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

(On motion of Senator Gold, bill placed on the Orders of the Day for second reading two days hence.)

Hon. Claude Carignan: Dear colleagues, I rise today at second reading stage of Bill S-4, entitled An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures).

In a presentation given on February 8, 2022, Justice Canada stated that the purpose of the bill was to support the safe, effective and efficient operation of criminal proceedings, in order:

 . . . to help address the challenges faced by criminal courts caused or exacerbated by the COVID-19 pandemic, and modernize our criminal justice system . . . .

[English]

While I support the purpose of the bill, I regret that the government has taken so long to move forward with this legislation given that it was meant to address the impacts of the pandemic on the operation of the justice system. The courts adapted quickly, but had to do so before the government could adopt the reform it proposes today to promote and regulate the use of video and audio conferencing in court.

[Translation]

Senators will remember that in February 2021, the government introduced Bill C-23, which is almost identical to Bill S-4. What did the government do to advance Bill C-23? The Minister of Justice issued a news release in February 2021 when he introduced the bill, then he did nothing more on this file. The bill died on the Order Paper because the government called an election.

However, in its February 2021 news release, Justice Canada acknowledged that it was important to support the courts in their technological transition imposed by COVID-19 by amending the Criminal Code. I quote:

[English]

The effects of the ongoing COVID-19 pandemic are still being felt throughout the criminal justice system, and particularly in the operation of criminal courts. The pandemic has both created and amplified challenges and limitations within the criminal justice system. Canada’s criminal courts have been adapting and modernizing to address the challenges they face, but many remain unable to operate at their pre-pandemic capacity.

That said, I not only support the purpose of Bill S-4, but I also agree with the main provision of the legislation. However, I do believe it’s important for this bill, which is very technical, to be sent without delay to the Senate committee for further study. That will give us the opportunity to answer several technical questions and propose, if necessary, amendments to improve the wording of the bill.

[Translation]

Take, for example, the rules set out in the bill regarding the use of video conferencing. The rules require that the accused consent to the use of this technology for the preliminary inquiry, trial, plea hearing and sentencing hearing, all the stages where important decisions are made about the accused.

However, does Bill S-4 also require this consent from the offender for a hearing regarding a breach of an order of imprisonment in the community? This is an important hearing that takes place after sentencing, but that may have serious implications for the offender. If an offender breaches a conditional sentence order, the judge may order that the offender serve the rest of their time in prison instead of at home, for what could be months.

Yet Bill S-4 does not appear to require the offender’s consent to hold such an important hearing by video conference instead of in person.

I share this example to highlight what I believe is an important aspect of the bill, and the defence lawyers I consulted before writing my speech agreed. I am talking about the safeguard proposed in Bill S-4 requiring that the accused and the prosecutor consent to having important criminal hearings conducted by video conference or audio conference.

(1820)

Thanks to this measure, the parties’ lawyers can require that these hearings be held in person if they feel this could hinder the proper conduct of their case, the fairness of the proceedings or the constitutional rights of the accused.

I would completely understand if a defence lawyer required a sentencing hearing to be held in person in court, if they felt that would help in sharing information with their client.

It’s important to remember that each criminal case is unique. Take for example a homeless person who has neither a fixed address nor a cellphone. In practice, lawyers who have clients in this situation gain a major advantage when their client is required to appear in court on a given date. The presence of the accused in court gives the lawyer an opportunity that they would not otherwise have, to talk to the accused in private in order to prepare the case or to make an appointment at the lawyer’s office.

On the other hand, I can also see a defence lawyer preferring that the hearing not be held by video conference, if it would facilitate interactions with a client who is suffering from a serious mental health problem or has serious difficulties expressing themselves.

I used these examples to illustrate how Bill S-4, despite allowing for the use of audio conference and video conference, prioritizes the kind of flexibility that is needed for hearings. Some hearings are best held in person, while others are best held using remote appearances.

I think many lawyers, both Crown and defence, are hoping Bill S-4 will help them in a very real way because they will no longer have to spend hours physically waiting at the courthouse for short hearings. That can happen in cases where a lawyer wants to request a postponement of the trial, ask the court to change a condition for interim release, or enter a guilty plea along with the parties’ joint sentencing proposal. This kind of hearing can take a few minutes, but when the lawyer and the accused are required to be physically present in court, they have to wait their turn in line along with all the other cases on the docket that day. Clients may also have to pay their lawyer’s fees for the time spent waiting at the courthouse.

Some may be wondering whether these questions are truly important. They are in practice. Lawyers who are not wasting time at the courthouse can use this time to better prepare their cases at their office, take more time to meet with clients and even agree to take on more cases, which would help our unfortunately overloaded justice system. Most importantly, this could result in significant savings when it comes to fees for the non-productive time spent waiting at the courthouse.

The real-life benefits of appearing virtually instead of in person cannot be underestimated, if such appearances save several hours of waiting at the courthouse. An accused person, who is presumed to be innocent, would not have to inform their boss that they will be missing a full day of work to appear in court on criminal charges. They might avoid losing their job in some cases. An accused who has a disability or is seriously ill would be happy not to have to travel to the courthouse if they can testify from home or from the hospital.

[English]

However, I’m concerned that in some cases, the changes proposed in Bill S-4 would be inapplicable in practice. Again, consider the example of video conferencing. In principle, this use of technology would save defendants and lawyers in remote areas from having to travel long distances to the courthouses. Remember, not everyone has a car or a driver’s licence.

But in many rural communities or in Aboriginal communities in the Far North, access to a high-speed internet connection is either unstable or non-existent. These communities would not enjoy the benefits of the use of video conferencing in Bill S-4.

[Translation]

The Quebec Ombudsman, who is the ombudsman for prisons run by the Government of Quebec, condemned the serious injustices experienced by accused persons when there was no internet to provide access to video conferencing in certain Inuit communities in northern Quebec.

In 2016, a report released by that organization, which, I will point out, was headed at the time by our colleague, Senator Raymonde Saint-Germain, stated:

Based on the information gathered, most of the villages’ courthouses, with the exception of the Kuujjuaq courthouse, do not have the equipment, technology, bandwidth or qualified staff for effective appearances via videoconferencing. . . .

In light of this situation, the Québec Ombudsman feels that further efforts should be made to increase the use of videoconferencing or any other adapted technology for all pre-trial stages — including the bail hearing — to be done remotely, without unnecessary transfers, barring some exceptions. . . .

In other words, due to the lack of video conferencing, some inmates from northern Quebec had to take a plane and spend several days being transferred in order to appear in person at the Abitibi-Témiscamingue courthouse, which was more than 1,000 kilometres from where they lived. Does this serious injustice continue to occur in these communities in 2022? Witnesses can answer this question when the bill is studied in committee.

Without significant government funding to reliably connect these communities to high-speed internet, the promises made in Bill S-4 are empty. Their residents will not have audio conferencing, or telephones, as an alternative to appearing in person at the courthouse because, by creating sections 715.231 to 715.233 in the Criminal Code, Bill S-4 allows for a trial to be held by video conference, but not by audio conference. Without a fast enough internet connection, it will be impossible to implement these provisions in these communities.

Another question about the bill is whether virtual hearings in criminal law actually reduce court delays. Prior to COVID-19, some judges were reluctant to hear applications for remission or guilty pleas by video conference. They would tell lawyers that it was more complicated for the court, and that wait times to connect or to sort out technical problems were delaying all the other cases of defendants and lawyers who were waiting for their turn in court.

It’s true that every minute counts in courtrooms, given the very large volume of cases that must be dealt with in a day.

That said, since COVID-19, there’s no doubt that the justice system has been forced to improve its practices and, I would even say, its openness with regard to remote appearances.

[English]

Expert witnesses must be heard by a Senate committee to explain whether the current use of video and audio conferencing in the different regions of Canada has generally made it possible to hold criminal hearings without causing court delays. It should be noted that, in criminal law, judicial practices vary considerably from region to region. They vary because the administration of the criminal justice system falls under the jurisdiction of the provinces and also because judges have the independence to adopt different rules of practice according to different regions.

[Translation]

Does using the technology, all across Canada, effectively provide for the use of interpretation services, for confidential discussions between lawyers and clients, or for evidence to be presented during a trial if the individual presenting it is not in the courtroom?

How do we ensure that the individual appearing by audio conference is actually the accused? How do we ensure that the accused is not being fed answers behind the screen or is not reading a text when testifying by video conference? Has there ever been a case where an accused failed to appear virtually because of a technical glitch or a connection problem but the judge was not made aware and issued an arrest warrant for failure to appear?

Senators need this kind of information so we can assess whether the measures in Bill S-4 will, in practice, make it possible to meet the objective of improving, simplifying and aligning the use of video conferencing and audio conferencing for criminal cases across the country, all while ensuring the proceedings are fair and the administration of justice is efficient and effective.

(1830)

[English]

While I support the purpose of Bill S-4, I would not be surprised if the testimony received by the Senate committee recommends technical amendments to refine the bill to better address problems that have been observed in practice.

[Translation]

There is something else to watch out for as we follow up on the study of the bill. We must also consider whether promoting the use of video or audio conferencing may in practice restrict public access to trials and public criminal law hearings. The public nature of trials is recognized in paragraphs 2(b) and 11(d) of the Canadian Charter of Rights and Freedoms.

However, in its February 2021 report, the Canadian Bar Association expressed its concern as follows:

The emergence of online proceedings can pose challenges to the public and media’s ability to access hearings.

It is a concern that underpins a very important principle. As the Supreme Court of Canada explains in 1996 in Canadian Broadcasting Corp. v. New Brunswick (Attorney General):

The principle of open courts is inextricably tied to the rights guaranteed by s. 2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings.

[English]

I will close my speech by briefly addressing another important measure in the bill that proposes to relax the rules for obtaining a telewarrant. For those of you who are wondering what a telewarrant is, it is a procedure that allows a police officer to apply for an arrest or search warrant without having to go to the courthouse to apply for the warrant before a judge.

[Translation]

Under the Criminal Code, there is currently a condition for obtaining a telewarrant. The police officer must demonstrate that it would be impracticable to appear personally before a justice to make an application for a warrant.

Some may believe that eliminating this requirement could diminish a person’s protection against unreasonable search or seizure, which is a right protected by section 8 of the Charter. Law professors could certainly enlighten the Senate committee on this subject. I believe that, at first glance, eliminating this requirement would strengthen rather than weaken the protection of Canadians’ privacy.

The procedure for obtaining a telewarrant requires a police officer to prove to the justice that, based on the information collected during the investigation, there are reasonable grounds to believe that an offence has been committed and that a warrant would make it possible to collect evidence concerning that offence. The same rigorous criterion is used when the warrant application is presented by the police officer in the justice’s office rather than electronically.

In this context, I believe that Bill S‑4 could have the positive effect of reducing warrantless searches because it would be easier for police officers to request telewarrants. The advantage would be that there would no longer be cases requiring justices to determine if the police had sufficient grounds, without which a warrantless search cannot be authorized.

The Association des avocats de la défense de Montréal — Laval — Longueuil, or AADM, seems to agree. Its representatives wrote me to say that they think Bill S‑4 “adequately balances the needs to protect privacy and to simplify the process for requesting” warrants electronically insofar as Bill S‑4 upholds the stringent criteria for obtaining warrants.

For all these reasons, I encourage you to support this bill at second reading and refer it to the Senate committee for study so the committee can make the appropriate recommendations to the Senate.

[English]

Hon. Senators: Question.

Hon. Marc Gold (Government Representative in the Senate): Thank you for the question. I have no information about his intentions. I will inquire with the government and return with an answer shortly.

Some Hon. Senators: No.

The Hon. the Speaker: It was moved by the Honourable Senator Gagné, seconded by the Honourable Senator LaBoucane-Benson, that the bill be read a third time. If you’re opposed to the motion, please say “no.”

Senator Omidvar: Senator Housakos, I was reflecting on your exchange with Senator Carignan about the Queen. I’m not quite sure what relevance the Queen has to this debate. But it did remind me of someone who was a queen in our midst, and that was Senator Forest-Niesing. As we all know, she passed away suddenly and tragically from COVID, and that was a particular circumstance.

We don’t know who else here may have an underlying medical condition because medical information is private. We’re mostly a senior citizen group. And it is also more likely — and the science bears me out — that older people will have greater affinity for catching a virus, even after they have been vaccinated.

So I ask you, Senator Housakos, in light of the fact that there are many of us in the Senate — and this is not reflecting on the age of the Senate staff, all the pages and the security services, it’s reflecting just on us — would you not think that it is wiser and safer to meet in hybrid mode so that the tragic incident that we experienced in the Senate at the passing of Senator Forest-Niesing does not occur again?

The Hon. the Speaker: The time for Question Period is expired.

Hon. Marc Gold (Government Representative in the Senate) introduced Bill S-6, An Act respecting regulatory modernization.

(Bill read first time.)

Some Hon. Senators: Agreed.

Hon. Marc Gold (Government Representative in the Senate) moved:

That:

(a)pursuant to subsection 5(1) of An Act to amend the Criminal Code (medical assistance in dying), S.C. 2021, c. 2, a Special Joint Committee of the Senate and the House of Commons be appointed to review the provisions of the Criminal Code relating to medical assistance in dying and their application, including but not limited to issues relating to mature minors, advance requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities;

(b)pursuant to subsection 5(2) of the act, the committee be composed of five members of the Senate, including one senator from the Opposition, two senators from the Independent Senators Group, one senator from the Progressive Senate Group, and one senator from the Canadian Senators Group, and ten members of the House of Commons, with two chairs, of whom the Senate chair shall be from the Opposition and the House chair shall be from the governing party;

(c)in addition to the chairs, there be one deputy chair from the Senate, from the Independent Senators Group and three vice-chairs from the House;

(d)the five senators to be members of the committee be named by means of a notice signed by their respective leader or facilitator, or their respective designates, and filed with the Clerk of the Senate no later than 5:00 p.m. on the day after this motion is adopted, failing which, the leader or facilitator, and, in the case of the Independent Senators Group, the deputy facilitator if appropriate, of any party or group identified in paragraph (b) that has not filed the name of a senator with the Clerk of the Senate, shall be deemed to be named to the committee, with the names of the senators named as members being recorded in the Journals of the Senate;

(e)pursuant to subsection 5(3) of the act, the quorum of the committee be eight members whenever a vote, resolution or other decision is taken, so long as both houses are represented and that one member from the Senate, one member of the governing party in the House, and one member from the opposition in the House are present and that the chairs be authorized to hold meetings, to receive evidence and authorize the publication thereof, whenever six members are present, so long as both houses are represented and that one member of the Senate, one member of the governing party in the House and one member from the opposition in the House are present;

(f)for greater certainty, changes to the membership of the committee on the part of the Senate be made in accordance with rule 12-5;

(g)until Thursday, June 23, 2022:

(i)where applicable, the provisions contained in paragraphs (a), (b) and (c) of the order adopted by the Senate on February 10, 2022, respecting the participation of senators in hybrid meetings of standing joint committees, shall apply to senators on this committee; and

(ii)senators, members and departmental and parliamentary officials appearing as witnesses before the committee may do so in person, as may any witness invited to appear before the committee;

(h)the committee have the power to:

(i)meet during sittings and adjournments of the Senate;

(ii)report from time to time, to send for persons, papers and records, and to publish such papers and evidence as may be ordered by the committee;

(iii)retain the services of expert, professional, technical and clerical staff, including legal counsel; and

(iv)authorize video and audio broadcasting of any or all of its public proceedings and to make them available to the public via the Parliament of Canada’s websites;

(i)a report of the committee may be deposited with the Clerk of the Senate at any time the Senate stands adjourned, and that any report so deposited may be deposited electronically, with the report being deemed to have been presented or tabled in the Senate;

(j)pursuant to subsection 5(5) of the act, the committee submit a final report of its review, including a statement of any recommended changes, to Parliament no later than June 23, 2022; and

(k)pursuant to subsection 5(6) of the act, following the tabling of the final report in both houses, the committee shall expire; and

That a message be sent to the House of Commons to acquaint that house accordingly.

Hon. Dennis Glen Patterson: Honourable senators, I rise today to speak to Motion No. 14, Senator Kutcher’s motion regarding further study of the federal government’s Federal Framework for Suicide Prevention.

While I applaud the intent, I do have concerns with about this motion. Suicide is a very important issue, but I am wary of yet another study. My constituents in Nunavut, who are dealing with suicide and its impacts every day, need action instead of more studies. We now face a plethora of strategies: the Federal Framework for Suicide Prevention, the National Inuit Suicide Prevention Strategy, the First Nations Mental Wellness Continuum Framework, Changing Directions, Changing Lives: The Mental Health Strategy for Canada, and so forth. Many of these frameworks, strategies and studies are designed by southern non-Inuit.

The actions that my constituents in Nunavut need include multi-year, flexible federal funding and a whole-of-government approach. I would rather hear more about the specifics of what they need so that we know exactly what to push the government for. It removes the subjective markers of what is counted as progress and what isn’t. Instead, the question is: Did you deliver the funding or the programs that people are clamouring for?

I wish to thank the Senate for allowing me to speak to my constituents in their first language, no doubt haltingly. I will now speak in Inuktitut. There is an interpreter here. I thank the Senate for arranging that.

[Editor’s Note: Senator Patterson spoke in Inuktitut — translation follows.]

I will be speaking to what is being done in Nunavut. We don’t just want more studies. We want our knowledge. We have lost our own loved ones to suicide, and some people whom we know. This has been happening for a long time now. There are many people from Nunavut who have experienced suicide. There are many reasons why people commit suicide, and I, along with all the people of Nunavut, am affected negatively when a suicide happens.

People have come to me and asked for help to prevent more suicides. There are many reasons behind a suicide, but we do not really know what triggers a suicide. One of the many reasons is trauma. Other reasons are residential schools, the relocation of people, the massacre of dogs, tuberculosis and other things such as mental illness and the banning of the seal skins by people such as Greenpeace. These have greatly affected the lives of Inuit. Those are just some of the reasons. Another factor is a lack of housing and other major gaps in the quality of living that we endure daily.

Since the root cause of most suicides among Inuit is trauma, the best programs to deal with the loss, anger and harm it causes to Inuit are programs led by Inuit.

The Inuit should be involved in administering programs or delivering programs based on their knowledge, based on Inuit knowledge, because they know their land and their environment best.

Longtime northerners know what those programs should be because we have heard the decades of discussions and read many studies that all say the same thing. Nunavummiut need programs that help them learn cultural skills and get them back on the land. They need supports to continue learning vital cultural skills, like sewing, sealskin preparation and hunting. They need to learn about the manufacture and maintenance of hunting equipment.

They need to learn cultural skills, a large part of their culture and hunting skills. These are the skills that sustain the lives of Inuit and have sustained the lives of Inuit, for they are survival skills. While this may not seem connected to suicide prevention, it is important to know that all these skills are ennobling and uplifting. A deeper connection to one’s culture gives strength and stability. Trades and hobbies give purpose, as opposed to folks seeking to fill the void with drugs and alcohol.

[English]

Additionally, high unemployment and overcrowded housing means that people are simply surviving instead of living. If we’re able to tackle these issues, it gives people space to then focus on healing and wellness. Programs must be delivered in Inuktitut so that people can speak with their hearts as opposed to trying to explain complex feelings and thoughts across a language and cultural barrier.

Training and involving Inuit in the delivery of these programs is necessary. When you are at rock bottom, you need people who will provide support and walk with you, guiding you along the way. When you’re disconnected, it can be quite confusing. We need people there in communities and available 24/7. We need to acknowledge that our elders are our knowledge keepers and they know what community members are experiencing. Our 25 communities hold people who can do this work with training and support.

I will close in Inuktitut with some comments from an elder.

[Editor’s Note: Senator Patterson spoke in Inuktitut — interpretation follows.]

An elder has said to me that we need to start using our cultural perspectives again to help prevent more suicides. We need to stand on what we know as Inuit, to stand up again.

[English]

So when we call on our Social Affairs, Science and Technology Committee to study a subject as important as preventing soul-destroying suicide, I think we need to keep in mind that the review of programs and initiatives must include a Northern Canadian lens and may need to be expanded to other programs and initiatives that southerners may not classify as related but that Inuit would certainly view as integral to fighting the suicide epidemic we face in the North.

I would close by flagging that what Senator Kutcher has proposed is a thorough, academic fact-based study of the federal approach to suicide prevention and review of 20 years’ worth of programs. At least that’s how I see it. If followed to the letter, however, it would take up a significant amount of time in a committee that, like all committees, currently meets only once a week and will likely be bogged down with legislation in the foreseeable future. I would caution against spending an inordinate amount of time studying something that people need action on now.

In Nunavut, we cannot wait for more recommendations. Every year without action is another year of lost lives and pain. Qujannamiik. Taima.

(On motion of Senator Brazeau, debate adjourned.)

(At 7:08 p.m., pursuant to the order adopted by the Senate on March 31, 2022, the Senate adjourned until Tuesday, April 5, 2022, at 2 p.m.)

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Marc Gold (Government Representative in the Senate) introduced Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

(Bill read first time.)

Hon. Marc Gold (Government Representative in the Senate): I thank the senator for his question.

The government is extremely concerned about the current humanitarian situation in Ukraine and neighbouring countries. I have been told that Canada is providing financial assistance to organizations such as the Red Cross, which is sending key equipment and trained staff to deliver aid, in particular to people with illnesses, as quickly and efficiently as possible.

The government is a strong supporter of AIDS programs around the world. I will point out that it provided $930.4 million from 2020 to 2022 to support the Global Fund to Fight AIDS, Tuberculosis and Malaria and $20 billion in base funding to UNAIDS from 2017 to 2022.

[English]

Hon. Marc Gold (Government Representative in the Senate): I thank the honourable senator for his question.

Transparency in our courts is a fundamental principle of our justice system, as you rightly pointed out.

I’m told that the minister is aware of the media reports on this trial, which was held in Quebec, and that he finds it deeply troubling. Court orders prevent me from commenting further. I was, however, informed that the minister has spoken with the Director of Public Prosecutions to shed some light on what has been reported.

Senator Gold: I will have to ask the government and get back to you with an answer.

Hon. Pierre-Hugues Boisvenu: Honourable senators, my question is for Senator Gold.

Canada contributes barely 1.2% of its budget to NATO, but the target is 2%.

Recently, Minister Joly travelled to Europe to meet with her NATO member nation counterparts and negotiate the Government of Canada’s contribution to NATO.

Can you confirm for everyone here that, instead of upping our contribution to 2%, the minister’s offer to NATO was for Canada to accept 10% of the Ukrainian refugees, or 400,000 refugees?

Was that deal the result of a Liberal-NDP agreement to avoid contributing to Canada’s military effort?

Hon. Marc Gold (Government Representative in the Senate): Again, I will simply say that we will have to await the budget to know exactly what measures the government is taking going forward, including the measures to continue to assist Canadians through this difficult economic time.

The Prime Minister has made it clear — the government has made it clear — that the carbon tax will remain in place. Those provinces who, in their own wisdom, have decided not to have measures in place that are equivalent and therefore are subject to the carbon tax — as you know, in our home province and many others, the change tomorrow will have no effect because of the decisions that the Quebec government and others have taken to do their part to reduce the impact of carbon emissions on our climate. In that regard, the Government of Canada remains committed to its strategy to address climate change through the most effective, efficient and market-sensitive mechanisms.