Hon. Judith G. Seidman: Honourable senators, my question is for the government leader in the Senate.

In the fall of 2020, an expert advisory group was established to provide advice on the development of a pan-Canadian Health Data Strategy. The purpose of the strategy is to support the effective creation, exchange and use of health data. A year ago I asked a question in this chamber about the steps that the federal government has taken to develop the strategy and to address the serious gaps found in Canada’s current health data system. To this day, I have not yet received a response on this matter.

Senator Gold, the Pan-Canadian Health Strategy Expert Advisory Group published its third and final report on May 3, 2022, which includes ten recommendations to strengthen Canada’s health data system. How will the federal government implement these recommendations to advance the strategy?

Senator Seidman: Of course, the reason that I am asking is because the COVID-19 pandemic has highlighted the inequities that exist in Canada’s health data system. The absence of national standards for the collection and sharing of health data hindered Canada’s ability to successfully measure the effectiveness of the COVID-19 vaccine, track the emergence of new variants and assess long-term complications from COVID-19.

In a Globe and Mail article published on June 4, 2022, health experts warned that the lack of data collection could hinder our ability to understand and find therapeutic options for long COVID.

Senator Gold, the need for a robust national health data system is evident. What steps will the federal government take to address the barriers that impact Canada’s ability to collect, share and analyze health data?

Hon. Ratna Omidvar: Honourable senators, I rise to remember a sombre day in our history, June 23. On this day in 1985, a bomb downed Air India Flight 182 over the coast of Ireland. All 329 passengers on board were murdered, including 82 children, 6 babies and 29 entire families. This was and remains the single largest terrorist attack on Canadians. In a sense, it was our own 9/11.

In the 37 years since, much has changed in Canada. We have progressed as a nation that is more inclusive. We have learned some lessons from the past, and we have taken action. Our policies, protocols and legislation have evolved, but most importantly, I believe, it is our hearts and minds that have changed. We now mark June 23 every year as the National Day of Remembrance for Victims of Terrorism. But lest we forget, I take this opportunity to once again bring Air India into our national memory.

I am heartened by the progress we’ve made, embracing immigrants as our people and not just as people with half-ties to Canada. When Ukraine International Airlines Flight 752 from Tehran crashed in 2020, it took the lives of 138 individuals destined for Canada. This time around, we did not repeat the mistakes of the past. We didn’t brush off the victims as lesser Canadians and, therefore, less valuable to us. We demonstrated, this time around, that “hyphenated Canadians” are not lesser Canadians.

None of this, of course, provides much comfort to the families who were robbed of a future, whose lives were changed forever, who will not live to see their children grow up, whose parents will not show up for their graduations, birthdays, weddings or the birth of a child or grandchild. They won’t celebrate Mother’s Day, Father’s Day or Family Day. For them, I wish and hope that the National Day of Remembrance for Victims of Terrorism counts.

Let’s continue to fight as a nation against terrorism, hate and intolerance. Thank you.

The Hon. the Speaker: Honourable senators, when shall this bill, as amended, be read the third time?

(On motion of Senator Kutcher, bill, as amended, placed on the Orders of the Day for third reading at the next sitting of the Senate.)

On the Order:

Resuming debate on the motion of the Honourable Senator Gold, P.C., seconded by the Honourable Senator Gagné, for the second reading of Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act.

Hon. Diane Bellemare: My question is for the Government Representative in the Senate. It’s nearly time to look back and take stock of our parliamentary record for this session. Since the beginning of this new Parliament, the government has decided to introduce several of its bills in the Senate. Since December, a total of 10 government bills have been introduced. By way of comparison, the Trudeau government introduced six in the Forty‑second Parliament, which lasted four years. Of course, it is the government’s prerogative to proceed in this way.

Prime Minister Harper’s Conservative government also had a habit of doing that. In the first session of the Forty-first Parliament, it introduced 17 bills, and in the second session of the Forty-first Parliament, it introduced seven bills.

Personally, I have no problem with this. On the contrary, I think it can allow the Senate to do its job of providing sober second thought, especially if the bills are introduced in February, March or April.

What do you think of this practice? Will this trend continue? Do you appreciate and encourage this approach?

Hon. Marc Gold (Government Representative in the Senate): Thank you, senator, for the question. I’m not sure that I would agree with you — although you are certainly more of an expert in this area than I — that our agricultural sector is underperforming. I think many factors have conspired to affect the industry over the last number of years. This includes the usual suspects these days, if you will: COVID-19, but also floods and drought.

However, the agricultural sector has demonstrated great resiliency. The government has always been there and will continue to be there to support our producers and processors in times of need.

Budget 2022 says the following:

Federal, provincial, and territorial governments will work together over the coming year to renew the programs under the next agricultural policy framework that begins in 2023.

Colleagues, there is strong political will to renew the partnership and to position the agricultural sector for continued success over the next five years.

Hon. Donald Neil Plett (Leader of the Opposition): Senator Gold, the Halifax Examiner just published an article entitled, “RCMP Commissioner Brenda Lucki tried to ’jeopardize’ mass murder investigation to advance Trudeau’s gun control efforts.”

In the article, we learn that Brenda Lucki made a promise to Public Safety Minister Bill Blair and the Prime Minister’s Office to leverage the mass murders of April 18 and 19, 2020, in Nova Scotia to get gun-control law passed.

Here is a quote, Senator Gold, from the notes of one of the RCMP officers who participated in the meetings with the commissioner:

The Commissioner said she had promised the Minister of Public Safety and the Prime Minister’s Office that the RCMP (we) would release this information. . . .

Senator Gold, is this true? Did the RCMP commissioner promise to use the mass murders in Nova Scotia to advance Liberal government policies?

Hon. Victor Oh: Honourable senators, my question is for the government leader in the Senate. It is regarding the Health Canada proposal for the front-of-package labelling for ground beef and pork which would require ground beef and pork sold at retail to carry a “high-in-saturated-fat” warning label.

As Senator Plett noted yesterday, this small label stands to have a significant negative impact on the Canadian beef and pork industries. As most other single-ingredient foods are exempt from this labelling, such as milk and eggs, it seems unfair to target ground beef.

In addition, we must remember that this discouraging people from ground beef consumption may have other negative consequences given that, one, ground beef contributes iron, zinc and other important nutrients that are vital for a balanced diet; two, with current food supply chain issues and high inflation and food costs, ground beef offers consumers these nutrients at a more cost-conscious way than more expensive cuts of beef.

Leader, yesterday you said Canadians would continue to purchase ground beef. Does the government understand that the cost of changing the labelling will be passed down to consumers, making ground beef more expensive at a time when families cannot afford to pay more? Thank you.

Hon. Marc Gold (Government Representative in the Senate): Thank you for your question. The government is of the view that the labels that provide information to consumers are an important tool so that Canadians can make choices as to how they want to eat and to understand better the consequences of the choices they make.

The government will continue to work with experts in the scientific community, but also with stakeholders to make sure that the information that is communicated to Canadians is appropriate.

These labels work. For example, in Chile, which introduced labelling, they saw major improvements in healthy eating in the country just a year and a half after the implementation.

I cannot generalize about every household in Canada, but I can assure you that in our household we continue to eat beef but over the years we have moderated our consumption of certain foods and replaced them with others out of consideration for our own health. In my household we continue to enjoy beef, but we have also made choices based upon what we now understand is best for our health, in terms of immediate and long-term effects.

The approach that the government is taking with regard to beef and pork is exactly that: to provide Canadians with the information that they need and deserve to make the free choices that they can and should make in terms of what they want to eat.

On the Order:

Resuming debate on the motion of the Honourable Senator Dalphond, seconded by the Honourable Senator Bovey, for the 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.

Hon. Denise Batters: Honourable senators, I rise to speak to Bill S-4, An Act to amend the Criminal Code.

Over the past two years, Canada’s criminal justice system — like nearly every facet of society — had to adapt quickly and substantially to function during a time of enforced social distancing and a myriad of other challenges posed by COVID-19. When we needed to put our modern communications technology to the test, most organizations found ways to advance efficiency, functionality and convenience that will certainly endure past the pandemic.

Having practised law for many years, and being a member of the Legal and Constitutional Affairs Committee during our 18‑month comprehensive study on court delays, I am acutely aware of the problem of excessive backlogs and the need to innovate and modernize our criminal justice system. However, as the justice system grapples with how to change in a digital age, the integrity of Canada’s court processes must remain paramount and should never be compromised for the sake of expediency.

Bill S-4 permits the continuation of many electronic processes that began during the initial COVID lockdowns. However, it also extends permanency to the option of virtual appearances before we have enough data and experience to assess the impact. I have specific apprehension with the proposal to allow an accused to appear and testify at their criminal trial by video. Under this bill, all criminal trials for both summary and indictable offences, and regardless of the severity of the offence, could be conducted this way.

What I find most concerning is the impact that could have on a judge’s ability to assess the credibility of the accused. Those of us who have spent extensive time in a courtroom know that is a critical factor in almost all criminal trials. While we are a long way from fully understanding the total impact of virtualizing meetings, conversations and proceedings that have always been face to face, the data we have suggests cause for concern.

In a 2017 U.S. Government Accountability Office report on immigration courts, judges in 50% of the surveyed courts identified instances where they had changed credibility assessments made during a video hearing after holding a subsequent in-person hearing. In one instance, an immigration judge failed to identify a respondent’s cognitive disability over video, which the judge said was clearly evident when the respondent appeared in person. In another case, the poor audio quality led to a misunderstanding of the facts of the case, which was not clarified until the respondent was able to appear in person. The change in the credibility assessment ultimately changed the judge’s decision.

Another study by Swedish psychology professors Sara Landström, Karl Ask and Charlotte Sommar found a substantial difference in perceived credibility between video testimony and in-person testimony. They described the “vividness effect” whereby live testimony due to its face-to-face immediacy is more “. . . emotionally interesting . . . and proximate in a sensory, temporal, or spatial way,” is generally “. . . perceived as more credible . . .” and “. . . better remembered. . . .”

In an article in the Tulane Law Review, law professor Anne Bowen Poulin points to a body of literature suggesting that video conferencing may have a negative impact on the way the defendant is perceived by those in court as well as the representation the defendant receives. She further notes that “when decisionmakers interact with the defendant through the barrier of technology, they are likely to be less sensitive to the impact of negative decisions on the defendant.”

In committee, Senator Pate drew our attention to the research done at the University of Surrey in England, which studied the merits of electronic proceedings and found that defendants were more likely to be jailed following video hearings, and suspects whose cases were dealt with remotely were less likely to have legal representation.

Witnesses at our Legal Committee raised additional concerns with video conferencing. Emilie Coyle, the Executive Director of the Canadian Association of Elizabeth Fry Societies and the daughter of Senator Coyle, testified about stigma against an accused appearing by video from prison and often in prison clothing rather than, for example, a suit that their family had given them. This can cement in the trier of fact’s mind — in this case, a judge — that someone being seen in a jail setting during a trial should, perhaps, remain in jail and it potentially gives a bias to a guilty verdict.

Ms. Coyle expanded, by stating:

. . . society assigns judgment to people who are in prison without understanding their background. . . .

Because we have this idea that people in prison are bad — we put bad people in prison — that judgment that we cast upon people who are in prison would lead potentially to an outcome in a trial that would not necessarily have been the outcome had that person not been in prison. . . .

Mark Knox from the Canadian Council of Criminal Defence Lawyers testified at committee about the “. . . slippery slope. . . .” and “. . . the movement away from the humanity, the decorum, all of these factors that are associated with an in-court trial. . . .” He cautioned against rushing to implement these supposed modernizations “. . . for efficiency’s sake in a rush.”

When I asked him about an amendment to remove the ability to have trials by video while leaving the other proceedings as proposed, he responded:

. . . I agree with you. . . . There are places that we could start to see how it works.

Our committee also heard from Ms. Eva Tache-Green from Nunavut Legal Aid. She told us that 24 out of 25 communities in Nunavut don’t have the technology to do a video conference in court. Coincidentally, early in her testimony, her face froze, with the message “network bandwidth is low” on the screen. She was in a legal aid office with comparatively high connectivity, and even her ability to communicate with our committee was impeded. She then had to do the rest of her testimony using only audio, turning off her video.

When I asked for her input on this amendment, she agreed, suggesting that we hold off on making video conferencing available for trials and start with “. . . proceedings that have lesser jeopardy. . . .” She added the following:

I am very concerned about the possibility of trials proceeding with an accused who is, of course, the person with the most at stake, being potentially cut out of the proceeding by the technology breaking down. . . .

Colleagues, even the best technology has its limitations. Look no further than this very chamber and the limitations a hybrid Parliament has placed on our ability to do our work. We often run into connectivity issues, and this is on Parliament Hill in Canada’s capital city with state-of-the-art technology and a sizable IT department. Sometimes a senator who has lost their connection is in a fairly remote location, but there have been many other times that we lose connection with a senator from their home office in our largest cities or, even worse, from their office on Parliament Hill.

One can only imagine the substantial issues as the courts attempt to rely on video technology from northern, rural and remote locations. For example, it is no surprise that there are major technological gaps in northern Saskatchewan, but there are courtrooms in Regina that still don’t have Wi-Fi. We are not talking about relying on a consistent connection for a 15-minute Zoom speech; this could potentially be several hours of accused testimony.

While carefully considering this amendment, I consulted with several people who work in courtrooms and conduct criminal proceedings every day, including defence attorneys and judges from provincial court and Queen’s Bench court. I spoke to judges who were initially enthusiastic about using video technology for criminal trials, but who have completely changed their minds after seeing it in practice for two years. They believe strongly in the merits of non-trial efficiencies, such as adjournments by emails, video for guilty pleas, et cetera, yet they have now seen first-hand that far too much is lost in conducting a trial this way.

The stakes are simply too high. One judge I spoke with made an excellent point. A courtroom is a serious place, and everything inside it — from the well-appointed interiors to the elevated dais to the judges’ robes to the requirement to address judges as “Your Honour” or “My Lord” — evokes a sense of seriousness, sombreness and respect. That is crucial so that those testifying are more likely to feel bound by their oath and respect the judge’s decisions. There is no comparison between putting your hand on a Bible in a courtroom full of people, including possibly a victim, your accuser, reporters and your family, versus taking an oath by video.

When an accused is sitting at home on his couch or in jail, not only is his Charter right to properly consult with his lawyer in jeopardy, but the gravity of the situation is unquestionably diminished. There is serious concern that, over time, there will be a major deterioration of respect for the court and the trial process to the profound detriment of all.

Judges relayed troubling examples from the past two years, such as an accused, testifying from his couch, who actually swore at the judge; a witness testifying from his shower during a criminal trial; and, most disturbingly, a domestic violence victim testifying from home with her abusive spouse in the next room. In these cases, testimony by video robbed the judges of any control over the environment.

In many sexual assault cases, the dynamic is very often he‑said‑she‑said. If an accused appears by video, the judge often loses the ability to assess demeanour and to even examine any interplay between the accused and the accuser in the courtroom. The impact of this should not be underestimated.

Trial judges are trained how to assess credibility of witnesses, including a defendant, in a courtroom, and that assessment is considered extremely valuable. In fact, findings of credibility made by a trial judge are not to be overturned by an appeals court other than in very rare circumstances. This is because trial judges can assess credibility right in front of them, not in a remote way.

When I introduced my amendment to remove video from criminal trials at the Legal Committee, Senator Campbell, stating that he had testified at many trials, reminded the committee that “. . . a trial is a big deal, especially if you are the one who is on trial.”

He further stated, “I don’t think you can discount credibility. I believe that credibility is important in every single case.”

He went on to say that:

I will support this amendment. I don’t believe it is a step back. I believe it is protecting Canadians from a technology that we have not perfected yet. . . .

Then, Senator White, when he spoke in support of this amendment, questioned whether the impact on victims and the importance of their ability to fully participate in a trial had been adequately considered in this bill. He said:

I think we need to walk before we run. I’m not sure in the last two years that we have proven that we walk very well.

Rather than adopting the very reasonable amendments that Senator Carignan and I put forward, our Legal Committee decided to append several observations reiterating the very serious concerns of our witnesses — concerns about inequitable access to technology, interpretation, privacy, security, confidentiality and the ability of the accused to confer with defence counsel. One observation went so far as to say witnesses “. . . raised concerns that these rights were not being sufficiently respected.”

Honourable senators, this is not observation material; this is amendment material. If the Trudeau government is willing to procrastinate on and ignore mandatory parliamentary reviews written directly into legislation, what hope does a mere observation have in catching the government’s attention?

With respect to the amendment I’m bringing forward today, some have argued that there is minimal risk, as all parties must consent. However, many witnesses raised concern with the very concept of consent in this context, especially given the profound power imbalance that could impact an accused’s ability to make free, informed decisions.

Ms. Emilie Coyle from the Canadian Association of Elizabeth Fry Societies said that an accused may be told they will face delayed time frames if they don’t proceed virtually. And if they are not made keenly aware of what is at stake by forgoing a traditional day in court, can we honestly consider that a free choice? Just think about the Charter challenges that could arise when an accused has been told by their counsel that this is their only option, or they will spend less time in jail or save them money. It is easy to foresee an accused agreeing, then getting convicted and later challenging the decision based on a violation of their Charter rights.

Some maintain this is a non-issue, as the judge can simply decide not to sign off on this. On paper, there may be no reason to not proceed by video for a particular trial. A judge may later deem unforeseen connectivity issues as minor, but will never truly know what was missed. There may even be circumstances where the virtual trial appeared to be a success. However, a judge is a human being, and the research is clear: There are intangible qualitative elements that do not come through in a virtual setting that will likely result in an incomplete or even inaccurate assessment of the accused, even for the most experienced and well-intentioned judges.

To be clear, the amendment I am proposing will not remove all video capability for the accused in criminal proceedings. In fact, my amendment would allow the accused to use video technology for the many other types of criminal court proceedings and appearances permitted by Bill S-4, including bail, preliminary inquiries, pleas and sentencing. My proposal is simply to eliminate this option for trials and start with these matters of “less jeopardy.” This is very much a cautious, compromise proposal.

As the judges I spoke with emphasized, the provision to operate this way in an emergency already exists in the Criminal Code. If there is another lockdown, they can use video conferencing as necessary. Their concern was that Bill S-4 suggests that trial by video is the default or preferred method going forward, and the evidence is clear: making this the default approach comes at a tremendous price.

I will conclude with a quote from the Barreau du Québec, who recommended to our Legal Committee that all testimonial evidence should be excluded from video conferencing. First of all, the lawyers in this group work on the ground every day, and they state:

In an in-person trial, a simple note passed to counsel, or even a glance shot at them by the judge or a witness, is likely to change their approach or strategy and affect the outcome of the trial. . . .

They further state that, under this bill, “. . . remote trials become the rule rather than the exception.”

Senator Batters: Thank you, Senator Lankin. I actually tried to deal with a few of those types of issues in my very speech, because I knew that might come up. Probably the main thing was, well, judges don’t have to agree to it; they can simply not agree to it.

My position on that, as I stated in my speech, is that, first of all, there may seem like no particular reason not to have a trial by video until it is actually going ahead. And it is only afterwards, as I’ve shown in those particular examples with the research that was done in those other countries, that we see the very dire circumstances that can result.

Also, sometimes, particularly with video, you freeze. You might be the accused sitting at your screen at home, and don’t even realize that you are not being well articulated, and you don’t even find out that a crucial part of your testimony has been missed until after the fact, and it is then too late.

Hon. Denise Batters: Therefore, honourable senators, in amendment, I move:

That Bill S-4 be not now read a third time, but that it be amended, in clause 46,

(a) on page 21, by deleting lines 4 to 16;

(b) on page 22, by replacing line 5 with the following:

“means, other than a trial for a summary conviction or indictable offence, the court may allow the accused or offender to”.

The Hon. the Speaker pro tempore: Is it agreed, honourable senators?

Senator Batters: Thanks very much. Yes, the emergency provisions that are being used are exactly what has been used for the last two years. There is a provision of the Criminal Code that was put into place with Bill C-75, I think, that was passed a couple of years ago. In the courts throughout Canada, judges have been interpreting that as being able to use video and audio as need be for their criminal court proceedings for the past two years. So they have had that trial run. That’s why judges are telling me that that trial run has been a dire failure, particularly on trials. However, it works well for some other types of proceedings. That is why I am limiting my amendment to trial only.

They already have the particular provision in the Criminal Code and they’ve been using it for the last two years. This just cements it. I quoted the Barreau du Québec. Their concern is that it makes it more of a default provision to go forward. That is, video trials would always be the way to go.

Senator Tannas: One other question, just for the record. It is my understanding that the formula talked about here does not work out exactly right for representation by population — chronically — for Ontario, Alberta and British Columbia. But it does work out more or less even for Quebec, and it is the other provinces — the Maritimes, Saskatchewan, Manitoba and, obviously, the territories — that on a representation-by-population basis are slightly overrepresented. So in other words, it is correct that Quebec has not enjoyed any kind of disproportionate favour over the formula discussed yesterday, which is not part of this bill.

Senator Dawson: Senator Tannas, it is not something that is creating a different imbalance. There are imbalances — and we mentioned them yesterday — but this only gives a floor for Quebec. It does not penalize other provinces.

Senator Tannas: I have been following the questions and debate on this, and I just want to be clear. Nothing in this bill favours Quebec or any other province or changes the calculation for representation by population. If we use the example of Quebec, we are setting a floor of 78 seats. Right now, the population of Quebec relative to the population of Canada is about 22.5%. But it has fallen significantly over the last four decades. If we went forward, say, four decades, and it was 20%, all we would do is take the 78 seats for Quebec at, say, 20%, and true everybody else up to make this work. Is that your understanding?

Senator Dawson: It seems that you were listening to me quite closely, senator. Yes, it is my understanding. As we did for the Maritime provinces a few years ago, it is giving a floor. When that floor is established, it means that everybody else will have to go up.

That’s what we are doing now. In the case of Quebec, we were not part of that floor, and now we will be part of the floor.

And I hope the percentage doesn’t continue going down. I wouldn’t want to be as pessimistic as you are, but, that being said, it won’t change the balance of representation in the House of Commons.

Senator Tannas: Thank you.

The Hon. the Speaker pro tempore: It was moved by the Honourable Senator Dawson, seconded by the Honourable Senator Klyne, that this bill be read a third time.

Is it your pleasure, honourable senators, to adopt the motion?