The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of guests from the Canadian Helen Keller Centre, the National Deafblind Awareness Month Working Group, CNIB Deafblind Community Services and the Deafblind Ontario Foundation. They are the guests of the Honourable Senators Martin and Marwah.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Sara Tessier, Impact Manager for Formerly Incarcerated Persons at the NorthPine Foundation, and her partner Megan Conrad. They are the guests of the Honourable Senator Pate.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

Hon. Senators: Hear, hear!

Senator Dalphond: I don’t want to steal Senator Boehm’s fire. He had very good questions at the committee about that. But our “reasonable suspicion” and “reasonable grounds to suspect” criteria are known in Canada as well as in the U.S. I suspect that if we have that criteria, the U.S. officers will know what they mean. For sure it’s a higher threshold than what they apply now because, in the U.S., there are no clear cases about that. There is confusion about the state of the law.

Obviously, there will be some training, but if you have training in connection with a concept which is foreign to their law, it will be more difficult than to train them to a concept which is known to their law.

Hon. Marc Gold (Government Representative in the Senate): Well, I don’t have a different answer from the one you cited before. I do not know the nature of the consultations or advice, and I would not presume to answer given that I don’t know.

This government will continue to work to help Canada do its part to achieve reductions in carbon and greenhouse gas emissions while, at the same time, doing so in a way that protects and addresses the economic needs of all sectors, including the agricultural sector.

The Hon. the Speaker: Honourable senators, after Question Period on Thursday, June 9, 2022, Senator Miville-Dechêne rose on a point of order concerning a possible breach of confidentiality of an in camera meeting that took place earlier that week. I wish to thank the honourable senator for raising this matter, as well as all senators who contributed to the debate on the point of order.

Colleagues, the discussion pertained to items that may have been under discussion in committee. We do not have access to in camera proceedings and do not know what was said or done in the committee. Different facts were placed before us. In my opinion, this would be best discussed by the committee. As stated in paragraph (a) of Appendix IV of the Rules of the Senate, “[i]f a leak of a confidential committee report or other document or proceeding occurs, the committee concerned should first examine the circumstances surrounding it.” The committee can then take the appropriate follow-up measures.

I wish to remind all honourable senators that the deliberations and any proceedings related to in camera meetings are confidential, and your cooperation in being careful on this point is greatly appreciated.

Hon. Frances Lankin: Thank you for your report, Senator Dean. I am very pleased to see the thorough job that the committee did.

I wonder if you could comment if there has been any further correspondence or communication from people within the Office of the Privacy Commissioner of Canada with respect to concerns they may have had or how those concerns may have been alleviated by encompassing and using the existing, known and tried-and-true legal standard threshold.

Senator Dean: Thank you for the question, Senator Lankin. I believe we did receive submissions from the Privacy Commissioner, and they have been received previously with respect to this concern. The Office of the Privacy Commissioner was supportive of moving to a standard that was clearer and more definitive.

Hon. Claude Carignan: My question is for the Leader of the Government in the Senate.

Today in Le Devoir, there was an article entitled “Deux nuits dehors pour un passeport,” or two nights outside for a passport. I will read a few quotes from this article to illustrate the current situation, which is totally chaotic, at the Passport Canada offices. The article talks about what is happening at a specific office, but the same thing is happening at the other offices. The article says the following:

Travellers are concerned that they will not get their passport on time despite having spent two nights outside . . .

The police force . . . confirms having been called at around 3:30 p.m., on Tuesday, to defuse a “dispute” at the service location . . . .

When she decided to renew her passport, Andrée-Anne Nadeau, a resident of Boucherville, was given an appointment by Service Canada at the offices on Boulevard René-Lévesque . . . in Chandler, in the Gaspé.

That is 947 kilometres from Boucherville. It is a 12-hour drive.

The article also quoted the spokesperson for the City of Montreal’s police service, who said, “Out of frustration, a suspect allegedly pushed the security officer . . . .”

What is more, the article mentions that “some people tried to cut in front of others in line,” which led to altercations. This report includes the comments of a witness, who said, “If there are 400 people in line at 4 in the morning, you sneak in. People are desperate.”

Further down in the article, we can read the following:

The website of the Saint-Laurent passport office always showed a wait time of three hours and 45 minutes on Wednesday. It should have been 30 hours . . . . Almost 200 people were preparing to spend the night in front of the office on Wednesday evening.

This is happening here in Canada, in Montreal, at a passport office. Leader, are you aware that your government’s inertia, amateurism and improvisation are creating real chaos for people looking to obtain a passport?

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Martin Gabber, Laurie Hewson, Peter Walesch and Elfie Walesch. They are the guests of the Honourable Senator Boehm.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Austin Fiala and Will Judson. They are the guests of the Honourable Senator Plett.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

Hon. Senators: Question.

Senator Jaffer: Senator Dalphond, one of the things that happens at airports, as we all know, is that we also have American pre-clearance officials. I think Senator Boehm asked this question almost every time: How are we going to educate American officials on this lower threshold?

What is your opinion? How is this going? Because they have a higher threshold. Now we must educate them to a lower threshold when their customs officials said their training is sufficient already.

Hon. Pierre J. Dalphond moved 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), as amended.

He said: Honourable senators, today, I have the honour of opening the debate 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 regarding the COVID-19 response and other measures.

This bill proposes to amend the Criminal Code and other acts in response to difficulties with the administration of the criminal justice system that came to light during the COVID-19 pandemic, particularly with regard to the use of new technologies. It complements Bill C-75, which we passed in 2019.

Before I summarize the amendments, I would like to sincerely thank the members of the Legal and Constitutional Affairs Committee for their comprehensive study of this bill. I also want to thank the witnesses. The committee heard from over 20 witnesses who generously shared their time and expertise with us. The committee members also had access to many documents, including briefs prepared by individuals and organizations with an interest in how the criminal justice system works. The committee devoted two meetings to the clause-by-clause consideration of the bill.

As the chair of the committee, Senator Jaffer, said yesterday, the committee proposed two amendments and made a number of observations that I hope will guide the Department of Justice and members of Parliament in the next steps.

Finally, I want to acknowledge the many constructive exchanges that we had with Senator Carignan, the bill’s critic.

Since many of the COVID-19 measures have now been lifted, you may be wondering whether this bill is still necessary. It is still just as relevant. It will enable the criminal justice system to make permanent the options for using technology in court processes that were developed or improved during the pandemic. Making these options permanently available to accused persons, inmates and other stakeholders in the criminal justice system will make our system more flexible, which I hope will help reduce court delays.

When it comes to the use of new technology, as many witnesses and members of the committee, including Senator Wetston, pointed out, it is impossible to go back to a justice system that relies on old practices that ignored the potential of new technologies and often placed unnecessary burdens on stakeholders in the criminal justice system.

For example, why insist that a police officer go to a courthouse to give a judge a written application for a warrant? That officer then has to wait in the hallway to find out whether the judge approved the application, after merely reading through the documentation, and to get the appropriate paperwork. It would be much more effective to use email for this sort of thing.

Similarly, the criminal justice system can also no longer insist that every document be submitted in hard copy or cling to unnecessarily long or costly work practices.

Why insist that hundreds of prospective jurors show up at the same time and at the same place for pre-screening when that process can be completed virtually, either in whole or in part? Why require an accused who is not represented by a lawyer to travel hundreds of kilometres from home simply to enter a guilty plea for a summary offence? There again, the use of technology that would allow the accused to attend virtually would be in the best interests of justice and the accused.

Bill S-4 responds to these and other similar issues by specifically authorizing the use of technology.

I would add that having accused persons and other stakeholders attend virtually is not a new practice introduced by Bill S-4. As a result of the passage of Bill C-75 in 2019, the current Criminal Code already includes Part XXII.01, Remote Attendance by Certain Persons. What we are doing by passing Bill S-4 is building on and adding provisions to that part.

What is more, in response to the pandemic, since March 2020, the courts have demonstrated creativity by relying on paragraph 650(2)(b) and section 715.23 of the current Criminal Code to authorize accused persons to attend court proceedings virtually in many situations.

(1510)

[English]

In March 2020, when the COVID-19 pandemic became a public health emergency of international concern, many courts were able to rely on the remote-appearance provisions that were expanded or introduced by Bill C-75 in 2019 and which had just come fully into force.

However, the pandemic has made it evident that more legislative clarity and additional mechanisms were needed. Bill S-4 will provide just that.

Former Chief Justice MacDonald, who testified before the committee on behalf of the Action Committee on Court Operations in Response to COVID-19, a special committee co‑chaired by the Chief Justice of Canada and the Minister of Justice, put it succinctly when he referred to Bill S-4 before the committee as:

. . . another important tool in the kit for judicial discretion in terms of ensuring that access to justice is as good as it can be in this country.

At the committee, all of the original provisions of the bill were carried as introduced. However, the provisions that attracted significant commentary and debate by witnesses and committee members were the bill’s proposals to allow accused persons to be able to appear remotely for the entirety of their preliminary inquiry or trial, regardless of whether witness evidence is presented.

Some committee members have expressed concerns about the ability to assess the credibility of witnesses remotely, about consequences of technological issues arising during hearings and about the potential impact of remote participation on the culture and tradition of our judicial system.

Yet we heard from many witnesses that these considerations should not be raised as reasons to oppose a greater use of remote participation. Chief Justice MacDonald in particular stated that judges have been assessing the credibility of witnesses remotely for years, and they have never intended to “sacrifice the accused’s rights or anyone’s rights in a trial at the altar of efficiency.”

Shelley Tkatch, an Alberta Crown lawyer with over 30 years of experience, emphasized how remote proceedings have improved the experiences of vulnerable witnesses by reducing the traumatic impact of testifying in open court.

We also heard from defence counsel Michael Spratt that remote proceedings can actually enhance credibility by providing judges with a clearer view of a witness’s face, and by eliminating some of the systemic problems associated with putting too much emphasis on an individual’s demeanour.

The committee also heard from a representative of the Indigenous Bar Association, Alain Bartleman, that Bill S-4 will offer an alternative to an individual asked to appear in person in a city located several hundred kilometres away from home. Indeed, he said that Bill S-4 will provide to the accused ways to minimize individual problems, including substantial financial costs to travel to the courthouse. According to him, access to justice would therefore be improved.

He also said that this bill could address some in-person concerns, or at least sidestep them, most notably translation services:

I can count on one or two fingers the number of times in which the courts have been able to properly find individuals with the appropriate linguistic competencies for . . . some dialects of Indigenous languages. Accordingly, a centralized or technological solution to enable pools of translators to assist would be a boon to the profession and certainly a boon to Indigenous clients — those Indigenous individuals in the justice system who are faced not only with obvious challenges of distance and time but also with simple communication and access to justice.

[Translation]

That said, I’ll be the first to admit that there will always be hearings where remote participation is not appropriate. Bill S-4 does not allow for remote attendance in jury trials, and nobody is suggesting that remote attendance should be the preferred mode for criminal cases.

On the contrary, I want to emphasize that in-person attendance is the basic rule, as indicated in section 715.21 of the Criminal Code, which is not being amended. I’ll quote it here:

It’s important to remember that the court can order remote attendance only in exceptional situations.

The fact is, the court cannot authorize remote attendance by video conference or telephone unless the accused requests it either for the plea, a preliminary hearing or a trial — except in the case of a jury trial, of course. In other words, it is always up to the accused. In most cases, the Crown’s consent is required as well.

Lastly, I should point out that court authorization is always required.

As was the case with Bill C 75, this bill sets out considerations for the court to take into account before authorizing attendance by audio conference or video conference. The court must take into consideration all the relevant circumstances, including the right to a fair and public hearing, the location and personal circumstances of the accused, the suitability of the location from where the accused will appear, the costs associated with appearing in person, and the nature and seriousness of the offence.

The bill also gives the judge the discretion to end the remote attendance at any time. This may be the case if technical problems arise, for example.

[English]

After debate, the majority of the members of the committee concluded that it was not necessary to try to spell out in more detail the circumstances to consider and that judicial discretion is and remains key here and that judges are best placed to determine, on a case-by-case basis, if remote attendance is appropriate considering all relevant circumstances.

During the committee’s study of the bill, there was a consensus on the importance that a request for remote attendance by an accused result from an informed and free decision. This concern was particularly true for self-represented accused. That is why this bill further proposes safeguards for those accused persons who do not have legal representation.

Before authorizing a remote appearance for an accused or an offender who does not have access to legal assistance during the proceedings, the bill will require courts to be satisfied that the accused or offender are able to understand the proceedings and that any decisions made by them are voluntary.

Of course, if an accused appearing remotely is represented by counsel, the court must ensure that the accused has the opportunity to consult privately with counsel, and this is also provided for in the bill.

On this aspect, we heard from the Canadian Association of Elizabeth Fry Societies, represented by Ms. Emilie Coyle about the lack of appropriate rooms in jails and penitentiaries for inmates to consult remotely with counsel or to appear remotely in a way that privacy and full participation in the legal proceedings are ensured.

In this regard, Ms. Coyle shared with the committee that she visited a federal institution where the conference room was not soundproofed and where interference from the communication system was more audible than the voices of the participants in the court room.

These things must be addressed before an authorization is given by a judge, and I hope that the Department of Justice and the Attorney General will look at these things to make sure that penitentiaries are properly equipped with the necessary equipment and proper rooms for inmates to participate in their trial in privacy and with full opportunity to consult with counsel.

(1520)

[Translation]

Another aspect of the bill that received unanimous support, including from the Royal Canadian Mounted Police and the Canadian Association of Chiefs of Police, is the proposed expansion and update of the current telewarrants system. These proposals respond to the calls issued by many stakeholders, including the Uniform Law Conference of Canada, the Steering Committee on Justice Efficiencies and Access to the Justice System, and the Canadian Association of Chiefs of Police, with a view to streamline the telewarrant process and extend its application to a greater number of situations.

[English]

Bill S-4 proposes to replace the existing telewarrant provisions with a streamlined and standardized process that will apply to a wider variety of search warrants, investigative orders and authorizations, and that will remove certain restrictions relating to types of offences, applicants and levels of court, while maintaining the current safeguards for issuance of the underlying judicial authorizations.

One key element of the proposed provisions is that where the search warrant application is submitted by means of telecommunication that produces a written document, such as by fax or email, a peace officer will no longer be required to meet the current preconditions if it is impracticable to appear in person before a justice to make an application for a warrant.

However, of course, a police officer could still make an oral application for a search warrant by means of telecommunication — by phone, for example — if he is located in an area where it is not accessible or where access to the internet is not possible or is impracticable.

The bill also provides for a uniform approach to the duties associated with the execution of search warrants and to post‑seizure reporting requirements regardless of whether the search warrant was obtained by technological means or by personal attendance. Once more, we are going to formalize the practices.

It is also important to signal that the committee added two new clauses to the bill. The first amendment, proposed by Senator Cotter, will require the Minister of Justice to initiate one or more independent reviews on the use of remote attendance in criminal justice matters no later than three years from the date the bill receives Royal Assent, and report back to each house of Parliament within five years. This significant amendment will provide an opportunity to assess the impact of remote-attendance provisions introduced by Bill C-75 and by Bill S-4 after some years of experience.

The second amendment, which I moved myself, would require a parliamentary review of the impact of the remote-attendance provisions, including, obviously, the reports of the independent reviewers at the start of the fifth year after Royal Assent.

[Translation]

Finally, I hope that these measures that have now been added to the bill will reassure certain representatives, mainly those of the Barreau du Québec, who were concerned about the bill’s implementation without a careful enough study of the possible consequences. I wish to highlight that the committee included in its report a certain number of observations. It suggested, in particular, that the delays in the criminal justice system be re‑examined given the importance of this issue for many of the witnesses we heard from. We all recognize that delays have serious consequences for both the accused and the victims. This is a problem we must tackle on an ongoing basis.

Other observations deal with the importance of ensuring legal interpretation services of good quality, investing in the technology needed to have quality remote appearances, ensuring the availability of facilities in several locations in Canada to guarantee access to remote proceedings for everyone, and putting in place measures to ensure respect for the fundamental rights of the accused persons in custody, those who are marginalized, the victims and the witnesses.

I understand that the bill’s proposals reflect the needs of our criminal justice system as formulated by the provinces and territories in the consultations held by the Department of Justice with all stakeholders responsible for the administration of justice, and other key stakeholders in Canada, including the special committee I talked about earlier. Bill S-4 proposes a set of targeted reforms that are reasonable, measured and widely supported by Canada’s legal community. For those reasons, I invite all of you to support Bill S-4.

[English]

I understand that the observations that were made by the committee should be considered as calls to action for the federal government, the provinces and the territories, as well as other key stakeholders in the criminal justice system across Canada, including counsel and judges.

In conclusion, Bill S-4 proposes a targeted set of reforms that are sensible, measured and broadly supported by the legal community across Canada. For these reasons, I invite you all to adopt third reading of Bill S-4 in the coming days in order to send it to the House of Commons for their consideration and sober second thought, I suppose, by the members of the other place.

Thank you, meegwetch.

Senator Carignan: Leader, if your government is taking the situation so seriously, perhaps you can explain why, three weeks ago, people were still waiting to renew their passports outside the passport office formerly located at 1 Place Laval, in Laval, until a security guard came along and told them that the office had moved. There was nothing to inform people of the move, not even a note on the door.

Leader, do you consider that an appropriate level of customer service in 2022 in Canada?

Senator Jaffer: Senator Dean, I will be speaking on this at some point, and I don’t want to belabour it, but even Ms. St. Germain said that she would accept the threshold because that was the general threshold the Customs Act used. Would you agree with that?

Senator Dean: Senator Jaffer, I will check the record. It is my recollection, because it stood out to me, that this was the only witness who was supportive of the original bill as written. So I took from that that she was leaning toward “reasonable general concern.” But we’ll both check the transcripts, and we’ll know when you deliver your statement next week.

Hon. Marc Gold (Government Representative in the Senate): Of course.

Senator Richards: If this bill is passed, will all artistic or creative platforms, no matter where they are in Canada, be monitored by government officials on a regular basis?

Senator Gold: I thank the honourable senator for his question.

We all have a role to play in ensuring that these people feel safe and are supported. I don’t know the details of the situation in Ukraine, but I will ask the government for clarification on this matter to answer this and the previous question, and I will get back to you as soon as possible.

[English]

Senator Richards: The first question is: How hard will it be for writers dealing with Canadian Heritage and the Canadian Radio-television and Telecommunications Commission, or CRTC, to deliver their own original work that does not fit the CRTC’s position or Canadian Heritage’s new mandate?

Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, my question is also for the government leader in the Senate.

On December 15, 2020, the Trudeau government announced $724.1 million to launch a comprehensive violence-prevention strategy. More than half of this funding was to support at least 38 new shelters and 50 transitional housing for First Nations, Inuit and Métis peoples across the country, including on-reserve, in the North and in urban areas.

On Tuesday, The Globe and Mail reported that, as of May 31, none of this funding had been allocated. As well, out of the more than $700 million promised through the strategy, just $12.6 million had been spent on violence prevention, or less than 2% of the total amount announced a year and a half ago.

Leader, could you tell us why this program to support Indigenous women and girls has been such a failure?