Senator Pate: Senator Gold, I think you know that if, in fact, that were true, the government would have produced that evidence. But the evidence they have produced was that 9 in 10 Canadians want to see an elimination of mandatory minimum penalties. Wouldn’t you agree that data has been clearly sought and received by the Department of Justice?

Senator Pate: Senator Gold, would it be possible to provide that information? My last discussions with officials from the Department of Justice indicated that a full 34% of all Charter challenges they are dealing with have to do with mandatory minimum penalties, and they hope that this will have a significant impact but they cannot produce figures to shore up that hope. Would it be possible for you produce those figures for us, please?

Hon. Kim Pate: Thank you, Senator Gold. I share Senator Jaffer’s perspective. Thank you for a very well-crafted speech.

I’d like to ask you this, though. When I’ve met with members from the Department of Justice, the assertion that this will result in a significant decrease in the number of people in prison has not been borne out by the Department of Justice’s own research. In fact, they indicate that maybe, as you’ve indicated — and most of the examples you used were of provincial and territorial incarceration — there may be some decrease for Black and some Indigenous folks, but there won’t be a huge decrease at all, in fact, no significant decrease in the numbers of Indigenous and Black prisoners serving two years or more.

In addition, most of the changes that are talked about in the drug laws have already been achieved through health policy and negotiations between provinces and municipalities.

Finally, I’d like to ask you this. You mentioned the testimony of the Canadian Bar Association, the South Asian Bar Association, the African Nova Scotian Justice Institute, PhD candidate Elspeth Kaiser-Derrick, all of whom went on to recommend that the bill go much further. Wouldn’t you agree that, in fact, in most cases, the evidence, including from Aboriginal Legal Services, from the Canadian Association of Chiefs of Police and many other witnesses at the Justice and Human Rights Committee in the House of Commons, recommended not that we shoot for the stars but, in the interim, until other mandatory minimum penalties are repealed, that judges be permitted the structured discretion to not impose mandatory minimum penalties in exceptional circumstances?

Senator Pate: Thank you, Senator Simons, for sparking another question from me. In discussions with the government, it was clear that the primary focus for this legislation was to address mandatory minimum penalties, which was in the 2015 election platform, as you know, as well as in the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls and the Calls to Action of the Truth and Reconciliation Commission. It has been clearly laid out that this is only a step forward, even though there is a patchwork of mandatory minimum penalties; and, unlike the medical assistance in dying, where our most recent debates were sparked by 1 lower court decision, we have more than 43 court decisions, and counting, that have struck down mandatory minimum penalties.

Would it be too far for me to go to say that it has been brought to my attention that this is likely the only opportunity and there are many people, both within the government and outside, who want to see us push on this piece of legislation to actually help it achieve the aim that the government has ascribed to it?

Senator Pate: I apologize. I obviously didn’t articulate that very well, Senator Gold. What I was saying is that if that evidence existed to show that these mandatory minimum penalties would significantly impact the incarceration rates, that data would have been produced and would have been part of your speech. I don’t envy your position of having to defend that, but it would have been. There have been numerous questions and certainly there is an abundance of evidence that the data has not been produced. You have not been able to provide the actual numbers. Have I missed something?

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

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

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

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

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

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

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

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

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

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

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

Meegwetch. Thank you.

(On motion of Senator Martin, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Woo, seconded by the Honourable Senator Omidvar, for the third reading of Bill S-6, An Act respecting regulatory modernization, as amended.