The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

SIXTH REPORT

Your committee, to which was referred 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), has, in obedience to the order of reference of March 31, 2022, examined the said bill and now reports the same with the following amendment:

1.New clauses 78.1 and 78.2, page 37: Add the following after line 7:

“Independent Review

78.1 (1) The Minister of Justice must, no later than three years after the day on which this Act receives royal assent, initiate one or more independent reviews on the use of remote proceedings in criminal justice matters that must include an assessment of whether remote proceedings

(a) enhance, preserve or adversely affect access to justice;

(b) maintain fundamental principles of the administration of justice; and

(c) adequately address the rights and obligations of participants in the criminal justice system, including accused persons.

(2) The Minister of Justice must, no later than five years after the day on which a review is initiated, cause a report on the review — including any findings or recommendations resulting from it — to be laid before each House of Parliament.

“Review of Act

78.2 (1) At the start of the fifth year after the day on which this Act receives royal assent, the provisions enacted or amended by this Act are to be referred to a committee of the Senate and a committee of the House of Commons that may be designated or established for the purpose of reviewing the provisions.

(2) The committees to which the provisions are referred are to review them and the use of remote proceedings in criminal justice matters and submit reports to the Houses of Parliament of which they are committees, including statements setting out any changes to the provisions that they recommend.”.

Your committee has also made certain observations, which are appended to this report.

Respectfully submitted,

Observations to the Sixth Report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill S-4)

Delays in Criminal Proceedings

In 2017, this committee completed a lengthy study and tabled its final report, Delaying Justice is Denying Justice, which contained fifty recommendations that sought to address what it referred to as a “delays crisis” in criminal proceedings and to make the criminal justice system fairer and more efficient.

Several witnesses during the committee’s study of Bill S-4 stressed the continued importance of reducing delays in criminal proceedings, and urged the committee to undertake a follow-up study to build on its recommendations and address these ongoing challenges. In the words of Professor Cheryl Webster, the committee should “renew its efforts in reducing court delay that it so clearly took up in 2017. The need is even more urgent now.”

Professor Webster also pointed to statistics generated by Statistics Canada on court efficiency measures, and by the Ontario Court of Justice on criminal processing measures, which indicate that court delays have worsened during the COVID-19 pandemic.

Ensuring Fair Trials and Protecting the Legal Rights of Accused Persons

Many witnesses noted that remote appearances by audio or video conferencing can improve efficiency in the justice system and promote access to justice. Some noted however that these should only be used when appropriate and should not replace in-person proceedings when those would better ensure fair hearings and protect the legal rights of accused persons. Judges will retain the option to order in-person proceedings at any time.

Court Interpretation

Many witnesses noted that the use of virtual appearances could expand the ability to access interpreters across Canada who are not locally available during judicial proceedings. Access to interpretation is an essential element of ensuring procedural fairness and avoiding court delays. This being said, virtual interpretation should not replace in-person interpretation when the latter is necessary to ensure a fair trial. Witnesses emphasized the need for investment in technology and other resources to allow for effective simultaneous interpretation during virtual judicial proceedings and to ensure in-person interpretation remains available as needed.

The Legal Rights of Accused Persons in Custody

Some witnesses underscored the importance of protecting the legal rights of accused persons in custody during virtual proceedings, particularly how these apply to privacy, security, confidentiality, and the ability of an accused to confer with defence counsel. They raised concerns that these rights were not being sufficiently respected.

Investments in Technology and Facilities

The committee observes that in the context of increased use of remote appearances in criminal proceedings, fair and effective access to justice requires, on an urgent basis, investments in technology and appropriate facilities to ensure appropriate access to proceedings, particularly for participants in remote locations, vulnerable populations, and for those who are incarcerated.

Consent of accused

The committee notes that the purpose of Bill S-4 is to clarify and expand the law by establishing clear mechanisms for the use of technology in the courts, some of which were introduced during the COVID-19 pandemic. Emergency measures had to be adopted for the judicial process to continue to operate by electronic means, as in-person proceedings were not possible. These include the possibility of remote appearances by audio or video conference, the use of electronic or other automated means for the jury selection process, the participation of prospective jurors by video conference, the application and issuance of search warrants, authorizations, and orders by various means of telecommunication.

The committee recognizes that the use of technology has become part of the judicial system and will continue to be used in the administration of the judicial process.

Several witnesses expressed concern about the use of these measures. The committee is equally concerned about the decision to use such measures without studying their impact:

On the fundamental rights of individuals who have been charged or detained, marginalized individuals, victims, and witnesses;

On certain stages of criminal proceedings, including the presentation of evidence.

The committee considers that the choice of the accused to consent to the use of these measures must be the only factor that triggers their use.