Proposed changes to the Criminal Code to improve the effectiveness of Canada’s criminal justice system in response to COVID-19 pandemic
On February 24, 2021, the Government of Canada proposed changes to the Criminal Code, the Identification of Criminals Act as well as related changes to other federal legislationto address challenges facing Canada’s criminal justice system, that have been amplified by the COVID-19 pandemic.
The proposed changes would enhance the efficiency and effectiveness of criminal proceedings during the COVID-19 pandemic and in its aftermath, and further protect Canadians’ rights and freedoms and access to fair, equitable and timely justice. The Bill would also provide criminal courts with the flexibility to operate in a way that respects public health guidelines.
These amendments would also give courts additional flexibility in how they hold criminal proceedings and issue orders. They would not compromise participants’ rights and freedoms, and would support greater access to justice. This will ensure that both accused and victims receive fair and timely justice.
The proposed changes take into consideration input received from the provinces and territories and other key stakeholders. In addition, the Minister of Justice and Attorney General of Canada has been kept informed 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.
Proposed changes to the Criminal Code to enhance efficiency and effectiveness of Canada’s criminal justice system
The Bill proposes a number of targeted and permanent changes to respond to issues that have arisen during, or been exacerbated by, the COVID-19 pandemic. These proposed changes would:
- clarify the law by providing a legislative mechanism for certain remote hearings and processes, with consent, judicial discretion and appropriate safeguards, for:
- video appearances of accused persons at the preliminary inquiry and the entire trial, including for presentation of evidence except before a jury
- audio appearances of accused persons for pleas and sentencing hearings where appropriate, and where video appearances are not available
- video participation of jury candidates in jury selection processes under certain circumstances
- allow for the enhanced use of technology to draw the names of jury candidates in the jury selection process
- allow judicial case management rules to be developed to support unrepresented accused individuals, and not only represented accused individuals
- revise the existing telewarrant process to allow peace officers to remotely apply for a wider range of investigative orders
- allow fingerprinting of accused persons 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 eight 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)
These proposed changes would be permanent. They would help the criminal justice system manage the impacts of the COVID-19 pandemic, including the backlog of cases. They are intended to help reduce the risks of further delays incurred during the pandemic, provide for increased efficiency in the long term, and support access to justice.
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 individuals was expanded in 2019, when the amendments in former Bill C-75 were enacted.
However, the COVID-19 pandemic has reduced the ability of the criminal courts to hold in-person proceedings. While the courts have been able to make use of the recently expanded remote appearance provisions in the Criminal Code, there remain limits in the legislation. The pandemic has revealed the need for further expansion of the Criminal Code’s current remote-appearance provisions with the appropriate safeguards.
The proposed changes would clarify the law and remove a number of restrictions on remote appearances to enhance access to justice and mitigate the risk of delays. More specifically, the Bill would:
- allow accused persons to appear by videoconferencing for preliminary inquiries and for full trials, including for the presentation of evidence except before a jury, with consent and where the court finds that it would be appropriate
- allow accused persons to plead guilty by audioconference, 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
- allow the court, at its discretion, to conduct sentencing hearings with an offender appearing by audioconference, with consent of the parties, and where videoconferencing is not readily available
These proposed changes would give the courts more flexibility while continuing to protect participants’ rights, freedoms and health. The amendments would generally only be applicable with consent, and would all need to be approved by the court. The court would be able to monitor the ongoing appropriateness of remote appearances and adjust them at any time if required. These changes would also require the court to ensure that represented accused persons are given the opportunity to communicate privately with counsel during their remote appearances. They would 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 proposed changes, in-person proceedings would remain the norm. These provisions would 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 have 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 jury candidates having to appear in court at the same time.
The proposed changes would allow jury candidates 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 would also add the requirement to make an in-person option available to jury candidates 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 for unrepresented accused individuals
Currently, the courts may make rules that permit court personnel to deal with administrative matters relating to proceedings out of court, but only if the accused person is represented by a lawyer.
The proposed change would allow the courts to make rules to allow court personnel to deal with administrative matters relating to proceedings out of court for unrepresented accused persons as well.
This would help unrepresented accused individuals avoid having to attend court in person for issues that could be addressed by court personnel outside of the courtroom, including by telephone. For example, rules could enable court staff to assist accused persons with the technology during a remote appearance if they are disconnected from the stream or experiencing other technical issues.
Expansion of the telewarrant process
Currently, peace officers can remotely 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.
The proposed changes to the telewarrant process would 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 would be beneficial to peace officers and public officers seeking to obtain investigative orders as it would allow them to respect public health guidelines, including physical distancing.
Such an expansion would 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 charged with an offence can be required to provide fingerprints for identification purposes at two points in time, as set out in the Identification of Criminals Act and the Criminal Code:
- If the police do not detain them, they can be ordered to present themselves for fingerprinting at a date and time stated in an appearance notice or undertaking issued by a police officer, or a summons issued by a justice when confirming the laying of the criminal charges.
- If they are detained, they can be required to have their fingerprints taken before they are initially brought before a justice.
When police are not able to take fingerprints at these times due to exceptional circumstances, no other provision in the Identification of Criminals Act or the Criminal Code currently authorizes them to do so.
The COVID-19 pandemic and the health risks involved in procedures such as fingerprinting, due to the close contact involved, have affected this practice such that police officers have either had to take them despite the risks for the accused persons and themselves, or to suspend the taking of fingerprints and consequently lose the opportunity to fingerprint these individuals altogether.
The proposed changes would allow courts to order fingerprinting for identification purposes if it could not be done at an earlier date. This would only affect the timing: fingerprinting would still only be permitted where it is already authorized by the Identification of Criminals Act.
The Bill also proposes to make eight minor technical changes to the Criminal Code and Identification of Criminals Act. These would 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.
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