Hon. Pierre J. Dalphond moved second 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).

He said: Esteemed colleagues, I rise today to start second reading of Bill S-4, whose title is a bit of a mouthful. It is called 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 its long name suggests, this bill is connected to the COVID-19 pandemic, which exposed certain legal practices in the criminal justice system that were in need of modernization to avoid unnecessarily exposing stakeholders and other individuals to the virus. In addition, these changes would make the criminal justice system more efficient by taking advantage of available technologies. As the saying goes, necessity is the mother of invention.

This bill is, for all intents and purposes, identical to Bill C-23, which was introduced in the House of Commons on February 24, 2021, by the Honourable David Lametti, who was and still is the Minister of Justice and Attorney General of Canada. That bill did not make it through the other place before Parliament was dissolved last summer for the general election.

[English]

The content of Bill C-23 was the result of significant discussions among the federal, provincial and territorial governments. I understand that the Minister of Justice and Attorney General of Canada has met several times since the beginning of the pandemic with his provincial and territorial counterparts to discuss the impact the pandemic has had on the justice system and has taken careful note of their suggestions for possible legislative reform.

Similarly, Bill C-23 had been informed by the work of the Action Committee on Court Operations in Response to COVID-19, a committee co-chaired by the Right Honourable Chief Justice of the Supreme Court, Richard Wagner, and the Minister of Justice.

The pandemic has been a challenge for all Canadian courts. This bill, if adopted, will provide certainty and clarity for courts and litigants, and it will standardize the availability of modernized procedures across the country.

[Translation]

It makes sense for the government to reintroduce this bill, which will provide greater flexibility in the administration of criminal justice and free up judges to hear more cases. This will help ensure that the timelines set out by the Supreme Court of Canada in Jordan are respected.

This time, the government is reintroducing its initiative in the Senate for several reasons. First, this is not a money bill. Second, the bill reflects a broad consensus among justice system stakeholders who see these changes as likely to improve and simplify the administration of criminal justice. Third, introducing the bill in the Senate will maximize the parliamentary system’s ability to study government bills.

In the case of this government bill, we will be acting not as a chamber of sober second thought, but as the instigating house, which can make amendments without seeking the consent of the House of Commons via message.

Nonetheless, we will have to undertake a careful study of the 37 pages describing the proposed amendments, as well as the 27 pages of explanatory notes. The Standing Senate Committee on Legal and Constitutional Affairs is the most appropriate venue for an in-depth study of these amendments, and I hope it will deal with the bill quickly.

For now, let me lay out the main provisions and explain what they would do.

[English]

First, the bill seeks to clarify and expand the current remote appearance regime that explicitly allows accused persons to appear by video conference or audio conference.

Colleagues, you may remember that in Bill C-75, that we adopted in 2019, we added six new provisions in Part XXII.01 called Remote Attendance by Certain Persons.

The general principle outlined in section 715.21 is that “. . . a person who appears at, participates in or presides at a proceeding shall do so personally.” The use of “. . . audioconference or videoconference, in accordance with the rules of court . . .” is permitted in certain circumstances once certain requirements are met. It’s not a general access.

Bill C-75 added provisions found at other parts of the Criminal Code to facilitate the administration of justice, including the possibility of a remote appearance by the prosecutor or the lawyer acting for the accused at the appearance stage of the criminal proceedings where the accused is asked to enter a guilty or not guilty plea. There have been varied interpretations of these provisions and their scope.

The bill will clarify the ability of accused persons to appear by video conference during preliminary inquiry hearings and trials for summary and indictable offences, including when witness evidence is being heard, except where evidence is being taken before a jury. In other words, jury trials will have to be in person.

However, it is important to mention that these trials and preliminary inquiries will be held only by consent. The accused has to be agreeable to proceed that way, and where the court is of the opinion that it is appropriate, with regard to all the circumstances, including listed factors, such as the suitability of the location from where the accused person will appear and the right to a fair and public hearing.

The bill will also permit an accused to appear by audio conference when pleading guilty or receiving a sentence, but only if video conferencing is not available, with the accused’s consent, and where the court is satisfied that despite not being able to see the accused, judges and lawyers are able to assess the conditions for accepting a guilty plea.

The bill includes some important safeguards for accused persons appearing remotely, whether by audio conference or video conference and regardless of the stage of the criminal process. For example, if an accused person appearing remotely is represented by counsel, such person would need to be given the opportunity to speak with counsel privately.

Moreover, if an accused person is appearing remotely and is not represented by a lawyer, the court would need to ensure that such a person is able to understand the proceedings and that any decisions he or she makes are voluntary.

Second, the bill would also increase the use of technology in the jury selection process, including permitting prospective jurors to participate by video conference, since the jury selection process often requires the physical presence of a large number of people at the courthouse or at another venue.

Bill S-4 will allow the remote participation of prospective jurors by video conference for the jury selection process but only under certain circumstances and with the consent of the parties and at the discretion of the court. This will provide courts with greater flexibility in allowing the jury selection process to take place in less-crowded locations.

In some provinces, sometimes 100 to 500 people are called for jury selection. That is a lot of people waiting in corridors and in large rooms, especially during a pandemic.

This will provide courts with greater flexibility in allowing the jury selection process to take place in a safer manner. It will ensure that a lack of access to technology does not hinder a person’s ability to participate in the process, and the option to appear in person will continue to be available where technology is not provided.

Bill S-4 will allow for the enhanced use of technology to draw the names of prospective jurors in the jury selection process. As you may know, the list is made up of 100 or more names and somebody has to draw by hand from the list one name at a time. That takes some time and involves some manipulation. So the bill will authorize the use of technology to draw names of prospective jurors in the jury selection process. It is a type of electronic bingo.

Currently, this part of jury selection is done manually. The bill will ensure electronic or automated technology is used to draw the cards at random. This is a change that should contribute to greater efficiency for jury trials across Canada. Incidentally, this was tried in British Columbia during the pandemic. They used an electronic device to randomly select the first 10 jurors to be called to the room in order to avoid people mingling.

Third, the bill will expand and update the existing telewarrant regime so that applications for a wider variety of search warrants, authorizations and orders can be made by telecommunication instead of a police liaison officer attending the office of a judge. When I say “attending the office of a judge,” it means attending in the corridor next to the office of the judge. The papers are presented to the judge, and they are returned signed, or not, by the judge.

Under the current telewarrant framework, the police can apply for a handful of search warrants and judicial authorizations to investigate only indictable offences where it is impracticable to appear personally to present the application to a specially designated justice or judge as the case may be. A parallel process also exists to obtain wiretap authorizations by telecommunication in very limited cases.

During the height of the pandemic, reduced in-person court operations have presented challenges to law enforcement officials in obtaining some search warrants and other judicial authorizations that cannot be applied for electronically.

The bill proposes to expand the telewarrant process to a wider range of search warrants and other judicial authorizations provided in the Criminal Code, such as tracking warrants and production orders. The amendments will also expand the availability of the telewarrant process by making it available in relation to any offence, not only an indictable offence.

This is a procedural change that I think will improve the situation and will unfortunately deprive, from time to time, a judge from having a brief conversation with a police officer.

This will not affect the legal threshold for obtaining a warrant. That will remain the same. The judge, from whom the authorization is sought, will have to ensure the legal threshold is complied with.

The bill will streamline the current telewarrant regime in a number of ways. First, it will permit applications to be presented by means of telecommunication, such as by email, without the need to show that it is impracticable for officers to appear personally before a justice. These changes will result in a more efficient use of police time and court resources while respecting social distancing guidelines when applicable.

The bill will maintain provisions that allow police to make oral applications when needed, but only in cases where a justice or a judge is satisfied that it is impracticable for the officer to present their application in written form via telecommunication. That could be the case for a very urgent application.

Furthermore, the bill would remove the limitations on who can access the telewarrant process and who can issue telewarrants. The new process will be available to any law enforcement entity — and not only to a peace officer — who may apply for such an authorization and any level of court that may issue such an authorization, order or warrant.

Four, the bill proposes to introduce some flexibility in the process of fingerprinting including when it could be done if it were not done at the first opportunity.

During the pandemic, officers have faced situations where obtaining fingerprints of people charged with committing a criminal offence in a timely way was causing some difficulties and even health risks for those involved. There will be, for example, that person who is charged and refuses to go to the police station so as not to be exposed to other people or just the danger of being too close to the police officers who do the fingerprinting.

The need to have fingerprints collected at the time of arrest has placed both law enforcement officials and accused persons at unnecessary risk on occasions. The ability of police to obtain fingerprints has been disrupted during the pandemic due to physical distancing requirements, which has led to significant operational challenges. It’s difficult to hold the thumb of somebody else and still be at a meter of distance.

Bill S-4 would allow fingerprinting of accused persons to occur at the bail stage or at later stages of the criminal justice process where previous attempts at fingerprinting were not possible due to exceptional circumstances, such as the risks posed by COVID-19. But I want to be clear. This bill would not change the rules in terms of who may be subject to identification procedures such as fingerprinting. It would simply allow for fingerprinting to occur at a later date without the police force losing the ability to collect the fingerprints.

[Translation]

Fifth, the bill contains a series of amendments that empower the courts to manage certain administrative and other matters more effectively.

The Criminal Code currently permits courts to adopt case management rules when accused persons are represented by counsel. However, when the accused is unrepresented, all administrative matters covered by rules of court must be dealt with in the courtroom before a judge, as is done for accused persons who are represented by counsel. In some cases, these matters could be dealt with by an officer of the court. Unfortunately, this judicial time is not being used effectively.

This bill proposes to expand the courts’ ability to make these rules for unrepresented accused persons and to ensure they are enforced, allowing court personnel to deal, out of court, with administrative matters for those cases as well.

Sixth, certain amendments would harmonize the rules that apply to the execution and seized property reporting stages for all search warrants, whether they are sought in person or by electronic means.

Under the current system, a report must be prepared when a seizure takes place. The report is sent to different people depending on whether it is prepared under a regular warrant or a telewarrant. In addition, the system does not make it easy to locate a copy of the report for the person subject to the seizure. The bill would harmonize the process at this level, which would increase access to information on the execution of search warrants and the property seized during a search.

Finally, the bill also includes technical amendments arising mainly from the passage of Bill C-75 in 2019, as well as related amendments to other federal acts. It would seem that when we passed Bill C-75, certain changes to the numbering of sections and related administrative changes were not made. Let us correct this.

I invite you to read the bill at the time of day when you are most alert, because that will help. To all my colleagues on the Standing Senate Committee on Legal and Constitutional Affairs, I will say this: We will soon be meeting to examine the pages of amendments with the assistance of representatives of the Department of Justice, who will be able to clarify the meaning of the provisions.

In the meantime, I would be happy to respond to your questions and comments. Feel free to contact my office if you require further information.

(On motion of Senator Wells, debate adjourned.)

[English]

Hon. Pierre J. Dalphond: Honourable senators, I rise in strong support of Senator Omidvar’s bill, Bill S-217, the Frozen Assets Repurposing Bill.

This is an important piece of legislation with the potential to build international momentum against human rights abuse and corruption, as well as to help improve the situations of victims of these people. Senator Omidvar first initiated this bill almost three years ago and I hope we will collectively give this matter some priority with committee study in the near term.

Bill S-217 builds directly on another important Senate initiative, that of former Senator Andreychuk, who led the passage of the Sergei Magnitsky Law in 2017 with Bill S-226. That law now allows for the seizures, freezing or sequestration of assets in Canada of corrupt foreign nationals responsible for human rights violations or corruption.

In Canadian law, assets may also be seized, frozen or sequestered under the Special Economic Measures Act which deals with sanctions, and the Freezing Assets of Corrupt Foreign Officials Act, which deals with requests by foreign countries in turmoil.

This bill will take the next logical step by providing a mechanism to distribute frozen assets to appropriate individuals or organizations.

This distribution will take place according to the five principles Senator Omidvar described in her speech in December: first, accountability for human rights abusers; two, justice for victims; three, due process in court for any distribution of assets; four, transparency in terms of both the identity of the officials and the value of their frozen assets; five, compassion with meaningful actions to the repurposing of resources to help vulnerable people.

Establishing this proposed law will further advance Canada as a leader in human rights. Senators can be proud to break this new ground together if we have the will to act.

On substance, Bill S-217 is nothing to fear. The concepts are already well established in our domestic law relating to the proceeds of crime, such as in the Seized Property Management Act. For this reason, I would suggest that this legislation is ready for expert input on the details at committee.

For example, I will note an interesting debate involving the Honourable Irwin Cotler and lawyer Brandon Silver of the Raoul Wallenberg Centre for Human Rights in Montreal, and the Honourable Lloyd Axworthy and our colleague Senator Omidvar.

The subject of that debate, published in Policy Magazine in 2020, was to what degree frozen assets should go to individuals affected by the wrongful actions, through individual claims, as compared to a more population-focused approach, at judicial discretion. This is a question within the principle and scope of the bill, appropriate for committee consideration. I look forward to hearing expert perspectives.

I would also note that under section 8, Bill S-217 permits distribution to both affected individuals and populations as appropriate to the circumstances, including through contributions to humanitarian relief. I’m sure that would be very useful to Ukraine.

With worsening human rights crises around the world, Canada must always take a stand for what is right. In some situations, this is best done through diplomatic channels, and in other situations through legal, parliamentary and public communications avenues. In some situations, all these avenues may have to play together, but they always play beneficial roles.

In this chamber, we have the benefit of advice on optimal approaches from colleagues with expertise in foreign affairs like Senator Harder, Senator Boehm and others, as well as the benefit of advice on international human rights, legal avenues, from colleagues like Senator McPhedran, Senator Jaffer and others.

On this point, I will note the successful collaboration in this chamber that led to the Senate’s adoption of a motion in June of last year regarding the Philippine government’s unjust and arbitrary detention of Senator Leila de Lima.

With Bill S-217, we have a clear opportunity to improve our domestic law to better address foreign human rights violations, and in so doing to improve the situations of victims and encourage positive action in the global community. We should seize the momentum.

Thank you to Senator Omidvar on this important initiative, and I think that the time has come to send the bill to committee.

Thank you, meegwetch.