Media Lines
Background
On February 8, 2022, the Government of Canada introduced 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) in the Senate. The Bill proposes reforms to the Criminal Code, the Identification of Criminals Act and related changes to other statutes to help address the challenges faced by criminal courts caused or exacerbated by the COVID-19 pandemic, and modernize our criminal justice system now and for the future.
These proposed changes are substantively the same as those introduced by former Bill C-23.
These proposed reforms include:
- Clarifying and expanding the law by providing a clear mechanism to permit accused persons or offenders to appear remotely by videoconference or audioconference technology in most criminal proceedings on consent, at the discretion of the court and with other safeguards;
- Allowing remote participation of prospective jurors by videoconference in jury selection under certain circumstances, with the consent of the parties and at the discretion of the court, and with other safeguards;
- Allowing for the enhanced use of technology to draw the names of prospective jurors in the jury selection process;
- Allowing 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;
- Expanding the use of the current telewarrant process to allow peace officers to remotely apply for a wider range of investigative orders; and
- Allowing fingerprinting under the Identification of Criminals 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.
This bill also proposes minor technical changes to address issues identified during the implementation of former Bill C-75 (delays in the criminal justice system, 2019).
Key messages
- The Government of Canada is committed to keeping Canadians safe and making the criminal justice system more accessible, efficient and effective. This includes supporting the increased use of technology in courts across Canada.
- The effects of the ongoing COVID-19 pandemic are still being felt throughout the criminal justice system, and particularly in the operation of criminal courts. The pandemic has both created and amplified challenges and limitations within the criminal justice system. Canada’s criminal courts have been adapting and modernizing to address the challenges they face, but many remain unable to operate at their pre-pandemic capacity.
- On February 8, 2022, the Government of Canada reintroduced proposed changes to the Criminal Code, the Identification of Criminals Act and other federal legislation help address the challenges faced by criminal courts caused or exacerbated by the COVID-19 pandemic, and modernize our criminal justice system now and for the future.
- The Bill proposes a number of targeted changes to the Criminal Code that would give courts increased flexibility in how they hold criminal proceedings and issue orders. These changes would 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.
- These proposed changes are needed to address the ongoing pressures on the criminal court system brought to light by the COVID-19 pandemic and enhance access to justice for all Canadians, now and in the future.
If asked about the proposed changes:
- The Bill would:
- 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 remotely apply for a wider range of warrants and orders by telephone or by other means of telecommunication;
- Allow fingerprinting under the Identification of Criminals 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; and
- Make technical changes to the Criminal Code and the Identification of Criminals Act which were identified during the implementation of former Bill C-75 (delays in the criminal justice system, 2019).
- While in-person appearances would remain the norm, the proposed changes would ensure that remote appearances remain an available option in appropriate circumstances.
- These proposed amendments are intended to help address the challenges faced by criminal courts caused or exacerbated by the COVID-19 pandemic, and modernize our criminal justice system now and for the future.
If asked about the expansion of the availability of remote appearances for accused persons:
- Criminal proceedings are, by default, held in-person before the criminal courts. The Criminal Code provides limited exceptions to this rule by permitting the remote participation by audio or video technology of certain individuals, in certain circumstances, in certain criminal proceedings. The availability of remote appearances for justice system participants was expanded in 2019, when the amendments in former Bill C-75 were enacted.
- The COVID-19 pandemic has revealed the need for further clarification and expansion of the Criminal Code’s current remote appearance provisions, as it 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, the unanticipated demand for remote hearings during the pandemic has revealed the need forcertain amendments.
- The proposed changes would clarify and expand the law by providing a clear legislative mechanism for certain remote appearances to enhance access to justice and reduce the risk of delays. More specifically, the Bill would explicitly 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 is of the opinion 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; and
- 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 proposed changes would give the courts more flexibility while continuing to protect the participants’ rights, freedoms and health.
- The amendments would generally only be applicable with consent, and would 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.
- Under these proposed changes, in-person proceedings would remain the norm. These provisions would ensure that remote appearances remain an option to be used only in appropriate circumstances.
If asked about allowing 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 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.
- The proposed changes would 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 proposed changes would also add the requirement that an in-person option be 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.
If asked about allowing courts to make judicial case management rules for their officials to deal with administrative matters for unrepresented accused persons:
- Currently, the courts may make rules permitting 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 persons avoid having to attend court in person for issues that could be addressed by court personnel outside of the courtroom, including by phone.
If asked about the expansion of the telewarrant process:
- Currently, peace officers can remotely apply for certain warrants by telephone or by other means of telecommunication, such as by fax or e-mail. However, such a process is not currently available for all investigative orders in the Criminal Code.
- The proposed changes would allow peace officers and public officers to remotely apply for a wider range of investigative orders while maintaining the judicial oversight and standards that currently apply in such cases.
- 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.
- Additionally, 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.
If asked about changes proposed to the fingerprinting process:
- Individuals alleged to have committed or who have been charged with an offence can be required to provide fingerprints for identification purposes at two specific points in time, as set out in the Identification of Criminals Act and the Criminal Code. When police officers are not able to take fingerprints at these times, the law does not authorize them to be taken otherwise.
- 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.
If asked about housekeeping measures related to former Bill C-75:
- The Bill also proposes to make technical changes to the Criminal Code and Identification of Criminals Act identified as necessary during the implementation of former Bill C-75, which came into force in 2019.
Questions and answers
Bill introduction & proposed changes
Q1. Why are these proposed changes needed?
Continued vigilance is required to keep our criminal justice system effective.
The effects of the ongoing COVID-19 pandemic continue to be felt throughout the criminal justice system, and particularly in the operation of criminal courts.
These proposed changes are needed to address the ongoing pressures on the criminal court system brought by the COVID-19 pandemic, such as a backlog of cases, and enhance access to justice for all Canadians, now and in the future.
Q2. Are there any differences between this reintroduced bill and former Bill C-23?
These proposed changes were originally introduced in the previous parliamentary session, on February 24, 2021.
The proposed changes introduced under Bill S-4 are substantially the same as the ones introduced by former Bill C-23. Other than a few minor corrections and technical modifications, the main difference is that Bill S-4 proposes that its changes come into force 30 days after the Bill receives Royal Assent, whereas the changes would have come into force immediately upon Royal Assent of former Bill C-23 in order to enable better preparation to implement the Bill.
Q3. Why is the Government introducing changes to support courts nearly two years after the start of the pandemic? Why did the Government wait so long?
These proposed changes were originally introduced in the previous parliamentary session (43rd Parliament), in February 2021, under former Bill C-23.
These same changes are still needed to provide legal clarity and mechanisms to allow criminal courts to exercise more flexibility as they continue to adapt to new realities created by the COVID-19 pandemic.
Before first introducing these proposed changes, we needed time to properly assess the impacts of the pandemic on court operations in the criminal justice system. Since the onset of the pandemic, the Government has engaged regularly on the impacts of the pandemic on criminal courts with provinces and territories. 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.
It was necessary to bring forward targeted solutions to support criminal courts, which have already done tremendous work in adapting to the new realities since the onset of the pandemic in March 2020.
These changes are still needed, which is why we have reintroduced them in this new parliamentary session.
Q4. Why is the Government proposing changes to the Criminal Code to respond to challenges brought to focus by the pandemic? Will the Government revisit these proposed changes after the pandemic?
This bill aims to increase the flexibility and efficiency of the criminal justice system, while protecting the rights of all participants, in circumstances such as those that have arisen and been exacerbated during the COVID-19 pandemic.
Although these reforms were initially introduced in February 2021 to respond to the COVID-19 pandemic, they will also be beneficial in its aftermath, as they will support the safe, efficient and effective operation of criminal courts with a view of enhancing access to justice for accused persons and victims in the long term. This is why the proposed changes would be permanent if adopted by Parliament.
Q5. Was anyone consulted in the drafting of this bill?
Since March 2020, the Minister of Justice and Attorney General of Canada has engaged regularly on the impacts of the pandemic on criminal courts with provincial and territorial Ministers responsible for Justice and Public Safety.
The proposed amendments take into consideration input received from provinces and territories (PTs), and other key stakeholders. Minor corrections and technical modifications were made to former Bill C-23, including the change to the Bill’s coming-into-force provision, in response to concerns raised by PTs.
In addition, the Minister of Justice and Attorney General of Canada has continued to be 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.
These discussions have all informed the proposed changes introduced in this bill.
Q6. Were concerns of Indigenous partners, stakeholders or organizations taken into consideration in the drafting of this bill?
In the pursuance of its mandate, which includes the sharing of information and supporting the identification of common principles and best practices in restoring and stabilizing court operations while ensuring the safety of all court users and officials, the Action Committee on Court Operations in Response to COVID-19 published a document titled “Restoring Court Operations in Northern, Remote and Indigenous Communities”, following discussions with Indigenous stakeholders and judges from northern communities.
The document mentions the existence of legislative restrictions on the ability of accused persons to appear by videoconference when the evidence of a witness is taken and on the ability of accused persons to plead via audioconference in certain circumstances. These barriers, which significantly impact accused persons in northern and remote communities, are being addressed in this bill.
Q7. Why isn’t the Government proposing broader reforms?
These reforms were introduced primarily to respond to the impacts of the COVID-19 pandemic on the criminal justice system that can only be addressed by law reform. They will also be beneficial in its aftermath, as they will support the safe, efficient and effective operation of criminal courts with a view of enhancing access to justice for accused persons and victims in the long term.
Q8. Are delays due to COVID-19 recognized as being caused by exceptional circumstances for the purpose of the Charter?
All accused persons have the right to be tried within a reasonable time under section 11(b) of the Charter. In its decision in R. v. Jordan (2016), the Supreme Court of Canada (SCC) set out the presumptive ceilings or limits on the time it should take to bring an accused person to trial, beyond which the charges will be stayed if the Crown cannot show that there were “exceptional circumstances”.
According to the SCC in Jordan, “exceptional circumstances” are circumstances that are outside of the Crown’s control. They will generally fall within two categories:
- discrete reasonably unforeseeable or unavoidable events; and
- particularly complex cases.
The SCC also indicated that the delays caused by “exceptional circumstances” can be deducted as long as these delays could not have reasonably been reduced by the Crown or the justice system.
Reported decisions suggest that courts that have considered the issue thus far have recognized that delays specifically due to the COVID-19 pandemic generally constitute “exceptional circumstances” for determining whether delays exceed the ceilings established in by the SCC in R. v. Jordan.
Q9. Could an accused person’s refusal to consent to appearing remotely delay criminal proceedings? Would this delay be reasonable under the Charter?
Courts will determine on a case-by-case basis whether a specific delay amounts to a Charter breach. It would be inappropriate to speculate on how a court may interpret a particular accused’s decision not to consent to a remote hearing.
Q10. How will this bill affect the rights of the accused?
As required by law, the Government of Canada remains committed to tabling and making publicly available a Charter Statement for any government legislation, including legislation introduced in response to COVID-19. Charter Statements identify the potential effects a government bill may have on rights and freedoms guaranteed under the Charter.
A Charter Statement for Bill S-4 will be published on the Department of Justice Canada’s once it has been tabled in Parliament.
Q11. When would the proposed changes come into effect? Will their effect be retroactive?
The proposed changes would come into force 30 days after the date on which the Bill receives Royal Assent. Once in force, procedural changes would apply to new and on-going cases in the criminal justice system, but would not affect actions or decisions already taken by criminal courts.
For more information on how a proposed bill becomes law, please consult Justice Canada’s webpage.
Q12. Will the provinces and territories require federal funding for the implementation of these proposed changes?
This bill proposes targeted legislative amendments to help address the challenges faced by criminal courts caused or exacerbated by the COVID-19 pandemic, and modernize our criminal justice system now and for the future.
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.
Corrections to measures introduced under Bill C-75
Q13. Why weren’t the errors and omissions being rectified under these proposed changes not caught when you first introduced C-75?
Former Bill C-75 was a long and complex bill that made amendments to various acts including the Criminal Code andthe Youth Criminal Justice Act, as well as consequential amendments to various other acts. The minor errors or omissions that resulted are technical in nature.
It is not unusual to identify minor technical errors after the introduction of such a large bill. We are seizing the opportunity in this bill to correct minor technical errors that were identified during the implementation of former Bill C-75, such as mistaken references to previously deleted sections.
Q14. Did these errors or omissions affect anyone’s rights, freedoms or access to justice? Are there any examples of when these errors or omissions have affected the outcome of a criminal proceeding?
No, the proposed corrections are minor and technical in nature. It is not unusual to identify minor technical errors after the introduction of such a large bill.
We are seizing the opportunity in this bill to correct minor technical errors that were identified during the implementation of former Bill C-75, such as mistaken references to previously deleted sections.
Media Enquiries: (613) 957-4207
Spokesperson: Media Relations, Department of Justice Canada, media@justice.gc.ca
Prepared by: Caroline Claude, Senior Communications Advisor, Policy Communications
Last update: February 7, 2022
Status: Final
- Date modified: