Hon. Renée Dupuis: Senator Dalphond, did I understand you correctly when you said earlier that the committee is concerned about the fact that technology is not a quick fix for the future of the court process? The witnesses that we heard from said that technology could be useful in some cases, if some very specific criteria are met — for example, if the accused has a place where they can not only confer with counsel but also do so privately, which is not currently the case.

In fact, did we not hear other witnesses say that technology would not solve all the problems? In some regions of Canada, it is just as difficult to hold an in-person hearing as it is to hold a remote one. We are faced with a situation where it is difficult to travel to the courthouse and just as difficult to hold a remote hearing because the technology is not reliable enough.

Am I correct in saying that you raised this concern and that is why one of the committee’s observations involves a request for an impact study? The situation created by the COVID-19 pandemic forced courthouses and the entire judicial system to adapt. However, we need to look very closely and carefully at these impacts over the coming years.

Senator Dalphond: I thank Senator Dupuis for the question and for her very useful comments. I have nothing to add. I made reference to this in my own speech. Senator Dupuis, there’s no doubt that the committee’s observations on this are important. You made a very significant contribution. I commend Senator Cotter’s initiative in proposing that one or more independent committees review the implementation of these provisions after three years. I think we’re in a period of transition. As Senator Wetston said, the train has left the station and we can’t go back in time, but we can absolutely make adjustments and improvements along the way. That is why these studies are important. Over the next five years, we have a duty as parliamentarians to review this issue and make sure that it progresses in the right direction, without unintended consequences. You are absolutely right.

(On motion of Senator Martin, debate adjourned.)

[English]

Hon. Denise Batters: Senator Dalphond, thank you for that explanation.

In your speech, you referenced the testimony of Alain Bartleman from the Indigenous Bar Association, but you did not set out today how Mr. Bartleman had actually made an important proviso when he expressed support, in a general way, for this particular act potentially being quite helpful as an access to justice issue. I asked him about that when he testified in front of the Legal Committee. I’ll read this so it’s correct. I note that when I was asking him about this, particularly referencing northern Saskatchewan, where I said that many Indigenous people live, of course, and they have had, “. . . drastic problems with the technology.” I was wondering if he had any comment about that area. He said:

Yes, there are technological gaps — major ones — and the Indigenous Bar Association, on the one hand, signals and applauds this act for moving in favour of greater accessibility through video conferencing.

But then he said:

However, it also notes its concerns that if the promises found within this bill are not matched by concomitant investments into technology — and not simply internet connectivity technology . . . could take quite some time to catch up, but also training in how that technology is used and in developing a measure of comfort with that technology — this effort will be, for lack of a better term, stunted. It will not be as effective as it could be.

Senator Dalphond, as I said then, that’s a major qualification that he made on that particular issue, and certainly we have seen that. We saw some dire examples just even in our Senate Legal Committee with a witness from Nunavut legal aid who had a very good office and, you would think, good connectivity, and she had a terrible time.

We have, of course, seen the same problems many times with senators testifying from many different places in Canada, including some of the largest cities, not even necessarily rural or remote locations.

Getting back to what Mr. Bartleman said, would you acknowledge that he acknowledged that the Government of Canada absolutely needs to make major investments in technology, and we haven’t really seen those efforts come to fruition yet? I wonder if you have any insight into when the government will actually fulfill their promises on that.

Thank you.

Senator Dalphond: Thank you, Senator Batters, for this excellent question.

I have already acknowledged these challenges in my speech, and I said that it was a call to action for the federal government, the provinces and the territories. As we know, in our constitutional system the administration of justice is a matter which is under the jurisdiction of the provinces and the territories. Therefore, the federal government can assist and can even provide financing, but, at the end of the day, the operation of courthouses — except federal courthouses — will always remain under the jurisdiction and responsibility of the provinces.

Also, remember that the minister, when he appeared before the committee, mentioned that they committed — I forget how many — millions of dollars in the previous budget for improvements to access to justice, and that could be used for that purpose. I certainly agree with you and with the observations made by the committee that not only should we have access to what we call remote attendance for all those who would like to avail themselves of that option, but that option should be made available on an equal basis to all Canadians who would like to use it. Therefore, we must be sure that especially in the Northwest Territories, where the distances are so big, they also have access to quality internet and equipment in order to participate remotely. Otherwise they will have to travel again over long distances sometimes just to appear to plead guilty on a summary conviction charge, which doesn’t really make sense.

Thank you for your question and observations. I think the committee also picked it up.

Senator Batters: Senator Dalphond, with respect to the particular issue of broadband technology across Canada, this is a promise the federal government has made a number of different times over the last few years — to improve broadband technology across Canada. Obviously, we’re not necessarily just dealing with courthouse administration of justice here. We’re dealing with broadband technology so that many different people across Canada can properly access these tools. Mr. Bartleman pointed out the need for a drastic improvement in these major gaps that we see across Canada — not only in rural and remote areas, but certainly that is the most pronounced area.

Since you’re the sponsor of this particular federal government bill, and the government has made major promises — including in the last election campaign — about expanding broadband technology, what is the update as to when that is going to happen? How much money will be promised for that and when?

Senator Dalphond: I think maybe the question is beyond even the domain of the justice minister. I know that in the budget, a lot of money was committed to providing access to broadband to all Canadians everywhere, especially in remote areas.

I know that in Quebec, there was an agreement between the federal and provincial governments to extend quality internet access to remote areas all across the province. I hope that similar programs are moving forward. Certainly, I acknowledge — with you — that the Northwest Territories is still not a province but a kind of federal structure, so the federal government could certainly be more precise and send more money in particular to that area to assist in providing broadband.

Maybe that is a question more for the finance minister than for the justice minister. I have the honour to speak on the justice minister’s behalf only for this bill, and not the running of his department or the government.

[Translation]

Hon. Tony Dean moved the adoption of the report.

He said: Honourable senators, on June 13, 2022, the Standing Senate Committee on National Security and Defence completed its study of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

As part of this study, the committee heard from the Minister of Public Safety, the Office of the Privacy Commissioner of Canada, government officials, academic experts and representatives from legal and civil society organizations.

The committee adopted Bill S-7 with three broad areas of amendment, which included the following: first, the legal threshold for searching personal digital devices at the border; second, the network connectivity of those devices; and third, regulations relating to solicitor-client privilege. I will cover each of these briefly.

First on the legal standard, Bill S-7 would have introduced a new legal threshold for the examination of personal digital devices by Canada Border Services Agency, or the CBSA, customs officers and U.S. pre-clearance officers — that standard being “a reasonable general concern.”

As context for the changes proposed in the bill, in 2020 the Court of Appeal in Alberta ruled section 99(1)(a) of the Customs Act unconstitutional as it pertains to examinations of personal digital devices. CBSA customs officers currently use a multiplicity of indicators to guide searches of digital devices in line with their internal policies. The court determined that legislation must be amended to include a threshold and further stated that it is Parliament’s role to establish a threshold for the examination of personal digital devices by these officers.

In appearing before the committee, the minister asserted that the threshold proposed by the Government of Canada in Bill S-7 is required to give CBSA officers the authority they need to intercept illegal contraband on personal digital devices.

Furthermore, government officials explained that Bill S-7 would introduce the first legal threshold for U.S. pre-clearance officers to conduct a search of a personal digital device.

However, several witnesses expressed concerns about the bill’s proposed threshold. In their view, its implementation could have the following results: arbitrary treatment at the border; the violation of privacy rights of individuals; an increased risk of discrimination; a lack of clarity about the proposed standard’s meaning; and, indeed, a further challenge before the courts.

The committee amended Bill S-7 to replace the new threshold of “reasonable general concern” with the higher threshold of “reasonable grounds to suspect,” which is a legal standard that already exists in the Customs Act and the Preclearance Act, 2016.

The committee agreed, on division, that this higher legal standard might alleviate some of the concerns that I have just listed. The Customs Act and the Preclearance Act, 2016 currently state that a CBSA or U.S. officer must have reasonable grounds to suspect that a traveller could be breaking the law before conducting other searches such as, in the case of the Customs Act, opening mail that a traveller is carrying, or, in the case of the Preclearance Act, 2016, conducting a strip search.

The committee’s amendments to Bill S-7 would ensure that examination of personal digital devices at the border would be subject to a threshold that is already known to CBSA and U.S. officers.

Regarding network connectivity, government officials emphasized that the Customs Act gives CBSA officers the right to examine documents that are stored on a personal digital device but not documents that are stored on a cloud-based server, for example. Bill S-7 would maintain this role for CBSA customs officers and would formally introduce this role for U.S. pre‑clearance officers. However, to enhance clarity, the committee amended Bill S-7 to state explicitly that these CBSA or U.S. officers would be required to disable network connectivity on personal digital devices that they are examining.

Finally, several of the committee’s witnesses raised concerns about solicitor-client privilege, suggesting that Bill S-7’s proposed legal threshold for the examination of personal digital devices — that being a “reasonable general concern” — could result in CBSA officers and U.S. pre-clearance officers having unauthorized access to documents protected by solicitor-client privilege. To address those concerns, the committee amended the bill so that both the Customs Act and the Preclearance Act, 2016, would allow the Governor-in-Council to make regulations respecting measures to be taken by such officers if a document on a personal digital device is subject to solicitor-client privilege or other related protections.

In conclusion, colleagues, throughout the study of Bill S-7, the committee was tasked with finding an appropriate balance between giving CBSA customs officers and U.S. pre-clearance officers the tools they need to, on one hand, ensure public safety and border integrity while, on the other hand, protecting the privacy rights of individuals.

On behalf of the committee, I present Bill S-7, as amended, for your consideration. Thank you.

Hon. Gwen Boniface: Honourable senators, I rise today to speak at report stage of Bill S-7.

Let me begin by thanking the committee for their collegial nature; Senator Dean for an organized clause-by-clause consideration, his first as chair; and Senator Wells as critic of the bill.

As indicated in the report, Bill S-7 was amended at committee in a number of areas to put into the legislation network disconnection before a personal digital device, or a PDD, search could occur. This was originally intended to be in regulation.

Other amendments concerned the protection of information, like solicitor-client privilege, through order-in-council-making authority. There was a proposed amendment to the bill to ensure that note taking would be found in the regulations, but the draft regulations provided to the committee proved those requirements were captured, which satisfied the committee, and the amendment was subsequently withdrawn.

As you would expect, the amendment I would like to address for the remainder of my time concerns the threshold of “reasonable grounds to suspect.”

Let me quote the mandate of the CBSA:

The agency is responsible for providing integrated border services that support national security and public safety priorities and facilitate the free flow of persons and goods, including animals and plants, that meet all requirements under the program legislation.

National security and public safety are at the heart of their mandate. In discussions with many of you, we talked about the balance of individual privacy rights on one hand and the protection of collective security rights on the other in the context of who and what crosses our borders.

Border officers are in an operationally unique position. They rely on an extremely brief interaction in order to make a determination of whether there has been a potential violation of any program legislation. Border security is a complex business. The CBSA enforces more than 90 acts, regulations and international agreements as part of the program legislation.

It is in this context that I remind you of Senator Dupuis’ pertinent question at second reading, and one that she followed up on earlier. Speaking of “reasonable general concern,” she said:

The problem is not that this is a new concept, because it was the Court of Appeal itself that introduced it. When the Court of Appeal states that the existing concept may be too strict for the situation we want to address, the legislator could favour a less-strict concept that creates fewer obligations for customs officers.

The fact that it is a new concept is therefore to be expected, but shouldn’t we focus instead on whether the concept chosen by the government in its bill is legally appropriate for the situation we want to address?

That is an important question. My views, as you know, were evident in my second reading speech.

The intention of the government, which we heard at committee, was to create a threshold that is reasonable; that requires objective and verifiable factual indications; that is general, and does not point to a specific contravention of the over 90 pieces of CBSA-enforced program legislation; and that includes a concern, which must be individualized and attributable to the specific person or their device.

The CBSA processed almost 19 million travellers in 2021 and conducted approximately 1,800 personal digital device examinations. In 2021, the CBSA was operating under internal policies determining when a device search could occur; Bill S-7’s intent was to take those internal policies and put them into law.

As stated at committee by Scott Millar, Vice President of Strategic Policy for the CBSA, “policy that exists now will be enshrined in legislation.” It was creating a legal threshold out of their policies. The lack of a threshold in law was ultimately why 99(1)(a) was found to be unconstitutional in R v. Canfield.

Canfield, at paragraph 109, states that:

The policies put in place by the CBSA go some way to recognizing the need for such safeguards, however policies are not “prescribed by law” as required by s. 1. . . .

There, the Canfield decision is referencing section 1 of the Charter of Rights and Freedoms.

Essentially, in order for something to be Charter compliant, it must be prescribed in law. Internal CBSA policies are not prescribed by law because, at the time, they were not found in law. The court did not reject internal CBSA policy as not meeting an adequate threshold; those internal policies were not even applicable in 2014 when the searches in Canfield took place because they were non-existent until 2015.

In drafting Bill S-7, the government believed that Canfield opened the door to a lesser threshold for personal digital device searches, and only for such searches.

At paragraph 75, the court states:

Whether the appropriate threshold is reasonable suspicion, or something less than that having regard to the unique nature of the border, will have to be decided by Parliament and fleshed out in other cases. . . .

This became the crux of the committee’s deliberations. This will be the first time that a law specifically in relation to personal digital devices will be in place at our borders. The uniqueness of the border for the purposes of section 8 privacy considerations has been settled in law for some time. The Supreme Court ruled on this in R. v. Simmons, and reaffirmed it in R. v. Jacques and R. v. Monney. On the topic of privacy rights at the border, paragraph 48 of Simmons says, “National self-protection becomes a compelling component in the calculus.”

Then, paragraph 49 states:

I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. . . .

Monney builds on this statement, and says in paragraph 43 that:

. . . decisions of this Court —

— the Supreme Court of Canada —

— relating to the reasonableness of a search for the purposes of s. 8 in general are not necessarily relevant in assessing the constitutionality of a search conducted by customs officers at Canada’s border.

It is critical to find the appropriate balance and threshold for personal digital device examinations at our borders. The court in Canfield did what I believe was a masterful job in coming to their conclusion that a lesser threshold than reasonable suspicion may be necessary for device searches. The court balances the informational privacy concerns with the border context in paragraph 66:

The key question is to what extent an expectation of privacy is reasonable in the context of an international border crossing. In the domestic context it is well-recognized that individuals have a reasonable expectation of privacy in the contents of their personal electronic devices: see Morelli, Vu, Fearon. However, reasonable privacy expectations at an international border differ from reasonable expectations of privacy elsewhere. . . .

They continue in paragraph 67:

The high expectation of privacy that individuals have in their personal electronic devices generally must be balanced with the low expectation of privacy that individuals have when crossing international borders. Since border crossings represent unique factual circumstances for the reasonableness of a s 8 search and seizure . . . the reasonable expectations of privacy international travellers hold in their electronic devices must be considered anew and in context.

It was recognized by the court at paragraph 34 that we can’t sweep all personal digital device searches into one broad category for privacy considerations since different considerations are at play based on the information available to the border officer. The constitutional merit will eventually be determined by individual cases. But just because something is novel in law, as it was in the original draft, does not mean it’s unconstitutional. Each case has a different level of evidence determining whether a threshold is met. These are different depending on the goods being searched.

For example, the threshold issue of mail was often used as a comparator in committee, as it was in the chamber — and rightly so. The Customs Act provides that mail can be examined without any threshold; “reasonable grounds to suspect” is triggered when that mail is opened. Much information can be gleaned from an unopened piece of mail. It can be picked up and felt; perhaps it has an address, or a return address, and both can be searched; the envelope can be tested for drugs or organic matter; and, more importantly, it can be X-ray scanned to see if anything is inside.

All of this is possible without a threshold. This evidence is what develops the reasonable suspicion needed to open the mail. This allows a border officer to more readily point to a specific contravention necessary to meet a threshold of reasonable suspicion.

Senators, even bad things come in small, inconspicuous packages. In a piece published in the Calgary Herald, Benjamin Perrin, former lead criminal justice advisor to Prime Minister Harper, interviewed CBSA officials and was told that 1.9 million pieces of mail enter Canada from China monthly, and fentanyl has been found in packages as small as greeting cards.

For mail, there are many methods: It is more difficult for personal digital devices, hence the reliance on more generalized factors needed to search a device — that is, factors that don’t point to a particular contravention. This contributed to operational effectiveness.

At the same time, it was rightly argued that the amount of data on the device is so significant and so personal that the justification should be higher. But just because fentanyl is physical, does that somehow mean it’s also more harmful than what can be found on an electronic device? That’s the crux.

The minster told our committee that it’s not only child pornography that can be found on personal digital devices at our border entries, but also things like hate propaganda or evidence of drug importation, all of which are extremely harmful as well.

“Reasonable grounds to suspect” isn’t used only in the Customs Act for goods where evidentiary tools avail border officers to reach that legal bar. It is also the threshold for body searches, including strip searches. The court in Canfield states in paragraph 75 in relation to the Supreme Court ruling of Fearon:

We agree with the conclusion in Fearon at paras 54 and 55 that, while the search of a computer or cell phone is not akin to the seizure of bodily samples or a strip search, it may nevertheless be a significant intrusion on personal privacy. To be reasonable, such a search must have a threshold requirement. As was noted in Simmons at para 28, “the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection”. Given that, in our view the threshold for the search of electronic devices may be something less than the reasonable grounds to suspect required for a strip search under the Customs Act.

The Supreme Court in Fearon and the Alberta Court of Appeal in Canfield agreed that searches of personal digital devices are “not akin to . . . a strip search,” yet this is where we find ourselves today.

Senators, there are different levels of searches available as we cross the border, depending on what the border officer is looking for. Luggage, purses, coats and briefcases don’t require a threshold. Strip searches are at the level of reasonable suspicion. This amendment equates a search of a person with that of a personal digital device. Border officers will have to suspect a specific contravention in more than 90 acts, regulations and international agreements to search a personal digital device if this bill as amended passes.

Alberta and Ontario have been operating using the higher threshold of reasonable suspicion at their points of entry since the beginning of May, after the expiration of the constitutional invalidity. Statistics on the effects of this change are preliminary and high-level, but they offer us a glimpse of what may come for border security and their operations. In a document tabled with the committee, it showed that May 2021 saw a traveller volume of 606,000 for Alberta and Ontario; May 2022 saw 2,595,000. This is a fourfold increase from the same time last year. Sixty‑three personal digital devices were examined in May 2021 in Alberta and Ontario; May 2022 saw only 18.

Senators, this is an examination rate of 1 in 10,000 last May, and 1 in 144,000 this May. This is a substantial change in searches, no matter how you cut it. Yes, we can look at the impact of COVID, travel patterns and staffing levels at our ports of entry, and I would hope that any incoming disaggregated data allows us to better understand the true impacts of this change in device searches. But the higher threshold for border operations is obviously going to have an operational impact.

A final note is that this bill also amends the Preclearance Act, 2016. This act is based on the agreement between Canada and the U.S. and will therefore require U.S. pre-clearance officers to be trained on the new threshold as well. It is important to note that border officers in the United Kingdom, Australia and the U.S. when they are on their own soil have no-threshold searches for personal digital devices.

I want to express my sincere thanks to all senators who put lots of thought and interest into this bill, including, of course, all those on the committee. Senators, the Canfield decision left it to Parliament to decide where the threshold for the search of personal digital devices should be. The committee has completed its work, and I look forward to third-reading speeches and the important continuing debate in the House of Commons. Thank you, meegwetch.

Hon. David M. Wells: Honourable senators, I would like to thank Senator Dean for his deft stickhandling at our committee meetings. There were a lot of witnesses, opinions and debate, and he did a great job. I also want to thank Senator Boniface, the sponsor of the bill, for her contribution as sponsor, for laying out the government’s position on this bill. As the critic of the bill, I have my role to play as well.

During the committee meeting, as you heard, we had eight amendments presented, all of which passed. Many issues were raised, but there were three key issues. One on connectivity, which was my amendment, and actually there were three amendments that passed at committee. Senator Dean and others mentioned “reasonable grounds to suspect,” which was Senator Jaffer’s amendment. I note that Senator Dalphond also had a similar amendment, which passed quite easily, that also had elements of racial profiling and selecting people perhaps because of the country from which they came and other issues around that, which we will certainly hear in the third-reading speeches. The last amendment topic related to solicitor-client privilege, which was presented by Senator Dalphond. In some cases there were two amendments because some related to the Customs Act and others to the Preclearance Act, 2016.

I also note that there were other important issues that did not find their way into an amendment, and which may find their way into regulations. Senator Yussuff spoke of issues raised by the Office of the Privacy Commissioner for the committee’s consideration. He had four key points: record keeping by CBSA officers; searching only what is on the device, which relates to my amendment on connectivity; rules for password collection; and mechanisms for complaint redress. Right now, colleagues, there is no mechanism for complaint redress. It is essentially howling at the moon for an organization that is now seeking carte blanche for searching our personal digital devices.

There were also questions asked, which I think are as important as the key parts of the bill, as to why the fines for interfering with a CBSA officer were significantly reduced. I’m unaware of how significantly reducing these fines serves as a greater deterrence.

I’ll talk briefly about the categories of amendments that were brought up. One was to inform the passenger and make it known to them that their device can be searched while not in connectivity mode. Of course, in my second-reading speech I went through this. I was not advised this was policy and not advised that it could be put into non-connectivity mode. Consequently, because I was not advised of that, I didn’t know my rights to that, and the CBSA officer comfortably searched my bank records, my Visa statements and asked questions about that. While that may be policy, I think it’s important we recognize that their policy is not followed. Again, I mentioned in my second‑reading speech — or perhaps it was a question to Senator Boniface in her speech — that on the TV show that features the CBSA, “Border Security,” they regularly search passengers’ personal digital devices and they thumb through and speak to the camera about what they find on it.

Senator Dalphond’s amendment on solicitor-client privilege is really important. We are all familiar with what items we may have on our personal digital devices — health records, personal correspondence with spouses and partners, photos of our family or whatever personal photos we might have — and the question that we might want to consider at third reading is whether this should also extend to doctor-patient confidentiality, which obviously is as important as solicitor-client confidentiality or commercially confidential information or anything else that might have a high degree of confidentiality that might be of no interest to CBSA in their search for contraband documents.

The committee passed an amendment that was spoken about, proposed by Senator Jaffer and equal to Senator Dalphond’s amendment that he was ready with, which would change the proposal from “reasonable general concern” to “grounds to suspect.” The reasonable general concern, honourable senators, is essentially not just a low bar, but no bar at all if the CBSA officer has to give no reason for their concern. Of course, all CBSA officers should have a reasonable general concern about everyone coming across the border. However, there has to be a limit at the point where they seek the most in-depth, private documents, messages and photos of Canadians travelling across the border.

Senator Dalphond noted as we were talking about this — as did all our legal scholars, including Senator Jaffer — that this “reasonable grounds to suspect” is a well-understood legal concept, tried and tested by the courts. It is well defined and goes some way to reducing the racial profiling that we know happens at the border — something that was discussed at length at the committee.

Finally, colleagues, I want to also mention the witnesses who did attend the meeting. Senator Dean mentioned a few of them, but I have the full list here. I think it is important for colleagues to know that these are the people who think about this every day: the International Civil Liberties Monitoring Group, the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association, the Canadian Bar Association and the Munk School of Global Affairs & Public Policy at the University of Toronto. An associate professor of the Faculty of Law at the University of Calgary also gave excellent testimony. Of course, the Canada Border Services Agency, or CBSA, was there as the promoter of the bill, as was the Department of Justice.

Honourable senators, it’s important to remember that just Tuesday we had Mr. Dufresne with us, who is the Privacy Commissioner nominee and who answered my questions on reasonable general concern. We all heard those answers in the Committee of the Whole.

Of all the independent expert witnesses — again, Senator Dean highlighted one that I thought didn’t have an opinion on it. In her response, I thought she said, “I had not really considered this.” But out of all of the other independent expert witnesses, none thought reasonable general concern was a good idea or would pass the judicial “smell test.”

Honourable senators, it’s important to know that if the bar is so low that it won’t pass the judicial smell test, it will go back to the courts again to be decided. A couple of our witnesses suggested this could take up to five or ten years. We know how long a lot of these things take in the courts.

These amendments, colleagues, are all put in place to protect Canadians’ fundamental rights as dictated by our Charter of Rights and Freedoms. While we know it’s important that there are protections at the border from bringing in illegal goods and documents, we have to decide what trumps our Charter rights and freedoms.

Honourable senators, I look forward to third reading, which will happen early next week, and further discussions on this bill. Thank you very much.

[Translation]

Hon. Salma Ataullahjan: Senator, would you take a question?

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Pierre J. Dalphond moved third reading of 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), as amended.

He said: Honourable senators, today, I have the honour of opening the debate at third reading of Bill S-4, An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts regarding the COVID-19 response and other measures.

This bill proposes to amend the Criminal Code and other acts in response to difficulties with the administration of the criminal justice system that came to light during the COVID-19 pandemic, particularly with regard to the use of new technologies. It complements Bill C-75, which we passed in 2019.

Before I summarize the amendments, I would like to sincerely thank the members of the Legal and Constitutional Affairs Committee for their comprehensive study of this bill. I also want to thank the witnesses. The committee heard from over 20 witnesses who generously shared their time and expertise with us. The committee members also had access to many documents, including briefs prepared by individuals and organizations with an interest in how the criminal justice system works. The committee devoted two meetings to the clause-by-clause consideration of the bill.

As the chair of the committee, Senator Jaffer, said yesterday, the committee proposed two amendments and made a number of observations that I hope will guide the Department of Justice and members of Parliament in the next steps.

Finally, I want to acknowledge the many constructive exchanges that we had with Senator Carignan, the bill’s critic.

Since many of the COVID-19 measures have now been lifted, you may be wondering whether this bill is still necessary. It is still just as relevant. It will enable the criminal justice system to make permanent the options for using technology in court processes that were developed or improved during the pandemic. Making these options permanently available to accused persons, inmates and other stakeholders in the criminal justice system will make our system more flexible, which I hope will help reduce court delays.

When it comes to the use of new technology, as many witnesses and members of the committee, including Senator Wetston, pointed out, it is impossible to go back to a justice system that relies on old practices that ignored the potential of new technologies and often placed unnecessary burdens on stakeholders in the criminal justice system.

For example, why insist that a police officer go to a courthouse to give a judge a written application for a warrant? That officer then has to wait in the hallway to find out whether the judge approved the application, after merely reading through the documentation, and to get the appropriate paperwork. It would be much more effective to use email for this sort of thing.

Similarly, the criminal justice system can also no longer insist that every document be submitted in hard copy or cling to unnecessarily long or costly work practices.

Why insist that hundreds of prospective jurors show up at the same time and at the same place for pre-screening when that process can be completed virtually, either in whole or in part? Why require an accused who is not represented by a lawyer to travel hundreds of kilometres from home simply to enter a guilty plea for a summary offence? There again, the use of technology that would allow the accused to attend virtually would be in the best interests of justice and the accused.

Bill S-4 responds to these and other similar issues by specifically authorizing the use of technology.

I would add that having accused persons and other stakeholders attend virtually is not a new practice introduced by Bill S-4. As a result of the passage of Bill C-75 in 2019, the current Criminal Code already includes Part XXII.01, Remote Attendance by Certain Persons. What we are doing by passing Bill S-4 is building on and adding provisions to that part.

What is more, in response to the pandemic, since March 2020, the courts have demonstrated creativity by relying on paragraph 650(2)(b) and section 715.23 of the current Criminal Code to authorize accused persons to attend court proceedings virtually in many situations.

[English]

In March 2020, when the COVID-19 pandemic became a public health emergency of international concern, many courts were able to rely on the remote-appearance provisions that were expanded or introduced by Bill C-75 in 2019 and which had just come fully into force.

However, the pandemic has made it evident that more legislative clarity and additional mechanisms were needed. Bill S-4 will provide just that.

Former Chief Justice MacDonald, who testified before the committee on behalf of the Action Committee on Court Operations in Response to COVID-19, a special committee co‑chaired by the Chief Justice of Canada and the Minister of Justice, put it succinctly when he referred to Bill S-4 before the committee as:

. . . another important tool in the kit for judicial discretion in terms of ensuring that access to justice is as good as it can be in this country.

At the committee, all of the original provisions of the bill were carried as introduced. However, the provisions that attracted significant commentary and debate by witnesses and committee members were the bill’s proposals to allow accused persons to be able to appear remotely for the entirety of their preliminary inquiry or trial, regardless of whether witness evidence is presented.

Some committee members have expressed concerns about the ability to assess the credibility of witnesses remotely, about consequences of technological issues arising during hearings and about the potential impact of remote participation on the culture and tradition of our judicial system.

Yet we heard from many witnesses that these considerations should not be raised as reasons to oppose a greater use of remote participation. Chief Justice MacDonald in particular stated that judges have been assessing the credibility of witnesses remotely for years, and they have never intended to “sacrifice the accused’s rights or anyone’s rights in a trial at the altar of efficiency.”

Shelley Tkatch, an Alberta Crown lawyer with over 30 years of experience, emphasized how remote proceedings have improved the experiences of vulnerable witnesses by reducing the traumatic impact of testifying in open court.

We also heard from defence counsel Michael Spratt that remote proceedings can actually enhance credibility by providing judges with a clearer view of a witness’s face, and by eliminating some of the systemic problems associated with putting too much emphasis on an individual’s demeanour.

The committee also heard from a representative of the Indigenous Bar Association, Alain Bartleman, that Bill S-4 will offer an alternative to an individual asked to appear in person in a city located several hundred kilometres away from home. Indeed, he said that Bill S-4 will provide to the accused ways to minimize individual problems, including substantial financial costs to travel to the courthouse. According to him, access to justice would therefore be improved.

He also said that this bill could address some in-person concerns, or at least sidestep them, most notably translation services:

I can count on one or two fingers the number of times in which the courts have been able to properly find individuals with the appropriate linguistic competencies for . . . some dialects of Indigenous languages. Accordingly, a centralized or technological solution to enable pools of translators to assist would be a boon to the profession and certainly a boon to Indigenous clients — those Indigenous individuals in the justice system who are faced not only with obvious challenges of distance and time but also with simple communication and access to justice.

[Translation]

That said, I’ll be the first to admit that there will always be hearings where remote participation is not appropriate. Bill S-4 does not allow for remote attendance in jury trials, and nobody is suggesting that remote attendance should be the preferred mode for criminal cases.

On the contrary, I want to emphasize that in-person attendance is the basic rule, as indicated in section 715.21 of the Criminal Code, which is not being amended. I’ll quote it here:

It’s important to remember that the court can order remote attendance only in exceptional situations.

The fact is, the court cannot authorize remote attendance by video conference or telephone unless the accused requests it either for the plea, a preliminary hearing or a trial — except in the case of a jury trial, of course. In other words, it is always up to the accused. In most cases, the Crown’s consent is required as well.

Lastly, I should point out that court authorization is always required.

As was the case with Bill C 75, this bill sets out considerations for the court to take into account before authorizing attendance by audio conference or video conference. The court must take into consideration all the relevant circumstances, including the right to a fair and public hearing, the location and personal circumstances of the accused, the suitability of the location from where the accused will appear, the costs associated with appearing in person, and the nature and seriousness of the offence.

The bill also gives the judge the discretion to end the remote attendance at any time. This may be the case if technical problems arise, for example.

[English]

After debate, the majority of the members of the committee concluded that it was not necessary to try to spell out in more detail the circumstances to consider and that judicial discretion is and remains key here and that judges are best placed to determine, on a case-by-case basis, if remote attendance is appropriate considering all relevant circumstances.

During the committee’s study of the bill, there was a consensus on the importance that a request for remote attendance by an accused result from an informed and free decision. This concern was particularly true for self-represented accused. That is why this bill further proposes safeguards for those accused persons who do not have legal representation.

Before authorizing a remote appearance for an accused or an offender who does not have access to legal assistance during the proceedings, the bill will require courts to be satisfied that the accused or offender are able to understand the proceedings and that any decisions made by them are voluntary.

Of course, if an accused appearing remotely is represented by counsel, the court must ensure that the accused has the opportunity to consult privately with counsel, and this is also provided for in the bill.

On this aspect, we heard from the Canadian Association of Elizabeth Fry Societies, represented by Ms. Emilie Coyle about the lack of appropriate rooms in jails and penitentiaries for inmates to consult remotely with counsel or to appear remotely in a way that privacy and full participation in the legal proceedings are ensured.

In this regard, Ms. Coyle shared with the committee that she visited a federal institution where the conference room was not soundproofed and where interference from the communication system was more audible than the voices of the participants in the court room.

These things must be addressed before an authorization is given by a judge, and I hope that the Department of Justice and the Attorney General will look at these things to make sure that penitentiaries are properly equipped with the necessary equipment and proper rooms for inmates to participate in their trial in privacy and with full opportunity to consult with counsel.

[Translation]

Another aspect of the bill that received unanimous support, including from the Royal Canadian Mounted Police and the Canadian Association of Chiefs of Police, is the proposed expansion and update of the current telewarrants system. These proposals respond to the calls issued by many stakeholders, including the Uniform Law Conference of Canada, the Steering Committee on Justice Efficiencies and Access to the Justice System, and the Canadian Association of Chiefs of Police, with a view to streamline the telewarrant process and extend its application to a greater number of situations.

[English]

Bill S-4 proposes to replace the existing telewarrant provisions with a streamlined and standardized process that will apply to a wider variety of search warrants, investigative orders and authorizations, and that will remove certain restrictions relating to types of offences, applicants and levels of court, while maintaining the current safeguards for issuance of the underlying judicial authorizations.

One key element of the proposed provisions is that where the search warrant application is submitted by means of telecommunication that produces a written document, such as by fax or email, a peace officer will no longer be required to meet the current preconditions if it is impracticable to appear in person before a justice to make an application for a warrant.

However, of course, a police officer could still make an oral application for a search warrant by means of telecommunication — by phone, for example — if he is located in an area where it is not accessible or where access to the internet is not possible or is impracticable.

The bill also provides for a uniform approach to the duties associated with the execution of search warrants and to post‑seizure reporting requirements regardless of whether the search warrant was obtained by technological means or by personal attendance. Once more, we are going to formalize the practices.

It is also important to signal that the committee added two new clauses to the bill. The first amendment, proposed by Senator Cotter, will require the Minister of Justice to initiate one or more independent reviews on the use of remote attendance in criminal justice matters no later than three years from the date the bill receives Royal Assent, and report back to each house of Parliament within five years. This significant amendment will provide an opportunity to assess the impact of remote-attendance provisions introduced by Bill C-75 and by Bill S-4 after some years of experience.

The second amendment, which I moved myself, would require a parliamentary review of the impact of the remote-attendance provisions, including, obviously, the reports of the independent reviewers at the start of the fifth year after Royal Assent.

[Translation]

Finally, I hope that these measures that have now been added to the bill will reassure certain representatives, mainly those of the Barreau du Québec, who were concerned about the bill’s implementation without a careful enough study of the possible consequences. I wish to highlight that the committee included in its report a certain number of observations. It suggested, in particular, that the delays in the criminal justice system be re‑examined given the importance of this issue for many of the witnesses we heard from. We all recognize that delays have serious consequences for both the accused and the victims. This is a problem we must tackle on an ongoing basis.

Other observations deal with the importance of ensuring legal interpretation services of good quality, investing in the technology needed to have quality remote appearances, ensuring the availability of facilities in several locations in Canada to guarantee access to remote proceedings for everyone, and putting in place measures to ensure respect for the fundamental rights of the accused persons in custody, those who are marginalized, the victims and the witnesses.

I understand that the bill’s proposals reflect the needs of our criminal justice system as formulated by the provinces and territories in the consultations held by the Department of Justice with all stakeholders responsible for the administration of justice, and other key stakeholders in Canada, including the special committee I talked about earlier. Bill S-4 proposes a set of targeted reforms that are reasonable, measured and widely supported by Canada’s legal community. For those reasons, I invite all of you to support Bill S-4.

[English]

I understand that the observations that were made by the committee should be considered as calls to action for the federal government, the provinces and the territories, as well as other key stakeholders in the criminal justice system across Canada, including counsel and judges.

In conclusion, Bill S-4 proposes a targeted set of reforms that are sensible, measured and broadly supported by the legal community across Canada. For these reasons, I invite you all to adopt third reading of Bill S-4 in the coming days in order to send it to the House of Commons for their consideration and sober second thought, I suppose, by the members of the other place.

Thank you, meegwetch.