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Bill 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)

Third Reading

June 21, 2022

I rise today at third reading 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).

The Standing Senate Committee on Legal and Constitutional Affairs studied this bill carefully and issued its report on June 14. The subject brought up most often by the witnesses who appeared before the committee related to the issues and the potential of promoting the use of remote appearances in the criminal justice system. For that reason, my speech will focus on this aspect of the bill.

As we all know, public health measures during the pandemic forced courts across the country to replace in-person appearances with remote appearances by video and audio conferencing.

However, although remote appearances may be advantageous in many cases, they are not indicated in others. That was one of the observations in the committee’s report, as follows:

Many witnesses noted that remote appearances by audio or video conferencing can improve efficiency in the justice system and promote access to justice. Some noted however that these should only be used when appropriate and should not replace in-person proceedings when those would better ensure fair hearings and protect the legal rights of accused persons.

Here’s an example of a serious and legitimate concern raised during the Senate committee’s study. In its brief and its testimony, the Barreau du Québec recommended that the bill not allow evidence of a witness to be taken remotely. Their brief states the following:

We are particularly concerned about the effect of videoconferencing on the assessment of a witness’ credibility. Testimonial evidence, especially in highly emotional criminal cases, is about nuance and detail. In our opinion, virtual testimony is likely to affect assessments during examinations. Depending on the case, videoconferencing can hide certain mannerisms or amplify certain facial expressions, which can be misinterpreted by judges and counsel and misinform their assessment of non‑verbal language.

For these reasons, the Barreau recommended in its brief that testimonial evidence be heard with all parties present. In other words, the Barreau deemed it necessary to “[e]xclude testimonial evidence from the new videoconferencing system.”

Lawyer Michel Marchand, who testified before the committee as a representative of the Barreau du Québec, gave very concrete examples of current difficulties encountered in Quebec courthouses when witnesses are heard remotely rather than in person during trials, for example. First, he mentioned that some courthouses are not equipped to do recorded simultaneous interpretation. He also mentioned the risk of there being another person in the same room as the witness while they are testifying, without the judge’s knowledge.

I am very concerned about that possibility, considering that someone who witnessed the offence could be in the presence of someone close to the accused while testifying. That individual could then, by his or her mere presence, intimidate the witness into withholding incriminating testimony against the accused.

In addition to Mr. Marchand, other presenters told the committee that the use of remote appearances in some prisons or courthouses has prevented defence counsel from having private conversations with their clients. Mr. Marchand and Professor Nicole Marie Myers also pointed out the difficulty in some cases of ascertaining the identity of a person appearing remotely, particularly if they are appearing by telephone.

While S-4 allows for audio conferencing in many situations where video conferencing is not readily available, Professor Myers identified to the committee a significant concern with the use of audio conferencing as a means of appearing for the accused. She said:

. . . 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.

I am also concerned by the lack of suitable facilities in some Quebec penitentiaries for private attorney-client conversations by video conferencing, an issue that the Association des avocats carcéralistes progressistes brought to the Senate committee’s attention.

Other serious problems have been observed in Canada with respect to practices enabling people in custody to attend hearings before a judge remotely rather than in person.

I would like to share a story we heard from Michael Spratt, who testified at committee on behalf of the Criminal Lawyers’ Association. Here’s what he said:

I had a case where . . . an officer — and this was by phone because that’s all we had . . . 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 return in two days. The accused was released, but he spent an extra two days in custody.

This example is consistent with the concerns expressed by Professor Cheryl Webster and PhD candidate Brendyn Johnson. They told the committee that remote appearances could increase, not decrease, the delays faced by many defendants in the judicial system.

However, I believe that the amendments passed by the Senate committee will help address some of those concerns, to some degree. The amendments will provide the means and opportunity to monitor the impact of the remote appearance measures set out in Bill S-4 on court delays over the next few years. In other words, it will enable officials to monitor the effectiveness of these measures for the justice system so that improvements to the law can be suggested, as needed.

The amendments create an obligation for the Minister of Justice to initiate an independent review of the use of remote proceedings in criminal justice matters, and to submit a report with recommendations, as needed, within five years. Furthermore, the amendments also require that the legislative provisions created by Bill S-4 be reviewed by a committee in each house of Parliament after the minister’s report is submitted. Each committee will be required to produce their own reports with recommendations for changes to these legislative provisions, where appropriate.

Now for one last criticism we heard on the use of remote appearances. Can we say that if the incarcerated accused are given an earlier court date if they choose to appear by video or audio conferencing rather than appearing in person, they are freely consenting to the remote appearance?

Honestly, I see a risk if Bill S-4 is passed. I am concerned that the criminal justice system, especially for the accused or witnesses in custody, will use remote proceedings more and more often in future for reasons of administrative convenience, and not because it is the best and fairest option for participating in the court proceedings for all involved.

That being said, I note that Bill S-4 offers advantages in a number of areas, including by making the work of lawyers more efficient, which will benefit their clients. I described these advantages in my speech at second reading. In that context, I support passing Bill S-4 because I believe that despite its flaws, it will ensure greater flexibility in the justice system by giving the accused more opportunities to use remote appearances, which will contribute to a better administration of justice.

I remind senators that this bill contains an important safeguard for the protection the accused that most witnesses who appeared in the Senate committee agreed on. The bill would prohibit the use of remote testimony at certain key parts of the legal process in a criminal case, except where both the prosecutor and the accused consent. This procedural safeguard would, for example, require that a hearing be held in person if the accused does not consent to participate by video conference.

I urge senators to pass this bill, including the part about remote appearances.

I completely agree with what Senator Dalphond said in his speech last week with respect to two specific measures in the bill. The first measure would allow police officers to request search warrants, arrest warrants to enter a private dwelling and wiretap warrants without having to physically go to the courthouse. The second measure concerns the possibility of potential jurors being able to participate remotely in the jury selection process.

Thank you very much for your attention. I also want to thank the various stakeholders, in particular the Canadian Bar Association, who agreed to share their observations on Bill S-4.

The Hon. the Speaker [ + ]

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to and bill, as amended, read third time and passed, on division.)

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