Senator Housakos: As you know, government leader, those requests often have been accepted in extenuating circumstances.

First of all, to answer your question, you won’t solve much, because if you allow committees to meet while we’re not sitting, most senators won’t be here. That would be a breach of their privilege. The easiest way to have those committees sit is to call the Senate back during the weeks we’re not sitting to do their work. That’s the way to resolve the issue. Are you willing to do that? Are you willing, in those non-sitting weeks, to call the Senate back to allow us to do the extra work required? Nobody can stop committees from meeting if we’re sitting in this place.

Furthermore, if we don’t have virtual or hybrid sittings anymore, even if we grant that exception for senators and committees to meet while we don’t sit, they would still have to be here. Why wouldn’t you have senators be here while the committees meet and conduct the business of this chamber?

Hon. Marty Deacon: Thank you, Senator Housakos, and everyone else who has spoken to this issue today. It brings out, as someone said, a number of themes that have emerged this week.

I’m going to take the word “COVID-19” out of the sentence. I would like your thoughts on this. I met last week with Waterloo business partnerships, 60 companies that all work together in the Waterloo region, and we talked about the workplace, what that meant moving forward, and what they were experiencing as presidents and CEOs. Someone commented, “Of course, you folks in the Senate are going to carry on in a hybrid format. I assume you would, because of the investment you’ve made and the environmental footprint.” They had four or five different reasons that paralleled their experiences and why they were going to carry on in this format.

I wonder, from a business perspective, and the folks you’re speaking to, if you’ve had that experience in your conversations also.

An Hon. Senator: On division.

(Motion agreed to, on division.)

[Translation]

On the Order:

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

Senator Housakos: Thank you, Senator Deacon. That’s a very good question. I’ve had that discussion recently with my colleague Senator Seidman.

If you all remember during the early stages of COVID-19, many management consultants came to the conclusion that real‑life, on-site work environments would start seeing a decrease because law firms and companies were seeing the convenience and the time saved in terms of transporting people to and from work, as well as the reduction of overhead costs and unnecessary office space. As it turns out, two years into it, a lot of CEOs and corporate consultants, particularly in the United States, after a review, have found that productivity is starting to sink to such a degree that companies are starting to — even though they had originally planned to only bring back employees to work from their workplace in a reduced structure — come to the conclusion that it’s not cost-effective because productivity levels have shrunk drastically.

Of course, a case in point is right here in the Senate. Our productivity levels in terms of studies, committee work, output and oversight have completely diminished, but the savings have been marginal by comparison.

Senator M. Deacon: It will be interesting to monitor, in the months ahead, our various tables, particularly as they relate to — as you said — the efficiency of being in the Senate in person compared to being in the Senate virtually. Those are the pieces that we’re going to have to continue to wrangle. Thank you.

[Translation]

Senator Housakos: Absolutely. I imagine everyone takes this oath very seriously. It is our first obligation. As senators, being present is part of our rights and responsibilities. As I mentioned in my speech, the problem at the moment is that the general public thinks we are too privileged.

[English]

Parliamentary privilege is important. All of us who respect the British Westminster parliamentary system know that without parliamentary privilege we lose a fundamental right. However, parliamentary privilege and senators’ privileges are not what the public thinks they are. The public thinks that we have benefits and comforts that 85% of Canadian citizens would never dream of.

[Translation]

As soon as people perceive Parliament as a place of privilege, in other words, they think people in this chamber don’t have to follow the same rules as everyone else, we risk losing the people’s trust. Yet the public plays an important and fundamental role in a democracy.

[English]

Hon. Colin Deacon: Honourable senators, I’d like to thank you for taking this debate seriously and spending some time exploring the issue.

I want to reach well beyond COVID-19. The debate has been focused enormously on COVID, and I’m struck by the fact that in Nova Scotia, our doctors have started taking appointments by telephone. They have started renewing prescriptions by telephone. There have been cost savings, time savings and the enhancement of patient care. Yes, there are times when they say, “No, you have to come in for an appointment,” but a lot of the work can be done remotely through a telephone consultation.

That was something that had been discussed in this province for 20 years. All of a sudden when COVID-19 came along, it was implemented, and the benefits were so significant that it has now been extended permanently. COVID has actually provided us with an opportunity to innovate, change and improve how we do things. I think that’s worth looking at significantly.

I’ll go to what has been Canada’s largest company, the fastest company in the world to reach a billion dollars in revenue since inception, and that’s Shopify, which has chosen to be a remote‑first company. Looking at their employment pages that are advertising new positions, whether it’s in Asia, Africa, Europe, South America or North America, they are remote positions for highly technical sales and product development jobs. They have embraced this, and, according to their CEO, their productivity continues to increase.

We need to look at this from a broader standpoint and ask: What are the opportunities that could come from using hybrid in a properly resourced manner? I take to heart Senator Patterson’s concerns about the fact that we have not properly resourced hybrid because we have been going month to month. We have been taking a short-term approach rather than a strategic long‑term approach to our decision making here.

As we revisit this from a sober-second-thought perspective and look at it as something that could be an opportunity, I would like us to think about what benefit could be brought to bear for those who have far more difficult travel challenges than Senator Cordy and I do from Halifax, where you’re not just losing half a day but you’re losing a day in each direction. That commuting time is significant for us, but it’s also significant for other people we might want to be able to work with.

I’ve been struck by the tremendous meetings that I have been able to get. We get to know each other and start to work together quite effectively using virtual communications rather than in‑person communications, and it has provided us with some tremendous opportunities to have witnesses speak to us formally and informally. As you know, I did a session a couple of weeks ago with a Toronto company that, through their Australian operations, is helping to transform the Australian government’s use of blockchain in the collection of taxes, which has benefits for consumers, retailers, producers and the tax office. We got that great interview with one person in Adelaide, one person in Sydney and a group in Toronto all at the same time with a group of senators right across the country.

We have the ability to work with people that we wouldn’t otherwise be able to work with. If we start to constrain that benefit, I think it’s to our detriment.

The first year I was here, you would often ask senators if you would see them the next week, and they would say, “No, I have a medical appointment,” and as you well know, in many provinces, we can’t choose when our medical appointments are. That would cause them to be out of the chamber for a whole week if their medical appointment was mid-week.

There are a whole lot of benefits for us to continue some form of this work that is not related to COVID. I found that a huge amount of the debate was focused purely on COVID.

I look at this in terms of the employment opportunities for us with staff that are not located in Ottawa, people who wouldn’t or couldn’t move to Ottawa that we could have working for us in our offices. It’s a tremendous opportunity. I have benefitted from that personally in having folks for whom there wasn’t the budget to have them move in their own lives, because we can’t pay for our staff to move. But all of a sudden we’re working incredibly effectively at distance.

When I consider this issue, it goes well beyond the question of COVID, and it focuses on the benefits that we may be able to realize in a strategic way as an employer. I want us to be able to be as inclusive and competitive an employer as possible moving forward. I want to see senators apply for this job who maybe have issues with dependents, be they old or young, and can’t travel each week the Senate is sitting, but they still want to put in the hours and the work.

Certainly, I found rather troubling a few of the comments that were made, such as those suggesting that work isn’t being done if you’re not physically present in the chamber. That, to me, is an archaic way of managing in the 21st century. There are not very many employers who would get very far with employees if they start to view their employees in that manner and are not viewing people that they work with from the standpoint of productivity and evaluating that productivity based on its merit versus based on somebody’s physical presence. It worries me that that sort of attitude may limit whom we get to have work with us in the future.

There are all of those social and inclusive benefits, the travel benefits and the ability to have witnesses who are from very different locations than we have in the past.

We also have to start considering our carbon footprint. I am very proud of the fact that the chamber has committed to dealing with that aggressively, and what we will learn in doing that will help us do our job far better because we’ll have first-hand experience, and an ability to say, “Don’t just do as we say, but do as we are doing,” will help us to hold government to account on an issue that no government in Canada has lived up to in terms of commitments.

I want us to look at this debate as an issue that goes well beyond COVID. I think there is a tremendous opportunity as a parliamentary leader to show that there are ways to use new tools to become a more innovative employer and very much improve our productivity as an organization. To look at this purely through the lens of COVID is missing a great opportunity.

Thank you, Your Honour and colleagues.

Hon. Diane Bellemare: Would you agree with me that yesterday we had testimony from Mr. Cléroux from the Business Development Bank of Canada? He said in answer to a question:

. . . I think remote work is here to stay, because the reception on the business side has really changed. . . . First, a lot of businesses have invested in technology to allow the workers to work from home. Second, they realize that productivity has been as high for people working from home.

I think remote work is here to stay, but there’s going to be more of a hybrid model. . . .

Would you agree that was the testimony of Mr. Cléroux yesterday who said that about the business community?

Senator C. Deacon: Thank you very much, Senator Bellemare. He was quite passionate about the issue and the transformation that has occurred as well as the issue facing many employers in terms of a shortage of labour if they do not start to become accommodating.

If we want to have the best people working for us in this organization, we have to be a competitive employer. I think that was the focus of our discussion last night in the Banking Committee. It was an important one from my standpoint because it got at the issue of talent. Talent is crucial in the ability of an organization to function. We want to make sure we have the ability to attract the very best talent as an organization. It’s part of what we have to look at as an organization moving forward and reaching beyond COVID. Thank you.

The Hon. the Speaker pro tempore: Senator Deacon, your time is up. We have still two senators who want to ask questions.

Would you like to ask for more time?

Senator C. Deacon: That would be great, Your Honour, if the chamber so chooses.

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

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.)

The Hon. the Speaker: In my opinion, the “yeas” have it.

And two honourable senators having risen:

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.

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.

[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]