Hon. Dennis Glen Patterson: Honourable senators, I would like to express my appreciation for the way in which Senator Dalphond, as sponsor of the bill, has clearly outlined its main provisions and urged that it be referred to the Legal and Constitutional Affairs Committee for detailed study.

Senator Dalphond clearly outlined the main provisions of the bill, and he pointed out that since the bill is not a money bill and has been first introduced in the Senate, we have the freedom to make amendments if they seem appropriate. This is more freedom now than if the bill had originated in the other place. I believe that introducing government bills in the Senate is good practice for a government that says it wants thoughtful advice and constructive criticism from the Senate on legislation but often gives us very little time to do this important work. Such review of legislation in a less partisan atmosphere than in the other place is to the benefit of all Canadians.

I wanted to speak to this bill because, as Senator Dalphond said, the bill is about making the justice system more efficient using available technologies. Perhaps nowhere in this great country are there greater challenges of remoteness, adverse weather and air travel than in Nunavut’s 25 isolated, off-road communities in the largest jurisdiction in Canada.

In its first iteration, this bill was introduced in the House of Commons at least in part as a response to COVID; it was an attempt to minimize in-person contacts wherever possible in the justice system. The Nunavut Court of Justice, out of necessity, has always been on the forefront of trying to utilize technology to facilitate remote appearances because of the huge distances and costs resulting from our remote community locations across three time zones in an area covering one fifth the land mass of Canada.

The Nunavut Court of Justice is fundamentally a circuit court. The court travels to all of Nunavut’s communities, multiple times each year, to ensure Nunavummiut have meaningful access to justice at their doorsteps. There is a long tradition in the Northwest Territories and Nunavut of bringing justice to communities, beginning with legendary flying circuit court judges Sissons and Morrow. As a legal aid defence lawyer, I was privileged to travel on the circuit with Judge Morrow. This tradition is honoured today by judges, lawyers, prosecutors and court officers who travel courageously in challenging weather and small planes to bring justice to people’s doors.

Some observers of the Nunavut justice system are concerned that the ability of technology to facilitate remote appearances could have the unintended consequence of diminishing the public’s confidence in the administration of justice in Nunavut if the public sees the court as a purely Iqaluit-based or southern institution. It is seen as essential that lawyers be on the ground meeting and developing relationships with their clients who have matters before the court.

In Nunavut, where severe lockdowns and strict limitations on travel between communities were put in place by public health authorities, COVID shone a light on how valuable technology can be in enabling courts to proceed when personal appearances are not possible, which was very important during the pandemic. Additionally, increasing ways in which certain court appearances can be made without incurring expensive travel costs, which this bill allows, has obvious benefits.

However, a preliminary survey of individuals who work in the criminal justice system in Nunavut suggests that support for the efficient mechanisms offered by the bill still need to be viewed with caution. It was emphasized to me that, as good as the technology is — or can be — it should not be a replacement for in-person appearances when and where possible. This principle will require that attention be paid to the adequacy of safeguards around the use of technology for court appearances. As Senator Dalphond noted, trials and preliminary inquiries will be held only with consent of the accused, and the same safeguard of requiring the accused’s consent will apply to sentencing or pleas by teleconference.

While Bill S-4 is clear about the requirement of consent by both parties for the exercise of its provisions for virtual proceedings, obtaining true, informed consent from people in custody, or indeed anyone, may be made difficult by language and cultural barriers amongst our high-majority Inuit population. I would note that many lawyers for both the Crown and defence are based in Southern Canada and are non-Inuit, non-Inuktitut speakers.

These difficulties of communication are not resolved simply by face-to-face encounters between lawyers, clients and witnesses. Addressing the language and cultural challenges requires significant investment in interpreters and translators, as well as court workers.

Interpreters and court workers have been a mainstay of the system in Nunavut courts since the earliest days. It is encouraging that increasing numbers of young Inuit are entering the legal profession in Nunavut, but many more professionals are needed.

There is a fear that has been expressed about this bill that, without proper safeguards, technology has the potential to turn the court system in Nunavut into a satellite operation where counsel practice remotely in the territory from locations mainly based in southern Canada. This would have a negative impact on access to justice as vulnerable clients would miss out on personal interactions with counsel.

The other important reality that must be recognized in Nunavut is the limitations of the currently available communications technology. One experienced northern lawyer wrote to me saying:

We do want to share that we think Parliament should be wary of passing legislation that depends on technology that is not realistically available in every jurisdiction impacted by the new law.

Colleagues, you have heard me speak on the issue of unreliable connectivity in Nunavut several times, and I will definitely be speaking about this reality many more times. This past weekend, for example, when I went to buy gas and at a local store, the businesses were requiring cash only, since cash machines depending on the internet were either inoperative or painfully slow.

That the internet in Nunavut is not reliable is only one part of the problem. Experienced practitioners in Nunavut observe that we also operate in a jurisdiction that lacks sufficiently sophisticated expertise to deal with technical issues that arise, is disjointed in its technological rollout and generally apathetic about the impact of technological failure on the rights of individuals or the fairness of proceedings.

One practitioner said:

There is a very real risk associated with the new wording of s.650 that people will acquiesce to being physically absent for meaningful parts of their trial because they are (a) disengaged from and indifferent to the process and/or (b) believe that it will lead to expediency — a fast, if not fair, trial.

In this connection, the importance of language and cultural sensitivities is once again brought to the fore. It is notable that, despite two successful iterations of the Akitsiraq law program, which has graduated two cohorts of mostly Inuit lawyers, the defence bar has unfortunately attracted few Inuit lawyers. There is none at present.

It is said that some of those who have tried this work have found the experience triggering. Probably all of these young lawyers will have experienced or witnessed the traumas that lay behind so much of what ends up in court.

In closing, I’d like to express my thanks to Maliiganik Tukisiiniakvik legal aid clinic and the defence bar of the Law Society of Nunavut for their preliminary advice on this bill, which is so relevant in Nunavut, and to express the hope that the Legal and Constitutional Affairs Committee will seek their input and advice in its study of Bill S-4.

I support sending the bill for study by that committee.

Thank you.