Policy Qs & As

The Bill proposes amendments in five key areas:

1. Clarifying and expanding the availability of remote appearances for accused persons;
2. Permitting increased use of technology in the jury selection process, including by allowing prospective jurors to participate by videoconference;
3. Expanding and updating the telewarrant regime so that applications for a wider variety of search warrants, authorizations and orders can be made by telecommunications;
4. Permitting courts to make rules so court officials can deal with administrative matters relating to out-of-court proceedings, even if the accused person is not represented by counsel; and
5. Permitting fingerprinting to occur at a later stage, including if it was not safe to do so at the usual times.

The Bill would also make other minor technical and consequential amendments to the Criminal Code, the Identification of Criminals Act and other Acts.

Bill S-4 is substantially similar to former Bill C-23.

Apart from a small number of minor technical changes, the main difference is that Bill S-4 contains a new clause so it would come into force 30 days after the day it would receive Royal Assent (instead of on Royal Assent), in order to enable better preparation for the implementation of the Bill, if enacted.

At the onset of the pandemic, the courts had to postpone many matters and hold more proceedings remotely by videoconference or audioconference, in order to comply with public health directives.

Jury selections and jury trials were initially cancelled due to difficulties with respecting physical distancing guidelines. Some jurisdictions have resumed jury trials; others resumed and then subsequently ceased jury trials due to the subsequent waves.

Although most courts have resumed more regular operations, many remain unable to operate at their pre-pandemic capacity. This is causing delays that could adversely affect accused persons, offenders, victims and witnesses. Bill S-4 seeks to address this.

In their 2016 R v Jordan decision, the Supreme Court of Canada (SCC) set out presumptive ceilings beyond which the charges will be stayed if the Crown does not establish the presence of “exceptional circumstances”.

Under this test, the delays caused by “exceptional circumstances” can be deducted as long as these delays could not have reasonably been mitigated by the Crown or the justice system.

Reported trial court decisions to date suggest that delays specifically due to the pandemic constitute “exceptional circumstances” for the purpose of this test.

This package of reforms would help to mitigate the impacts of pandemic-related delays.

We do not have national statistics available in this area. At this point in time, this information is only available directly from the provinces and territories themselves.

Some provinces have also begun to publish forward looking statistical information in terms of how many current cases might be at risk of not being completed within a reasonable time. For example, Ontario has the “Ontario Court of Justice Modernization Committee Dashboard” (https://www.ontariocourts.ca/ocj/stats-crim-mod/).

Statistics Canada may also be able to provide some information showing changes in trends over times in terms of how many criminal cases are being completed outside of the Jordan timelines.

I am confident that Bill S-4 respects the Charter and relevant information in this area will be available in the Charter statement, which I will be tabling, as required by law

The proposed amendments are intended to mitigate the impact of the COVID-19 pandemic on the criminal courts to help ensure that an accused person’s right to be tried within a reasonable time would be respected, while also respecting the interests of victims and the community as well as maintaining public safety.

Although this would be done by giving the courts greater flexibility in how criminal procedures are conducted, the proposed amendments include important safeguards such as requirements for consent and judicial discretion where appropriate.

I have engaged in regular discussions with my provincial and territorial counterparts and sought their views on the impact of the pandemic on the justice system as well as any suggestions for reform.

I also co-chair the Action Committee on Court Operations in response to COVID-19 with the Chief Justice of the Supreme Court of Canada, the Right Honourable Richard Wagner. In this capacity, I have had the benefit of hearing first hand how the pandemic has affected the courts across the country.

This Bill was also informed by a document published by the Action Committee, titled “Restoring Court Operations in Northern, Remote and Indigenous Communities”, following discussions with Indigenous stakeholders and judges from northern communities.

In addition, organizations that represent the defence bar were informally engaged.

Many of the ideas animating this bill were proposed by my provincial and territorial counterparts.

My officials also worked hand-in-hand with their provincial and territorial counterparts in assessing a variety of proposals for legislative reform.

While I cannot speak for my counterparts, the responses to these reforms have been very encouraging to date.

The Bill would provide flexibility to the courts to hold more proceedings remotely where appropriate and issue more orders through applications by telecommunications.

These amendments are aimed at increasing criminal justice system efficiencies.

Victims of crime, including victims of intimate partner and family violence, would benefit from efficient criminal proceedings and the reduction of court delays.

Former Bill C-23 was introduced once we had a better understanding of what was and was not working, and what else was needed as the pandemic continued.

Bill S-4 reflects the jurisprudence of the courts during the pandemic, including by clarifying the availability of remote appearances in a wider range of criminal procedures.

The proposed amendments included in Bill S- 4 are still needed to address the ongoing pressures on the criminal court system brought by the COVID-19 pandemic, now and in the future.

The running of the criminal courts is a provincial and territorial responsibility.

Legislative reform is only one prong of the Government’s approach to supporting the courts and the provinces and territories in administering criminal justice during the pandemic.

The Government of Canada has made a commitment to bring our court system into the 21st century and will work with the provinces and territories to do so.

If pressed about federal investments to help provinces and territories bring our court system into the 21st century :

The 2020 Fall Economic Statement included an additional investment of $40 million, to increase the government’s legal aid support to provinces and territories to ensure that they can further implement technological innovations required throughout the pandemic, and meet pent-up criminal legal aid demand resulting from COVID-19 linked court closures. Ten million dollars of this funding was re-profiled to 2021-22 and the remaining $30 million into 2022-23. The additional funding meets the objectives set in the 2020 Fall Economic Statement of fighting COVID-19, supporting Canadians through the pandemic, and preventing the long-term economic scarring that would delay and weaken the post-pandemic recovery.

The Bill would clarify and expand the remote appearance regime for accused persons and offenders. More specifically, the Bill would expressly 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 of the parties and where the court is of the opinion that it would be appropriate;
• accused persons to plead guilty by audioconference, with consent of the parties and where the court is satisfied that it can inquire into the conditions for accepting a guilty plea and that videoconferencing is not readily available; and
• the court to conduct sentencing hearings with an offender appearing by audioconference, with consent of the parties, at the discretion of the court and where videoconferencing is not readily available.

Former Bill C-75, which came into force in 2019, introduced a new general part on remote appearances in the Criminal Code (Part XXII.01) and expanded the availability of video and audio appearances for accused persons, participants and judges.

The COVID-19 pandemic has prompted courts across the country to hold more virtual proceedings than they would normally have held.

However, there has been some uncertainty over which remote appearances provisionsapply in different circumstances, and the interplay between various provisions and those in the general part dedicated to remote appearances. Bill S-4 would provide much-called for clarity in this regard.

This is true but we are trying to provide greater clarity.

The proposed changes would do this and give more flexibility to the system, while ensuring continued protection of the rights, freedoms and health of all criminal court users.

This Bill seeks to clarify which important safeguards, that aim to ensure that the Charter rights of accused persons are respected, apply, for example:

• the consent of the parties;
• the discretion of the court; and
• the right to consult with counsel for represented accused and the right to access legal advice for unrepresented in-custody accused.

The Bill would also require that the courts take into account all the circumstances, including the personal circumstances of the accused and the accused’s right to a fair and public hearing, before determining whether a remote appearance is appropriate.

An accused person’s refusal to consent to appearing remotely may result in a delay.

However, holding proceedings remotely against the wishes of an accused person could also lead to increased litigation, which could impact the efficiency of the courts.

The courts would be responsible for determining how to account for a person’s refusal to consent to appearing remotely on a case-by-case basis depending on the circumstances of each case.

Some accused persons who have wished to plead guilty and proceed to sentencing during the pandemic have been unable to do so without having to wait a long time for an in-person or video hearing.

Bill S-4 would explicitly permit audio pleas and sentencing under specific circumstances, including on consent of both parties and where videoconferencing is not readily available. For audio pleas, the court would have to be satisfied that it could assess the voluntariness of the plea despite not being able to see the accused.

Moreover, before a court can accept a guilty plea, whether by remote appearance or in-person, it must be satisfied that:

• the accused person is making the plea voluntarily;
• the accused person understands that a guilty plea is an admission of the essential elements of the offence;
• the accused person understands the nature and consequences of the plea;
• the accused person understands that the court is not bound by any agreement with the prosecutor; and
• the facts support the charge (subsection 606(1.1)).

It is critical for the proper functioning of a jury trial that the accused be able to see the entire jury panel and for the jury to see the accused during key aspects of the trial. It is also important for the accused and jurors being able to see the lawyers, witnesses and judge, and vice versa.

Achieving this would likely involve a very complex technological set-up that is out of reach for most, if not all, of our courts at this point in time.

Jury selection is the process for selecting the people who may serve as a juror on a jury trial. The in-court jury selection procedure is set out in the Criminal Code, and includes the drawing of juror cards, excusing jurors, challenging jurors for cause, standing jurors aside, and swearing in jurors.

Currently, the jury selection process can involve hundreds of people being physically present in the same location, at the same time.

This Bill would not change the jury selection process; it would simply permit the court to allow or require prospective jurors to participate in the jury selection process by videoconference, where the court considers it appropriate and with the consent of the parties.

If a location where the technological infrastructure for prospective jurors to participate by videoconference, such as an overflow room for example, was not available, an in-person option would be necessary.

This is an important safeguard to ensure that persons are not excluded from participating in the jury selection process due to a lack of appropriate technology.

The proposed amendments are expected to have a positive effect on the representativeness of the jury panel.

They would provide flexibility to the courts during the pandemic, but also aim to facilitate the participation of prospective jurors who live in remote and isolated communities, where there are often additional barriers to attending proceedings in person (such as long travel distances and the need to find accommodation during the selection process).

Part of the jury selection process involves the manual preparation of a separate card for each prospective juror summoned to the court, which includes their name, their number on the panel and their address.

These cards are then placed in a box, shaken and drawn out at random by a clerk of the court as the prospective jurors are called forward during the in-court selection process.

This Bill would modernize the jury selection process by giving the courts the option to use electronic or other automated means, rather than manual ones, to generate and draw cards of prospective jurors for the random selection of jurors during this process.

No, this would not have an impact on the randomness of the jury selection process. This Bill would give the courts the option to use electronic or other automated means during the jury selection process, if they have the technology to do so. The requirement that jurors be randomly selected would continue to apply regardless of whether an electronic or automated process is used.

Judicial case management improves the efficiency and effectiveness of the criminal justice system.

These rules help the courts to better manage cases, streamline the administration of justice, achieve administrative and economic efficiencies, and reduce the burden on victims and witnesses.

Courts may make case management rules allowing court personnel to deal with administrative matters relating to proceedings out of court.

Currently, the court may only make these rules for situations where accused persons are represented by counsel.

This Bill would permit the courts to make case management rules to allow their personnel to deal with administrative matters relating to proceedings out of court, even if accused persons are not represented by counsel.

Currently, the court may only make these rules for situations where accused persons are represented by counsel.

This change would ensure that courts have the flexibility they need to adopt the case management rules that work best for them, including where there is a need to allow court personnel to deal with administrative matters relating to proceedings out of court when the accused persons are not represented by counsel.

The telewarrant provisions set out a process for the remote application and issuance of a warrant or judicial authorization in certain instances.

A number of search warrants and judicial authorizations can currently be obtained by means of telecommunication, including:

• Conventional search warrants
• Blood sample warrants
• DNA warrants
• General warrants
• Impression warrants
• Consent wiretap authorizations

The Bill proposes to revise the telewarrant provisions to streamline the process and make it applicable to additional search warrants and investigative orders.

Under the revised process, it would be possible to submit a search warrant application by means of telecommunication, in written form (such as by email), without the need to show that it is impracticable to appear in person to present an application as is currently the case.

The revised telewarrant process would also be expanded to apply more broadly in two ways:

• the process would now apply to the investigation of all offences, rather than just indictable offences; and
• it would also be accessible to law enforcement officials other than peace officers who may currently apply for search warrants and other judicial orders and to justices and judges of all levels of court who are currently authorized to issue them.

Since the beginning of the pandemic, courts have been relying on technology as one of the ways to address health precautions requiring physical distancing.

Streamlining the telewarrant process and making it available to additional search warrants, judicial authorizations and investigative orders is supported by stakeholders such as the Uniform Law Conference of Canada, the Steering Committee on Justice Efficiencies and Access to the Criminal Justice System and the Canadian Association of Chiefs of Police.

These measures would support the efficient and effective operation of the criminal courts and of law enforcement activities during, and in the aftermath of, the pandemic, without reducing the judicial safeguards that apply in such cases.

The following additional search warrants, orders and judicial authorizations under the Criminal Code would be available to law enforcement applicants through means of telecommunication:

Production orders for documents and financial records

Preservation orders to preserve computer data

Production orders for transmission data and tracking data

Tracking warrants and warrants for transmission data recorders

Additional wiretap authorizations (standard wiretap and emergency wiretap authorizations)

Proceeds of crime search warrants and restraint orders

Search warrants related to the seizure of weapons (explosives, ammunitions and devices)

Warrants of seizure and notice and takedown orders for illegal content such as child pornography found online

Warrants for search and seizure for specific offences relating to gaming or stolen minerals.

The proposed amendments would expand access to the telewarrant regime process. They would not expand search powers of public officers and peace officers.

Law enforcement officials other than peace officers may currently apply  to obtain investigative warrants and orders by personal attendance as part of their enforcement duties under current legislation.

For example, both peace officers and public officers can make an application for a production order to investigate offences under relevant federal statutes.

Ensuring that all law enforcement officials can make use of technology to apply for search warrants and other investigative orders where they are currently authorized to apply for them would contribute to addressing health precautions requiring physical distancing and to creating efficiencies in the criminal justice system.

Removing the precondition to show that it is impracticable to appear in person when presenting written applications for search warrants submitted electronically responds to calls to make the process more accessible received in recent years by stakeholders such as the Uniform Law Conference of Canada, the Steering Committee on Justice Efficiencies and Access to the Criminal Justice System as well as the Canadian Association of Chiefs of Police.

Both written telewarrant applications and in-person applications produce the same record for the judge’s consideration. The issuance of the warrant must be determined on the basis of the content in the sworn information and the evidentiary threshold required to issue them.

Search warrants sought by oral application, such as by phone, would still be possible where the applicant shows that it is impracticable to submit a written application remotely. This is to ensure that written applications remain the standard approach to be taken by law enforcement when submitting applications to obtain investigative orders.

No. This alternative avenue of obtaining and issuing search warrants, orders, and wiretap authorizations maintains the requirements for prior judicial authorization to search and does not compromise the integrity or reliability of the search warrant application process.

All preconditions for the issuance of the warrant, order, or wiretap authorization must be demonstrated to the same degree.

Currently, persons charged with an offence can be required to provide fingerprints for identification purposes at specific points in time, such as:

1. if the person has not been detained, they can be ordered to present themselves for fingerprinting at a specified date and time; or
2. if the person has been detained, they can be required to have their fingerprints taken before they are brought before a justice.

The COVID-19 pandemic and the 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 of the fingerprinting, as it would still only be permitted where such fingerprinting is already authorized by the Identification of Criminals Act.

The Bill proposes amendments to the Criminal Code to allow a justice or judge to issue a summons for an accused person or offender to appear for fingerprinting if:

1. the person was previously required to appear for fingerprinting and the procedures could not be completed; and,
2. 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 who is being released on bail.

Amendments made by former Bill C-75 to paragraph 2(1)(a) of the Identification of Criminals Act (ICA) to clarify that in-custody individuals can be fingerprinted for hybrid offences – whether prosecuted by indictment or summarily – were not also made to paragraph 2(1)(c) of the ICA, which applies to out-of-custody accused.

Bill S-4 would amend paragraph 2(1)(a), to clarify, and add consistent wording to paragraph 2(1)(c) of the ICA, to make it clear that the offences for which fingerprints can be taken are the same regardless of whether the accused is in-custody or not.

It is not unusual to identify the need for minor technical changes after the introduction of a large bill. Former Bill C-75 was a complex and large bill that made amendments to the Criminal Code, the Youth Criminal Justice Act and consequential amendments to various other Acts. It also underwent a number of amendments as it was being considered by Parliament.

The need for a number of minor technical changes was identified during the implementation of former Bill C‑75. For instance, these relate to:

• missing coordinating amendments between former Bill C-75 and other bills that were before Parliament at the same time, such as former Bill C-46 (impaired driving) and Bill C-45 (cannabis); and
• certain forms in the Criminal Code, for example containing minor inconsistencies in the terminology in the form and the substantive provisions.

This Bill would rectify these issues through minor technical changes.

No, to our knowledge, none of the errors or omissions had any significant impact on proceedings since 2019 (coming into force of former Bill C-75). These technical amendments seek to avoid creating uncertainty and confusion in the law, for example by removing mistaken cross-references to previously deleted sections of the Criminal Code.

None of the technical changes seek new substantive changes to the law.

The Bill would come into force 30 days after the day it receives Royal Assent.

Having the amendments come into force 30 days after the Bill receives Royal Assent would provide the provinces and territories, who are primarily responsible for the administration of justice, with time to prepare for the effective implementation of these changes.

Transitional provisions were included to provide clarity about how the amendments affect matters before the courts at the time of the enactment (this is also known as “temporal application”).

The transitional provision clarifies that the majority of the changes would apply immediately to matters that are before the court at the time they come into force.

Additional clarification is provided with respect to the law that governs warrants and authorizations.

• While the Bill proposes amendments to clarify and expand the types of remote proceedings that may be held under the Criminal Code, it does not place an obligation on the courts to use them. It merely gives courts increased flexibility where the technological infrastructure exists and where it is appropriate.
• The amendments would also ensure the court’s flexibility to cease the use of the technological means for a remote appearance and to take any measure that it considers appropriate in the circumstances to have the person appear at or participate in the proceeding in a different way. That way, if connectivity issues or concerns over the effectiveness of the technology arise, the court can take steps to address them.
• The Government of Canada has also committed to support efforts to bring the court system into the 21st century and will work with the provinces and territories to do so. Moreover, the Government of Canada continues to make investments to connect 98 per cent of Canadians across the country to high-speed Internet by 2026, with the goal of connecting all Canadians by 2030.

• The provisions that address remote appearances are located in different parts of the Criminal Code; the rules of consent vary and are specified in each provision.
• Bill S-4 would clarify and expand the availability of remote appearances, including the requirements for consent with respect to certain proceedings throughout the various stages of the criminal justice process from jury selection all the way through to sentencing.

• The Bill would relocate and reenact an existing power of the court to require, without consent, an in-custody accused who has access to legal advice to appear by videoconference in a preliminary inquiry hearing or trial except when the evidence of a witness is being taken (clause 46, section 715.241). This power does not extend to pleas or sentencing.
• The Bill would maintain this power so that it continues to be available where it is appropriate, such as where an accused who is in custody and has access to videoconferencing technology and legal advice is required to attend a matter relating to a preliminary inquiry or trial where no evidence is being presented, despite consent not being forthcoming.

• Yes. Bill S-4 proposes an amendment (clause 46, section 715.235) that would expressly allow an offender to appear by videoconference or audioconference for sentencing purposes, with their consent and that of the prosecutor where the court considers it appropriate. The Bill further provides that sentencing by audioconference would only occur where the court is satisfied that videoconferencing is not readily available.
• A breach of a CSO does not result in a new offence charged; the hearing for a breach of a CSO (section 742.6 of the Criminal Code) is considered to be a sentencing proceeding, and would be covered by the proposed amendment to allow an offender to appear by audioconference or videoconference for sentencing purposes.