- Member of Parliament
- Member of Parliament
- Bloc Québécois
- Rivière-du-Nord
- Quebec
- Voting Attendance: 68%
- Expenses Last Quarter: $105,330.31
- Government Page
Mr. Speaker, I am pleased to be here today to express the Bloc Québécois' support for Bill S‑4, formerly Bill C‑23. Bill S‑4 was requested by many provinces and justice system stakeholders seeking to benefit from the lessons learned during the pandemic.
Bill S‑4 seeks to amend the Criminal Code by introducing provisions to make the system more effective. The pandemic was disastrous on many levels. We all agree on that. We certainly hope never to see it again; that goes without saying.
We also all learned from this crisis, and we can certainly try to benefit from the lessons learned. We worked virtually over the past two years like we never have before. This way of doing things certainly has some disadvantages. I will come back to that. However, there were some benefits that we cannot ignore. Our justice system could most definitely be improved through the use of this little-known or often misused tool. Bill S‑4 proposes instructions to ensure that the proceedings that can be carried out remotely are managed and used effectively.
This bill proposes to allow for the use of electronic or other automated means for the purposes of the jury selection process. It also proposes to expand, for the accused and offenders, the availability of remote appearances by audioconference and videoconference in certain circumstances and to provide for the participation of prospective jurors in the jury selection process by videoconference in certain circumstances.
The bill would expand the power of courts to make case management rules permitting court personnel to deal with administrative matters for accused not represented by counsel and it would permit courts to order fingerprinting at the interim release stage and at any other stage of the criminal justice process if fingerprints could not previously have been taken for exceptional reasons.
Finally, it would replace the existing telewarrant provisions with a process that permits a wide variety of search warrants, authorizations and orders to be applied for and issued by a means of telecommunication.
Bill S-4 also makes amendments to the Criminal Code and the Identification of Criminals Act to correct minor technical errors and includes transitional provisions on the application of the amendments.
Finally, Bill S-4 makes related amendments to other acts and also provides for independent reviews on the use of remote proceedings in criminal justice matters.
It also provides for a parliamentary review of the provisions enacted or amended by this act, and of the use of remote proceedings in criminal justice matters, to begin at the start of the fifth year after it receives royal assent. There is a review of the whole process after five years. I think that is very wise, given that many of the provisions in Bill S-4 are new.
Bill S-4 is basically a tool. As we have seen here in the House and elsewhere, working remotely definitely has its advantages, but it also has significant drawbacks. Like any tool, it must be used judiciously. It has limitations that must be considered. When the time comes to assess a witness's credibility, body language is an important element that the judge wants to take into account. In remote proceedings, that type of language is redacted, so to speak. In my opinion, it is an important element that could, in some cases, radically change the outcome of a trial, particularly when the evidence consists of contradictory testimony.
Once again, like any tool, it must be used with discernment. A screwdriver is very useful; so is a hammer. However, if we use a hammer to drive in a screw we will have a problem. If we use a screwdriver to pound a nail, we will have another problem. In each case, we must determine what is appropriate. This is not a cure-all. In that regard, the Quebec bar association urges us to be cautious with certain provisions. I will come back to that.
However, proceeding remotely in some cases will accelerate the judicial process. It will minimize time wasted and postponements. We often see courtrooms packed with people in the morning waiting to appear, and then half the cases may be postponed for various reasons. If the proceedings are held remotely, delays due to postponements will be reduced, and the same applies for administrative matters, which do not require lawyers to appear in person. That already exists and is already being used to manage cases where parties are represented by lawyers. Under Bill S‑4, this could also apply when the parties are unrepresented. We will have to examine how to proceed, because this does pose certain challenges.
I think it is a useful measure that will reduce travel, inconvenience and often the frustration of people facing a judicial system that is manifestly too slow and opaque and that imposes costs and travel that could well be avoided. It is therefore a good thing if, I repeat, it is used with discernment.
I mentioned the drawbacks, including issues around witness and juror credibility. In a jury trial, the lawyers selecting jurors have to evaluate the candidates based on factors that are not always technical. Lawyers listen to them, ask them questions, consider their answers and also take into account their body language and the way they answer. In many cases, that is how they decide whether to accept or reject a potential juror.
The same goes for witnesses. There have been many trials in which key evidence consists of contradictory testimony. How are judges to decide whether one witness is telling the truth and the other is lying? Judges will use the witnesses' answers, certainly, as well as their body language. They will consider how witnesses react. They get a sense of people's credibility based on many criteria that are not necessarily explicitly stated in written procedures. It is important for judges and lawyers working on a trial to have face-to-face access to witnesses and potential jurors.
Could they not in some cases be heard virtually? I think so. Could jurors not in some cases appear virtually? I think so, but that has to be determined with the consent of the parties and not systematically imposed in every trial.
There is also talk of the problem of hacking. We know that we are constantly having to deal with hackers. We all receive unsolicited emails and proposals. I often receive messages warning that I have been summoned for a trial at a certain location and that I have to click on a link or the world will come to an end. All sorts of things like that happen, so our computer systems are not always as safe as we might think. Even banks get hacked. We saw that roughly two years ago when Desjardins suffered a data breach. Holding trials virtually is one thing, and we need to be careful, but Bill S‑4 also talks about telewarrants, meaning a warrant to conduct a search of someone's home.
If we computerize all telewarrants, warrants obtained virtually, and if we proceed based on a virtual model, are we not exposing ourselves to piracy and perhaps searches or actions of a legal nature that would be contrary to the interests of litigants, contrary to what we are trying to achieve in the administration of justice? I think we need to ask the question. I do not want to be an alarmist. Once again, I see Bill S‑4 as a positive thing, but I am just saying that we do need to ask some questions. It is not a panacea. It must not be applied without careful consideration.
There is the issue of regional disparities. As we saw during the pandemic, not everyone in Quebec, nor elsewhere in Canada, has equal access to computer systems. It is rather lacking in some regions.
Some people are able to work at home all day with two people on computers and hold meetings with multiple people without any issues. Others have a hard time making a phone call without being interrupted. That also has to be taken into consideration.
It is also the mandate of our federal government to ensure that everyone in Quebec and Canada has proper Internet coverage, but we are not there yet. Admittedly, the government is working on it, but there is still a long way to go. That has to be taken into account if we want to computerize the justice system, so how can we do that?
Once again, I think that, before we impose virtual proceedings, we need to make sure that we have the consent of the parties. If someone says, “Just a second. Where I live, we do not have very good coverage and I will not be able to follow along”, then perhaps the proceedings need to be held in person.
There is a process, and adjustments will have to be made. We need to take that into account, even though I think that Bill S-4 is an important step forward for the administration of justice.
Speaking of compromises, the Barreau du Québec submitted a brief in April that set out four recommendations. I want to read them because I think they are sensible.
The first recommendation from the Barreau du Québec is:
Exclude testimonial evidence from the new videoconferencing system. Testimonial evidence must be heard with all parties present.
As I was saying earlier, for the purpose of observing body language alone, I think it is important to see people.
The second recommendation is:
Carry out an in-depth study on the potential impact of making measures developed in a pandemic context, namely, those relating to technology and the automation of procedures, permanent in the Criminal Code. Carry out an in-depth study on the impact of videoconferencing on:
The attorney-client relationship...
It is a matter of professional responsibility for the attorney to properly represent the client and to ensure that he or she fully understands the brief and explains to the client what he or she believes is in the client's interest.
... and confidentiality.
Again, we know that the Internet and computers are not 100% secure, and this could lead to unwanted challenges and drawbacks.
Open court (Canadian Charter of Rights and Freedoms).
This is set out in the Canadian Charter of Rights and Freedoms, and we have to take that into account. I will come back to that.
The right to a fair trial (Canadian Charter of Rights and Freedoms).
Quality and consistency of justice (regional disparities in resources, Indigenous realities, self-representation).
Regional disparities in resources also affect the right to a fair trial and the quality and consistency of justice. What about indigenous realities? Are indigenous communities equipped to hold trials remotely? Can they do that? It is hard to be sure, but probably not all of them can. For people who self-represent, it is one thing for a lawyer at home or participating remotely to handle case management, but it can be problematic for a self-represented individual to deal with one, two or three lawyers in addition to a judge and a clerk, all participating remotely. At the very least, it can weigh down the process instead of streamlining it. We have to give that some serious thought.
The Barreau du Québec's third recommendation is as follows:
Delete new proposed section 715.241 of the Criminal Code, which allows the court to “require an accused who is in custody and who has access to legal advice to appear by videoconference in any proceeding referred to in those sections, other than a part in which the evidence of a witness is taken.”
I said it earlier. I think that, as long as everyone agrees, it is perfect. Going virtual is the appropriate tool. If all the parties agree and the judge agrees, that is what should happen. However, there is an issue if not everyone agrees. The proposed section 715.241 allows the court to require the accused to appear by video conference. This seems to me to be a potential problem, and I believe that the Barreau du Québec is right to warn us about this aspect.
The fourth recommendation of the Barreau du Québec reads as follows:
Clarify the distinction in Bill S‑4 between an accused who has “access to legal advice” and one who is “represented by counsel” in a context where only accused persons with representation can communicate with counsel.
Having access to legal advice is a vague concept. Access when and on what subject? What exactly are we talking about? Does having had access to a lawyer yesterday to discuss a number of issues mean that the individual is prepared to deal with any and all situations that may arise during a trial? That is not a given. This will have to be clarified, as Bill S‑4 is not very clear in this regard.
An accused who is represented by counsel and an accused who has access to legal advice seem to be given the same credit or treatment. I think we will have to take a closer look at that.
As I stated, the Bloc Québécois will support the bill and probably move amendments in committee. We shall see, but I think that this bill should be referred to a committee.
Having said that, I would be remiss if, in the last five minutes at my disposal, I did not bring to the attention of the House other major problems that need to be addressed to achieve sound and efficient administration of justice. We must not forget about them. Bill S‑4 is not a cure-all. I have spoken at length about the issue of connectivity in all regions, so I will not say any more about it. Still, it is an important aspect and is one of the things we must work on if we want to have an efficient virtual legal system.
There is also the question of judicial vacancies. Several positions are still vacant. I was speaking with a Quebec Superior Court judge two or three weeks ago who told me that there are about 15 vacancies in Quebec. I do not know what our government is waiting for to fill those judicial vacancies. It seems absurd to me. It is not even the federal government that pays those judges, it is Quebec. I should say, rather, the federal government does pay them, but it does not pay for the infrastructure, the clerks and the courtrooms. All associated costs are assumed by Quebec. There are vacancies, and our government has failed to fill them. It is a serious problem. A sound administration of justice requires sufficient resources on the ground, and judges are the primary resource we need.
We have spent a lot of time talking about the issue of appointing judges based on the “Liberalist”, and we will come back to that again. It does not make sense that, to this day, the Minister of Justice and the Prime Minister are still trying to reassure me that the “Liberalist” is used only after receiving applications that are deemed suitable. I personally believe that it should never be used, because partisan appointments, or appointments tainted by partisanship, are unacceptable in our society.
Finally, we recently talked again about the matter of secret trials, and that issue was in the news again yesterday. The Minister of Justice says he cannot tell us how many secret trials there are. He cannot even tell us whether there are any. I can understand that things need to be done differently than the charter dictates in some cases to keep witnesses safe, but it is certainly not acceptable for things to be done in a secret, non-transparent way like they are now. These trials need to be governed by the provisions of the charter. As members know, there can be a departure from the charter in exceptional circumstances that can be justified in a free and democratic society. I can accept that, but it cannot be done just any which way. When the Minister of Justice says that he cannot tell us how many of these trials are happening or even whether any such trials are happening or how the process works, that is a problem. This is not the wild west. Things need to be organized better. It is unacceptable for the government to operate like that.
2788 words
All Topics
- Hear!
- Rabble!
- add
- star_border
- share
Mr. Speaker, I am pleased to rise today to speak to Bill S‑206, which is before the House for a fourth time, if we count the three previous versions of the bill introduced in previous Parliaments. Regardless, the bill we are studying today is still the same bill.
Bill S‑206 essentially proposes a change to the existing rules regarding the confidentiality of deliberations between members of a jury who have to decide the fate of an accused person. The jury secrecy rule is set out in section 649 of the Criminal Code and is also called “Lord Mansfield's rule”. It is a cornerstone of common law and the British criminal justice system.
This rule is anything but trivial. The jury is the trier of fact. The judge presiding over a trial is the trier of law. The judge adjudicates matters of law that arise over the course of the trial and gives the necessary advice to inform and guide the jury regarding these matters. That said, at the end of the day, as intended by the legislator, it is the members of the jury who decide whether the accused is guilty or innocent.
The role of jurors is therefore vitally important to the judicial process. When they deliberate, they need to feel completely free to say what they think out loud without worrying about being publicly quoted later as having put forward a certain idea or opinion. Obviously, jurors will often disagree with one another when they first begin their deliberations, but they will work together to consider all the facts entered into evidence during the trial, which may have gone on for many weeks in some cases.
At that point, the success of their work will basically depend on the flow of their debate and how comfortable they feel talking freely and unreservedly among themselves. I am thinking of the ability to share the uninhibited, unfiltered thoughts that come into our minds as we think about what we are going to say. The legislator grants the jury a type of legal status—a partial, temporary status—that lasts only as long as the trial. The jury will then speak with one voice and render a unanimous verdict, like a single person who speaks after carefully considering and weighing all aspects of an issue.
It is therefore easy to see that a sound decision requires absolute confidence in the confidentiality of their deliberations, just as every one of us refuses to compromise the integrity and inviolability of our thoughts. Anyone who, rightly or wrongly, believes someone else is probing their thoughts will self‑censor and be unable to think freely. That is anathema to a healthy thought process and wise deliberation.
Section 649 of the Criminal Code states that it is an offence for a jury member or anyone assisting them to disclose “any information relating to the proceedings of the jury, when it was absent from the courtroom that was not subsequently disclosed in open court”.
In this regard, the Supreme Court has already ruled as follows in R. v. Pan and R. v. Sawyer in 2001:
The common law rule, in combination with s. 649 of the Code, helps to ensure that jurors feel comfortable freely expressing their views in the jury room and that jurors who hold minority viewpoints do not feel pressured to retreat from their opinions because of possible negative repercussions associated with the disclosure of their positions.
We therefore understand that this is the rule that ensures sound, reasonable decisions. That said, jury duty is not always easy.
Sometimes, the facts and evidence of a criminal case can be so intense that they have a significant impact on the jury members hearing the case. Unfortunately, violence and horror can feature prominently in the crimes a person is accused of.
Furthermore, jury deliberations can often be very emotional. It is extremely stressful to stand alone against 11 other jurors and defend a point of view that none of them agree with. Add to that the often heavy consequences that the jury's decision will have for the accused, and I have no difficulty imagining that the situation can become untenable.
In some cases, jury members can be traumatized to such an extent that they have to consult a health professional to deal with it. Some experiences have drastically transformed the lives of jurors left to cope with their trauma alone. These people did not choose to be jurors; they were chosen, and they had a legal obligation to fulfil that duty. They clearly deserve our gratitude and our support. As things stand now, it is more difficult for them to receive care and adequate treatment for what they are suffering, as they cannot speak freely about their trauma without contravening section 649 of the Criminal Code.
Ensuring access to adequate and efficient health services for those who generously contributed to the justice system is obviously paramount. It is our responsibility. It is only common sense that we concur with what is fair and obvious.
Bill S‑206 proposes to allow members of a jury to be exempt from this rule of confidentiality if they require professional health services for medical or psychiatric treatment, therapy or counselling provided after the trial.
This bill asks us to examine a proposed new paragraph (c) under section 649 of the Criminal Code, adding new exceptions to those already established in paragraphs (a) and (b) to allow for evidence to be given in obstruction of justice cases. The proposed paragraph (c) adds an exemption from the confidentiality obligation for the purposes of:
(c) any medical or psychiatric treatment or any therapy or counselling that a person referred to in subsection (1) receives from a health care professional after the completion of the trial in relation to health issues arising out of or related to the person's service at the trial as a juror or as a person who provided support services to a juror.
The proposed subsection 649(3) also adds that the health care professional who provides any medical or psychiatric treatment or any therapy or counselling must be entitled to do so under the laws of a province.
This is a small loophole in the absolutely essential integrity of the confidentiality of jury deliberations. However, the loophole is closed by the confidentiality obligation in the rules of ethical conduct that professional associations impose on their members.
The House must now weigh the benefits to the justice system of keeping jury deliberations confidential against the benefits to jury members of having more accessible and certainly more effective consultation services between each other and, if applicable, their health professionals.
These decent individuals already do not receive the compensation and consideration they deserve in light of their valuable contribution to the justice system. They are at the heart of some legal as well as moral debates for which they were never prepared. They are calling for a bit of support and recognition, which seems like the bare minimum. As I said, they deserve our respect, our recognition and better working conditions. One day, we will probably have to think about what more we can do to acknowledge their true value.
Under the circumstances, the Bloc Québécois will be voting in favour of this bill.
1234 words
All Topics
- Hear!
- Rabble!
- add
- star_border
- share
Mr. Speaker, Bill S-206 proposes a change to the existing rules regarding the confidentiality of deliberations between members of a jury who have to decide the fate of an accused person.
The rule about the confidentiality of jury proceedings is set out in section 649 of the Criminal Code and is also called “Lord Mansfield's rule”. It is a cornerstone of common law and the British criminal justice system.
This rule is anything but trivial. The jury is the trier of fact. The judge presiding over a trial is the trier of law. The judge adjudicates matters of law that arise over the course of the trial and gives the necessary advice to inform and guide the jury regarding these matters. That said, at the end of the day, as intended by the legislator, it is the members of the jury who decide whether the accused is guilty or innocent.
The role of jurors is therefore vitally important to the judicial process. When they deliberate, they need to feel completely free to say what they think out loud without later worrying about being publicly quoted as having put forward a certain idea or opinion. Obviously, the jurors will often disagree with one another when they first begin their deliberations, but they will work together to consider all of the facts entered into evidence during the trial, which could go on for many weeks in some cases.
At that point, the success of their work will basically depend on the flow of their debate and how comfortable they feel talking freely and unreservedly among themselves. I am thinking of the ability to share the uninhibited, unfiltered thoughts that come into our minds as we think about what we are going to say.
The legislator grants the jury a type of legal status—a partial, temporary status—that lasts only as long as the trial. The jury will then speak with one voice and render a unanimous verdict, like a single person who speaks after carefully considering and weighing all aspects of an issue.
It is therefore easy to see that a sound decision requires absolute confidence in the confidentiality of their deliberations, just as every one of us refuses to compromise the integrity and inviolability of our thoughts. Anyone who, rightly or wrongly, believes someone else is probing their thoughts will self-censor and be unable to think freely. That is anathema to a healthy thought process and wise deliberation.
Section 649 of the Criminal Code states that it is an offence for a member of a jury or anyone assisting them to:
[disclose] any information relating to the proceedings of the jury when it was absent from the courtroom that was not subsequently disclosed in open court....
This is the rule that ensures sound, reasonable decisions.
That said, jury duty is not always easy. Sometimes, the facts and evidence of a criminal case can be so intense that they have a significant impact on the jury members hearing the case. Unfortunately, violence and horror can feature prominently in the crimes a person is accused of.
In some cases, jury members can be traumatized to such an extent that they have to consult a health professional to deal with it. Some experiences have drastically transformed the lives of jurors left to cope with their trauma alone.
These people did not choose to be jurors. They were chosen, and they had a legal obligation to fulfil that duty. They clearly deserve our gratitude and our support. As things stand now, it is more difficult for them to receive care and adequate treatment when they are suffering, as they cannot freely speak about their trauma without contravening section 649 of the Criminal Code.
Bill S‑206 proposes to allow members of a jury to be exempt from this rule of confidentiality if they require professional health services for medical or psychiatric treatment, therapy or counselling provided after the trial.
Ensuring access to adequate and efficient health services for those who generously contributed to the justice system is obviously paramount, as common sense dictates. I can only concur with what is fair and obvious.
Bill S-206 asks us to examine a proposed new paragraph (c) under section 649 of the Criminal Code, adding new exceptions to those already established in paragraphs (a) and (b) to allow for evidence to be given in obstruction of justice cases. The proposed paragraph (c) adds an exemption from the confidentiality obligation for the purposes of:
any medical or psychiatric treatment or any therapy or counselling that a person referred to in subsection (1) receives from a health care professional after the completion of the trial in relation to health issues arising out of or related to the person's service at the trial as a juror or as a person who provided support services to a juror.
The proposed subsection 649(3) also adds that the health care professional who provides any medical or psychiatric treatment or any therapy or counselling must be entitled to do so under the laws of a province.
To conclude, Bill S‑206 clearly deserves to be adopted at this stage and referred to a committee. After hearing from experts, we will determine if it can be passed in its current form or if it should be improved or even rejected. At this time, the Bloc Québécois intends to vote in favour of sending Bill S‑206 to a committee.
926 words
All Topics
- Hear!
- Rabble!
- add
- star_border
- share
- menumenu
- notificationsnotifications
- home
- mailmail
- searchsearch
