Senator Batters: Yes.

Senator Batters: I ask for five minutes. Thank you.

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

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

Hon. Denise Batters: Honourable senators, I rise to speak to Bill S-4, An Act to amend the Criminal Code.

Over the past two years, Canada’s criminal justice system — like nearly every facet of society — had to adapt quickly and substantially to function during a time of enforced social distancing and a myriad of other challenges posed by COVID-19. When we needed to put our modern communications technology to the test, most organizations found ways to advance efficiency, functionality and convenience that will certainly endure past the pandemic.

Having practised law for many years, and being a member of the Legal and Constitutional Affairs Committee during our 18‑month comprehensive study on court delays, I am acutely aware of the problem of excessive backlogs and the need to innovate and modernize our criminal justice system. However, as the justice system grapples with how to change in a digital age, the integrity of Canada’s court processes must remain paramount and should never be compromised for the sake of expediency.

Bill S-4 permits the continuation of many electronic processes that began during the initial COVID lockdowns. However, it also extends permanency to the option of virtual appearances before we have enough data and experience to assess the impact. I have specific apprehension with the proposal to allow an accused to appear and testify at their criminal trial by video. Under this bill, all criminal trials for both summary and indictable offences, and regardless of the severity of the offence, could be conducted this way.

What I find most concerning is the impact that could have on a judge’s ability to assess the credibility of the accused. Those of us who have spent extensive time in a courtroom know that is a critical factor in almost all criminal trials. While we are a long way from fully understanding the total impact of virtualizing meetings, conversations and proceedings that have always been face to face, the data we have suggests cause for concern.

In a 2017 U.S. Government Accountability Office report on immigration courts, judges in 50% of the surveyed courts identified instances where they had changed credibility assessments made during a video hearing after holding a subsequent in-person hearing. In one instance, an immigration judge failed to identify a respondent’s cognitive disability over video, which the judge said was clearly evident when the respondent appeared in person. In another case, the poor audio quality led to a misunderstanding of the facts of the case, which was not clarified until the respondent was able to appear in person. The change in the credibility assessment ultimately changed the judge’s decision.

Another study by Swedish psychology professors Sara Landström, Karl Ask and Charlotte Sommar found a substantial difference in perceived credibility between video testimony and in-person testimony. They described the “vividness effect” whereby live testimony due to its face-to-face immediacy is more “. . . emotionally interesting . . . and proximate in a sensory, temporal, or spatial way,” is generally “. . . perceived as more credible . . .” and “. . . better remembered. . . .”

In an article in the Tulane Law Review, law professor Anne Bowen Poulin points to a body of literature suggesting that video conferencing may have a negative impact on the way the defendant is perceived by those in court as well as the representation the defendant receives. She further notes that “when decisionmakers interact with the defendant through the barrier of technology, they are likely to be less sensitive to the impact of negative decisions on the defendant.”

In committee, Senator Pate drew our attention to the research done at the University of Surrey in England, which studied the merits of electronic proceedings and found that defendants were more likely to be jailed following video hearings, and suspects whose cases were dealt with remotely were less likely to have legal representation.

Witnesses at our Legal Committee raised additional concerns with video conferencing. Emilie Coyle, the Executive Director of the Canadian Association of Elizabeth Fry Societies and the daughter of Senator Coyle, testified about stigma against an accused appearing by video from prison and often in prison clothing rather than, for example, a suit that their family had given them. This can cement in the trier of fact’s mind — in this case, a judge — that someone being seen in a jail setting during a trial should, perhaps, remain in jail and it potentially gives a bias to a guilty verdict.

Ms. Coyle expanded, by stating:

. . . society assigns judgment to people who are in prison without understanding their background. . . .

Because we have this idea that people in prison are bad — we put bad people in prison — that judgment that we cast upon people who are in prison would lead potentially to an outcome in a trial that would not necessarily have been the outcome had that person not been in prison. . . .

Mark Knox from the Canadian Council of Criminal Defence Lawyers testified at committee about the “. . . slippery slope. . . .” and “. . . the movement away from the humanity, the decorum, all of these factors that are associated with an in-court trial. . . .” He cautioned against rushing to implement these supposed modernizations “. . . for efficiency’s sake in a rush.”

When I asked him about an amendment to remove the ability to have trials by video while leaving the other proceedings as proposed, he responded:

. . . I agree with you. . . . There are places that we could start to see how it works.

Our committee also heard from Ms. Eva Tache-Green from Nunavut Legal Aid. She told us that 24 out of 25 communities in Nunavut don’t have the technology to do a video conference in court. Coincidentally, early in her testimony, her face froze, with the message “network bandwidth is low” on the screen. She was in a legal aid office with comparatively high connectivity, and even her ability to communicate with our committee was impeded. She then had to do the rest of her testimony using only audio, turning off her video.

When I asked for her input on this amendment, she agreed, suggesting that we hold off on making video conferencing available for trials and start with “. . . proceedings that have lesser jeopardy. . . .” She added the following:

I am very concerned about the possibility of trials proceeding with an accused who is, of course, the person with the most at stake, being potentially cut out of the proceeding by the technology breaking down. . . .

Colleagues, even the best technology has its limitations. Look no further than this very chamber and the limitations a hybrid Parliament has placed on our ability to do our work. We often run into connectivity issues, and this is on Parliament Hill in Canada’s capital city with state-of-the-art technology and a sizable IT department. Sometimes a senator who has lost their connection is in a fairly remote location, but there have been many other times that we lose connection with a senator from their home office in our largest cities or, even worse, from their office on Parliament Hill.

One can only imagine the substantial issues as the courts attempt to rely on video technology from northern, rural and remote locations. For example, it is no surprise that there are major technological gaps in northern Saskatchewan, but there are courtrooms in Regina that still don’t have Wi-Fi. We are not talking about relying on a consistent connection for a 15-minute Zoom speech; this could potentially be several hours of accused testimony.

While carefully considering this amendment, I consulted with several people who work in courtrooms and conduct criminal proceedings every day, including defence attorneys and judges from provincial court and Queen’s Bench court. I spoke to judges who were initially enthusiastic about using video technology for criminal trials, but who have completely changed their minds after seeing it in practice for two years. They believe strongly in the merits of non-trial efficiencies, such as adjournments by emails, video for guilty pleas, et cetera, yet they have now seen first-hand that far too much is lost in conducting a trial this way.

The stakes are simply too high. One judge I spoke with made an excellent point. A courtroom is a serious place, and everything inside it — from the well-appointed interiors to the elevated dais to the judges’ robes to the requirement to address judges as “Your Honour” or “My Lord” — evokes a sense of seriousness, sombreness and respect. That is crucial so that those testifying are more likely to feel bound by their oath and respect the judge’s decisions. There is no comparison between putting your hand on a Bible in a courtroom full of people, including possibly a victim, your accuser, reporters and your family, versus taking an oath by video.

When an accused is sitting at home on his couch or in jail, not only is his Charter right to properly consult with his lawyer in jeopardy, but the gravity of the situation is unquestionably diminished. There is serious concern that, over time, there will be a major deterioration of respect for the court and the trial process to the profound detriment of all.

Judges relayed troubling examples from the past two years, such as an accused, testifying from his couch, who actually swore at the judge; a witness testifying from his shower during a criminal trial; and, most disturbingly, a domestic violence victim testifying from home with her abusive spouse in the next room. In these cases, testimony by video robbed the judges of any control over the environment.

In many sexual assault cases, the dynamic is very often he‑said‑she‑said. If an accused appears by video, the judge often loses the ability to assess demeanour and to even examine any interplay between the accused and the accuser in the courtroom. The impact of this should not be underestimated.

Trial judges are trained how to assess credibility of witnesses, including a defendant, in a courtroom, and that assessment is considered extremely valuable. In fact, findings of credibility made by a trial judge are not to be overturned by an appeals court other than in very rare circumstances. This is because trial judges can assess credibility right in front of them, not in a remote way.

When I introduced my amendment to remove video from criminal trials at the Legal Committee, Senator Campbell, stating that he had testified at many trials, reminded the committee that “. . . a trial is a big deal, especially if you are the one who is on trial.”

He further stated, “I don’t think you can discount credibility. I believe that credibility is important in every single case.”

He went on to say that:

I will support this amendment. I don’t believe it is a step back. I believe it is protecting Canadians from a technology that we have not perfected yet. . . .

Then, Senator White, when he spoke in support of this amendment, questioned whether the impact on victims and the importance of their ability to fully participate in a trial had been adequately considered in this bill. He said:

I think we need to walk before we run. I’m not sure in the last two years that we have proven that we walk very well.

Rather than adopting the very reasonable amendments that Senator Carignan and I put forward, our Legal Committee decided to append several observations reiterating the very serious concerns of our witnesses — concerns about inequitable access to technology, interpretation, privacy, security, confidentiality and the ability of the accused to confer with defence counsel. One observation went so far as to say witnesses “. . . raised concerns that these rights were not being sufficiently respected.”

Honourable senators, this is not observation material; this is amendment material. If the Trudeau government is willing to procrastinate on and ignore mandatory parliamentary reviews written directly into legislation, what hope does a mere observation have in catching the government’s attention?

With respect to the amendment I’m bringing forward today, some have argued that there is minimal risk, as all parties must consent. However, many witnesses raised concern with the very concept of consent in this context, especially given the profound power imbalance that could impact an accused’s ability to make free, informed decisions.

Ms. Emilie Coyle from the Canadian Association of Elizabeth Fry Societies said that an accused may be told they will face delayed time frames if they don’t proceed virtually. And if they are not made keenly aware of what is at stake by forgoing a traditional day in court, can we honestly consider that a free choice? Just think about the Charter challenges that could arise when an accused has been told by their counsel that this is their only option, or they will spend less time in jail or save them money. It is easy to foresee an accused agreeing, then getting convicted and later challenging the decision based on a violation of their Charter rights.

Some maintain this is a non-issue, as the judge can simply decide not to sign off on this. On paper, there may be no reason to not proceed by video for a particular trial. A judge may later deem unforeseen connectivity issues as minor, but will never truly know what was missed. There may even be circumstances where the virtual trial appeared to be a success. However, a judge is a human being, and the research is clear: There are intangible qualitative elements that do not come through in a virtual setting that will likely result in an incomplete or even inaccurate assessment of the accused, even for the most experienced and well-intentioned judges.

To be clear, the amendment I am proposing will not remove all video capability for the accused in criminal proceedings. In fact, my amendment would allow the accused to use video technology for the many other types of criminal court proceedings and appearances permitted by Bill S-4, including bail, preliminary inquiries, pleas and sentencing. My proposal is simply to eliminate this option for trials and start with these matters of “less jeopardy.” This is very much a cautious, compromise proposal.

As the judges I spoke with emphasized, the provision to operate this way in an emergency already exists in the Criminal Code. If there is another lockdown, they can use video conferencing as necessary. Their concern was that Bill S-4 suggests that trial by video is the default or preferred method going forward, and the evidence is clear: making this the default approach comes at a tremendous price.

I will conclude with a quote from the Barreau du Québec, who recommended to our Legal Committee that all testimonial evidence should be excluded from video conferencing. First of all, the lawyers in this group work on the ground every day, and they state:

In an in-person trial, a simple note passed to counsel, or even a glance shot at them by the judge or a witness, is likely to change their approach or strategy and affect the outcome of the trial. . . .

They further state that, under this bill, “. . . remote trials become the rule rather than the exception.”

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

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

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

Hon. Denise Batters: Therefore, honourable senators, in amendment, I move:

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

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

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

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

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

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