Changes to improve the operation of the criminal justice system and address the impacts of the COVID-19 pandemic

On February 8, 2022, the Government of Canada reintroduced proposed changes to the Criminal Code, the Identification of Criminals Act as well as related changes to other federal legislation to help address the challenges faced by criminal courts caused or highlighted by the COVID-19 pandemic, and modernize our criminal justice system now and for the future.

On December 15, 2022, former Bill S-4 received Royal Assent. The changes it made will come into force 30 days following Royal Assent.

The effects of the COVID-19 pandemic are still being felt throughout the criminal justice system, and particularly in the operation of criminal courts. Canada’s criminal courts have adapted and modernized to address the challenges they have faced, but many remain unable to operate at their pre-pandemic capacity.

Former Bill S-4 made a number of targeted changes to the Criminal Code to give courts increased flexibility in how they hold criminal proceedings and issue orders. These changes do not compromise public safety, or participants’ rights and freedoms, and would support greater access to justice moving forward, including for those living in remote communities.

The changes take into consideration input received from the provinces and territories and key stakeholders. In addition, the Minister of Justice and Attorney General of Canada has been kept apprised of the challenges faced by courts across Canada in his role as co-chair of the Action Committee on Court Operations in Response to COVID-19.

On this page

• Changes made by former Bill S-4
• Clarification and expansion of availability of remote appearances for accused individuals
• Remote participation for jury selection proceedings
• Judicial case management rules for unrepresented accused persons
• Expansion of the telewarrant process
• Changes to the fingerprinting process
• Technical corrections
• Requirement for independent reviews

Changes made by former Bill S-4

Former Bill S-4 made a number of changes to help address the challenges faced by criminal courts caused or exacerbated by the COVID-19 pandemic, to modernize our criminal justice system, and to facilitate access to justice.

Once in effect, these changes will:

• clarify and expand the law by providing clear mechanisms to allow accused persons and offenders to appear remotely by videoconference or audioconference in most criminal proceedings, on consent, at the discretion of the court and with other appropriate safeguards;
• allow videoconference participation by prospective jurors in the jury selection process under certain circumstances, with the consent of the parties, at the discretion of the court and with other appropriate safeguards;
• allow for the enhanced use of technology to draw the names of prospective jurors in the jury selection process;
• allow courts to make judicial case management rules that permit court personnel to deal, out of court, with administrative matters relating to proceedings with unrepresented accused persons;
• revise the existing telewarrant process to allow peace officers to seek a wider range of warrants and orders by telephone or by other means of telecommunication;
• allow fingerprinting under the Identification of Criminal Act to occur at a later date, particularly where previous attempts at fingerprinting were not possible due to exceptional circumstances, such as those posed by COVID-19
• make minor technical changes to the Criminal Code and Identification of Criminals Act that were identified during the implementation of former Bill C-75 (delays in the criminal justice system, 2019)

The Bill also created requirements for independent and Parliamentary reviews on the changes it contains.

Clarification and expansion of availability of remote appearances for accused individuals

Criminal proceedings are, by default, held in person before criminal courts. The Criminal Code currently provides limited exceptions to this rule. These allow for hearings by audio or video technology in certain instances. The possibility for remote appearances by accused persons was expanded in 2019, when the amendments in former Bill C-75 were enacted.

The COVID-19 pandemic revealed the need for further clarification and expansion of the Criminal Code’s current remote appearance provisions. While the courts have been able to make use of the recently expanded remote appearance provisions in the Criminal Code, the unanticipated demand for remote hearings during the pandemic revealed the need for certain amendments.

The changes clarify and expand the law by providing a clear legislative mechanism for certain remote appearances to enhance access to justice and mitigate the risk of delays. More specifically, once in effect, the former Bill explicitly will allow:

• accused persons to appear by videoconference for preliminary inquiries and for trials, including for the presentation of evidence except before a jury, with consent and where the court finds that it would be appropriate
• accused persons to appear by audioconference for pleas, with consent of the parties and where the court is satisfied that the conditions for accepting a guilty plea are present and that videoconferencing is not readily available
• offenders to appear by audioconference for sentencing hearings, at the courts discretion, with consent of the parties, and where videoconferencing is not readily available

These changes will give the courts more flexibility while continuing to protect participants’ rights, freedoms and health. The amendments will generally only be applicable with consent, and will all need to be approved by the court. The court will be able to monitor the ongoing appropriateness of remote appearances and adjust them at any time if required. These changes will also require the court to ensure that represented accused persons who are appearing remotely are given the opportunity to communicate privately with counsel. They will also require that the court be satisfied that an accused person who does not have access to legal advice during the remote proceedings is able to understand the proceedings and make voluntary decisions throughout.

Under these changes, in-person proceedings will remain the norm. These provisions will ensure that remote appearances remain an option that would be used only in appropriate circumstances.

Remote participation for jury selection proceedings

The COVID-19 pandemic and the public health guidelines for physical distancing made it challenging for criminal courts to hold jury selection proceedings. Under the current rules, jury selection must be done in person and can involve hundreds of prospective jurors having to appear in court at the same time.

Once in effect, the changes will allow prospective jurors to participate in a remote selection process by videoconference under certain circumstances, with the consent of the parties and at the court’s discretion.

The changes will also add the requirement to make an in-person option available to prospective jurors when a court-approved location is not provided for the videoconference to ensure that those who do not have access to adequate videoconferencing technology continue to be able to participate in the selection process.

Judicial case management rules for unrepresented accused persons

Currently, the courts may make case management rules that permit court personnel to deal with administrative matters relating to out of court proceedings, but only if the accused person is represented by a lawyer.

Once the Bill comes into force, the change will allow the courts to make rules to allow court personnel to deal with administrative matters relating to out of court proceedings for unrepresented accused persons as well.

This will help unrepresented accused persons avoid having to attend court in person for issues that could be dealt with by court officials outside of the courtroom, including by telephone.

Expansion of the telewarrant process

Currently, peace officers can apply for certain warrants by telephone or by other means of telecommunication, such as fax or e-mail. However, such a process is not currently available for all investigative orders in the Criminal Code.

Once in force, the changes to the telewarrant process will allow peace officers and public officers to apply remotely for a wider range of investigative orders while maintaining the judicial oversight and standards that currently apply in such cases.

The COVID-19 pandemic has underscored the need to expand the application of the current telewarrant process. Reducing the need for in-person attendance will be beneficial to peace officers and public officers seeking to obtain investigative orders as it will allow them to respect public health guidelines, including physical distancing.

This expansion will also improve the criminal justice system’s efficiency and better reflect the reality of technology, including by enabling the submission of electronic warrant applications as easily and securely as in-person applications.

Changes to the fingerprinting process

Currently, individuals alleged to have committed or who have been charged with an offence can be required to provide fingerprints for identification purposes at specific points in time, as set out in the Identification of Criminals Act and the Criminal Code.

When police are not able to take fingerprints at these times due to exceptional circumstances, the law does not authorize them to be taken otherwise.

The COVID-19 pandemic and the health risks involved in procedures such as fingerprinting, due to the close contact involved, affected this practice such that police officers have either taken them despite the risks for the accused persons and themselves, or suspended the taking of fingerprints and consequently lose the opportunity to fingerprint these individuals altogether.

Once in effect, the changes will allow courts to order fingerprinting for identification purposes if it could not have been done at an earlier date. This will only affect the timing: fingerprinting will still only be permitted where it is already authorized by the Identification of Criminals Act.

Technical corrections

Once in effect, the Bill will also make minor technical changes to the Criminal Code and Identification of Criminals Act. These will fix minor errors or omissions that were identified during the implementation of former Bill C-75 An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, which came into force in 2019.

Requirement for independent reviews

Former Bill S-4 also created requirements for two independent reviews. Specifically, the Bill added:

• a requirement for the Minister of Justice to initiate an independent review of the use of remote proceedings in criminal justice matters no later than three years after the day the Bill receives Royal Assent, and to report back to each House of Parliament no later than five years after the day the review has been started; and
• a requirement for a parliamentary review at the start of the fifth year after the day the Bill receives Royal Assent.