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)
Tabled in the Senate, March 30, 2022
Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
The Minister of Justice has examined 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), for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.
What follows is a non-exhaustive discussion of the ways in which Bill S-4 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.
Bill S-4 would introduce a number of criminal procedure reforms. The proposed changes are intended to address the impacts of the COVID-19 pandemic on criminal courts while increasing the flexibility and efficiency of the criminal justice system. Among the changes are amendments to the Criminal Code that would enhance and clarify rules for remote criminal proceedings, including appearances by videoconference or audioconference, and that would expand the current telewarrant process to allow state representatives such as police or specific public officers to apply remotely for judicial authorizations in a wider range of circumstances. Other changes include amendments to the Criminal Code and the Identification of Criminals Act to allow fingerprinting to occur at a later time than is currently permitted to deal with circumstances such as those caused by COVID-19.
Remote appearances in criminal proceedings are available through existing measures in the Criminal Code. A remote appearance is when a person appears before a judge without being physically present in the courtroom, such as by teleconference or videoconference. In order to respond to the needs of the criminal justice system as highlighted by the pandemic, these measures would be expanded and clarified. For example, the reforms would clarify the law by providing an explicit legislative mechanism to permit accused persons to appear at preliminary inquiries and at indictable and summary conviction trials by videoconference for the entirety of the trial, except where evidence is being taken before a jury. The reforms would also clarify that an accused person can enter a plea or appear at a sentencing hearing by a video or audio appearance. The ability to appear by audio would be clarified to apply only where videoconferencing is not readily available. Before an accused person or offender would be able to appear by videoconference or audioconference, a judge must be of the opinion that appearances by these means would be appropriate in the circumstances, including in consideration of the right of the accused person or offender to a fair and public hearing. Courts also would have to ensure that accused persons who do not have access to legal advice during the remote proceedings are able to understand the proceedings and that accused who are represented by counsel can consult privately with their counsel. In addition, the reforms would give courts discretion to allow prospective jurors to participate in the jury selection process by videoconference under certain circumstances.
Section 7 of the Charter guarantees the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 11(d) of the Charter guarantees the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. Both sections 7 and 11(d) protect the right of an accused person to make full answer and defence in a fair and public hearing. Section 2(b) of the Charter protects freedom of thought, belief, opinion and expression; it includes the open court principle under which there is a presumption that court proceedings are open to both the public and the media. The measures on remote proceedings may engage sections 2(b), 7 and 11(d) of the Charter. The following considerations support the consistency of the remote appearance provisions with sections 2(b), 7 and 11(d).
The provisions on remote proceedings would be subject to judicial approval and supervision. This judicial control over the powers includes ensuring that they are exercised in accordance with the Charter, including the right of an accused person to make full answer and defence and to have a fair and public hearing. The judicial powers are set out with numerous requirements and conditions. With few exceptions, the ability to allow for remote proceedings would be subject to the consent of accused persons.
Expanded Telewarrant Processes
The ability to obtain telewarrants – warrants applied for by means of telecommunication – already exists in the Criminal Code, but is limited in scope. In response to criminal justice system needs highlighted by the pandemic, the reforms would expand the availability of telewarrants. They would become available for a wider range of judicial authorizations. They would also become available in relation to offences other than indictable offences. As well, the current requirement that the police officer applying for the telewarrant believe that it would be impracticable to appear personally would no longer apply for applications submitted in written form by means of telecommunication. Oral applications by means of telecommunication would remain available and the applicant would still be required to show that it would be impracticable in the circumstances to submit the application by means of telecommunication made in writing. Other changes made by the reforms would be the removal of the requirement that only designated justices may issue authorizations applied for by means of telecommunication and to provide that state representatives other than peace officers (e.g., public officers) may apply for judicial authorizations by means of telecommunication.
Section 8 of the Charter protects against unreasonable searches and seizures. The purpose of section 8 is to protect individuals from an unreasonable intrusion into a reasonable expectation of privacy by the state. A search or seizure will be reasonable if it is authorized by law, the law itself is reasonable (in the sense of striking an appropriate balance between privacy interests and the state interest being advanced), and the search is carried out in a reasonable manner. The proposed telewarrant provisions may engage section 8 of the Charter. The following considerations support the consistency of the telewarrant amendments with section 8.
The requirements under section 8 for a search or seizure to be reasonable can be met by obtaining authorization in advance of the search from a justice or judge. The telewarrant reforms would keep the requirement for judicial approval for authorizations applied for by means of telecommunication. The reforms would also not change the existing requirement that there be reasonable grounds for the authorization to be granted, thus meeting the requirements for a search to be reasonable under section 8 as described above.
Fingerprinting at a Later Time
Currently, a person charged with an offence can be required to attend for fingerprinting as specified in an appearance notice or undertaking issued by a police officer, or in a summons issued by a justice when criminal charges are confirmed. In addition, if they are detained, a person can be required to have their fingerprints taken before they are initially brought before a justice. The circumstances produced by the pandemic have illustrated a need to expand the times at which fingerprints can be taken. This is because the current rules on timing can cause undue health risks for accused persons or state representatives, or alternatively cause a loss of the ability to obtain fingerprints. The reforms would give a justice or judge the discretion to issue a summons for an accused person or offender to appear for fingerprinting if: (a) the person was previously required to appear for fingerprinting and the procedures could not be completed; and, (b) the justice or judge is satisfied that the reasons for them not having been completed were exceptional. Courts would also have the ability to make an order for the fingerprinting of an accused person who is being released on bail.
A requirement for an accused person or offender to appear for fingerprinting may engage Charter rights under sections 7 and 8. The following considerations support the consistency of the fingerprinting reforms with sections 7 and 8.
Jurisprudence suggests that any potential engagement of Charter rights by procedures such as fingerprinting that are used for the identification of persons charged with or convicted of offences is limited in nature. The additional fingerprinting procedures that would be allowed by the reforms would provide for judicial discretion to allow fingerprinting at a later stage, subject to procedural requirements and limits. To the extent that Charter implications would arise, this judicial discretion would have to be exercised in a Charter-compliant fashion.
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