Therefore, honourable senators, in amendment, I move:

That Bill S-4 be not now read a third time, but that it be amended, in clause 46,

(a) on page 21, by deleting lines 4 to 16;

(b) on page 22, by replacing line 5 with the following:

“means, other than a trial for a summary conviction or indictable offence, the court may allow the accused or offender to”.

Senator Batters, so far I have three senators who wish to ask questions. Are you asking for a few minutes to answer some questions?

I ask for five minutes. Thank you.

Is it agreed, honourable senators?

Honourable senators, in respect of the limited amount of time, I will put what might have been a question and supplementary together.

Senator Batters, I am inclined to agree with the analysis you put forward, but I wasn’t there at committee. One part of our job, particularly when an amendment comes at third reading — which is kosher; there’s nothing wrong with that — is to understand both sides of the arguments. To the best of your ability, would you articulate the arguments against your amendment? As we know, the committee rejected it. What did the senators who discussed this have to say? Why were they critical of it? And what witnesses came forward who took a position opposite to you and what did they say? Thank you very much.

Thank you, Senator Lankin. I actually tried to deal with a few of those types of issues in my very speech, because I knew that might come up. Probably the main thing was, well, judges don’t have to agree to it; they can simply not agree to it.

My position on that, as I stated in my speech, is that, first of all, there may seem like no particular reason not to have a trial by video until it is actually going ahead. And it is only afterwards, as I’ve shown in those particular examples with the research that was done in those other countries, that we see the very dire circumstances that can result.

Also, sometimes, particularly with video, you freeze. You might be the accused sitting at your screen at home, and don’t even realize that you are not being well articulated, and you don’t even find out that a crucial part of your testimony has been missed until after the fact, and it is then too late.

Would Senator Batters accept a question?

Yes.

You make a really compelling argument, and many of the things you’re saying are deeply disturbing. I guess my concern is, given the backlog we have in our courts, if there is another outbreak of a new COVID variant in the fall — you said there is an emergency provision. How easy is it to use that emergency provision? As very legitimate as the concerns you are raising seem to be, I am also concerned that if there is another bad outbreak, people’s trials could be postponed to an extent that is also very deleterious.

Thanks very much. Yes, the emergency provisions that are being used are exactly what has been used for the last two years. There is a provision of the Criminal Code that was put into place with Bill C-75, I think, that was passed a couple of years ago. In the courts throughout Canada, judges have been interpreting that as being able to use video and audio as need be for their criminal court proceedings for the past two years. So they have had that trial run. That’s why judges are telling me that that trial run has been a dire failure, particularly on trials. However, it works well for some other types of proceedings. That is why I am limiting my amendment to trial only.

They already have the particular provision in the Criminal Code and they’ve been using it for the last two years. This just cements it. I quoted the Barreau du Québec. Their concern is that it makes it more of a default provision to go forward. That is, video trials would always be the way to go.

Senator Batters, will you take a question?

Yes.

I would invite you to agree with me that the provisions of the bill included in proposed section 715.23 make it crystal clear that the question of whether a video trial would proceed is in the hands of the judge. Furthermore, the judge is required to take into account a series of criteria, including the accused or the offender’s right to a fair public hearing, before he or she would make a decision to conduct a video trial. Second, with respect to trials, the provision includes the authority and the ability of an accused to decline to participate in a video trial.

Would you agree with me that those provisions are presently in the bill, despite your concerns?

Yes, a number of those concerns are already taken care of. However, Senator Carignan tried to bring in an amendment to make more precise changes. As I discussed in my speech, there are a number of different reasons that the judge may not realize immediately. Just from human nature, they may not realize the difficulties they are having, but we have seen that from the research that has been provided in other countries.

Are senators ready for the question?

Honourable senators, I rise briefly on debate to speak to the amendment proposed by Senator Batters. I thank you for your intervention, senator.

In short, the proposed amendment would remove the possibility of trials in virtual mode, both in the context of summary conviction and in the context of prosecution by indictment. In effect, the proposed amendment would remove the express possibility of the accused appearing remotely during the entirety of a summary conviction or indictable trial and it would further limit what is currently expressly permitted: for an accused to appear remotely in these instances. For these reasons, this amendment represents significant changes that are at odds with both the intent and the purpose of Bill S-4. The intent and purpose is to expand and to clarify the ability of accused persons to appear remotely, particularly to attend their trial remotely.

As I understand it, many of my colleagues on the Standing Senate Committee on Legal and Constitutional Affairs noted, along with many witnesses who participated in the committee’s proceedings, that at this point in time, particularly as a consequence of the COVID-19 pandemic, there really is no going back, which would be the case if amendments were made to prevent virtual trials entirely or even just those where the evidence of a witness was being taken, as I think was implicit in the questions already posed.

Honourable senators, it is important to highlight that Bill S-4 contains several built-in protections to address these concerns, including a list of considerations to be used in determining whether to allow or require a remote appearance by an accused or an offender as well as enabling a court at any point to cease the use of a remote appearance and to require an in-person appearance where a court “considers it appropriate in the circumstances.” I think that was the thrust of Senator Cotter’s question.

It is also important to note that a significant number of stakeholders, including the provinces, territories, many members of the judiciary and defence bar, are eager to see Bill S-4 enshrined into law, including those provisions which explicitly authorize accused persons to appear at trial by video conference when the evidence of a witness is taken, except during a jury trial.

I also note my understanding that this amendment was proposed at committee and discussed at length but not accepted by the committee, whose work I respect, as I know we all do. For these reasons, honourable senators, I would respectfully urge this chamber not to the support the amendment. Thank you very much.

Senator Gold, one of the issues that I didn’t have time to deal with in my speech but I wanted to address — so I will ask for your comment on that — is when I spoke to judges about this, they said, “I guess the government must be trying to get at a better access to justice with this particular provision.” They didn’t really understand why else the government would be bringing this forward. But they said that if the government really wants to deal with access to justice in a significant way, the resources are not there, and it is hollow if they don’t provide the resources. Their impression was that it is much better to fix access-to-justice issues if the government fills judicial vacancies that exist right now to prevent court delays and also properly funds legal aid. What is your response to that?

Access to justice has been an issue of concern — and properly so — ever since I was a law student so many years ago. Much needs to be done, as we have discussed in this chamber many times.

The best answer I have is to rely upon the work of the Legal and Constitutional Affairs Committee, which heard the witnesses, which considered your amendment and others that were proposed and — for all the reasons that were known to the committee — decided not to accept the amendment.

For the reasons that I outlined, that is the government’s position as well.

Thank you, Senator Batters, for your amendment. I want to intervene for a few minutes to let senators know that regarding trial for a summary convention offence, the bill states the court “may allow” it. Considering the circumstances, the court may allow, “with the consent of the accused and the prosecutor” if the accused is not in custody. If the accused is in custody, the court may allow it with the consent of the accused.

Regarding a trial for an indictable offence, the court “may allow.” Honourable senators, I keep saying “may” because it is not “shall.” The court is not bound by it. Considering the circumstances, the court may allow an accused to appear by video conference, “with the consent of the prosecutor and the accused,” except “when evidence is being presented to the jury.” Then the accused has to appear in court.

For a plea, “the court may, with the consent of the prosecutor and the accused. . . .” And regarding sentencing, the court may allow “with the consent of the prosecutor and the offender. . . .”

Honourable senators, I’m not going to speak for all of the members who supported or didn’t support this, but it was very clear the court “may allow.” Obviously, I have not spoken to the same judges to whom Senator Batters has spoken, but looking at what is in the bill, it says the court “may allow.” So the judges who had a problem with the issue would not have to allow a video trial. It is in there. The court “may allow” with the consent of the accused and the consent of the prosecutor. Senators, I think there is enough —

Yes, “consent of the accused,” Senator Plett. You can debate later. It is my turn. What I would say to you, senators, is that it was very clear to us that there was enough protection in the act to have trials. These are not all trials. For example, if the technology wasn’t available, obviously there wouldn’t be a video trial; the accused would have to appear in person. It is only in certain circumstances that the court “may allow.” Honourable senators, I want you to remember that it is not “shall.” It is “may.”

Any more senators on debate? Are senators ready for the question?

All of those in favour of the motion in amendment will please say “yea.”

All those opposed to the motion in amendment will please say “nay.”

I believe the “nays” have it.

Is there is agreement for a 15-minute bell?

Call in the senators.