Dear colleagues, I rise today at second reading stage of Bill S-4, entitled 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).

In a presentation given on February 8, 2022, Justice Canada stated that the purpose of the bill was to support the safe, effective and efficient operation of criminal proceedings, in order:

 . . . to help address the challenges faced by criminal courts caused or exacerbated by the COVID-19 pandemic, and modernize our criminal justice system . . . .

While I support the purpose of the bill, I regret that the government has taken so long to move forward with this legislation given that it was meant to address the impacts of the pandemic on the operation of the justice system. The courts adapted quickly, but had to do so before the government could adopt the reform it proposes today to promote and regulate the use of video and audio conferencing in court.

Senators will remember that in February 2021, the government introduced Bill C-23, which is almost identical to Bill S-4. What did the government do to advance Bill C-23? The Minister of Justice issued a news release in February 2021 when he introduced the bill, then he did nothing more on this file. The bill died on the Order Paper because the government called an election.

However, in its February 2021 news release, Justice Canada acknowledged that it was important to support the courts in their technological transition imposed by COVID-19 by amending the Criminal Code. I quote:

The effects of the ongoing COVID-19 pandemic are still being felt throughout the criminal justice system, and particularly in the operation of criminal courts. The pandemic has both created and amplified challenges and limitations within the criminal justice system. Canada’s criminal courts have been adapting and modernizing to address the challenges they face, but many remain unable to operate at their pre-pandemic capacity.

That said, I not only support the purpose of Bill S-4, but I also agree with the main provision of the legislation. However, I do believe it’s important for this bill, which is very technical, to be sent without delay to the Senate committee for further study. That will give us the opportunity to answer several technical questions and propose, if necessary, amendments to improve the wording of the bill.

Take, for example, the rules set out in the bill regarding the use of video conferencing. The rules require that the accused consent to the use of this technology for the preliminary inquiry, trial, plea hearing and sentencing hearing, all the stages where important decisions are made about the accused.

However, does Bill S-4 also require this consent from the offender for a hearing regarding a breach of an order of imprisonment in the community? This is an important hearing that takes place after sentencing, but that may have serious implications for the offender. If an offender breaches a conditional sentence order, the judge may order that the offender serve the rest of their time in prison instead of at home, for what could be months.

Yet Bill S-4 does not appear to require the offender’s consent to hold such an important hearing by video conference instead of in person.

I share this example to highlight what I believe is an important aspect of the bill, and the defence lawyers I consulted before writing my speech agreed. I am talking about the safeguard proposed in Bill S-4 requiring that the accused and the prosecutor consent to having important criminal hearings conducted by video conference or audio conference.

Thanks to this measure, the parties’ lawyers can require that these hearings be held in person if they feel this could hinder the proper conduct of their case, the fairness of the proceedings or the constitutional rights of the accused.

I would completely understand if a defence lawyer required a sentencing hearing to be held in person in court, if they felt that would help in sharing information with their client.

It’s important to remember that each criminal case is unique. Take for example a homeless person who has neither a fixed address nor a cellphone. In practice, lawyers who have clients in this situation gain a major advantage when their client is required to appear in court on a given date. The presence of the accused in court gives the lawyer an opportunity that they would not otherwise have, to talk to the accused in private in order to prepare the case or to make an appointment at the lawyer’s office.

On the other hand, I can also see a defence lawyer preferring that the hearing not be held by video conference, if it would facilitate interactions with a client who is suffering from a serious mental health problem or has serious difficulties expressing themselves.

I used these examples to illustrate how Bill S-4, despite allowing for the use of audio conference and video conference, prioritizes the kind of flexibility that is needed for hearings. Some hearings are best held in person, while others are best held using remote appearances.

I think many lawyers, both Crown and defence, are hoping Bill S-4 will help them in a very real way because they will no longer have to spend hours physically waiting at the courthouse for short hearings. That can happen in cases where a lawyer wants to request a postponement of the trial, ask the court to change a condition for interim release, or enter a guilty plea along with the parties’ joint sentencing proposal. This kind of hearing can take a few minutes, but when the lawyer and the accused are required to be physically present in court, they have to wait their turn in line along with all the other cases on the docket that day. Clients may also have to pay their lawyer’s fees for the time spent waiting at the courthouse.

Some may be wondering whether these questions are truly important. They are in practice. Lawyers who are not wasting time at the courthouse can use this time to better prepare their cases at their office, take more time to meet with clients and even agree to take on more cases, which would help our unfortunately overloaded justice system. Most importantly, this could result in significant savings when it comes to fees for the non-productive time spent waiting at the courthouse.

The real-life benefits of appearing virtually instead of in person cannot be underestimated, if such appearances save several hours of waiting at the courthouse. An accused person, who is presumed to be innocent, would not have to inform their boss that they will be missing a full day of work to appear in court on criminal charges. They might avoid losing their job in some cases. An accused who has a disability or is seriously ill would be happy not to have to travel to the courthouse if they can testify from home or from the hospital.

However, I’m concerned that in some cases, the changes proposed in Bill S-4 would be inapplicable in practice. Again, consider the example of video conferencing. In principle, this use of technology would save defendants and lawyers in remote areas from having to travel long distances to the courthouses. Remember, not everyone has a car or a driver’s licence.

But in many rural communities or in Aboriginal communities in the Far North, access to a high-speed internet connection is either unstable or non-existent. These communities would not enjoy the benefits of the use of video conferencing in Bill S-4.

The Quebec Ombudsman, who is the ombudsman for prisons run by the Government of Quebec, condemned the serious injustices experienced by accused persons when there was no internet to provide access to video conferencing in certain Inuit communities in northern Quebec.

In 2016, a report released by that organization, which, I will point out, was headed at the time by our colleague, Senator Raymonde Saint-Germain, stated:

Based on the information gathered, most of the villages’ courthouses, with the exception of the Kuujjuaq courthouse, do not have the equipment, technology, bandwidth or qualified staff for effective appearances via videoconferencing. . . .

In light of this situation, the Québec Ombudsman feels that further efforts should be made to increase the use of videoconferencing or any other adapted technology for all pre-trial stages — including the bail hearing — to be done remotely, without unnecessary transfers, barring some exceptions. . . .

In other words, due to the lack of video conferencing, some inmates from northern Quebec had to take a plane and spend several days being transferred in order to appear in person at the Abitibi-Témiscamingue courthouse, which was more than 1,000 kilometres from where they lived. Does this serious injustice continue to occur in these communities in 2022? Witnesses can answer this question when the bill is studied in committee.

Without significant government funding to reliably connect these communities to high-speed internet, the promises made in Bill S-4 are empty. Their residents will not have audio conferencing, or telephones, as an alternative to appearing in person at the courthouse because, by creating sections 715.231 to 715.233 in the Criminal Code, Bill S-4 allows for a trial to be held by video conference, but not by audio conference. Without a fast enough internet connection, it will be impossible to implement these provisions in these communities.

Another question about the bill is whether virtual hearings in criminal law actually reduce court delays. Prior to COVID-19, some judges were reluctant to hear applications for remission or guilty pleas by video conference. They would tell lawyers that it was more complicated for the court, and that wait times to connect or to sort out technical problems were delaying all the other cases of defendants and lawyers who were waiting for their turn in court.

It’s true that every minute counts in courtrooms, given the very large volume of cases that must be dealt with in a day.

That said, since COVID-19, there’s no doubt that the justice system has been forced to improve its practices and, I would even say, its openness with regard to remote appearances.

Expert witnesses must be heard by a Senate committee to explain whether the current use of video and audio conferencing in the different regions of Canada has generally made it possible to hold criminal hearings without causing court delays. It should be noted that, in criminal law, judicial practices vary considerably from region to region. They vary because the administration of the criminal justice system falls under the jurisdiction of the provinces and also because judges have the independence to adopt different rules of practice according to different regions.

Does using the technology, all across Canada, effectively provide for the use of interpretation services, for confidential discussions between lawyers and clients, or for evidence to be presented during a trial if the individual presenting it is not in the courtroom?

How do we ensure that the individual appearing by audio conference is actually the accused? How do we ensure that the accused is not being fed answers behind the screen or is not reading a text when testifying by video conference? Has there ever been a case where an accused failed to appear virtually because of a technical glitch or a connection problem but the judge was not made aware and issued an arrest warrant for failure to appear?

Senators need this kind of information so we can assess whether the measures in Bill S-4 will, in practice, make it possible to meet the objective of improving, simplifying and aligning the use of video conferencing and audio conferencing for criminal cases across the country, all while ensuring the proceedings are fair and the administration of justice is efficient and effective.

While I support the purpose of Bill S-4, I would not be surprised if the testimony received by the Senate committee recommends technical amendments to refine the bill to better address problems that have been observed in practice.

There is something else to watch out for as we follow up on the study of the bill. We must also consider whether promoting the use of video or audio conferencing may in practice restrict public access to trials and public criminal law hearings. The public nature of trials is recognized in paragraphs 2(b) and 11(d) of the Canadian Charter of Rights and Freedoms.

However, in its February 2021 report, the Canadian Bar Association expressed its concern as follows:

The emergence of online proceedings can pose challenges to the public and media’s ability to access hearings.

It is a concern that underpins a very important principle. As the Supreme Court of Canada explains in 1996 in Canadian Broadcasting Corp. v. New Brunswick (Attorney General):

The principle of open courts is inextricably tied to the rights guaranteed by s. 2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings.

I will close my speech by briefly addressing another important measure in the bill that proposes to relax the rules for obtaining a telewarrant. For those of you who are wondering what a telewarrant is, it is a procedure that allows a police officer to apply for an arrest or search warrant without having to go to the courthouse to apply for the warrant before a judge.

Under the Criminal Code, there is currently a condition for obtaining a telewarrant. The police officer must demonstrate that it would be impracticable to appear personally before a justice to make an application for a warrant.

Some may believe that eliminating this requirement could diminish a person’s protection against unreasonable search or seizure, which is a right protected by section 8 of the Charter. Law professors could certainly enlighten the Senate committee on this subject. I believe that, at first glance, eliminating this requirement would strengthen rather than weaken the protection of Canadians’ privacy.

The procedure for obtaining a telewarrant requires a police officer to prove to the justice that, based on the information collected during the investigation, there are reasonable grounds to believe that an offence has been committed and that a warrant would make it possible to collect evidence concerning that offence. The same rigorous criterion is used when the warrant application is presented by the police officer in the justice’s office rather than electronically.

In this context, I believe that Bill S‑4 could have the positive effect of reducing warrantless searches because it would be easier for police officers to request telewarrants. The advantage would be that there would no longer be cases requiring justices to determine if the police had sufficient grounds, without which a warrantless search cannot be authorized.

The Association des avocats de la défense de Montréal — Laval — Longueuil, or AADM, seems to agree. Its representatives wrote me to say that they think Bill S‑4 “adequately balances the needs to protect privacy and to simplify the process for requesting” warrants electronically insofar as Bill S‑4 upholds the stringent criteria for obtaining warrants.

For all these reasons, I encourage you to support this bill at second reading and refer it to the Senate committee for study so the committee can make the appropriate recommendations to the Senate.

Honourable senators, I would like to express my appreciation for the way in which Senator Dalphond, as sponsor of the bill, has clearly outlined its main provisions and urged that it be referred to the Legal and Constitutional Affairs Committee for detailed study.

Senator Dalphond clearly outlined the main provisions of the bill, and he pointed out that since the bill is not a money bill and has been first introduced in the Senate, we have the freedom to make amendments if they seem appropriate. This is more freedom now than if the bill had originated in the other place. I believe that introducing government bills in the Senate is good practice for a government that says it wants thoughtful advice and constructive criticism from the Senate on legislation but often gives us very little time to do this important work. Such review of legislation in a less partisan atmosphere than in the other place is to the benefit of all Canadians.

I wanted to speak to this bill because, as Senator Dalphond said, the bill is about making the justice system more efficient using available technologies. Perhaps nowhere in this great country are there greater challenges of remoteness, adverse weather and air travel than in Nunavut’s 25 isolated, off-road communities in the largest jurisdiction in Canada.

In its first iteration, this bill was introduced in the House of Commons at least in part as a response to COVID; it was an attempt to minimize in-person contacts wherever possible in the justice system. The Nunavut Court of Justice, out of necessity, has always been on the forefront of trying to utilize technology to facilitate remote appearances because of the huge distances and costs resulting from our remote community locations across three time zones in an area covering one fifth the land mass of Canada.

The Nunavut Court of Justice is fundamentally a circuit court. The court travels to all of Nunavut’s communities, multiple times each year, to ensure Nunavummiut have meaningful access to justice at their doorsteps. There is a long tradition in the Northwest Territories and Nunavut of bringing justice to communities, beginning with legendary flying circuit court judges Sissons and Morrow. As a legal aid defence lawyer, I was privileged to travel on the circuit with Judge Morrow. This tradition is honoured today by judges, lawyers, prosecutors and court officers who travel courageously in challenging weather and small planes to bring justice to people’s doors.

Some observers of the Nunavut justice system are concerned that the ability of technology to facilitate remote appearances could have the unintended consequence of diminishing the public’s confidence in the administration of justice in Nunavut if the public sees the court as a purely Iqaluit-based or southern institution. It is seen as essential that lawyers be on the ground meeting and developing relationships with their clients who have matters before the court.

In Nunavut, where severe lockdowns and strict limitations on travel between communities were put in place by public health authorities, COVID shone a light on how valuable technology can be in enabling courts to proceed when personal appearances are not possible, which was very important during the pandemic. Additionally, increasing ways in which certain court appearances can be made without incurring expensive travel costs, which this bill allows, has obvious benefits.

However, a preliminary survey of individuals who work in the criminal justice system in Nunavut suggests that support for the efficient mechanisms offered by the bill still need to be viewed with caution. It was emphasized to me that, as good as the technology is — or can be — it should not be a replacement for in-person appearances when and where possible. This principle will require that attention be paid to the adequacy of safeguards around the use of technology for court appearances. As Senator Dalphond noted, trials and preliminary inquiries will be held only with consent of the accused, and the same safeguard of requiring the accused’s consent will apply to sentencing or pleas by teleconference.

While Bill S-4 is clear about the requirement of consent by both parties for the exercise of its provisions for virtual proceedings, obtaining true, informed consent from people in custody, or indeed anyone, may be made difficult by language and cultural barriers amongst our high-majority Inuit population. I would note that many lawyers for both the Crown and defence are based in Southern Canada and are non-Inuit, non-Inuktitut speakers.

These difficulties of communication are not resolved simply by face-to-face encounters between lawyers, clients and witnesses. Addressing the language and cultural challenges requires significant investment in interpreters and translators, as well as court workers.

Interpreters and court workers have been a mainstay of the system in Nunavut courts since the earliest days. It is encouraging that increasing numbers of young Inuit are entering the legal profession in Nunavut, but many more professionals are needed.

There is a fear that has been expressed about this bill that, without proper safeguards, technology has the potential to turn the court system in Nunavut into a satellite operation where counsel practice remotely in the territory from locations mainly based in southern Canada. This would have a negative impact on access to justice as vulnerable clients would miss out on personal interactions with counsel.

The other important reality that must be recognized in Nunavut is the limitations of the currently available communications technology. One experienced northern lawyer wrote to me saying:

We do want to share that we think Parliament should be wary of passing legislation that depends on technology that is not realistically available in every jurisdiction impacted by the new law.

Colleagues, you have heard me speak on the issue of unreliable connectivity in Nunavut several times, and I will definitely be speaking about this reality many more times. This past weekend, for example, when I went to buy gas and at a local store, the businesses were requiring cash only, since cash machines depending on the internet were either inoperative or painfully slow.

That the internet in Nunavut is not reliable is only one part of the problem. Experienced practitioners in Nunavut observe that we also operate in a jurisdiction that lacks sufficiently sophisticated expertise to deal with technical issues that arise, is disjointed in its technological rollout and generally apathetic about the impact of technological failure on the rights of individuals or the fairness of proceedings.

One practitioner said:

There is a very real risk associated with the new wording of s.650 that people will acquiesce to being physically absent for meaningful parts of their trial because they are (a) disengaged from and indifferent to the process and/or (b) believe that it will lead to expediency — a fast, if not fair, trial.

In this connection, the importance of language and cultural sensitivities is once again brought to the fore. It is notable that, despite two successful iterations of the Akitsiraq law program, which has graduated two cohorts of mostly Inuit lawyers, the defence bar has unfortunately attracted few Inuit lawyers. There is none at present.

It is said that some of those who have tried this work have found the experience triggering. Probably all of these young lawyers will have experienced or witnessed the traumas that lay behind so much of what ends up in court.

In closing, I’d like to express my thanks to Maliiganik Tukisiiniakvik legal aid clinic and the defence bar of the Law Society of Nunavut for their preliminary advice on this bill, which is so relevant in Nunavut, and to express the hope that the Legal and Constitutional Affairs Committee will seek their input and advice in its study of Bill S-4.

I support sending the bill for study by that committee.

Thank you.