Honourable senators, I agree that lack of expediency and more challenging access to justice are important issues exacerbated by COVID-19. I do not agree, however, with expediency of court proceedings if it, even inadvertently, interferes with the Charter-protected rights of accused individuals to due process and fair trials.

We should be deeply concerned about the provisions of Bill S-4 because they expand access to audio- and videoconferencing hearings for incarcerated accused. In Canada, the standards that criminal courts have in-person proceedings and that the accused be heard are central to ensuring a fair trial and should not be changed lightly.

Video proceedings raise due process concerns. Courts are less able to gauge such matters as an accused individual’s credibility and competence, physical and psychological well-being, ability to understand the proceedings and the voluntariness of any waivers of rights that the defendant may be called upon to make. For the accused in prisons, video proceedings result in breaches of privacy and confidentiality and often threats to safety. During visits to prisons in recent years, senators have witnessed first-hand video hearings taking place within the hearing of correctional officers and often other accused. This can and does discourage the accused from speaking freely for fear of harm that could come to them or others should particularly sensitive information be overheard, shared or spread to the wrong people.

Video proceedings also affect the lawyer-client relationship and crucial communication between a lawyer and client. Communication between lawyers and imprisoned clients during a hearing may not be private. As many of us have observed directly, correctional authorities routinely claim to sweep away the Charter rights of accused persons to confidential communications with their lawyers by posting waiver notices stating that all phone calls are subject to monitoring.

Even when a client held in jail is given a more secure phone for private lawyer-client communication, it can be difficult to fully engage in order to provide relevant information. This is particularly troubling given that 1 in 3 men and 1 in 2 women in federal custody are Indigenous, and 1 in 10 are of African descent. More video and audio hearings would likely also exacerbate linguistic and cultural issues.

As Canada examines developing or expanding such approaches, we can learn from the experiences of other jurisdictions. For instance, a study of bail hearings in Illinois illustrates the importance of in-person proceedings. There, the average bail bond for a person whose hearing was conducted remotely was anywhere from 51% to 90% higher than for the accused who appeared in person.

Bill S-4 implies that courts will monitor the ongoing appropriateness of remote appearances without any accountability framework or an explanation of how judges will do so. Furthermore, the Canadian judiciary has already largely acknowledged the inappropriateness of remote access proceedings in criminal matters. In a 2020 study, despite the very real challenges of the pandemic, Canadian judges only favoured using this technology in urgent and emergent matters. Bill S-4 frames increased reliance on these technologies as a response to COVID-19 but provides no end date for their use.

As we have seen throughout this pandemic and during our visits to prisons, the substantive outcome of a trial can rest on issues that arise from the use of video proceedings alone. Canadians have the right to fair trials with the effective assistance of and access to counsel. Bill S-4 does not ensure either.

As we know from various Senate studies and reports, there is virtually no reliable oversight of correctional and detention authorities and virtually no means for prisoners to effectively air — much less correct — grievances, let alone breaches of the law. This leaves the accused to assume all the risks of video proceedings without any clear, reliable means to ensure their safety or remedy violations of their rights.

Let me be clear: By supporting these provisions for the sake of expediency, we perpetuate a legacy of ignoring underlying issues which contribute to mass criminalization and incarceration in Canada. We must ensure clear, transparent and accountable approaches that uphold the due process and fair trial rights of Canadians.

Dear colleagues, liberty is a fundamental right that all Canadians hold dear. That fundamental right should not be diminished for the sake of expediency.

Meegwetch. Thank you.