Bill S-4 (Historical)

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)

This enactment amends the Criminal Code to, among other things,
(a) allow for the use of electronic or other automated means for the purposes of the jury selection process;
(b) expand, for the accused and offenders, the availability of remote appearances by audioconference and videoconference in certain circumstances;
(c) provide for the participation of prospective jurors in the jury selection process by videoconference in certain circumstances;
(d) expand the power of courts to make case management rules permitting court personnel to deal with administrative matters for accused not represented by counsel;
(e) permit courts to order fingerprinting at the interim release stage and at any other stage of the criminal justice process if fingerprints could not previously have been taken for exceptional reasons; and
(f) replace the existing telewarrant provisions with a process that permits a wide variety of search warrants, authorizations and orders to be applied for and issued by a means of telecommunication.
The enactment makes amendments to the Criminal Code and the Identification of Criminals Act to correct minor technical errors and includes transitional provisions on the application of the amendments. It also makes related amendments to other Acts.
The enactment also provides for one or more independent reviews on the use of remote proceedings in criminal justice matters.
Lastly, the enactment also provides for a parliamentary review of the provisions enacted or amended by this enactment and of the use of remote proceedings in criminal justice matters to commence at the start of the fifth year following the day on which it receives royal assent.

Criminal Code

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, it is always a pleasure to rise on behalf of the people in Kamloops—Thompson—Cariboo. I am mindful of the fact that I cannot point out people in the gallery, even if three of them 11 and under bear a striking resemblance to me.

Today we are discussing Bill S-4. Bill S-4 is 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.

Before I begin, and this is somewhat related to what we discussed, I want to note the pleasure I have here that I just voted for Bill C-291, and the House unanimously, as I understand it, voted to bring Bill C-291 to committee. That bill will hopefully change the name of child pornography to “child sexual abuse material” to reflect the fact that sexual abuse of children is not pornographic but is abuse, and we should call it what it is. Words do matter. When I stood on doorsteps prior to my election, this is something I said I wanted to come to Parliament to do.

I am very happy and pleased to have partnered with my colleague and friend from North Okanagan—Shuswap to have addressed this problem at second reading. I look forward to our having a strong bipartisan effort at committee in hopes of having this bill passed by Christmas.

Bill S-4 relates to the efficiency of the criminal justice system. When we talk about efficiency in the justice system, we are often talking about inefficiency in the justice system. In fact, prior to my being elected, I contemplated doing some academic writing in law that talked about inefficiencies in the justice system and how we might address them. I am going to talk about some of those here today, some of those things that are, in fact, missing.

We cannot forget that there are people within the justice system who make it go around who really do not get the recognition they deserve. Sheriffs in British Columbia, for instance, are tasked with courtroom security. Frankly, they are underpaid for what they do. They escort people into custody. They are dealing with people on the front line, often who have just been arrested, who are coming down off of drugs, and they put their personal health, well-being and safety on the line in order to protect other criminal justice system practitioners. I thank them for it.

I thank our clerks, our judicial case managers, who keep our courtrooms running. I thank our judges, who often leave lucrative careers behind to serve the public good for the benefit of the rule of law.

When we talk about the justice system, we have to remember something, which is that times change and the law should change as well. This is most notable when we look at a section that is not contemplated here. That is section 525 of the Criminal Code. Section 525 of the Criminal Code deals with bail reviews.

I am not sure exactly when section 525 of the code was passed, but if we were to look I am sure we would see it was passed at a time when people went to trial much more quickly than they do today. Section 525 says, and I am simplifying this, that if somebody is detained on bail, they are entitled to a bail review at 90 days. How often has a trial date even been set in that time? That in itself is a bit of an issue, but sometimes it has not even been set within that time.

That was a different time. I remember looking at a homicide file from 1984 when I was practising law as a prosecutor. Around that time, a trial date would be set within two months, or three months perhaps, and somebody would go to trial often within six, seven or eight months. Times have changed. The system is backlogged. The evidence is different.

I looked at that file, which I believe was from 1984, and it looks like a file that would now be reflected with a “theft under” file, as in a shoplifting file. That was the thickness. There were a few photos of the alleged homicide and a few statements maybe a couple of pages long, and that was it.

Times have changed. Now the system is dealing with section 525, which says that somebody should not languish in custody. The reality is that a person now does not go to trial so quickly. That is the type of thing I would have liked to see addressed in Bill S-4.

I note, as has been noted by others, that Bill S-4 is essentially the same as Bill C-23. What changes is when the bill will come into force. I believe there is a 30-day lag period in order to allow courts to prepare. This legislation also identifies the Identification of Criminals Act.

As a bit of a sidebar, a local lawyer in Kamloops—Thompson—Cariboo, Jay Michi, has frequently told me, or at least he has told me once or maybe twice about the Identification of Criminals Act. His point has always been that it should not be called the Identification of Criminals Act, because a person is not yet convicted. Mr. Michi is now in Hansard, and his point has been made in the House of Commons.

Believe it or not, the Identification of Criminals Act could actually, as I recall, be the basis for a failure to appear in court, which could relate to detention on a primary ground of bail. It could also cause a number of issues.

When it comes to the importance of fingerprinting, a lot of people do not know this, but that is how criminal records are generally kept across Canada, through fingerprints. An FPS number is a fingerprint serial number. Somebody has their fingerprint taken, and that is how, on a CPIC record, it is called, a criminal record can be identified for somebody who has a conviction in Nova Scotia, where most good Speakers come from, or from British Columbia, where most good lawyers come from. I guess a few good lawyers have attended the University of Alberta, but we will put that aside for the time being.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

What about Quebec?

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, Quebec has some good lawyers as well. There are good lawyers everywhere. We will just leave that aside for now.

The importance of fingerprinting is not actually that well known, but it is very important. This is something that must be modernized.

Moving to the substance of the act, judicial systems have massive backlogs. I believe a few years ago the maximum time to lay a summary conviction offence expanded from six months to one year. I was happy to see that, but we still have a massive backlog. Trials are just not getting on.

Members may have heard the saying, “Justice delayed is justice denied.” This is problematic. A right to a fair trial is embraced within the charter text, obviously. We have often thought about an accused person's right to a fair trial that has a speedy element required, constitutionally obviously, but what about a victim's right to a fair trial? With time, memory fades. It is a proven fact. I do not know anybody who says that their memory is better a year and a half later than it was two weeks after an incident or even six months after an incident. A backlog in the justice system actually contributes to a less efficient system.

At the end of the day the court should exist to get to the truth in a just manner. If getting to the truth is not necessarily a memory contest, then we have a problem when there is a massive backlog. I remember a victim saying that to me one time early on in my career. I said the trial had been adjourned, and he asked about his right. I had to tell him that, as a victim, he did not have a right.

A lot of victims often come to the courts and say they just figured it would be adjourned. I have actually seen instances when courts generally sit for about five hours a day, if we were to compress all of the time together, and up to 12 to 15 hours of court time is crunched into that five hours. That is how much of a backlog there is. This could result in people being released back into the community who should not be released into the community.

One thing we do not generally talk about here is delay, and that delay has been discussed by the Supreme Court of Canada in a case called Jordan. The Jordan decision talked about the right to trial within a reasonable time, the constitutional right to be tried, which is within 18 months, or a year and a half, if the matter is preceded by summarily, which is considered a less serious type of offence, or 30 months, or two and a half years, by indictment.

The greater the strain on resources, the longer it takes for a trial to occur. More cases mean a greater backlog and a greater backlog means even longer, and this affects bail. The problem we have is the following. With the Jordan principle, the clock, and what I mean by clock is the time, the two and a half years, starts ticking the moment a charge is laid.

There have been expansive requirements for disclosure since the Stinchcombe decision in, I think, 1988. There have been massive changes in disclosure, to the point where disclosure is probably one of the single biggest reasons we have delays. It is one of them. We, as Parliament, have not addressed that issue. One might be asking why disclosure matters. It matters because it takes months, sometimes years, to get disclosure together on major cases. If someone, a police officer or a prosecutor, has a case, that case may have literally 30,000 pages of documents.

Because of the Jordan decision, there is a hesitation to lay a charge, because it may take a year to a year and a half, maybe two years, to get those documents together. This might include people who are dangerous, a person who, at this point in time, should not be roaming freely and should at least have conditions on bail or be detained pending their trial.

However, because of the Jordan decision, those people will often be free for the duration, so a year and a half to two years, without any conditions and without any detention. Frequently, these are the most serious cases, because the most serious cases generate the most paperwork, and the most paperwork generates the most disclosure. These are frequently homicides, so we are not talking about cases that are not serious. In fact we are talking about cases that are the most serious in nature.

I will give another example. Members have heard me talk frequently in the House about sexual offences. This is how the Jordan issue affects these offences and why we need to address the streamlining of these cases, especially for sexual offences.

I am being hypothetical here. A person has child sexual abuse material, which is what we voted on today in Bill C-291, and has that material found on their computer. In order to prove that case beyond a reasonable doubt, a prosecutor needs to prove who owns that computer, who possessed that computer and who accessed those materials. That is typically done by an expert. Right now there are not a lot of experts out there, and it takes time to go into a hard drive. These are the same people who go into hard drives often for terrorism-related offences or for homicides, or who are looking at text messages or messages that were sent digitally.

There is a strain on resources when it comes to these sorts of things. Therefore, a person who is alleged to have committed a sexual offence against a child, like possession, production or distribution of child sexual abuse material or Internet luring, some of the most serious cases against children, will have their computer seized, and it will be 12 months or more before that computer can be analyzed. For 12 months that person is roaming the community without conditions. We are not even talking out on bail. They have no conditions at all because of the Jordan decision.

The question is this. How should Parliament respond? This is not a question of admonishing the rule of law; it is a question of how we should respond to these obviously prominent issues that are before the House in Bill S-4. How do we respond? While Bill S-4 would make some changes, we have so much further to go.

I had 14 pages of notes and I am on page 3. I may have to cut out a bit.

[An hon. member]

Unlimited speech.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, it sounds like the member for Winnipeg North and the member for Kingston and the Islands would love to hear me speak more about this.

[An hon. member]

More.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, I am not sure if “more” is being picked up in Hansard, but I do appreciate that exhortation to speak more about this.

We, as Conservatives, will always fight for a just and appropriate system, not a legal system but a justice system. I hope every single person in the House wants a system that is just and appropriate. I am mindful of the fact that we may disagree on some points, but there are issues that we should be able to come together on. To me, sexual offences against children and bail reform are those types of issues.

This legislation amends the process for peace officers to apply for and obtain a warrant using telecommunications rather than appearing in person. The process for obtaining a warrant is rather cumbersome. An affidavit has to be sworn and that takes time. The affidavit has to be drafted and usually fact-checked. That takes time. The affidavit has to be sworn, and then it has to be submitted or brought to a justice or a judge. Times change, and this bill allows for that electronic submission.

Fingerprinting, as I touched upon, being conducted at a later date is something that a judge will now be able to determine whether it is necessary in the circumstances.

The accused and offenders appearing remotely by audio and video conference is interesting. At this point, I believe there is a provision in the Criminal Code that an accused person can be excused. This will bring a measure of efficiency, but it might not necessarily bring the efficiency we are looking for.

I am going to speak to preliminary inquiries. The issue with preliminary inquiries is due especially to disclosure being so comprehensive. It is based on incremental decisions that have expanded disclosure since the Stinchcombe decision. Disclosure is expansive.

While some lawyers may have used preliminary inquiries in the past to determine the strength of the Crown's case, they have often become, in non-serious cases, a perfunctory exercise to simply dig a bit more. That is my view of it. Preliminary inquiries were eliminated by the House, I believe, for offences with penalties of 10 years and under a few years ago.

Here is the thing: A sexual assault has a 10-year maximum so there is no preliminary inquiry. However, sexual interference, which involves a child, does. If someone sexually interferes with a child or commits an Internet-luring offence against a child, that child has to potentially testify twice.

There are some shortcuts within the Criminal Code, but I think we can talk about victimization and secondary victimization in the House, and it is time that we talk about the trauma that goes with it. Children who suffer from these types of offences are often subjected to a psychological life in prison of their own.

It is time that the system addresses this. I call on the House to remove preliminary inquiries for sexual offences, or at least streamline the process, for all victims so that they are only testifying one time so that we consider this from a trauma-informed practice.

Somebody very close to me has done a great deal of work and continues to do a great deal of academic work on the issue of access to Internet for remote proceedings. The Liberal government has repeatedly promised that we are going to see more rural Internet. For people in Kamloops—Thompson—Cariboo and for people in rural Canada, they cannot access these provisions because they do not have access to adequate Internet. There are people who need to appear remotely because they are three hours from the courthouse, but appearing remotely is not available because they do not have access to the Internet.

I want to tell the government to fix this, not only for the benefit of all involved from a quality-of-life perspective but also from a justice perspective.

[Mark Gerretsen, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons (Senate)]

Mr. Speaker, I really took note of the part of the member for Kamloops—Thompson—Cariboo's discussion where he was talking about the realities of the delays and what they are actually creating in terms of when prosecution decides to lay a charge and what is involved after that. Indeed he has talked about disclosure and everything that is added and compounded onto that.

Given his experience of being a prosecutor, I wonder if he can share some insight into how he thinks this bill could help to address that. If it does not go far enough, where else could we improve upon that?

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, this is an important question. With all candour, disclosure needs to be started from the bottom up. This bill is very discrete in what it would deal with, whether it be video appearances or things like that, but let us just take the impaired driving end of things. There is so much paperwork that could be generated on just an impaired driving charge. It would almost be inappropriate for me to say this bill has to go further in this one discrete way, because we need to start building disclosure from the ground up.

Sometimes on some homicide cases one is going to see a thousand photographs, because that threshold for disclosure of what may be relevant is so high. I feel that we need to hear from subject matter experts and have a bill just dedicated to disclosure.

[Luc Thériault, Bloc, Montcalm, QC]

Mr. Speaker, I want to congratulate my hon. colleague from Kamloops—Thompson—Cariboo on his very eloquent speech. He said that he had 15 pages to read.

The member raised a major issue with the justice system, namely its efficiency, as well as another directly related issue, access to justice. Would the member agree with me that Bill S-4 could improve the justice system in terms of accessibility and efficiency? Could he continue his speech by telling us more about what should be added to Bill S-4 to make it even more effective in terms of access to justice? Maybe he covers that in the other 15 pages of his speech.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, one thing that I really noticed when we spoke about access to justice is video conferencing. The fact is that there are provisions for a child who has been victimized to appear by video. There is this idea, and it is propagated and in my view has no merit, that a trial judge cannot evaluate credibility when a person is appearing by video. It is often said that a person cannot appear by video because credibility is an issue, yet we have all sorts of sections in the Criminal Code that say that.

I have seen all sorts of applications made. If a person lives in Newfoundland, and while they were visiting British Columbia they were a victim of a hit and run, all they are going to say is that they were in their vehicle, someone hit them and they suffered a broken leg as a result. That is going to be the extent of their evidence, and somebody will oppose it, because if that person does not come then the Crown's case falls apart.

If I was to go one step further, as my colleague asked me to expand, I would probably expand it on the availability of victim or witness testimony by video. Right now the test can go either way. In my view the test should be much more lenient to say video testimony is preferred.

Why are we flying a person across the country to give evidence? They can give evidence, as we do every day via Zoom. We do not necessarily give evidence, but do things right here and right now in hybrid Parliament. They could give their evidence over Zoom. It costs thousands of dollars, and that person has to take a day off work. When it comes to police officers, they could be investigating other crimes, but they have to go across the country. It takes three or four days that could be 30 hours of lost work, plus overtime, plus the price of flights. It often costs $10,000 just to testify in one case.

That is what I would change.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Mr. Speaker, I always listen with interest to the member for Kamloops—Thompson—Cariboo for his innovative ideas. I must say that the last suggestion he made on witness testimony is an important one for us to think about in the future.

This bill deals peripherally with the selection of jurors and allowing some of that participation to be virtual. I wonder if the member agrees with me that there is much more we need to do to facilitate the participation of jurors with things like the compensation of jurors for time lost at work or sometimes for travel costs or meals. We do not do a very good job right now of making sure that participating in a jury does not really cost individuals. I wonder if he would agree with me that there is more work to be done there.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, I thank my colleague in the House, and on the justice committee, from Esquimalt—Saanich—Sooke for his question.

I do not know if it is set provincially or nationally, but I think it is two figures that a juror gets paid for the day. In my experience, the desire to serve on a jury is directly related to an occupation, and that is why we see so many people who are retired on juries. Let us face it. A lot of people, apart from my mother, do not want to serve on a jury. I just got a jury summons in the mail, and I obviously had to tick-off that I could not attend.

The member has keyed in on something very important. Unless people have work that compensates them for jury duty, which some people do, the vast majority, particularly people who are self-employed, do not want to serve on a jury. I have heard innovative excuses from people who did not want to serve on a jury.

It is not only a person's civic duty, but it has to be that a person is capable of doing it and is devoted fully to their jury service. I would certainly be open to talking with my colleague and having a greater discussion in the House as to how we can make jury service all the more palatable. Let us face it. Sitting on a jury, for most people, is not something they look forward to.

[Alex Ruff, Conservative, Bruce—Grey—Owen Sound, ON]

Mr. Speaker, I want to thank my colleague for a great speech.

He talked about the backlog in the justice system, especially when considering the massive rise, a 32% increase, in violent crime in Canada since the Liberals formed the government.

First, how important is this legislation to addressing that backlog? Second, can he comment on the hypocrisy of the government waiting so long to bring this bill forward compared to its bringing Bill C-5 forward to eliminate the mandatory minimums for violent crime in Canada?

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Speaker, my colleague from Bruce—Grey—Owen Sound raises a point that really should be prominent and is salient in this discussion.

The efficiency of the justice system should be sacrosanct, because, in my view, we should have been making the mandatory minimums that have been struck down constitutionally compliant. On the one hand, we may have people who say that we need a lot more mandatory minimums. On the other hand, we will have people, generally across the aisle, who would say that we do not need any mandatory minimums.

My view is that we should have a middle ground where we have mandatory minimums that have room for exceptional circumstances so that they do not apply, because it is the outlier cases that result in mandatory minimums getting struck down. Why do we not address that in legislation?

I do not think anybody in the House would say we do not want to go after gangsters, so why are we having Bill C-5 at the beginning of this Parliament, as my colleague pointed out, and Bill S-4 at this point? In fact, we should be changing it and flipping the script to bring back legislation that focuses on these mandatory minimums when gun crimes have consistently gone up.

Community-based sentences for discharging a firearm with intent, I believe, was a constitutionally upheld mandatory minimum in a case called Oud from the B.C. Court of Appeal. I believe in that case it was five years. That mandatory minimum was upheld by the B.C. Court of Appeal, and now a person can get a conditional sentence order for it. I do not understand how that is possible.