have thought that the way we would be approaching this, especially in the post-pandemic period when challenges presented themselves to the administration of justice and fairness all around and access to justice as well, is that in normal times we may have identified opportunities here to improve the administration of justice.
But I would have thought that provided that access to justice is enhanced or at least not detracted from, and the key principles of the administration of justice are preserved — the points about open courts, safety for people, the ability of people to observe justice being administered, the ability of judges to do their jobs — subject to those criteria, I would have thought that, mostly for this different approach to justice, we would have deferred to the wishes of the accused, because it is that person whose liberty rights are at stake.
I am asking the question whether we ought to try to see this whole set of amendments through that lens, and that the criteria we should be aiming for is, hopefully, improvement to but no compromise of the administration of justice, the preservation of key principles in the administration of justice, and then defer to whether an accused person wants to be there in person or not, subject to technology being available. That’s my first question.
Maybe I could ask my second one, which is really built upon observations of others. My sense is that we need to proceed with these amendments, perhaps tailor them somewhat, but we really need to know their effects. It seems to me that we need to — and here I am riffing on your observation, Ms. Claveau — require a study to be made of the impact on the various components of the administration of criminal justice? Although, quite frankly, my greatest concern is the impact on the accused and whether we have qualified accused people’s rights in some problematic way. So two questions are there.
Mr. Parry: Thank you for that question. On the first aspect of how to view these issues, I would wholeheartedly agree they ought to be viewed through the lens of the accused. There is a tremendous opportunity here, as we’ve been saying, for access to justice. And as a secondary thing, to promote some efficiency around administrative appearances and so forth, as I have tried to highlight. But the real issue comes down to, if we take the lens of the accused and use that as a basis here, then that in a sense becomes — I’m trying to think of the right words to explain this. We have to take the rights of the accused — I mean, there are other factors that have to be balanced against that, such as — one of your colleagues pointed out — there are also victim considerations and so forth.
But it becomes necessary to create those safeguards to ensure we don’t devolve into, as I said before, a de facto thing where remote hearings become completely the norm. The concern here is that if we don’t view it from a rights-based perspective, but more from an efficiency perspective, and the parties and participants start to view it from that perspective, then we get on that slippery slope where it is easier to do it this way so why don’t we do it this way all the time?
That’s why there needs to be those safeguards, that intensive case management and so forth that comes up front to ensure that doesn’t happen and that people aren’t just showing up on the day of expecting that, okay, we will just do this all remotely and so forth.
Ms. Claveau: I’m going to let my colleague Mr. Marchand, who is active in the field, answer your question, senator.
Mr. Marchand: Regarding the wishes of the accused, more and more accused persons are representing themselves. There are a lot of offences prosecuted by summary conviction; often, in those cases, there is no legal aid if there is no real possibility of a prison sentence.
That means that more and more people are representing themselves, without counsel, and I’m not certain or persuaded that these people are able to make informed decisions about whether or not to be present in court. The bill has provisions dealing with videoconferencing and that relates to the accused, not witnesses. It’s all very well to respect the wishes of the accused, but they still have to be informed wishes. It almost takes legal advice to properly understand all the circumstances, particularly in terms of credibility, as Ms. Claveau mentioned.
Next, we have to know what the repercussions are. You talked about a study I’m not familiar with, from the United Kingdom. That study talked about problems there might be in terms of communication with counsel and credibility; that is mainly what we see as problems.
I have had problems in the past, personally, with private communication with my client. Right in the courtroom, there was someone on the line, but we didn’t know. Those are real problems. Another problem is this: when there is documentary evidence to be submitted, often, in the few cases where there have been trials, the evidence had to be disclosed before the Crown; that is something that isn’t normally done. When we get to a hearing, particularly for the defence, we aren’t always required to disclose our evidence.
After that, the accused is asked to make an X on a document. How can they do that if they’re at home? What happens during adjournments?
The Chair: Thank you, Mr. Marchand.
Senator Dupuis: I’d like to thank our witnesses. It is very important for you to help us consider these issues, and we greatly appreciate your being here.
My impression is that the bill we are examining reflects an optimistic vision, that technology will facilitate everything. My question is for both the representative of the Canadian Bar Association and the representative of the Barreau du Québec.
When we talk about an impact study on the introduction of the technology, we feel that the minister has responded to something the provinces asked for; he has confirmed that to us and that’s what he says. So I think we are clearly seeing the perspective of efficiency in the bill.
What is less apparent, and I think you pointed this out at the Barreau du Québec, is the perspective of procedural guarantees, but also the perspective of people who are accused or of unrepresented victims, like victims of violence, whether spousal or otherwise. How do we guarantee that these factors will be taken into account in implementing the technology?
Should we amend the bill to provide for parliamentary review? Because of COVID, we have been using these technologies for two years now. Following on what is coming, I think there should be a review of the application of these measures. Should we review this bill in two or three years and make sure an impact study has been done? For the moment, we’re assuming that it’s fine, that it will work better and it will be fine for everyone, but nothing has been measured.
Ms. Claveau: I can answer first. Thank you, Senator Dupuis. The Barreau du Québec has not considered that suggestion, but when you ask the question, it really does kind of reflect what we’re thinking.
Making the measures permanent, so the justice system is not completely jammed during a pandemic, is definitely a big challenge. Some provisions might be put in place on a trial basis, with a review in two or three years, and that could really validate the fundamental rights of the accused.
As well, as you say, there are some witnesses, including victims, whom it really is important to consider. That would be an option, yes. The Criminal Code is a fundamental law; it is a very long statute. From the standpoint of these provisions being incorporated into the statute, if the accommodation provided ultimately failed to respect fundamental rights, it would have to be reviewed.
The Chair: Thank you, Ms. Claveau.
Senator Dalphond: I”d like to thank the witnesses for being here at the committee this morning; it is very useful to hear you. My question is for the representatives of the Barreau du Québec. I understand that the bill is the product of consultations and that it was adopted at the suggestion of the courts and various actors in the justice system, including those in Quebec.
Am I to understand that you were not consulted or you didn’t participate in that process in any way? Second, since most of these methods were used during the pandemic, did you have knowledge of any fundamental rights that were not respected because of the use of these technologies?
Ms. Claveau: I’m going to let Mr. Marchand answer your second question and I’ll come back for the first one.
Senator Dalphond: Thank you.
Mr. Marchand: As to whether we were consulted, the Bâtonnière will answer that question. As to your second question about failure to respect fundamental rights, I would say that when people are consulted, we see a few problems in the implementation.
For example, two cases were reported in which it seemed that the accused had recorded the complainants’ testimony and then posted it on social media. There were also problems with the screen. One lawyer told me that she was unable to see whether the judge was taking notes while her client testified, during a trial. We know that when we’re in a courtroom, we can see the judge’s reaction. Are they taking notes? Are they not taking notes? Are they pulling a face?
Ultimately, you have to try to see all the participants: not just the judge, but the accused too. When you see the accused and you’re standing beside them, all it takes is a wink and you understand each other, you know what it means. An accused testifying remotely means you have no control during the hearing. You have to ask for a recess each time, because a cross-examination has just ended and you want to know whether the accused has something to add. A lawyer who wants to consult their client has to keep asking for a recess.
Senator Dalphond: If I may interrupt you, Mr. Marchand, I understand those problems. But in the example you gave, the accused is represented by counsel. It’s your client, and it isn’t possible for it to be done by audio or video without their consent, so without your having explained it all to them in advance. Did I understand correctly?
Mr. Marchand: With the law as it’s practised at present, there are a lot of breaches of procedure. Some lawyers have had problems with delays under Jordan. Clients are detained for too long and the cases really need to be resolved. There have been procedural breaches and people consented to proceeding anyway, since there was no choice because of the pandemic. Obviously, if there had been an appeal later, under section 686, it would certainly have been said that everyone had agreed to proceed that way.
In a situation in which fires had to be put out, the judicial system was very strong and was able to adjust, using the provisions in the Criminal Code to try to solve the problems.
However, what is recommended in Bill S-4 and will be adopted isn’t going to solve all cases in the future. In my opinion, because of the problems we have experienced, because there have been a number of issues in terms of credibility and self-represented accused, we can’t go on this way.
As well, for a self-represented accused, what happens during adjournments? Are they alone in the house? Are they going to discuss their testimony with someone else?
There are also identification problems. One Crown attorney said to me: “Listen, we have identification problems. The guy is alone, he takes out his driver’s licence to identify himself, he isn’t represented, we’re not certain it’s actually him.” In fact, there are a lot of issues of this kind.
It’s not that the Barreau du Québec is against using technology. On the contrary, in all pro forma trials, in all motions, I find it extraordinary. However, when you come to something sensitive, like an accused’s testimony, it’s important. If we continue down this road with technology, it will probably be necessary...
Senator Dalphond: We agree that if the accused is represented, they will be advised to agree to do it or not, because the accused can’t be required to do it.
Mr. Marchand: It can’t be required, except with pro forma trials. As you say, when there is evidence, and that’s what I understand from the bill, it can’t be required. What I mean is that all of this is going to virtually become the rule; things always happen in steps. There was Bill C-75, and now we have Bill S-4. What will the next bill be? You’ll tell me that we’re not going to talk about the future, we’re going to talk about now, but we still see the pressure.
Senator Dalphond: You’re afraid it won’t be the exception, it will become the new norm and the court...
The Chair: I’m sorry, Senator Dalphond.
Senator Dalphond: That answered my questions. Thank you.
The Chair: I want to thank you all for being here. You can see there’s such a lot of interest. We could have another hour with you. I have the difficult task of cutting you off. It’s a horrible task, but I have agreed to do it, so I can’t complain.
Thank you so much for being here. We have learned a lot from you, and I’m sure we will be thinking about what you have said.
Honourable senators, we will now go on to our second panel. We have the Royal Canadian Mounted Police, Chief Superintendent Larry Montgomery, Deputy Criminal Operations Officer, Specialized Investigative and Operational Police Services, British Columbia RCMP. Thank you very much. I know it’s very early in B.C., and so thank you for being here today. We also have Jennifer Gates-Flaherty, Director General, Canadian Criminal Real Time Identification Services.
From Correctional Service Canada, we have Mackenzie Lambe, Acting Chief Information Officer, Information Management Services and Jason Hope, Regional Deputy Commissioner.
From the Public Prosecution Service of Canada, we have Shelley Tkatch, Acting Northern Coordinator and General Counsel, and from the Office of the Commissioner for Federal Judicial Affairs Canada, the Honourable J. Michael MacDonald, Action Committee on Court Operations in Response to COVID-19.
These are all government panels as you can see, senators, and we really look forward to hearing your opinions on these issues.
Please start with your presentation, Chief Superintendent Larry Montgomery.
Chief Superintendent Larry Montgomery, Deputy Criminal Operations Officer, Specialized Investigative & Operational Police Services, British Columbia RCMP, Royal Canadian Mounted Police: Thank you and good morning, Madam Chair and honourable senators of the committee. As mentioned, my name is Chief Superintendent Larry Montgomery. I am in the deputy criminal operations officer role for the specialized investigative and operational police services of British Columbia RCMP.
In this role, I hold the responsibility for strategic planning, leadership and direction of a comprehensive range of specialized services supporting operational policing. Of particular interest to this discussion, two units within my area of responsibility are the office of investigative standards and practices and the legal application support team.
The office of investigative standards and practices is a unit comprised of experienced leaders dedicated to providing assistance and guidance on major case investigations, utilizing the nine principles of major case management. The legal application support team is also a unit compromised of experienced police leaders with numerous years of experience in the use of judicial authorizations and in some of the most complex police investigations present in the RCMP.
A number of the amendments of Bill S-4 related to judicial authorizations and telewarrants would be beneficial. Specifically, allowing for applications to be made by telecommunication across all types of applications could improve access to judicial services, increase efficiencies of RCMP officers — including those who must travel in order to access judicial services — and also standardize judicial processes, which could prevent technical errors.
The amendments of Bill S-4 also illustrate that there could be additional benefit for improving effectiveness and consistency in the areas being amended, such as: procedures in section 188 of the Criminal Code; normalization of the data processing requirements between sections 47 and 47.0192 — search warrants and production orders; implementation of the use of telecommunication procedures in section 49.1 and section 490 of the Criminal Code.
However, none of this limits the benefits of Bill S-4 that would be realized if it were actually enacted. Madam Chair and members of the committee, I thank you for the opportunity to be with you today, and I welcome your questions.
The Chair: We thank you for being here. We will now go on to Public Prosecution Service of Canada, Shelley Tkatch, Acting Northern Coordinator and General Counsel. I understand that Correctional Service Canada will answer our questions, but they do not have a presentation. Is that correct? Yes? Thank you. We will go on to Public Prosecution Service of Canada.
Shelley Tkatch, Acting Northern Coordinator: Good morning, Madam Chair, and good morning to the committee.
My name is Shelley Tkatch, and I am general counsel with the PPSC in the Calgary office, which is on Treaty 7 territory. I am also acting as the PPSC headquarters northern coordinator over the summer, and in that role I provide policy and strategic legal support to the three northern offices in the PPSC in Nunavut, Northwest Territories and the Yukon. I also assist PPSC headquarters on northern issues, which also include Indigenous issues.
I have been a federal prosecutor for 30 years, and I’ve also worked in Yellowknife, prosecuting throughout the Northwest Territories for seven years. I worked in organized crime cases, serious violent offences, including homicides, and serious sexual assault cases. Many of these involved jury trials.
I hope I can provide information on the practical implications of the proposed bill to assist this committee in its work and deliberations, and I look forward to answering your questions. Thank you very much.
The Chair: We’ll go on to the Honourable Michael MacDonald.
Hon. J. Michael MacDonald, Action Committee on Court Operations in Response to COVID-19, Office of the Commissioner for Federal Judicial Affairs Canada: Good morning everyone, Madam Chair and esteemed members of this committee, and thank you for inviting me to speak on behalf of the Action Committee on Court Operations in Response to COVID-19. It’s an honour to address you, I must say.
In my role as chair of the Action Committee’s working group, I come to you from Halifax, which is Mi’kma’ki, the home of the Mi’kmaq. If I may, I would like to provide you with a very brief overview of the work of the committee.
The Action Committee was started early on in the pandemic in the spring of 2020, and it was designed to assist judicial and justice leaders in restoring and maintaining court operations across the country. Our work encompasses all levels of courts and all types of matters, not just criminal matters.
As you know, the Action Committee is co-chaired by the Chief Justice of Canada and the Minister of Justice and Attorney General of Canada. It includes members representing the highest levels of the executive and judiciary across the country.
Our mandate focuses on the short-term impacts and operational responses to the pandemic while paving the way for term modernization, medium-term modernization and improved access to justice. So it’s a national leader. The Action Committee provides a forum for senior members of the judiciary and the executive from across Canada to share information and collaborate on identifying solutions and best practices that individual courts and jurisdictions can adapt to according to their own needs.
The mandate is carried out with greatest respect for judicial independence, of course, and for the authority of the provinces and territories when it comes to the administration of justice.
With this in mind, we publish different types of non-prescriptive guidance — it’s guidance, and it’s non-prescriptive — focusing on common challenges, lessons learned, useful tips and best practices. So far, we’ve published on adapting health and safety measures to the context of the courts — including focusing on optimizing jury processes — and on impacts of the pandemic on access to justice for various marginalized groups. And, Madam Chair, let me add that we have a rather comprehensive piece on interpretation challenges when it comes to COVID-19, and I would commend that to you on our website in light of an earlier question I believe you had asked.
We look at open court challenges that come with virtual hearings, including the focus on security and privacy considerations, and we focus on court backlogs and delays tied to the pandemic and will continue looking at that into the future.
All of these resources are available on our website. Our feedback on Bill S-4 will be succinct. Our mandate does not extend to participating fully in legislative development or review, but we do provide an informal forum for members of the judiciary to voice operational challenges. To that end, the challenges raised by the Action Committee touched on procedural provisions of the code that currently require in-person appearances or filing of documents.
In many jurisdictions, we have heard that in some cases the legislation impeded the court’s ability to do things virtually when needed during the pandemic. That was the existing legislation, which, in turn, risked impeding timely access to justice for all those involved in the criminal justice system.
As we emerge from the pandemic and start to consider the longer-term use of virtual hearings and court processes, the consensus seems to be that virtual technology is here to stay, but not as a replacement for in-person hearings. You can never sacrifice the rights of a fair trial, for example, at the altar of efficiency.
We recognize that determining the best mode of hearing will depend on many factors. Judicial discretion will be key to that, and that appears to be embedded in the proposed legislation.
As you know, the Action Committee has revealed an increased use of technology in court processes. It has the ability to improve access to justice, but it can also create additional barriers for others. There’s no one-size-fits-all solution. We’re currently examining the benefits and challenges of virtual hearings with a view to publishing further guidance on this. As always, non-prescriptive guidance would complement and not contradict any legal frameworks.
Succinctly, these amendments would be viewed as another important tool in the kit for judicial discretion in terms of ensuring that access to justice is as good as it can be in this country. I thank you for this opportunity and would be delighted to answer any questions you may have.
The Chair: Thank you very much, Mr. MacDonald. I appreciate you telling me about the interpretation. I will definitely read what’s on your website. My challenge is that there are not enough interpreters in the courtrooms, but I will read the piece and if I have any questions I will ask you.
I have a question for Correctional Service Canada. L’Association des juristes progressistes shared with us their concerns relating to the lack of video visitation systems in federal detention centres. Although Correctional Service Canada has the resources to make it happen and would benefit from the change, detainees still aren’t able to communicate with their lawyers in private. With that in mind, what are your thoughts about using video conferences to ensure detainees’ rights to a lawyer and privacy are respected?
Senator Pate and I have gone to a number of prisons and one of the main complaints we hear from detainees is that they don’t have a right to privacy to speak to their lawyers. Can you please, Ms. Lambe, or Mr. Hope, give us your opinion on the privacy issue?
Jason Hope, Regional Deputy Commissioner, Correctional Service Canada: Thank you for your question, Madam Chair. In relation to Correctional Service Canada, that’s a jurisdiction that I will speak to specifically in relation to equipment technology and so on.
Previously when we talked about video conferencing for court purposes, our equipment and our infrastructure probably was less supportive of that option to move forward and promote communication and privacy in relation to exchanges between counsel and their clients.
However, there have been quite the changes. For video systems in Correctional Service Canada, we have installed all of our court units in the private rooms where offenders can participate in the proceedings away from other offenders, so they are more isolated. Is there a standardized approach given our infrastructure? No, there’s not. We’ve looked for the best methods for each specific area.
Second, the court systems have a privacy phone now attached to each unit to facilitate private communication between counsel and the accused. As well, the privacy phones interrupt the video and the audio feed upon removal from the receiver.
It should be noted that the courts are utilizing technology as we are today and can bridge the systems into Zoom hearings as well. There is ever-progressing technology that is also assisting in that.
The Chair: May I ask you to wait for one second, please? Sorry, but we need translation.
The challenge, sir, is your microphone is not connected, so we will try to get this fixed and we will come back to you.
We will now go to the sponsor of the bill, Senator Dalphond.
Senator Dalphond: My questions will be to former Chief Justice MacDonald. I’m glad to see you here with us today. Thank you very much for participating.
My question is about the intent behind this committee of the judiciary working with the justice department. I think the committee chaired by Chief Justice Wagner recommended these measures in order to ensure that there’s no debate about the extent to which technology can be used. During the pandemic some courts have to use it more frequently; others were reluctant because they weren’t sure they had to power to do it.
If I understand correctly — and please indicate this to the committee — you said that it was to get more tools in the tool kit, but this is not the intent of the stakeholders, the judges and the lawyers to replace normal court appearance procedures and have people in the courtroom by virtual courtrooms. This is only an additional kit but not the new way to do trials. Am I wrong? Am I right? What is the intent of the judiciary behind it?
Mr. MacDonald: You are right. First, the committee doesn’t propose to get into a clause-by-clause analysis of proposed legislation, but through its work the committee identified some challenges when it came to the necessity of in-person hearings. Giving the judiciary the discretion, in appropriate cases, to have virtual hearings as opposed to in-person hearings is another tool in the kit. It’s not a new way of doing business, as your question says.
I harken back to Senator Cotter’s concern about the rights of the accused. As I mentioned, the intention or the concern from the judiciary would be to never sacrifice the accused’s rights or anyone’s rights in a trial at the altar of efficiency. That’s not where we’re coming from. We have learned from the pandemic that there can be aspects of the court process in which everybody could win by a virtual hearing. However, it’s not a replacement for the traditional in-person hearing.
Of course, the protections are there as they apply to the consent of the Crown, the consent of the accused, and the discretion of the court. Hopefully, that answers your question, senator.
Senator Dalphond: Yes, it does. Thank you very much.
The Chair: We will now go to the critic, Senator Carignan.
Senator Carignan: Thank you. My question is for Justice MacDonald. Because we are always trying to make progress, we are in a process of improvement and evaluation, we are looking at the advantages and disadvantages, is it not premature to pass a law that provides for the use of videoconferencing when there are witnesses? I was a bit rattled by the testimony of the Barreau du Québec. Mr. Marchand gave some good examples; for example, when the person is testifying, we don’t know who is with them. If there is a recess, are they talking to someone else during the recess? The testimony can be contaminated...
People are here now and we don’t see anyone who is with them, but is someone suggesting answers or recording comments? So should we not simply wait before using videoconferencing when there are witnesses, and focus on proceedings where there are no witnesses or there is only argument or simpler technical adjournment factors? Should we really be taking testimony by videoconference while we’re waiting for a more complete study, as the Barreau du Québec suggests?
Mr. MacDonald: Thank you for your excellent question, and I listened with interest to those concerns.
What I would say is that they reflected a crisis that everyone in the world was facing, and people had to act, make difficult decisions and be as innovative as possible in the middle of a crisis. Arguably, what the proposed legislation may do is actually set the ground rules and protect everybody’s rights with the provisions that the consent of the Crown and the defence and, of course, the discretion of the court would be there.
Honestly, I don’t see a judge in this country tolerating a process that jeopardizes the fair trial rights of the accused or the rights of anyone involved. It is simply an opportunity — where appropriate — to have the ability for a virtual hearing, often dealing with administrative matters. It is another tool in the kit, and it has the safeguards of requiring consent, as I’ve indicated, and, of course, the discretion of the court.
We all reacted to an emergency and extenuating circumstances, and took measures that we felt had to be taken. In many ways, having legislation may actually provide clarity in those circumstances going forward.
Hopefully, that’s helpful and addresses your question, senator, but I would be happy to answer any follow-up questions.
Senator Boisvenu: Mr. MacDonald, during the pandemic, did you do a report on activities?
Mr. MacDonald: I’m sorry. Are you referring to the Action Committee report?
Senator Boisvenu: Yes. Exactly.
Mr. MacDonald: Yes, if I could refer you to our website, we have come up with numerous tip sheets and guidance on various aspects of the justice system in coping with COVID-19. We did, as an Action Committee, produce a report for the last fiscal year, and we have a second one in draft right now, actually, and it will be released soon.
Hopefully, I understood and answered your question.
Senator Boisvenu: Yes, exactly. Can significant differences be seen in the administration of justice between a non-pandemic context and a pandemic context? Did you observe significant differences in terms of delays, postponement of hearings, or trials that couldn’t take place for technological reasons?
Mr. MacDonald: We didn’t get into detailed statistics and following cases on a statistical basis. What we noticed, particularly in remote areas, were challenges with COVID-19 and conducting in-person hearings.
We all recall the spring of 2020 when things virtually shut down, and technology adapted. It was a great solution for appeal courts, but it was a great challenge when it came to trial courts. Obviously, there were huge challenges and delays caused by COVID-19. We studied that, and we studied how technology can be, as I said earlier, another tool in the kit.
We also recognized challenges with technology. One is the privacy concerns. There is a big difference between holding a virtual hearing and holding a hearing in the courtroom when it comes to the privacy rights of people who are testifying and having that, potentially, on the World Wide Web. We also have the open-court principles concerns, because you don’t walk into an open court if you are a member of the media or a member of the public, and there are access issues and registration issues.
So there are advantages and disadvantages of technology, but the proposal would be to embrace the advantages and deal with the disadvantages.
Senator Boisvenu: Thank you. This bill will require that we operate by visual flight rules rather than by instrument. We will have new methods without really knowing how to guide ourselves. Do you agree?
Mr. MacDonald: Again, I would harken back to the safeguards, as I see them, at least, personally: The consent of the accused; in all cases, the consent of the Crown; and the discretion of the court to ensure that fair trial rights are not jeopardized or sacrificed at the altar of efficiency. Thank you.
The Chair: Deputy Commissioner Hope, I’m really sorry I had to cut you off, but I understand that Ms. Lambe, the Acting Chief Information Officer, can finish the answer.
Is that correct, Ms. Lambe?
Mr. Hope: She can, if you can’t hear me.
The Chair: Can you say a few words, and let’s see.
Mr. Hope: Yes, I can. Is it working now?
The Chair: No, I’m sorry. It is not working here. I apologize.
It gives us all an idea about how we are starting to rely on technology, but it is not that simple. It is all a good experience for us.
Mackenzie Lambe, Acting Chief Information Officer, Information Management Services, Correctional Service Canada: Thank you.
As my colleague was trying to articulate earlier, at Correctional Service Canada, we have our video court systems, and all of those are installed in private rooms where the offender can participate in the proceedings away from other offenders. Our court systems also have a privacy phone that is attached to each unit to facilitate private communications as needed between counsel and the accused. What’s important is that when that occurs, the security officer will step out of the room, so there is that privacy piece between counsel and the offender.
The other piece that is important to note is that the privacy phone will interrupt the video and audio feed upon removal from the receiver. There are some other pieces we have in place for those jurisdictions that are using certain technologies such as the Zoom technology, where we can bridge these systems into the Zoom meetings. There has been quite a bit of progress over the last two years to improve that process.
Obviously, after the court proceedings are completed, the offender is escorted back to their living unit.
The Chair: Thank you very much for that answer, Ms. Lambe.
Deputy Commissioner Hope, I can tell you that when we have been in prison, we have heard that the enforcement officer stays in the room, so you may want to look into that.
Senator Cotter: Thank you to the witnesses for coming. I have two questions, I think, for former Chief Justice MacDonald.
It is a pleasure to see you, sir, and it is amazing the things you can do more or less at the same time, and I thank you for joining us this morning.
The first question relates to the challenges around open courts. I had a brief look at the website, and I am familiar with the fact that it has been identified by the Action Committee. I wonder whether this movement toward greater use of remote will lead us inevitably to the circumstance that open courts basically mean that you might as well watch them on television, because anybody should be or could be able to access them. The questions that are built into that about people making problematic use of things by taping the proceedings or portions of them and putting them on the Web, the kind of challenges that we have worried about with completely open courts, if I could call it that.
My second question is around whether we run some risks here with these opportunities expanding to where we might move away from as much a use of, say, circuit courts, as we historically have. It just becomes more convenient for the administration of justice not to have the court party fly into Black Lake today because it’s just a bunch of sentencings and they should just stay in our offices and do that there. There might be this tendency or inclination to take advantage of the conveniences of technology and that might, in a creeping way, moderate access to justice as we’ve tended to know it.
Mr. MacDonald: Those are two excellent questions.
The simple answer to both questions would be this: Respectfully, we might want to embrace the positive aspects of technology and how it may enhance access to justice while being very careful to avoid, as you are suggesting, technology creep. You are absolutely right: There is a concern that technology could, if you extend it far enough, really interfere with the open court principles. We have identified that in our work. You have to be cognizant of that when exercising your discretion in terms of what aspects of technology you would embrace.
Your point about remote hearings is absolutely true. I am old enough to say that the post office was a very important part of any town, and the courthouse is a very important part of any town. You certainly can’t let technology be used to the extent that the identity of justice in the town or village, particularly in remote areas, is lost and centralized in some remote place where you don’t get to feel justice in action.
We have a paper on that. It deals with the impact of COVID on marginalized individuals.
We have to be careful of both of those excellent points you raised, but my point is that because those risks are there, perhaps we ought not to do nothing; perhaps we ought to embrace the advantages of technology. I agree that we should walk before we run and be mindful of those concerns, which are there. We’ve identified them and tried to offer guidance on encouraging only the positive. Hopefully, that answers your question, senator.
Senator Wetston: I would like to pose a question to Ms. Tkatch.
I would like you to share a bit of your experience with respect to the work you’ve done as a Crown for so many years, practically, with respect to how you view this legislation and how it will affect your work, not just as a Crown, but the important rights of individuals — Charter rights, et cetera — that may be utilizing audio or video technology.
I am not an idealist, but there is no going back, as I said to a panel the other day. Technology is here, and it is here to stay. We need to use it efficiently, but we can’t let it affect the rights of individuals.
Can you share some of your experiences, particularly with respect to how technology may affect that?
Ms. Tkatch: Thank you.
I have a couple of quick points with regard to the impacts on the work going forward. To do that, I would like to look back first.
I used to run the Calgary PPSC office, and I was in charge during the Calgary flood of 2013 when the downtown court house was shut down and the downtown core was an evacuation zone. We couldn’t go to court; the court shut down completely.
There were issues. Everything became backlogged. One of the questions, I believe from Senator Batters to the Minister of Justice or the Justice officials, was whether this was only in relation to the emergency related to COVID-19? There were other emergencies where this legislation, opportunities or technology would be useful.
Forward to today, the town of Hay River in the N.W.T. is evacuated and the Peguis First Nation Reserve close to Winnipeg is under water right now, yet court processes may still have to continue.
Therefore, these types of technologies and improvements may assist in other emergency situations going forward.
That said, jumping off on a lot of what former Chief Justice MacDonald has said, there is a use for this technology in non-emergency situations as well. With respect to the practical implications — and this is going directly to section 715.23 and the criteria for an application for the accused to appear remotely — the location and personal circumstances of the offender, the costs involved, the suitability of the location of where the accused may appear — those first three criteria of an application will be within the purview of the accused himself or herself. This won’t be information the Crown has.
The practical implication of that is that I don’t see many, if any, situations where the Crown will make those applications. Those applications for an accused to appear remotely will be driven by the accused.
Where the Crown would have submissions to make is if they can identify and recognize whether there might be an impact to trial fairness, both on behalf of the accused and the Crown, as well as the serious nature of the offence. Those are situations where the Crown would jump in and make submissions.
With regard to the consent, then, it still remains within the discretion of the judge. Whether the Crown consents or not, if the Crown presents submissions and has concerns regarding trial fairness or the seriousness and nature of the offence, those submissions will be before the judge, and he or she will make the determination whether it is in the best interests of justice to allow for that appearance.
Sorry for taking a bit too long, but the third point is that this is not new; this is just expanding the tools we already have. We already allow for witnesses to testify remotely, upon application. There are provisions in the code to allow for vulnerable victims, such as child witnesses and vulnerable witnesses, to appear by CCTV. So judges have had the ability to assess credibility through video means of testimony for many years. I would then defer to Justice McDonald’s opinion with regard to the judge’s capacity to continue to do that work.
If this bill passes, I see this as the bill just expanding the toolbox we have in both emergency and non-emergency situations.
Senator Batters: Thank you to all of the witnesses for being here today.
My questions are to Ms. Tkatch. With respect to the last witness we had in the previous panel from the CBA, I just wanted to point out that at the end of page 1 of CBA brief, it says:
We encourage extending the consent requirement to all remote appearances where evidence is heard, including the requirement to obtain the Crown’s consent for in-custody guilty pleas.
That just pertains to the Crown prosecutor. So, Ms. Tkatch, with regard to what you were just saying, I agree that, yes, we have had many occasions where video and technology have become important parts of the criminal justice system. I would contend that in this particular case, though, the provisions of this bill could be helpful for future emergency-type situations, but it would not be limited necessarily to emergency situations and it could become more of a convenient situation as well.
Being as you have such an extensive Crown prosecutor background — we appreciate you being here to testify — I wonder if you could comment on a couple of things.
First, do you have concerns about having a judge to determine credibility where an accused is testifying in not just summary conviction trials but also indictable ones where there is not a jury involved, determining credibility in those situations, particularly with respect to the length of testimony that might need to be offered because it’s not simply a case of a short Zoom call, it’s a case where it could be involving hours and hours of testimony?
Ms. Tkatch: Thank you, Senator Batters. Again, when we’re talking about the witnesses who may have to testify for hours and hours and the assessing of credibility, that is one of the considerations with regard to the nature and seriousness of the offence. If this is a situation where not only is it impractical, but it may impact the fairness and the assessment of credibility, then the Crown should make that submission that this is not an appropriate case. Or if the accused needs to see that, then the accused would not consent. Those safeguards are in place.
Then we take your concern and flip it on its head a little bit as well. One of the aspects of things we must consider, particularly in dealing with serious violent offences, we also recognize not only the over-representation of Indigenous offenders as accused, but also the over-representation of Indigenous women and girls as victims across Canada and in the North.
The mandate and principles that we’re operating under as well are trying to reduce the traumatic impact of testifying in court for these vulnerable victims. If there are ways that we can assist and improve the experience for these vulnerable witnesses or not re-traumatize them in a court process and these tools can assist on that, that could be a good thing too. I think in what you are suggesting, it is always going to be case specific and not to have broad and sweeping rules or practices or guidelines for any of the defence lawyers, for Crowns or judges, to say this is appropriate or not, but to assess this individually and listen carefully to the different submissions.
Again, I would divert back to former Chief Justice MacDonald’s experience in terms of and how he would assess those types of submissions — if this were before him — and how he would rule on those types of cases, but I want to balance out that concern with other kinds of victims’ rights.
Senator Batters: Certainly that’s why we’ve had situations where vulnerable witnesses have already been able to testify in many different cases by video. The difference here is will the accused testify and the concerns that may result from that.
Ms. Tkatch: Sorry, maybe I misinterpreted your question, I thought with regard to — but for lengthy accused testimony, I will harken back to the section that only the accused needs to consent on summary conviction, again a practical reality.
In the provincial and territorial courts, the busyness and volume of cases going through are generally offences against the administration of justice, breaches, petty crimes. Many accused do not testify. What you are talking about tend to be more serious offences and may not fall into those categories, but again a case-by-case assessment. I wanted to throw that reality as to what life in the provincial courts is like. Thank you.
Senator Batters: Yes, right. Absolutely. Okay.
The Chair: Thank you.
Senator Dupuis: Thanks to all the witnesses for being here today. I have a question for Justice MacDonald. Justice MacDonald, you said in your presentation that everyone can win with the use of technology. I would tend to add: “provided the technology is available.” You know that in some regions of Canada, the technology is not reliable or is not available, and that presents a serious problem.
Thank you for sending us your website, because when I look at it, I do see that your committee has identified all the problems our committee has raised: management of hearings, guarantees of fundamental rights, decorum in court. My question is this: how can we make sure that all the good principles you set out in your reports, and I have just read two reports by your committee that appear on your website, are put into practice in reality?
Mr. MacDonald: Thank you again for that very good question. One of the silver linings, I must say, from the pandemic was the necessity not just to use technology where it wasn’t used before in the courts but to collaborate. This entire Action Committee is a product of collaboration, which has been positive, because it has been able to respect judicial independence, but at the same time work with those decision makers when it comes to access to justice and with the help of officials.
To answer your question, senator, the judges in this country have to continue through judicial independence, to insist that everybody’s rights are properly balanced before the courts and to make the case for that on a day in courtroom-to-courtroom basis and in collaboration in a way that respects judicial independence, but a collaboration that recognizes the challenges.
You are absolutely right about the challenges with technology — and it is on our website, a paper is dedicated to that — is bandwidth, poverty and marginalization. They all have to be addressed. The good work of the Action Committee, for which I take no credit, is that there is now a platform to collaborate on those and to make sure those needs are met and to highlight them.
It is a day-to-day, ongoing — I wouldn’t call it a struggle — challenge to make sure that all those fundamental principles are met. Actually, this opportunity today and the existence of the Action Committee are examples of how that manifests itself. I hope I answered your question, senator.
Senator Dupuis: Following on what you’re telling me, you published a report on Indigenous communities in which you recommended that there be liaison officers to facilitate the connection between the courts, representatives of the justice system, and accused persons in those communities. Whether we are talking about technology, testimony or appearances in person, the problem is the same. You made that suggestion in 2020. In Quebec, there are courtworker services. I don’t know whether you’re able to say whether this kind of resource exists in all provinces of Canada at present, that allow for the collaboration to be put in place that you are telling us about, whether for virtual trials or for in-person trials.
Mr. MacDonald: Thank you again for the question. They don’t. They vary from province to province. That’s another advantage of the work we were able to do in a collaborative way through representation from both levels of government and all levels of the judiciary. What we do is identify best practices. Early on when we looked at the challenges of justice for marginalized, remote and Northern communities was just that we saw some great examples. We saw some Indigenous leaders who worked as court liaison officers and we thought, that’s a good blueprint for the country. We can’t dictate that, nor would we ever want to, but we can at least share some good ideas.
We’ve seen some good ideas when it comes to creative use of technology in the courts. We’ve seen some good ideas when it comes to access to justice for marginalized people, for language rights. Madam Chair, you are absolutely right, we identified the fact that there are not enough interpreters.
To answer your question, there is no uniformity. I’m not being critical, it is just a reality. There is no uniformity throughout the country, but when we can highlight some very good practices, maybe they can be borrowed and improved upon. I see that as one of the positive byproducts of the work of the committee.
Senator Clement: Thank you to all of the witnesses. I took note and agree with former Chief Justice MacDonald’s comments that these changes are here to stay and that we need to take a long-term view. I also think we need to take a well-resourced approach here, so that’s my concern. It’s around the data that we have to support this process, or the gaps in the data, to be able to properly prepare and protect those three pillars that the Chief Justice just mentioned, right? Marginalization, poverty.
What specific recommendations do you have to make, any of you, to be able to mitigate the burden that this places on your departments, this ramping up of technology, uneven tech literacy? What do your departments need to be able to deal with this specifically? Your departments and also the people that you’re providing services to. It’s for anyone who wants to answer. I’m not fussy.
Ms. Tkatch: Maybe I’ll jump in and get the ball rolling. With PPSC, one of the aspects of us is we had to increase our server capacity and our bandwidth early on and found out even those capacities kept expanding just to maintain not only our ability to log into court hearings, but as well to communicate across the country, more Zoom meetings, more MS Teams. So that technology was an adaptation that we had to do.
One of the other aspects is because we are a national prosecution service is to try to maintain that communication as to what’s going on in each of the provinces. So we did set up a COVID working group with an eye toward the eventual Jordan implications that the court closures would have on us. So we would share best practices. What are the direct impacts right now going on in each province and territory? How are we dealing individually and each region on triaging cases? Trying to deal with the inevitable backlog that occurred, and going forward, and then sharing case law that comes out of the courts as well on that point.
Those were some of the more practical things we faced and developed prosecution strategies to deal with. So I’ll throw it over to anybody else who wants to talk to any of the other government departments on that point.
Mr. MacDonald: I’ll just jump in, senator, to explain why I didn’t jump in, because we don’t represent a department per se. We’re simply a liaison committee to identify best practices and challenges and share them. I didn’t want to be disrespectful, but that’s why I didn’t jump in and answer the specific question.
Senator Clement: Thank you, Chief Justice.
Ms. Lambe: I can jump in here with Correctional Service Canada if it’s an open question still. Thank you for the question.
During the pandemic response period, the critical period, Correctional Services worked really closely with our key partner, Shared Services Canada, in terms of our wide area network, our bandwidth increases. We continue to do so in terms of how we address the ongoing increase in demand in general for virtual interactions and how we see a lot of services in different jurisdictions, not just this one pivoting in that regard.
That’s an ongoing strategy for us that we’re working closely with that partner on to ensure that we have the network infrastructure to support the needs and ensure that quality. We also have a number of tools that we are looking at and continuing to invest in with respect to helping us prioritize that traffic from an infrastructure perspective.
The other piece too, obviously, as you start to pivot the resources that you would typically leverage to escort offenders, as an example, to in-person, you pivot to a different type of resource base, perhaps more on the administrative side in terms of scheduling and coordination, as well as some more technology investments.
Those are some things that we’ve done our best to try to adapt to during the pandemic. Certainly, ongoing that’s going to be something in terms of taking a look at the business process and the needs accordingly. Thank you for the question.
Senator Pate: Thank you to the witnesses. former Chief Justice MacDonald, I was very pleased to hear you I think four or maybe more times reference not sacrificing fair hearings at the altar of efficiencies. I would be curious as to what information you have as well as I’m interested in following up on some earlier questions, the information the Correctional Service of Canada and other departments have around how many of your members have actually seen first-hand the conditions under which these provisions are being provided?
So for instance, Corrections described the systems that are in place in units. You heard Senator Jaffer talk about what we observed first-hand. I’m wondering how many of you have actually witnessed the systems.
I know when we surveyed senators and members of Parliament as well as members of the judiciary who have a right of access to federal penitentiaries, for instance, about a third of senators have gone but very few members of Parliament and even fewer judges have actually attended to ensure that the standards are in place that would ensure the fair processes.
I’d also like to know from the Correctional Service of Canada as well as former Chief Justice MacDonald and others, I’m presuming Bill S-4 would change some of the policies and procedures that you currently have in place for ensuring that individuals who are incarcerated are able to attend their court dates, either in person or remotely. I’m curious if you could please outline how and why such policies would need to change and what safeguards you’re putting in place to specifically ensure the kinds of fair process that you’ve outlined. Perhaps we could start with former Chief Justice MacDonald.
Mr. MacDonald: Thank you very much, senator. Appreciate the opportunity. I personally have attended in Truro for the prison for women and federal and provincial prisons. The Supreme Court of Canada in R. v. Proulx indicated that a conditional sentence need not be of the same duration as an incarcerated sentence, a community sentence. It strikes me that you ought to have an idea of when you’re comparing one to the other what it’s like in reality in prison.
I’ll try not to be too long, but the National Judicial Institute, which is the institute that oversees education, judicial education, has, at least before I retired, a robust program in terms of allowing and encouraging judges to visit prisons. I can say I personally have and I know there’s a robust program in place for that.
To your second question, it’s key that the proposed legislation deals with discretion of the accused in terms of whether or not the matter is remote and discretion of the court in terms of whether or not the matter is remote. I see those safeguards as important.
I hope I’ve answered your question, but would be happy to supplement if I haven’t.
Senator Pate: The only other request is do you have mechanisms in place to ensure those safeguards going forward, or do you see the need for them with Bill S-4?
Mr. MacDonald: I guess I see the consent requirements and the judicial discretion as the safeguards that are required.
Mr. Hope: Senator Pate, if I may, if you can hear me now or translation can, I’ll try one last time. Hopefully, they can pick me up.
The Chair: I’m so sorry, we can’t. I really am sorry. If our interpreters cannot hear, we can’t interpret. I feel really bad. Sorry, Mr. Hope.
Ms. Lambe, would you like to continue, or not on this one?
Ms. Lambe: Perhaps if I could get specific clarity from Senator Pate what she would like to know. There was a lot in there. I want to make sure I get to her point.
Senator Pate: Sure. You described a number of systems, including phones on units. I’m curious as to whether you’ve seen them and whether you’ve seen them in operation.
Ms. Lambe: It’s been a number of years since I worked in an institution, so I wouldn’t be able to comment specifically on my interaction.
Mr. Hope, with his operational experience, would have been able to do so, but my staff, from an IT perspective, are physically on-site at our sites to help facilitate the business and the operations of those pieces.
The Chair: Deputy Commissioner Hope, this is important for this committee to know. Do you mind writing your answer on that and sending it to the clerk so he can distribute it to everybody, please? Thank you.
Senator Pate: Madam Chair, perhaps that could include a description of the procedural safeguards that are put in place because, as many of us have witnessed first-hand, the type of procedural safeguards are often a notice posted beside a phone rather than the actual insurance of procedural safeguards by individuals monitoring the conditions. Thank you.
Senator Wetston: I have a brief comment. Could Correctional Service Canada also provide more information as to the extent of the technology at the various institutions, namely, how many rooms, what kind of equipment you have, those kinds of issues? I think you understand what I’m getting at there, given the nature of it.
I would appreciate it if you could provide that to the clerk.
I have something very much in common with former Chief Justice MacDonald because we were both raised in Whitney Pier. He did not mention that. I’m a bit surprised because it’s such an important fact on such a weighted topic that we’re dealing with today.
Mr. MacDonald: I’m honoured to hear that. Thank you.
The Chair: This has been extremely interesting for us. Thank you, former Chief Justice MacDonald, Mr. Hope, Ms. Lambe, Chief Superintendent Larry Montgomery, Shelley Tkatch and Jennifer Gates-Flaherty. We appreciate your candid conversation with us because together we can make changes. Thank you very much.
I would now like to go to our final panel for the morning. We would like to welcome Nicole Marie Myers, Professor, Department of Sociology, Queen’s University, as an individual; and Michael Spratt, Partner at AGP LLP. Michael, as you know, senators, is no stranger. He has been a witness in many of our meetings. We welcome both of you.
Before we start, for those who are curious about one of our witnesses, I’d like to let you know that, unfortunately they have not been able to come.
We will start with you now, Professor Myers.
Nicole Marie Myers, Professor, Department of Sociology, Queen’s University, as an individual: I appreciate the invitation to speak with you today. I have conducted extensive observations of the bail court process both prior to and during the pandemic. While my focus has been on the bail process specifically, several findings are relevant to the issue of remote hearings more broadly.
Today I want to speak to you about three points.
The Chair: I’m sorry, Ms. Myers, because there’s interpretation I must ask you to slow down a bit.
Ms. Myers: Today, I’m going to speak to three different points: issues around public access, access to counsel and privacy and access to technology.
We have a long history of being open and publicly accessible institutions. The courts provide some measure of transparency and accountability in the administration of justice. One of the foundational principles of the justice system is the need for justice not only to be done but to be seen to be done. The move to remote hearings has challenged this axiom as neither the public nor the media can readily attend court to observe and participate.
Appearing remotely challenges issues around access to legal counsel. To accommodate private conversations, it’s not unusual for everyone on the phone line to be asked to put the phone down and return at a predetermined time. Having these private conversations on a public line is deeply problematic. Anyone can remain on the line and listen to what is supposed to be a confidential conversation.
Without being physically present in court, the accused have limited opportunities to speak privately with their counsel. While some courts have the capacity to facilitate private conversations in soundproof interview rooms, most courts do not have this feature. In-court private conversations may be an accused person’s only opportunity to speak to legal counsel and these barriers raise due process concerns.
Confidential conversations before, during and after court are critical for protecting the accused’s rights and enhancing accused’s understanding of the process, what is expected of them and what is happening to them.
There are many opportunities to improve the court’s operation through the virtual process, but differential access to the technologies may impact the accessibility of the court. The challenge is not only developing sufficient technological capacity, but also around issues of maintaining privacy and ensuring the security of the process.
The experience of virtual court undoubtedly affects different populations in different ways. Efforts must be made to equalize access to the necessary technology to fully participate in the court process as the accused, as well as other interested members of the public.
The digital divide, issues of technological fluency, as well as broadband coverage, will ensure that people have greater access to justice through a virtual model while others will be disadvantaged.
We need to think about what requirements will facilitate access to the necessary technology. That is, how will we address concerns around livestreaming or recording? How will interpretation services be provided?
It is important to acknowledge, then, the costs and issues of access as well as concerns for privacy and that these barriers will be differentially experienced and may result in reducing rather than enhancing access to justice.
All court actors that I observed faced significant problems, having difficulty hearing during the process. Poor sound quality was then worsened by background noise. Following what is happening in court is difficult in the most ideal of circumstances when in person. Appearing virtually intensifies confusion and misunderstandings while also presenting logistical challenges and serious barriers.
Court transcriptionists have raised concerns about sound quality issues in court recordings as they have difficulty deciphering what is being said. As the official record of court proceedings and the only way to go back and know exactly what was said, audio quality is critical.
Another issue that flows from this is questions about how we will address failing to appear. Generally, a warrant would be issued for an accused’s arrest if they failed to appear in court in person. While some people may purposely fail to appear, others may now fail to appear due to technological issues. Given concerns around faulty internet connections, poor reception, running out of phone minutes and having no technological support available, people are then being put at risk of being arrested for challenges that may be beyond their control.
In shifting to virtual hearings where most are conducted by phone rather than video, the accused is also no longer seen. Further, an accused may be muted with the intention of protecting them from saying something incriminating. However, this enhances their invisibility, and it raises concerns that they are not being seen or heard in the process, a consequence that is then intensified by not having legal counsel physically present beside them.
We need to consider placing heavier emphasis on the importance of video over phone appearances, and while this presents resource and technological challenges, appearing by video is qualitatively different from appearing by phone. Coordinating all the players and attempting to use antiquated equipment, including limited call lines and poor internet connections, disrupts the smooth and efficient operation of the court. Adjournments are even more frequent. I appreciate this was detailed by Dr. Cheryl Webster and Mr. Braydon Johnson who spoke to the fact that delays may be actually aggravated rather than relieved through virtual appearances. More remote appearances during the pandemic have not necessarily reduced court delay.
While there are challenges, continuing to move forward with virtual processes does have the potential to help address several issues of access and efficiency. But the technological issues are significant. They not only frustrate case processes but they instill additional inefficiencies and inequities in the process, creating additional barriers for those who are most marginalized. Thank you.
The Chair: Thank you very much. May we hear from you now, Mr. Spratt?
Michael Spratt, Partner at AGP LLP, Criminal Lawyers’ Association: Thank you. Good morning. It’s a pleasure to be back before this committee after a bit of an absence. As you know, my name is Michael Spratt. I’m a lawyer, a certified criminal law specialist by the Law Society of Ontario and I’m a partner at AGP LLP here in Ottawa. I’ve served on the board of the Criminal Lawyers’ Association. I’ve acted as the vice-president of the Defence Counsel Association of Ottawa.
Today I’m appearing on behalf of the Criminal Lawyers’ Association, a non-profit organization founded in 1971. The association is compromised of thousands of criminal defence lawyers, many of whom practice in the province of Ontario but some of whom practice across Canada.
Our members were on the front lines of the justice system in 2020 when COVID shut down our courts. We were on the front lines of the justice system as our courts reopened over the next two years. The pandemic did what dozens of working groups, committees and pilot projects couldn’t do. It dragged the justice system into a modern world.
In the past, if you wanted to set a trial date, for example, it was not an issue. You just needed to follow a few easy steps: conduct an in-person pretrial at the Crown’s office, personally attend a judicial pretrial to obtain an authorization sheet, physically take that sheet to the trial coordinator’s office and trade one sheet for another and then physically attend the trial set in court and the next remand court appearance to set the trial date. Each courthouse had its own Byzantine rules of overly bureaucratic procedures. Some courthouses had colour-coded sheets: salmon-coloured sheets for trial authorizations and green-coloured sheets for trial time periods.
If defence counsel said “pretty please,” some jurisdictions might allow things like judicial pretrials to be conducted over the phone. But in all courthouses, lawyers, members of the public, witnesses and our clients had to attend court physically for even the simplest and most routine of matters.
The impact on access to justice should be obvious. Let’s look at bail hearings, for example — the canary in the access-to-justice coalmine. In the pre-COVID days, sureties had to physically attend the courthouse for the bail hearing, a consent release or to simply sign documents. If the offence took place in a different city than where the surety and the lawyer lived, we would need to drive there and sometimes spend hours for a very routine appearance. And we wonder why marginalized and impoverished accused persons are more likely to be denied bail. It’s hard to bail a family member out of jail if you can’t take a day off work, can’t afford child care or don’t have the means to travel to a completely different city.
When COVID forced courts to modernize, these bail processes quickly moved to virtual settings. Documents could be filed electronically and bail hearings and consent releases took place over the phone or via video.
COVID, in many cases, actually enhanced access to justice. I can conduct remand appearances, bail hearings, guilty pleas and even some trials by video. I no longer need to drive hours to assist a client in a remote jurisdiction, and I can more efficiently schedule matters and do more work for more clients in the same amount of time. Over the last two years, I’ve conducted a sexual assault trial in Kingston by Zoom and a trial in London by Zoom, all from my office. I conducted a three-month murder trial here in Ottawa where some lawyers and the accused were present in court but many witnesses and even some of the court staff attended virtually. I’ve conducted countless bail hearings and pleas virtually.
These hybrid proceedings work well when they work.
Now don’t get me wrong, there have been some issues. Things haven’t been perfect, and I agree completely with almost everything that Professor Myers outlined. Accused people in relatively small jurisdictions, though, now have increased access to defence lawyers to assist them in a cost-effective manner because of the modernization of the justice system. There are efficiencies to be had there.
For too long, defence lawyers have acted as a grease that keeps the gears of the justice system lubricated. Without the hidden subsidy of our time that we provide, our court system would grind to a halt. Unfortunately, our time is cheap, especially on legal aid. We need to be careful that we don’t return to the old way of doing things as so many jurisdictions already are. But we have to ensure that trial fairness is not sacrificed on the altar of modernity.
We need to make sure that people in custody — including those who are impoverished and can’t afford technology, people who live in cramped living conditions and don’t have access to a quiet, private place, the marginalized accused, some of whom suffer from mental health issues, and those who can’t understand technology — aren’t left behind.
Accused people should always have the right to appear in person, but they should also have the choice. It should be their choice and not be dependent on the whims of a court or a Crown. This will mean investments in making virtual appearances easy and practical, and it means that some small amendments might be needed to this bill to ensure that the accused has the choice, unless contrary to the interests of justice, on how they appear before our courts. I’m happy to answer any of your questions, and I look forward to doing just that.
The Chair: Thank you very much, Mr. Spratt. Senators, our clerk will ask the Canadian Association of Black Lawyers if they can please provide us with a brief.
We will now go to questions, and we’ll start with Senator Cotter.
Senator Cotter: I have only one question, and it relates to the degree to which some of these may have the unintended consequence of compromising access to justice and causing potential vulnerability for participants — perhaps in some cases witnesses but most particularly the accused.
Mr. Spratt, you gave an intensely practical description of the opportunities that are presented. I wonder whether remote access proceedings could become so convenient that unintended but natural pressures get put upon the accused to agree to participate in those ways.
We try to take advantage of and embrace the efficiencies of the technology that are available. But people may be inclined to convenience over access to justice. Could you speak a little bit to that and whether we should be worrying about that in the months and years ahead?
Mr. Spratt: Yes, that’s a very astute observation, and I think completely correct.
The remote trials that I’ve conducted have all been for privileged accused individuals who had stable internet connections were able to testify from their homes and maintain contact with me over the break and throughout the proceeding through digital means.
It worked out very well, but some of the benefits of in-person proceedings are, of course, lost.
I also had an in-custody accused individual take part in a trial in Cornwall over the telephone from jail. Now, that was not ideal. It is something he consented to, because at the time it was the only alternative. He was looking at months and months and months, maybe a year or more, in jail, to reschedule those trial dates. So his agreement was far from what we would traditionally call “voluntary” in the criminal justice process.
We all took great pains to make sure that things were as fair as possible, and, ultimately, it worked out in the end. But you are right. There can be coercive pressures on accused people, especially in custody, to agree to convenience others and to have their matters moving. We have seen in custody over the pandemic a lack of access to clients, a lack of phone access with our clients, a lack of ability for individuals in custody to review their disclosure, and not bringing accused people to court can make them anonymous. It is hard to have those one-on-one conversations. It is hard for a judge to see the black eye of an accused who was assaulted in jail or who was assaulted by the police.
There are definitely problems. I think that an accused’s consent is something that is absolutely necessary, but my fear is that, as the bill is drafted, it requires the consent of all parties and that it will unduly restrict those procedures. I think your concern about truly voluntary agreements by the accused is an important one, and some of that has to do with resources and making sure that we have sufficient resources and appropriate settings, especially in custody, for an accused to make that choice fully.
Senator Cotter: Thank you very much.
Senator Dalphond: Thank you to the witnesses.
Mr. Spratt, my question is for you. This bill is a response to the reality that was going on during the pandemic. You referred to some improvements to access to justice in some cases, but we also heard many witnesses who had concerns about it.
Do you think we should make some amendments to the bill to address some of these concerns, and do you have any suggestions about it?
Mr. Spratt: I do appreciate that the bill is limited and doesn’t force decisions upon the accused. If an accused wants an in-person proceeding, then one cannot be forced upon them, and that is a benefit, and that is what stops me from being very concerned that this could be some sort of Pandora’s box.
My experience, and what I have seen over the last number of months as we move out of the pandemic or as courthouses say we are moving out of the pandemic, is that there has been a return to the old way of doing things.
In Cornwall, there is now a presumption that everything is in person, and it has to be an exceptional circumstance for the court to agree on a remote proceeding. We’ve seen that across the province, sometimes in smaller jurisdictions that may be under-resourced and that may not have the technological capacity in their courthouses to do these things smoothly, but we’re seeing it pulled back.
I think the bigger issue is that this bill is good in that it allows those options, but if any one of the parties opts out, even if it is in the interests of justice to do so, that could make us go back to the old way of doing things. I would like to see increased rights for the accused person to insist on those proceedings. I’m thinking of those bail proceedings where it would be unfair to make someone travel, or a trial proceeding where it takes place in a different jurisdiction, and the accused does have those technological abilities, as does the court, and it wouldn’t be contrary to the interests of justice.
If one person says no, then we are back to the old way of doing things. As we’ve seen, the old way of doing things might sometimes be the best way of doing things but is not always the best way of doing things. That is the main critique I would have with respect to the bill as it is currently drafted.
Senator Dalphond: What you said about the Crown also having to consent to it, do you think it is a safety valve which is necessary, or is it an obstacle to the rights of some of the accused persons?
Mr. Spratt: I think it can, in some cases, be an obstacle. I actually see the bigger issue being the courts, requiring the courts to agree to it. It should be a presumption that the accused gets to make the choice, unless it is contrary to the interests of justice.
Right now we’re not seeing Crowns object to remote proceedings; we are seeing courts object to remote proceedings. In some cases, it is in the interest of justice to have cases proceed in person, but in some cases, it can be contrary to the interest of justice to do that.
Just on the topic of Crowns, I think Crowns have embraced to a large extent some of these remote proceedings. It can lead to better evidence from some witnesses to testify remotely.
I will just echo some of the concerns, again, that Dr. Myers raised and I alluded to. We’ve definitely seen accused people in custody and those who are marginalized left behind. We think everyone has stable internet. We think every person in custody can see their disclosure and talk to their lawyers. That is not always the case. I don’t see this bill making that worse, but I don’t know if the bill necessarily makes any of that better, either.
Senator Dalphond: Thank you.
Senator Carignan: My questions are for both witnesses. The more I hear from our witnesses, the more I think about this situation. Can consent really be informed? Even if they say someone consents, they often consent because they think they’ll get a speedier trial or they’re prepared to compromise on quality, or they may consent because they’re the only person not consenting and all the others consented.
I remember that when I did seminars for students on trial advocacy, I always told them that advocating means pleasing, and you must not displease either the judge or the witnesses. So there is that whole psychological aspect involved in appearances by witnesses and the accused. There is the question of the witness’s credibility. When the witness is on site, they can’t have notes with them. When I’m sitting in my office and we’re talking, as we are right now, you can’t see whether I have notes. So there is that entire aspect of credibility that is difficult. There is the entire question of decorum and comfort. I have recently seen cases where the witnesses preferred to be in their lawyer’s office rather than go to court, because they felt much more at ease and they weren’t under the psychological pressure of being in a courtroom.
Should we not follow the Barreau’s recommendation, which is to continue doing impact studies, not have witnesses appear and not have evidence introduced by witnesses for important cases, even if people consent to it?
Mr. Spratt: I’m happy to cede the floor to Professor Myers to lead off, and I can add to her submissions.
Ms. Myers: Thank you very much for that question.
I think you raised something that’s incredibly important, the issue of consent or coercive consent. We certainly see this, particularly with folks who are being held in pretrial hell. There is evidence that suggests that that experience can exert pressure on people to, for example, plead guilty when they may have a defence that they would be able to present to the court.
If we see custody as being a coercive space, then we can also acknowledge that time in the community, subject to conditions, perhaps with supervision, is also a coercive experience. There may be pressures, then, that are in place to consent to going along with a virtual process, thinking that that is going to curry favour for somebody, that is, going along with what everybody else wants to have happen, or perhaps seeing that consenting would allow someone’s matter to be addressed sooner rather than later.
One of the things I was wondering when you were speaking — and I wonder if Mr. Spratt can speak to this is well — I’m thinking about a plea inquiry that happens before a plea is accepted by a judge, where matters sort of stop for a second. We make sure that a person is, indeed, freely consenting. I don’t know if that would offer some protection against some of these issues around perceived coerciveness.
To the other part of your question that spoke more to in-depth studies, that’s something we need to put more attention on and to be able to fully appreciate not only what may be intended consequences but a variety of unintended consequences that we are only going to see bear out as we move through this process.
Mr. Spratt: I will add to both of those pieces. I think Professor Myers was reading my mind in talking about plea inquiries.
It is a good question, senator; when is consent, consent? And the subtle coercive power of some of our criminal justice proceedings.
You must have been reading some of my testimony from when I have been here 15 or 20 times talking about minimum sentences and the coercive pressure to plead guilty in some cases to avoid a minimum sentence. Those pressures already exist in the criminal code and in our proceedings. We do our best to deal with them.
It is an area that we rightly should be concerned about. It is probably something that there should be an inquiry about, to make sure that it is a fully informed, voluntary consent, that the accused knows that they have a right to insist on in-person proceedings and nothing will be held against them if they insist upon that.
In terms of the credibility of witnesses, it is an interesting question. First, we know from a number of judicial authorities that it is dangerous to place too much weight on how a witness appears and how they testify.
There can be a lot of systemic problems with that in terms of cross-cultural issues or taking too much from someone’s demeanour. I’ve actually had judges say to me that they think a Zoom trial is better for looking at a witness and watching them as they testify because they get to peer in and look at their face, whereas in court they are wearing a mask or, even before the pandemic, they get a muffled side view of the witness.
For issues of credibility, virtual proceedings can enhance things. I would agree that some of the solemnity of the proceedings is lost when you are in that comfortable space. There is a trade-off. You are in a more natural, comfortable space.
I have not found in my experience, or those lawyers that I’ve spoken with from the Criminal Lawyers’ Association, that we have lost the ability to effectively cross-examine someone because they are remote.
There are trade-offs, pros and cons. Before every witness that I have cross-examined remotely, the court has taken pains to go over with the witness that they have no notes in front of them or, in many cases, have them pan their camera to ensure that no one is in the room with them and take some of those steps.
Certainly, if we are going to have more witnesses testifying remotely, we should make sure that we have the procedures in place to standardize how we deal with that so there are none of the mistakes or problems that you have rightly raised, someone in the room either assisting or intimidating the witness, the witness reading their notes or anything of that nature.
Lastly, on study, we can always benefit from more study. But at some point we need to move forward. I mean, we were using fax machines, and we sort of still are. At some point we’ve got to just get with the times, so to speak.
Your concerns are valid, senator.
Senator Batters: It is very nice of both of you to be here. It is nice to see Mr. Spratt again after a while.
First of all, I wanted to point out that I really appreciated the comments that you made, Professor Myers, especially how you noted the potential loss of confidentiality and those critical conversations that the accused and their lawyer are having throughout their trial or in legal proceedings. Having practised a number of years in that field, I know how important that can be. That’s something that we haven’t heard before today. I appreciate you noting that.
Mr. Spratt, my primary concern with this bill has been the ability to allow the accused to testify at many different types of trials by video. The only one that it wouldn’t be allowed is a jury trial, but others could be allowed. I have a number of different concerns with that, including credibility assessment.
Something that we heard from earlier witnesses, the very important context about the potential stigmatization that can exist for an accused testifying from jail; that can cement in the mind of the trier of fact — of course, that would be the judge — that someone being seen in a jail setting during a trial should perhaps remain in jail and, therefore, potentially a bias to a guilty verdict. I am wondering if you can comment on that.
Mr. Spratt: Yes, that’s certainly a concern. I think it is much less of a concern in a judge-alone trial who often sees an accused in their orange jumpsuit in the prisoner’s dock. It wouldn’t be a surprise that someone is in custody. I think that that is a right concern.
Your first point is more concerning to me, senator. I have had accused clients, especially during bail hearings and resolution appearances, pleas, testify, give evidence or enter their pleas from custody. It is sometimes incredibly difficult to hear the individual in a poor room for acoustics. It is very difficult to have conversations before that proceeding with the individual.
We know that our jails are disproportionately filled with individuals with mental health and addiction issues, and sometimes that face-to-face contact is necessary. I actually remember the first time that I did a video plea and the individual had mental health concerns. The fact that I was on video and not there formed part of some of the conspiracy theories that he had. That is all very difficult, as is access to counsel and review of disclosure.
If we have the accused and the defence lawyer be able to insist on in-person proceedings, I think some of that can be remedied. But primarily it is a problem with our institutions.
For the life of me, I do not know why in 2022 there are one or two phone lines, or only one or two video rooms, from custody.
I had a case where, in the middle of a bail hearing, an officer — and this was by phone because that’s all we had — an officer from, I can’t remember if it was the Quinte Detention Centre or Lindsay, picked up the phone in the middle of a bail hearing where my client was going to be released and said, “I’m sorry, we need this line to call in to another court.” The judge said, “We are in the middle of a bail hearing.” That officer hung the phone up. We had to do an order to produce. We had to return in two days. The accused was released, but he spent an extra two days in custody. So there are huge problems with resourcing.
When we talk about decorum, I haven’t seen bad decorum from witnesses or accused people. I mean, there have been isolated cases about someone appearing in remand court without his shirt on or in their car at a drive-through. Those are isolated cases and they exist. There is bad decorum even in person in the courthouse.
The worst decorum I have seen has been from jail guards who think they now run the court proceedings and have been incredibly rude, not produced individuals or hung up on the court. That is a concern with respect to decorum.
I agree with you, senator. Your concerns are well placed.
Senator Batters: I want to make one point as well about this issue of coercive consent and the difficulty in determining that. Something else that I was thinking about that could result with that is the financial concerns of an accused having to make difficult financial decisions about maybe something is less expensive, or portrayed to them as less expensive if they use a video route rather than in person. Oftentimes it would be. That might be why they are actually consenting rather than it being best for their particular court proceeding that they are having.
Mr. Spratt: Yes. I think that those questions do come into play. Those are conversations that I think good defence counsel have with their clients and try to deal with those issues. It is also more expensive, and this cost is often borne by defence counsel on legal aid to travel out to jurisdictions.
I will put my cards on the table: For defence lawyers, it can sometimes be less expensive to do a one-hour bail hearing by video rather than take the day to drive somewhere, but there is a good balance there. My concern is always, especially in the legal profession, that we sometimes hold on to past ways of doing things for too long without looking at the benefits that can be derived from looking at the new way of doing things.
Senator Dupuis: My question is for Ms. Myers. Thank you both for being here and helping us consider these issues. Ms. Myers, when we study bills, we are hearing more and more often from officials or ministers who tell us that in any event, members of the public have abandoned their requirements when it comes to privacy and personal information, and everything relating to that, because they post it on social media themselves. They tell their whole life stories and much more.
In your research, did you examine that question from the perspective of the accused and what they expect of the judicial system? I’m not talking about the concerns we have about the protection of fundamental rights, but what the accused’s point of view is, and what their expectations and concerns are in the administration of justice, if they are charged or if they have to appear as a witness who is a victim of crime, for example?
Ms. Myers: Thank you for that question. In my research, I haven’t spoken to accused people about their perceptions and understanding of privacy. Certainly, from my observations of court proceedings, as I referenced in my testimony, one of the challenges is that the accused may wish to speak, to share something with the court, whether it’s a message they need to get to their counsel or something they want on the record about conditions of confinement or treatment they experienced, but understandably, the court is concerned they may be concerned that they will say something incriminating and compromise the defence they may have, so we mute the accused.
The difficulty is that the person being muted doesn’t necessarily know they are being muted. Not only does that shut down the opportunity to speak to the court, but the accused may also not even be aware that the message they are trying to convey is not being heard.
While I think there are issues about privacy more broadly, like sharing on social media, we are talking about two very different spaces. Social media is a presentation of self where you are curating what you put out there versus a court scenario where, perhaps, some incredibly private, embarrassing, shameful or stigmatizing information about one’s self, one’s living arrangements or one’s relationships, as well as the criminal charges that someone is facing, is shared.
I would imagine that there are all kinds of topics that are also spoken about in a confidential fashion to somebody’s legal counsel that would simply never be put on the record or be widely shared with other court participants or members of the public. If we’re not cautious of what privacy looks like in the virtual space the court operates in, as well as the home space or a jail, where there is even less privacy, there is a lot of potential for prejudicial information or information that should not be widely shared but I do think makes it different from social media.
Senator Dupuis: In some cases, we can say that certain accused try to benefit from wider use of social media. There are people who are charged with violating a public safety law and stand trial on criminal charges, but didn’t really commit an act of criminal violence against a person. We have had examples of that, when there have been non-peaceful demonstrations and people have been charged. Not all accused are necessarily embarrassed to be in this situation. The justice system can be a way of getting attention for their ideology, for example.
Ms. Myers: Thank you for that clarification. I do appreciate what you are saying there, and I am inclined to agree. It makes me think about the resistance to having video cameras in the courtroom. If it is a public institution, a member of the public can walk in and observe, but there is something different about cameras being there. Perhaps, in this example, the problem then is video conferencing technology that can be accessed, and then people can turn this into a space to publicize, as you know, one’s particular ideology or to become well known or famous. I think that raises some difficulties around how it is that we navigate these spaces.
For some people, you might want to think about the incredible protections that are needed for their privacy. We also need to think about how to keep this from being turned into some kind of public forum or platform from which to propagate their views that are separate from the criminal allegations against them.
Senator Clement: Thank you, Professor Myers and Mr. Spratt. I am a practising lawyer. I still practise a little bit, part time, obviously, at this point, not in the criminal justice system but representing injured workers. I have been representing people at virtual hearings now for the last two years. I can tell you that even though things are working, people going through that process don’t always feel heard in the same way that they did when they were in person.
The other thing that we had to do at the legal aid clinic where I practise is we had to invest to create a studio, because our clients could not afford to do a virtual hearing from their home. They did not have the bandwidth or the minutes. They would have to come to our office, and we had to create a space in our office. We cobbled together money through Legal Aid Ontario and through the province to do that. I wonder if you could comment, specifically, on what we can do to deal with that?
It feels a bit uneven. It depends on where you are. Mr. Spratt, I am going to be a bit defensive about Cornwall. I am, full disclosure, the former mayor of Cornwall.
Mr. Spratt: I know. I love Cornwall.
Senator Clement: I know you do. Cornwall is a terrific place, and quite efficient, from a court perspective. However, your comment about them reverting to the old system is interesting. Could you comment on whether that’s because we are not properly resourced or because we don’t have confidence in having the right tools to do this?
I want both of your comments on everything I just said, because we’re worried about the investment that it will take to make this work properly. Yes, we see the benefits. We see this being long term, but how will we get this right? How much will it cost? Are the programs in place sufficient? Do they significantly recognize the disparities of certain groups? I know I’m putting a lot out there, but —
Mr. Spratt: I will try to answer the questions in the order you asked them, senator.
With respect to feeling heard, there is something about being in court. Let’s face it, some of our courthouses are not the most majestic buildings. Certainly, Cornwall, with its newer courthouse, is one of the nicer courthouses in Eastern Ontario. I will tell you a story about the time when I felt the least heard, my client felt the least heard, and I think it actually was a bit of a problem.
Everyone was present in court for the trial — the defence, the Crown, the witnesses, my client — everyone except the judge who was appearing remotely on the screen. My client was shocked. It felt like a remote avatar on the screen judging you and making these incredibly weighty decisions. It was a judge I have never seen before and have never seen since. I don’t know where His Honour was sitting. It was done appropriately, and I don’t think fairness was sacrificed, but it certainly was a disconcerting experience for me. My style is better in an in-person setting when someone is there, and I can read their face. It was also disconcerting for my client, so I think it is a valid issue.
With respect to spaces, we do need spaces. One of the things the courts said at the beginning of the pandemic was, “It is way too dangerous to have accused people come into the courthouse, so we want them to go to your office,” which was a bizarre way of looking at things. We need to make sure, especially for some of the most marginalized individuals, to have spaces.
It’s been hard in remand court here in Ottawa where everything is done remotely, and I hope that it stays that way. But for individuals who are showing up at the court and were more marginalized and didn’t have a stable address or technology, they are being turned away from the courthouse door. We have had to rely on ad hoc systems of the John Howard Society and the Elizabeth Fry Society to step up and defence lawyers to step up and provide that access.
Lastly, with why we’re going back to the way things were, I think it is in part a resource issue. I think it is also how we romanticize the court processes of the “olden days.”
Looking at Cornwall — which is the jurisdiction that may be unfairly singled out because it isn’t the only one who’s doing this — it is one of the courthouses that is perhaps less well set up in terms of doing hybrid models and things like that. We don’t need more police, maybe not even more judges. We need more court administration. We have one trial coordinator who is being inundated — there’s emails coming in and you can’t turn off the tap.
I know why they want to go back to seeing you face to face, to stop all those emails, but that’s what happens when you have one person to do the job of three people.
As briefly as I can, which is not always that brief, I think those answer some of your questions, senator.
The Chair: Thank you very much.
Senator Pate: Thank you. Many of the issues that I wanted to raise you all have raised already. I want to leave the opportunity for any recommendations you have for amendments we should make or observations to this legislation to improve it. You’re both well aware of the research, and you have talked about it yourselves in terms of the experiences. I’m sure you’re familiar with some of the questions many of us have asked of previous witnesses about how they ensure privacy in all of those areas.
If there are particular suggestions about how we ensure, particularly in prison, privacy and confidentiality during court proceedings, and most particularly in light of the lack of accountability currently of those systems, we would be most appreciative. Thank you.
Mr. Spratt: Yes. The simplest amendment that I would suggest is making it the accused election unless contrary to the interests of justice.
I agree with Professor Myers that a type of virtual plea inquiry is something that the court should look at, and the biggest difficulty comes with those individuals whom we see the least and are the most vulnerable, those individuals who are in custody.
I know that with overlapping jurisdiction, and at the best of times even when our custodial institutions are told directly, it’s hard to bring about change, but at least a statement of principle, if not some directions to ensure that individuals in custody should be guaranteed access to counsel, access to disclosure, the absolute right to attend in person, and a guarantee of privacy; and if they are appearing remotely that that be in a comfortable setting. So not standing in a cold brick-and-mortar room, but being able to sit down, take notes, things of that nature, being able to hear and participate and have access to private meetings with counsel. All of those things are important.
I don’t know if legislatively they can be guaranteed by this bill, but certainly an expression from Parliament about the benefit of those things would be a net positive in terms of an amendment.
Ms. Myers: Thank you. I agree wholeheartedly with the suggestions put forward by Mr. Spratt. I would simply reiterate that importance of having the accused consent and perhaps that inquiry is done to really ensure that consent is being given freely.
I also wonder if within the bill there are opportunities to indicate about facilitating access to counsel, both prior to a hearing but also during a hearing that a hearing can be stopped if an accused has a question or doesn’t understand what’s happening, for that to be a possibility.
My last point would be around how we’re going to facilitate access for members of the public and to ensure that the court remains a public and open institution so interested parties don’t need to seek permission to attend or to observe the hearing, but simply whether it’s links or what not that’s publicly available and easy to find, so that folks can participate.
Senator Pate: Finally, in some of the criminal legislation, certainly for federal matters, it could be included possibly as a role of the correctional investigator to monitor those conditions. Perhaps it could also be included as a condition of the ombuds office of respective jurisdictions. I don’t know if either of you have thoughts on that.
Mr. Spratt: I think those would be beneficial, and, of course, it can be difficult with provincial jurisdiction. Most of our clients for trials, of course, are in provincial facilities.
It’s beyond the scope of this bill, but it would be wonderful to have the judges and our judicial officers to have more control and more oversight, be able to be more nimble to deal with some of those problems and to have a continuing function so that after a sentence is passed, if those problems arise, we don’t rely on an ombudsperson to correct things down the line, but we can have the judge who was intimately involved with the case, not deemed to be functus, and would be able to monitor those things on an ongoing basis.
Senator Pate: I cannot resist. It sounds like you’re suggesting something like Bill S-230.
Mr. Spratt: I think that would be a wonderful solution.
The Chair: Thank you, Senator Pate. Thank you very much, Professor Myers. We’ve learned a lot from you today. I think you’ve got us thinking. Mr. Spratt, thank you so much for being here as well. You both have given us a lot of food for thought. I hope you both will come back to our committee for our next bill. Thank you so much.
Senators, may I please ask that you stay behind? Senator Dalphond, I would like to remind you that we have steering afterwards, so can you please stay later? Thank you.
Mr. Spratt: Thank you.
Ms. Myers: Thank you very much.
The Chair: Senators, I just wanted to remind you to consult the Law Clerk’s Office if you have any amendments and please advise the clerk as well.
The lawyer assigned to this bill is Mr. David Groves.
(The committee adjourned.)