SoVote

Context: House Hansard - 133 - Nov/23/22

Mr. Frank Caputo (Kamloops—Thompson—Cariboo, CPC)

Nov/23/22 4:39:47 p.m.
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Re: Bill S-4

Mr. Speaker, the hon. parliamentary secretary spoke about efficiency. Where we probably see the greatest inefficiency is when it comes to bail. In my province of British Columbia, people have termed it “catch and release”. These are people who are not necessarily going to be law, order and justice types of people, but business owners and constituents are repeatedly telling me that this has become a significant problem. Why, then, is there nothing about bail in the bill?

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Mr. Gary Anandasangaree

Nov/23/22 4:40:28 p.m.
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Re: Bill S-4

Mr. Speaker, Bill S-4 looks to modernize the court system. My friend is talking about very specific changes to the release conditions. Again, as I indicated earlier, I would be glad to sit down and talk to him about his ideas on this. We may disagree fundamentally on what they look like, but certainly we are able to have that conversation. With respect to Bill S-4, it is critical in many ways that the accused have their constitutional rights protected with respect to appearances and being there. Virtual appearances just add another element of access in some cases, where appropriate. In some cases it may not be appropriate, and in those cases they will not be able to have virtual appearances.

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The Deputy Speaker

Nov/23/22 4:41:20 p.m.
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Before going to the next interventions, it is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Vancouver East, Indigenous Affairs; the hon. member for Cowichan—Malahat—Langford, Public Safety; and the hon. member for Peace River—Westlock, Passports.

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Mr. Frank Caputo (Kamloops—Thompson—Cariboo, CPC)

Nov/23/22 4:41:52 p.m.
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Re: Bill S-4 Bill C-291 Bill C-23

Mr. Speaker, it is always a pleasure to rise on behalf of the people in Kamloops—Thompson—Cariboo. I am mindful of the fact that I cannot point out people in the gallery, even if three of them 11 and under bear a striking resemblance to me. Today we are discussing Bill S-4. Bill S-4 is 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. Before I begin, and this is somewhat related to what we discussed, I want to note the pleasure I have here that I just voted for Bill C-291, and the House unanimously, as I understand it, voted to bring Bill C-291 to committee. That bill will hopefully change the name of child pornography to “child sexual abuse material” to reflect the fact that sexual abuse of children is not pornographic but is abuse, and we should call it what it is. Words do matter. When I stood on doorsteps prior to my election, this is something I said I wanted to come to Parliament to do. I am very happy and pleased to have partnered with my colleague and friend from North Okanagan—Shuswap to have addressed this problem at second reading. I look forward to our having a strong bipartisan effort at committee in hopes of having this bill passed by Christmas. Bill S-4 relates to the efficiency of the criminal justice system. When we talk about efficiency in the justice system, we are often talking about inefficiency in the justice system. In fact, prior to my being elected, I contemplated doing some academic writing in law that talked about inefficiencies in the justice system and how we might address them. I am going to talk about some of those here today, some of those things that are, in fact, missing. We cannot forget that there are people within the justice system who make it go around who really do not get the recognition they deserve. Sheriffs in British Columbia, for instance, are tasked with courtroom security. Frankly, they are underpaid for what they do. They escort people into custody. They are dealing with people on the front line, often who have just been arrested, who are coming down off of drugs, and they put their personal health, well-being and safety on the line in order to protect other criminal justice system practitioners. I thank them for it. I thank our clerks, our judicial case managers, who keep our courtrooms running. I thank our judges, who often leave lucrative careers behind to serve the public good for the benefit of the rule of law. When we talk about the justice system, we have to remember something, which is that times change and the law should change as well. This is most notable when we look at a section that is not contemplated here. That is section 525 of the Criminal Code. Section 525 of the Criminal Code deals with bail reviews. I am not sure exactly when section 525 of the code was passed, but if we were to look I am sure we would see it was passed at a time when people went to trial much more quickly than they do today. Section 525 says, and I am simplifying this, that if somebody is detained on bail, they are entitled to a bail review at 90 days. How often has a trial date even been set in that time? That in itself is a bit of an issue, but sometimes it has not even been set within that time. That was a different time. I remember looking at a homicide file from 1984 when I was practising law as a prosecutor. Around that time, a trial date would be set within two months, or three months perhaps, and somebody would go to trial often within six, seven or eight months. Times have changed. The system is backlogged. The evidence is different. I looked at that file, which I believe was from 1984, and it looks like a file that would now be reflected with a “theft under” file, as in a shoplifting file. That was the thickness. There were a few photos of the alleged homicide and a few statements maybe a couple of pages long, and that was it. Times have changed. Now the system is dealing with section 525, which says that somebody should not languish in custody. The reality is that a person now does not go to trial so quickly. That is the type of thing I would have liked to see addressed in Bill S-4. I note, as has been noted by others, that Bill S-4 is essentially the same as Bill C-23. What changes is when the bill will come into force. I believe there is a 30-day lag period in order to allow courts to prepare. This legislation also identifies the Identification of Criminals Act. As a bit of a sidebar, a local lawyer in Kamloops—Thompson—Cariboo, Jay Michi, has frequently told me, or at least he has told me once or maybe twice about the Identification of Criminals Act. His point has always been that it should not be called the Identification of Criminals Act, because a person is not yet convicted. Mr. Michi is now in Hansard, and his point has been made in the House of Commons. Believe it or not, the Identification of Criminals Act could actually, as I recall, be the basis for a failure to appear in court, which could relate to detention on a primary ground of bail. It could also cause a number of issues. When it comes to the importance of fingerprinting, a lot of people do not know this, but that is how criminal records are generally kept across Canada, through fingerprints. An FPS number is a fingerprint serial number. Somebody has their fingerprint taken, and that is how, on a CPIC record, it is called, a criminal record can be identified for somebody who has a conviction in Nova Scotia, where most good Speakers come from, or from British Columbia, where most good lawyers come from. I guess a few good lawyers have attended the University of Alberta, but we will put that aside for the time being. Mr. Gérard Deltell: What about Quebec? Mr. Frank Caputo: Mr. Speaker, Quebec has some good lawyers as well. There are good lawyers everywhere. We will just leave that aside for now. The importance of fingerprinting is not actually that well known, but it is very important. This is something that must be modernized. Moving to the substance of the act, judicial systems have massive backlogs. I believe a few years ago the maximum time to lay a summary conviction offence expanded from six months to one year. I was happy to see that, but we still have a massive backlog. Trials are just not getting on. Members may have heard the saying, “Justice delayed is justice denied.” This is problematic. A right to a fair trial is embraced within the charter text, obviously. We have often thought about an accused person's right to a fair trial that has a speedy element required, constitutionally obviously, but what about a victim's right to a fair trial? With time, memory fades. It is a proven fact. I do not know anybody who says that their memory is better a year and a half later than it was two weeks after an incident or even six months after an incident. A backlog in the justice system actually contributes to a less efficient system. At the end of the day the court should exist to get to the truth in a just manner. If getting to the truth is not necessarily a memory contest, then we have a problem when there is a massive backlog. I remember a victim saying that to me one time early on in my career. I said the trial had been adjourned, and he asked about his right. I had to tell him that, as a victim, he did not have a right. A lot of victims often come to the courts and say they just figured it would be adjourned. I have actually seen instances when courts generally sit for about five hours a day, if we were to compress all of the time together, and up to 12 to 15 hours of court time is crunched into that five hours. That is how much of a backlog there is. This could result in people being released back into the community who should not be released into the community. One thing we do not generally talk about here is delay, and that delay has been discussed by the Supreme Court of Canada in a case called Jordan. The Jordan decision talked about the right to trial within a reasonable time, the constitutional right to be tried, which is within 18 months, or a year and a half, if the matter is preceded by summarily, which is considered a less serious type of offence, or 30 months, or two and a half years, by indictment. The greater the strain on resources, the longer it takes for a trial to occur. More cases mean a greater backlog and a greater backlog means even longer, and this affects bail. The problem we have is the following. With the Jordan principle, the clock, and what I mean by clock is the time, the two and a half years, starts ticking the moment a charge is laid. There have been expansive requirements for disclosure since the Stinchcombe decision in, I think, 1988. There have been massive changes in disclosure, to the point where disclosure is probably one of the single biggest reasons we have delays. It is one of them. We, as Parliament, have not addressed that issue. One might be asking why disclosure matters. It matters because it takes months, sometimes years, to get disclosure together on major cases. If someone, a police officer or a prosecutor, has a case, that case may have literally 30,000 pages of documents. Because of the Jordan decision, there is a hesitation to lay a charge, because it may take a year to a year and a half, maybe two years, to get those documents together. This might include people who are dangerous, a person who, at this point in time, should not be roaming freely and should at least have conditions on bail or be detained pending their trial. However, because of the Jordan decision, those people will often be free for the duration, so a year and a half to two years, without any conditions and without any detention. Frequently, these are the most serious cases, because the most serious cases generate the most paperwork, and the most paperwork generates the most disclosure. These are frequently homicides, so we are not talking about cases that are not serious. In fact we are talking about cases that are the most serious in nature. I will give another example. Members have heard me talk frequently in the House about sexual offences. This is how the Jordan issue affects these offences and why we need to address the streamlining of these cases, especially for sexual offences. I am being hypothetical here. A person has child sexual abuse material, which is what we voted on today in Bill C-291, and has that material found on their computer. In order to prove that case beyond a reasonable doubt, a prosecutor needs to prove who owns that computer, who possessed that computer and who accessed those materials. That is typically done by an expert. Right now there are not a lot of experts out there, and it takes time to go into a hard drive. These are the same people who go into hard drives often for terrorism-related offences or for homicides, or who are looking at text messages or messages that were sent digitally. There is a strain on resources when it comes to these sorts of things. Therefore, a person who is alleged to have committed a sexual offence against a child, like possession, production or distribution of child sexual abuse material or Internet luring, some of the most serious cases against children, will have their computer seized, and it will be 12 months or more before that computer can be analyzed. For 12 months that person is roaming the community without conditions. We are not even talking out on bail. They have no conditions at all because of the Jordan decision. The question is this. How should Parliament respond? This is not a question of admonishing the rule of law; it is a question of how we should respond to these obviously prominent issues that are before the House in Bill S-4. How do we respond? While Bill S-4 would make some changes, we have so much further to go. I had 14 pages of notes and I am on page 3. I may have to cut out a bit. An hon. member: Unlimited speech. Mr. Frank Caputo: Mr. Speaker, it sounds like the member for Winnipeg North and the member for Kingston and the Islands would love to hear me speak more about this. An hon. member: More. Mr. Frank Caputo: Mr. Speaker, I am not sure if “more” is being picked up in Hansard, but I do appreciate that exhortation to speak more about this. We, as Conservatives, will always fight for a just and appropriate system, not a legal system but a justice system. I hope every single person in the House wants a system that is just and appropriate. I am mindful of the fact that we may disagree on some points, but there are issues that we should be able to come together on. To me, sexual offences against children and bail reform are those types of issues. This legislation amends the process for peace officers to apply for and obtain a warrant using telecommunications rather than appearing in person. The process for obtaining a warrant is rather cumbersome. An affidavit has to be sworn and that takes time. The affidavit has to be drafted and usually fact-checked. That takes time. The affidavit has to be sworn, and then it has to be submitted or brought to a justice or a judge. Times change, and this bill allows for that electronic submission. Fingerprinting, as I touched upon, being conducted at a later date is something that a judge will now be able to determine whether it is necessary in the circumstances. The accused and offenders appearing remotely by audio and video conference is interesting. At this point, I believe there is a provision in the Criminal Code that an accused person can be excused. This will bring a measure of efficiency, but it might not necessarily bring the efficiency we are looking for. I am going to speak to preliminary inquiries. The issue with preliminary inquiries is due especially to disclosure being so comprehensive. It is based on incremental decisions that have expanded disclosure since the Stinchcombe decision. Disclosure is expansive. While some lawyers may have used preliminary inquiries in the past to determine the strength of the Crown's case, they have often become, in non-serious cases, a perfunctory exercise to simply dig a bit more. That is my view of it. Preliminary inquiries were eliminated by the House, I believe, for offences with penalties of 10 years and under a few years ago. Here is the thing: A sexual assault has a 10-year maximum so there is no preliminary inquiry. However, sexual interference, which involves a child, does. If someone sexually interferes with a child or commits an Internet-luring offence against a child, that child has to potentially testify twice. There are some shortcuts within the Criminal Code, but I think we can talk about victimization and secondary victimization in the House, and it is time that we talk about the trauma that goes with it. Children who suffer from these types of offences are often subjected to a psychological life in prison of their own. It is time that the system addresses this. I call on the House to remove preliminary inquiries for sexual offences, or at least streamline the process, for all victims so that they are only testifying one time so that we consider this from a trauma-informed practice. Somebody very close to me has done a great deal of work and continues to do a great deal of academic work on the issue of access to Internet for remote proceedings. The Liberal government has repeatedly promised that we are going to see more rural Internet. For people in Kamloops—Thompson—Cariboo and for people in rural Canada, they cannot access these provisions because they do not have access to adequate Internet. There are people who need to appear remotely because they are three hours from the courthouse, but appearing remotely is not available because they do not have access to the Internet. I want to tell the government to fix this, not only for the benefit of all involved from a quality-of-life perspective but also from a justice perspective.

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Mr. Mark Gerretsen (Parliamentary Secretary to the Leader of the Government in the House of Commons (Senate), Lib.)

Nov/23/22 5:02:19 p.m.
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Re: Bill S-4

Mr. Speaker, I really took note of the part of the member for Kamloops—Thompson—Cariboo's discussion where he was talking about the realities of the delays and what they are actually creating in terms of when prosecution decides to lay a charge and what is involved after that. Indeed he has talked about disclosure and everything that is added and compounded onto that. Given his experience of being a prosecutor, I wonder if he can share some insight into how he thinks this bill could help to address that. If it does not go far enough, where else could we improve upon that?

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Mr. Frank Caputo

Nov/23/22 5:03:08 p.m.
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Re: Bill S-4

Mr. Speaker, this is an important question. With all candour, disclosure needs to be started from the bottom up. This bill is very discrete in what it would deal with, whether it be video appearances or things like that, but let us just take the impaired driving end of things. There is so much paperwork that could be generated on just an impaired driving charge. It would almost be inappropriate for me to say this bill has to go further in this one discrete way, because we need to start building disclosure from the ground up. Sometimes on some homicide cases one is going to see a thousand photographs, because that threshold for disclosure of what may be relevant is so high. I feel that we need to hear from subject matter experts and have a bill just dedicated to disclosure.

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Mr. Luc Thériault (Montcalm, BQ)

Nov/23/22 5:04:10 p.m.
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Re: Bill S-4

Mr. Speaker, I want to congratulate my hon. colleague from Kamloops—Thompson—Cariboo on his very eloquent speech. He said that he had 15 pages to read. The member raised a major issue with the justice system, namely its efficiency, as well as another directly related issue, access to justice. Would the member agree with me that Bill S-4 could improve the justice system in terms of accessibility and efficiency? Could he continue his speech by telling us more about what should be added to Bill S-4 to make it even more effective in terms of access to justice? Maybe he covers that in the other 15 pages of his speech.

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Mr. Frank Caputo

Nov/23/22 5:05:10 p.m.
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Re: Bill S-4

Mr. Speaker, one thing that I really noticed when we spoke about access to justice is video conferencing. The fact is that there are provisions for a child who has been victimized to appear by video. There is this idea, and it is propagated and in my view has no merit, that a trial judge cannot evaluate credibility when a person is appearing by video. It is often said that a person cannot appear by video because credibility is an issue, yet we have all sorts of sections in the Criminal Code that say that. I have seen all sorts of applications made. If a person lives in Newfoundland, and while they were visiting British Columbia they were a victim of a hit and run, all they are going to say is that they were in their vehicle, someone hit them and they suffered a broken leg as a result. That is going to be the extent of their evidence, and somebody will oppose it, because if that person does not come then the Crown's case falls apart. If I was to go one step further, as my colleague asked me to expand, I would probably expand it on the availability of victim or witness testimony by video. Right now the test can go either way. In my view the test should be much more lenient to say video testimony is preferred. Why are we flying a person across the country to give evidence? They can give evidence, as we do every day via Zoom. We do not necessarily give evidence, but do things right here and right now in hybrid Parliament. They could give their evidence over Zoom. It costs thousands of dollars, and that person has to take a day off work. When it comes to police officers, they could be investigating other crimes, but they have to go across the country. It takes three or four days that could be 30 hours of lost work, plus overtime, plus the price of flights. It often costs $10,000 just to testify in one case. That is what I would change.

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Mr. Randall Garrison (Esquimalt—Saanich—Sooke, NDP)

Nov/23/22 5:07:24 p.m.
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Re: Bill S-4

Mr. Speaker, I always listen with interest to the member for Kamloops—Thompson—Cariboo for his innovative ideas. I must say that the last suggestion he made on witness testimony is an important one for us to think about in the future. This bill deals peripherally with the selection of jurors and allowing some of that participation to be virtual. I wonder if the member agrees with me that there is much more we need to do to facilitate the participation of jurors with things like the compensation of jurors for time lost at work or sometimes for travel costs or meals. We do not do a very good job right now of making sure that participating in a jury does not really cost individuals. I wonder if he would agree with me that there is more work to be done there.

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Mr. Frank Caputo

Nov/23/22 5:08:07 p.m.
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Re: Bill S-4

Mr. Speaker, I thank my colleague in the House, and on the justice committee, from Esquimalt—Saanich—Sooke for his question. I do not know if it is set provincially or nationally, but I think it is two figures that a juror gets paid for the day. In my experience, the desire to serve on a jury is directly related to an occupation, and that is why we see so many people who are retired on juries. Let us face it. A lot of people, apart from my mother, do not want to serve on a jury. I just got a jury summons in the mail, and I obviously had to tick-off that I could not attend. The member has keyed in on something very important. Unless people have work that compensates them for jury duty, which some people do, the vast majority, particularly people who are self-employed, do not want to serve on a jury. I have heard innovative excuses from people who did not want to serve on a jury. It is not only a person's civic duty, but it has to be that a person is capable of doing it and is devoted fully to their jury service. I would certainly be open to talking with my colleague and having a greater discussion in the House as to how we can make jury service all the more palatable. Let us face it. Sitting on a jury, for most people, is not something they look forward to.

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Mr. Alex Ruff (Bruce—Grey—Owen Sound, CPC)

Nov/23/22 5:09:46 p.m.
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Re: Bill S-4 Bill C-5

Mr. Speaker, I want to thank my colleague for a great speech. He talked about the backlog in the justice system, especially when considering the massive rise, a 32% increase, in violent crime in Canada since the Liberals formed the government. First, how important is this legislation to addressing that backlog? Second, can he comment on the hypocrisy of the government waiting so long to bring this bill forward compared to its bringing Bill C-5 forward to eliminate the mandatory minimums for violent crime in Canada?

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Mr. Frank Caputo

Nov/23/22 5:10:22 p.m.
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Re: Bill S-4 Bill C-5

Mr. Speaker, my colleague from Bruce—Grey—Owen Sound raises a point that really should be prominent and is salient in this discussion. The efficiency of the justice system should be sacrosanct, because, in my view, we should have been making the mandatory minimums that have been struck down constitutionally compliant. On the one hand, we may have people who say that we need a lot more mandatory minimums. On the other hand, we will have people, generally across the aisle, who would say that we do not need any mandatory minimums. My view is that we should have a middle ground where we have mandatory minimums that have room for exceptional circumstances so that they do not apply, because it is the outlier cases that result in mandatory minimums getting struck down. Why do we not address that in legislation? I do not think anybody in the House would say we do not want to go after gangsters, so why are we having Bill C-5 at the beginning of this Parliament, as my colleague pointed out, and Bill S-4 at this point? In fact, we should be changing it and flipping the script to bring back legislation that focuses on these mandatory minimums when gun crimes have consistently gone up. Community-based sentences for discharging a firearm with intent, I believe, was a constitutionally upheld mandatory minimum in a case called Oud from the B.C. Court of Appeal. I believe in that case it was five years. That mandatory minimum was upheld by the B.C. Court of Appeal, and now a person can get a conditional sentence order for it. I do not understand how that is possible.

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Mr. Rhéal Fortin (Rivière-du-Nord, BQ)

Nov/23/22 5:12:10 p.m.
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Re: Bill S-4 Bill C-23

Mr. Speaker, I am pleased to be here today to express the Bloc Québécois' support for Bill S‑4, formerly Bill C‑23. Bill S‑4 was requested by many provinces and justice system stakeholders seeking to benefit from the lessons learned during the pandemic. Bill S‑4 seeks to amend the Criminal Code by introducing provisions to make the system more effective. The pandemic was disastrous on many levels. We all agree on that. We certainly hope never to see it again; that goes without saying. We also all learned from this crisis, and we can certainly try to benefit from the lessons learned. We worked virtually over the past two years like we never have before. This way of doing things certainly has some disadvantages. I will come back to that. However, there were some benefits that we cannot ignore. Our justice system could most definitely be improved through the use of this little-known or often misused tool. Bill S‑4 proposes instructions to ensure that the proceedings that can be carried out remotely are managed and used effectively. This bill proposes to allow for the use of electronic or other automated means for the purposes of the jury selection process. It also proposes to expand, for the accused and offenders, the availability of remote appearances by audioconference and videoconference in certain circumstances and to provide for the participation of prospective jurors in the jury selection process by videoconference in certain circumstances. The bill would expand the power of courts to make case management rules permitting court personnel to deal with administrative matters for accused not represented by counsel and it would permit courts to order fingerprinting at the interim release stage and at any other stage of the criminal justice process if fingerprints could not previously have been taken for exceptional reasons. Finally, it would replace the existing telewarrant provisions with a process that permits a wide variety of search warrants, authorizations and orders to be applied for and issued by a means of telecommunication. Bill S-4 also makes amendments to the Criminal Code and the Identification of Criminals Act to correct minor technical errors and includes transitional provisions on the application of the amendments. Finally, Bill S-4 makes related amendments to other acts and also provides for independent reviews on the use of remote proceedings in criminal justice matters. It also provides for a parliamentary review of the provisions enacted or amended by this act, and of the use of remote proceedings in criminal justice matters, to begin at the start of the fifth year after it receives royal assent. There is a review of the whole process after five years. I think that is very wise, given that many of the provisions in Bill S-4 are new. Bill S-4 is basically a tool. As we have seen here in the House and elsewhere, working remotely definitely has its advantages, but it also has significant drawbacks. Like any tool, it must be used judiciously. It has limitations that must be considered. When the time comes to assess a witness's credibility, body language is an important element that the judge wants to take into account. In remote proceedings, that type of language is redacted, so to speak. In my opinion, it is an important element that could, in some cases, radically change the outcome of a trial, particularly when the evidence consists of contradictory testimony. Once again, like any tool, it must be used with discernment. A screwdriver is very useful; so is a hammer. However, if we use a hammer to drive in a screw we will have a problem. If we use a screwdriver to pound a nail, we will have another problem. In each case, we must determine what is appropriate. This is not a cure-all. In that regard, the Quebec bar association urges us to be cautious with certain provisions. I will come back to that. However, proceeding remotely in some cases will accelerate the judicial process. It will minimize time wasted and postponements. We often see courtrooms packed with people in the morning waiting to appear, and then half the cases may be postponed for various reasons. If the proceedings are held remotely, delays due to postponements will be reduced, and the same applies for administrative matters, which do not require lawyers to appear in person. That already exists and is already being used to manage cases where parties are represented by lawyers. Under Bill S‑4, this could also apply when the parties are unrepresented. We will have to examine how to proceed, because this does pose certain challenges. I think it is a useful measure that will reduce travel, inconvenience and often the frustration of people facing a judicial system that is manifestly too slow and opaque and that imposes costs and travel that could well be avoided. It is therefore a good thing if, I repeat, it is used with discernment. I mentioned the drawbacks, including issues around witness and juror credibility. In a jury trial, the lawyers selecting jurors have to evaluate the candidates based on factors that are not always technical. Lawyers listen to them, ask them questions, consider their answers and also take into account their body language and the way they answer. In many cases, that is how they decide whether to accept or reject a potential juror. The same goes for witnesses. There have been many trials in which key evidence consists of contradictory testimony. How are judges to decide whether one witness is telling the truth and the other is lying? Judges will use the witnesses' answers, certainly, as well as their body language. They will consider how witnesses react. They get a sense of people's credibility based on many criteria that are not necessarily explicitly stated in written procedures. It is important for judges and lawyers working on a trial to have face-to-face access to witnesses and potential jurors. Could they not in some cases be heard virtually? I think so. Could jurors not in some cases appear virtually? I think so, but that has to be determined with the consent of the parties and not systematically imposed in every trial. There is also talk of the problem of hacking. We know that we are constantly having to deal with hackers. We all receive unsolicited emails and proposals. I often receive messages warning that I have been summoned for a trial at a certain location and that I have to click on a link or the world will come to an end. All sorts of things like that happen, so our computer systems are not always as safe as we might think. Even banks get hacked. We saw that roughly two years ago when Desjardins suffered a data breach. Holding trials virtually is one thing, and we need to be careful, but Bill S‑4 also talks about telewarrants, meaning a warrant to conduct a search of someone's home. If we computerize all telewarrants, warrants obtained virtually, and if we proceed based on a virtual model, are we not exposing ourselves to piracy and perhaps searches or actions of a legal nature that would be contrary to the interests of litigants, contrary to what we are trying to achieve in the administration of justice? I think we need to ask the question. I do not want to be an alarmist. Once again, I see Bill S‑4 as a positive thing, but I am just saying that we do need to ask some questions. It is not a panacea. It must not be applied without careful consideration. There is the issue of regional disparities. As we saw during the pandemic, not everyone in Quebec, nor elsewhere in Canada, has equal access to computer systems. It is rather lacking in some regions. Some people are able to work at home all day with two people on computers and hold meetings with multiple people without any issues. Others have a hard time making a phone call without being interrupted. That also has to be taken into consideration. It is also the mandate of our federal government to ensure that everyone in Quebec and Canada has proper Internet coverage, but we are not there yet. Admittedly, the government is working on it, but there is still a long way to go. That has to be taken into account if we want to computerize the justice system, so how can we do that? Once again, I think that, before we impose virtual proceedings, we need to make sure that we have the consent of the parties. If someone says, “Just a second. Where I live, we do not have very good coverage and I will not be able to follow along”, then perhaps the proceedings need to be held in person. There is a process, and adjustments will have to be made. We need to take that into account, even though I think that Bill S-4 is an important step forward for the administration of justice. Speaking of compromises, the Barreau du Québec submitted a brief in April that set out four recommendations. I want to read them because I think they are sensible. The first recommendation from the Barreau du Québec is: Exclude testimonial evidence from the new videoconferencing system. Testimonial evidence must be heard with all parties present. As I was saying earlier, for the purpose of observing body language alone, I think it is important to see people. The second recommendation is: Carry out an in-depth study on the potential impact of making measures developed in a pandemic context, namely, those relating to technology and the automation of procedures, permanent in the Criminal Code. Carry out an in-depth study on the impact of videoconferencing on: The attorney-client relationship... It is a matter of professional responsibility for the attorney to properly represent the client and to ensure that he or she fully understands the brief and explains to the client what he or she believes is in the client's interest. ... and confidentiality. Again, we know that the Internet and computers are not 100% secure, and this could lead to unwanted challenges and drawbacks. Open court (Canadian Charter of Rights and Freedoms). This is set out in the Canadian Charter of Rights and Freedoms, and we have to take that into account. I will come back to that. The right to a fair trial (Canadian Charter of Rights and Freedoms). Quality and consistency of justice (regional disparities in resources, Indigenous realities, self-representation). Regional disparities in resources also affect the right to a fair trial and the quality and consistency of justice. What about indigenous realities? Are indigenous communities equipped to hold trials remotely? Can they do that? It is hard to be sure, but probably not all of them can. For people who self-represent, it is one thing for a lawyer at home or participating remotely to handle case management, but it can be problematic for a self-represented individual to deal with one, two or three lawyers in addition to a judge and a clerk, all participating remotely. At the very least, it can weigh down the process instead of streamlining it. We have to give that some serious thought. The Barreau du Québec's third recommendation is as follows: Delete new proposed section 715.241 of the Criminal Code, which allows the court to “require an accused who is in custody and who has access to legal advice to appear by videoconference in any proceeding referred to in those sections, other than a part in which the evidence of a witness is taken.” I said it earlier. I think that, as long as everyone agrees, it is perfect. Going virtual is the appropriate tool. If all the parties agree and the judge agrees, that is what should happen. However, there is an issue if not everyone agrees. The proposed section 715.241 allows the court to require the accused to appear by video conference. This seems to me to be a potential problem, and I believe that the Barreau du Québec is right to warn us about this aspect. The fourth recommendation of the Barreau du Québec reads as follows: Clarify the distinction in Bill S‑4 between an accused who has “access to legal advice” and one who is “represented by counsel” in a context where only accused persons with representation can communicate with counsel. Having access to legal advice is a vague concept. Access when and on what subject? What exactly are we talking about? Does having had access to a lawyer yesterday to discuss a number of issues mean that the individual is prepared to deal with any and all situations that may arise during a trial? That is not a given. This will have to be clarified, as Bill S‑4 is not very clear in this regard. An accused who is represented by counsel and an accused who has access to legal advice seem to be given the same credit or treatment. I think we will have to take a closer look at that. As I stated, the Bloc Québécois will support the bill and probably move amendments in committee. We shall see, but I think that this bill should be referred to a committee. Having said that, I would be remiss if, in the last five minutes at my disposal, I did not bring to the attention of the House other major problems that need to be addressed to achieve sound and efficient administration of justice. We must not forget about them. Bill S‑4 is not a cure-all. I have spoken at length about the issue of connectivity in all regions, so I will not say any more about it. Still, it is an important aspect and is one of the things we must work on if we want to have an efficient virtual legal system. There is also the question of judicial vacancies. Several positions are still vacant. I was speaking with a Quebec Superior Court judge two or three weeks ago who told me that there are about 15 vacancies in Quebec. I do not know what our government is waiting for to fill those judicial vacancies. It seems absurd to me. It is not even the federal government that pays those judges, it is Quebec. I should say, rather, the federal government does pay them, but it does not pay for the infrastructure, the clerks and the courtrooms. All associated costs are assumed by Quebec. There are vacancies, and our government has failed to fill them. It is a serious problem. A sound administration of justice requires sufficient resources on the ground, and judges are the primary resource we need. We have spent a lot of time talking about the issue of appointing judges based on the “Liberalist”, and we will come back to that again. It does not make sense that, to this day, the Minister of Justice and the Prime Minister are still trying to reassure me that the “Liberalist” is used only after receiving applications that are deemed suitable. I personally believe that it should never be used, because partisan appointments, or appointments tainted by partisanship, are unacceptable in our society. Finally, we recently talked again about the matter of secret trials, and that issue was in the news again yesterday. The Minister of Justice says he cannot tell us how many secret trials there are. He cannot even tell us whether there are any. I can understand that things need to be done differently than the charter dictates in some cases to keep witnesses safe, but it is certainly not acceptable for things to be done in a secret, non-transparent way like they are now. These trials need to be governed by the provisions of the charter. As members know, there can be a departure from the charter in exceptional circumstances that can be justified in a free and democratic society. I can accept that, but it cannot be done just any which way. When the Minister of Justice says that he cannot tell us how many of these trials are happening or even whether any such trials are happening or how the process works, that is a problem. This is not the wild west. Things need to be organized better. It is unacceptable for the government to operate like that.

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Mr. Kevin Lamoureux (Parliamentary Secretary to the Leader of the Government in the House of Commons, Lib.)

Nov/23/22 5:30:38 p.m.
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Re: Bill S-4

Mr. Speaker, I appreciate that we have the Bloc supporting government legislation, which I think will have an impact. In the little time I have had to go over the legislation and listen to some of the comments, what I see is legislation that recognizes that things have changed. There is a technology out there and ways in which we can make our system that much more effective and efficient to provide that quality justice that Canadians expect of our judicial system. I think it is quite encouraging. The member made reference to his waiting for it to go to committee. Does he have any specific amendments that he would already suggest, or is he more content with seeing it go to committee and then have that debate?

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Mr. Rhéal Fortin

Nov/23/22 5:31:45 p.m.
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Re: Bill S-4

Mr. Speaker, I thank my colleague opposite for his question. Obviously, we will develop our proposed amendments when the time comes, but evidently, the four Barreau du Québec recommendations that I just mentioned will be central to our proposed amendments. They must be taken into consideration. Again, I am one of those who think it would be a little obtuse not to adapt to the new reality, not to use the tools that are available to us. I am also of the opinion that we must use them with discernment. If I may circle back to the example of the screwdriver and the hammer, they are both very useful tools, but they are not used in the same situations.

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Mr. Gérard Deltell (Louis-Saint-Laurent, CPC)

Nov/23/22 5:32:30 p.m.
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Re: Bill S-4

Mr. Speaker, I really liked what my colleague from Rivière‑du‑Nord had to say, as well as what we heard from the member for Kamloops—Thompson—Cariboo, who spoke before him and is a member of our party. The member's comments were based on his experience. We all had lives before politics and we all want lives after politics. When we speak from our experience and when lawyers talk about justice when we are studying a bill about justice, that tends to be very interesting, as we saw today. When I talk to lawyers in my riding, their main concern is delays in the justice system and the fact that no judges are available to hold trials. These delays cause people to lose confidence in the justice system. Based on his own experience, can the member tell us whether Bill S‑4 will speed up access to justice and restore people's confidence in the justice system? Some people think that new technology can speed things up.

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Mr. Rhéal Fortin

Nov/23/22 5:33:36 p.m.
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Re: Bill S-4

Mr. Speaker, I thank my hon. colleague for his question. I hope that he and I both enjoy our lives after our time serving here in Parliament. I am sure we will. I agree with my colleague. The bill could indeed speed up the process. As a lawyer, there were times when I had to wait all morning in a courtroom because of various procedures that unnecessarily had to be done in person. Some of these procedures could easily have been done remotely, virtually or in writing. These days, the courts are constantly working to improve the flow of the legal system. I think the proposals in Bill S-4 are a step in that direction. As I said earlier, people are travelling unnecessarily. When we know that a hearing postponement is going to be requested in a case and that the lawyers all agree on this request for postponement, is it really necessary for everyone to travel there, to clog up the court and to take up five, 10 or 15 minutes of the court's time just to hear everyone tell the judge that they all agree? I think this could all be done remotely and efficiently as long as everyone agrees. If a litigant is at home and cannot follow the proceedings in an efficient and intelligible way, then that would be counterproductive and would create unwanted frustration. Yes, remote proceedings, like all the provisions set out in Bill S-4, will be a useful tool if used with the consent of the parties and with discernment.

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Mr. Charlie Angus (Timmins—James Bay, NDP)

Nov/23/22 5:35:21 p.m.
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Re: Bill S-4

Madam Speaker, we are always learning in our careers as politicians. A couple of the things my staff have learned are to log death threats and harassment, and how to deal with police. I am looking at this bill about updating the courts, and I actually had to go to court to deal with a serial stalker, a harasser. It was at the height of COVID, and we did it through video conferencing. To me it was a real eye-opener because I thought of the women who have to deal with threats and male violence, and who have to be in the courtroom with their accuser. I had to go deal with the guy who was being threatening and abusive. I found that the system that had been set up for video conferencing was a very good system. I thought that, for people who have less privilege than me and less power in society, it could be a very good way of levelling the playing field for survivors who come forward. I would like to ask my hon. colleague what he thinks about the provisions for using technologies, such as video conferencing, to help ensure there is fairness when survivors have to confront people who are threatening or violent?

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Mr. Rhéal Fortin

Nov/23/22 5:36:35 p.m.
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Re: Bill S-4

Madam Speaker, I would like to once again thank my colleague opposite. I share his opinion on that. I too believe that victims of domestic violence, harassment or sex crimes, among others, would fully agree most of the time or be enthusiastic about proceeding remotely. However, in committee, I realized to my great surprise that that is not always the case. Some victims want to confront their attacker. That is a good example showing that choice is important. Some victims do not want their attackers to hide; they want to see their faces when they tell them what they have to say. They want to see how they will react when they are told they are guilty and what they did is unacceptable. For those men and women, it is important to be there in person. That also happens to men occasionally. For some litigants, it is important to be there in person. Others found their experience so troubling that they never again want to have anything to do with their attackers. They do not want to see them. Yes, my colleague is quite right, and I have a lot of empathy for the victims and the litigants. I believe we must respect their choice with regard to the judicial process.

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Mrs. Caroline Desbiens (Beauport—Côte-de-Beaupré—Île d'Orléans—Charlevoix, BQ)

Nov/23/22 5:38:13 p.m.
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Re: Bill S-4

Madam Speaker, first of all, I would like to take a moment to acknowledge my colleague's considerable expertise; he has a lot of experience in this area. It is a great honour for the Bloc Québécois to have a resource like my colleague speak to this bill. I would like to share a personal anecdote. My husband had a career with the Sûreté du Québec. I cannot remember how many times he was called to court. He often went in on overtime, because it was not part of his regular schedule, only to be told, upon arrival, that the hearing had been postponed. When he came home, he told me how ridiculous it all was. It had cost the government a lot of money to have all those people show up and then go home because the hearing had been postponed for whatever reason. I wanted to add to my colleague's comments that, in some circumstances, it is really effective to have a bill like S‑4, but not in all cases. I think he is right. I want to commend his position of taking into account the legal context and of not passing this legislation as a whole, but making amendments. I think that will happen in committee. I hope so. With my colleague there, we will be very well equipped.

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