Opening Remarks

Senate
Standing Senate Committee on Legal and Constitutional Affairs
Minister of Justice’s Opening Remarks
Study of Bill S-4
April 2022

Thank you for the invitation to appear before you to discuss Bill S‑4.
Canada, like the rest of the world, has been dealing with the COVID-19 pandemic for over two years now. Necessary public health measures have significantly impacted the operation of our criminal courts and the administration of our justice system. Notwithstanding the tremendous operational challenges, criminal courts, and those who work in them, have done an incredible job of stepping up and adapting to these unprecedented times.

Many courthouses have re-configured their courtrooms to accommodate certain in-person proceedings, for example by installing Plexiglas barriers, physical distancing markers and hand-sanitization stations. Where re-configuration has been impossible, some courts have used larger spaces, such as community centres, that can accommodate physical distancing. Investments in technology, the use of electronic documents, and an increase in virtual proceedings have all made a difference and represent a great leap in justice system modernization from prepandemic days.

However, many courts still remain unable to operate at their pre-pandemic capacity and this adversely affects witnesses, victims and their families and, of course, accused persons and offenders. As you know, all accused persons have the right to be tried within a reasonable time under section 11(b) of the Charter. To date, courts have considered pandemic delays to be “exceptional circumstances” for determining the time beyond which a delay would be unreasonable, as established by the Supreme Court of Canada in its 2016 decision in R v Jordan. However, as the system continues to deal with the effects of the pandemic, the Crown and the justice system are expected to demonstrate that they are adopting reasonable measures to mitigate delays.

This is why Bill S-4 was introduced, and aims to enhance the safety and efficiency of criminal proceedings by giving the courts greater flexibility to respond to the challenges caused or exacerbated by this pandemic. This Bill was informed by discussions with my provincial and territorial counterparts, as well as input received by stakeholders. Through the work of the Action Committee on Court Operations in Response to COVID‑-19, which I co-chair with the Right Honourable Richard Wagner, Chief Justice of the Supreme Court of Canada, I have also kept apprised of the challenges facing courts.

I would like to focus on the main reforms proposed in the Bill, which can be divided into two broad categories: The first seeks to clarify and expand the availability of remote appearances and to enhance the use of technology in the jury selection process. The second aims to update and expand the existing telewarrant regime so that a wider variety of search warrants, authorizations and orders may be obtained by means of telecommunication.

I will now address the first category of amendments. Although these proposed reforms would further facilitate the use of audio and videoconference appearances by accused persons and offenders, they would not change the general principle that all persons involved in the criminal court process must physically appear in person, unless otherwise authorized.

Currently, the Criminal Code’s general remote appearances regime (Part XXII.01) provides guidance on when persons can appear remotely when there are no other specific provisions addressing these particular situations. Currently situation-specific provisions are dispersed throughout the Criminal Code.

In an effort to make this regime clearer, Bill S-4 would relocate many of the remote appearance provisions to the general part of the Criminal Code that is dedicated to remote appearances. The Bill also proposes to clarify and expand the availability of certain remote appearances with related safeguards, such as consent requirements, the ability to communicate with counsel, and factors for courts to consider when deciding whether to authorize a remote appearance.

This Bill would also permit prospective jurors to participate in the jury selection process by videoconference in certain circumstances, so long as the parties consent. This proposal also contains safeguards, such only authorizing the court to require prospective jurors to participate remotely if an approved location with the necessary technology is made available for such participation. If no approved location is provided, such as where the court permits jurors to participate from home, the court would also need to give prospective jurors the option to physically attend the courtroom for their participation. This latter point is intended to ensure that those who do not have access to the appropriate technology, or who have a limited understanding of the technology, continue to be able to participate in the jury selection process and may ultimately form part of the jury.

I will now turn to the second category of proposed reforms. Currently, the Criminal Code telewarrant provisions permit peace officers to apply for and obtain a limited number of warrants and investigative orders by telephone or other means of telecommunication in situations where it is impracticable to appear personally before a justice.

Since its inception in 1985, and despite its limited scope, this regime has proven to be an effective and useful tool to support criminal investigations especially during the pandemic. The Bill proposes to expand the telewarrant regime and make it applicable to a broader range of search warrants, orders and judicial authorizations.

The Bill would also streamline the telewarrant regime, including by permitting search warrant applications to be presented to a justice by a means of telecommunication that produces a writing, such as by email, without the need to show that it is impracticable for the officer to appear personally before the justice to make the application. Removing this requirement would place this process on par with the traditional in-person search warrant application process. These changes would also result in a more efficient use of police and court resources while respecting the physical distancing guidelines in place in the COVID-19 context. To be clear, current judicial safeguards would continue to apply in these matters and the judge would continue to retain full control on the disposition of the application.

The Bill would maintain provisions that allow police to make oral applications for search warrants when needed, but only in cases where a justice or judge is satisfied that it is impracticable for the officer to present their application in written form, by means of telecommunication.

Finally, the Bill would amend the rules governing the execution of warrants and the reporting of seized property to reflect changes to the telewarrant regime and to harmonize such rules where necessary.

In particular, the Bill would create a new requirement for the police executing a search warrant to provide the occupant of the place searched with a copy of the warrant as well as a Notice. This Notice would provide the person searched with essential information about where to obtain a copy of the report on property seized and where their seized property is detained. The new requirement would apply whether such warrants were obtained in person or by means of telecommunication. However, such a requirement would not apply to search warrants sought in relation to seized property that is already in the lawful possession of police. This would ensure that a copy of the warrant and the Notice does not need to be provided to the person in charge of a police evidence locker.

This Bill also proposes other important changes. For instance, it would provide for greater flexibility in the fingerprinting process, by permitting fingerprints of accused persons and offenders to be taken at later stages of the criminal justice process, in particular where previous attempts to do so were not possible due to exceptional circumstances like those posed by COVID-19.

The Bill would also make minor technical amendments to the Criminal Code and the Identification of Criminals Act that were identified during the implementation of former Bill C-75, which addressed delays in the criminal justice system.

Finally, the Bill includes a coming into force date of 30 days after the day it receives Royal Assent, to allow for some time to implement the changes. This change comes as a result of conversations with my provincial/territorial colleagues following the introduction of former Bill C-23, which this Bill is based on.

While the need for the reforms proposed in Bill S-4 has become more apparent during the pandemic, these changes would support criminal justice system modernization as well as help to prevent delays, which would have a positive impact on the system for many years to come.

Thank you.