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Adapting the criminal justice system for the post-COVID world

Comments on Bill S-4 that seeks to clarify the language in the Criminal Code in response to the pandemic.

Justice scales concept with laptop

The CBA's Criminal Justice Section generally supports Bill S-4 to clarify the language in the Criminal Code and update various provisions in response to COVID-19. But as it explains in a letter to Senator Mobina Jaffer, chair of the Standing Committee on Legal and Constitutional Affairs, it needs to raise a few concerns.

Remote appearances

Generally speaking, the Section approves expanding the use of remote appearances in criminal cases. However, “consent of the accused is paramount because many of them do not have ready access to audioconference or videoconference technology.”

To ensure remote appearances are only used in cases where the accused in is a position to navigate remote technologies, the CBA Section recommends adding three items to the list of factors the court must consider when deciding on remote appearances: whether parties have the necessary technology including a stable internet connection, whether special considerations are needed to maintain the open courts principle especially in high-profile cases, and special security circumstances that may be present in a particular case.

The CBA Section also recommends adding language so a judge may grant a remote appearance “on any conditions that are appropriate in the circumstances.” This enables judges to address issues such as a suitable location for testimony at the outset, rather than waiting until it arises on the day of a hearing or trial.

Pleas and sentencing hearings

When it comes to allowing accused persons to appear by audioconference or videoconference, the CBA Section raises a few concerns. The first is about the ability to verify the identity of a person who’s appearing remotely. “We suggest that it be used only when the identity of the person can be ascertained with certainty, for example, if they are present with counsel.”

The second has to do with the need for stakeholders to invest in necessary technology. CBA Section members say jails often have accused persons appear by phone because there aren’t enough video suites available. “The accused is then faced with a choice to consent to proceeding by phone or to seek an adjournment to another day to facilitate videoconferencing,” the letter reads.

The third concern is about scheduling issues created by the fact that trial judges work in different jurisdictions which have different approaches to remote proceedings. The Section recommends allowing any judge of competent jurisdiction to hear the application and/or a “shall” requirement if all parties consent to remote proceedings. “This would streamline applications of this nature and free up court resources to deal with more pressing matters.”

Warrants, jury selection and fingerprints

The CBA Section supports both the modernization of the telewarrant provisions and the incorporation of videoconferencing to the jury selection process. In the latter case, the letter says it’s a valid option “for introductory matters to be handled by videoconference, for example the trial judge’s opening comments or preliminary vetting for citizenship, language, and non-challenge for cause selections.”

When it comes to challenge for cause, or the administration of the oath or solemn affirmation, videoconference is not recommended. “There is an important, qualitative value to having the potential juror look upon the accused and vice versa. It is the first time that both see one another, and counsel may have to make submissions on subtle aspects of juror’s reaction vis-à-vis bias or other metrics of juror suitability.”

The CBA Section warns that modifications to the Identification of Criminals Act “should balance the societal interest in collecting fingerprints to investigate crime and the privacy interests of persons only accused of a criminal act.” An accused person is not a criminal and should not be made to comply with a summons to attend for fingerprinting if the charges are not before the court.

“The privacy interests of those for whom criminal matters do not proceed should be considered,” the Section writes, “particularly the impact of attending the police station for young, vulnerable and racialized persons.”