The CBA Criminal Law Section generally supports Bill S-4 to clarify the wording of the criminal code and updating various provisions in response to COVID-19. But as he explains in a letter to Senator Mobina Jaffer, chair of the Standing Committee on Legal and Constitutional Affairs, he must raise some concerns.
Generally, the Section supports the expansion of the use of remote appearances in criminal cases. However, “the consent of the accused is paramount as many of them do not have easy access to audio or video conferencing technology.”
To ensure that remote appearances are only used in cases where the accused is able to navigate technologies remotely, the CBA Section recommends adding three items to the list of factors that the court must take into account when deciding on remote appearances: whether the parties have the necessary technology, including a stable internet connection, whether special considerations are necessary to maintain the open court principle, in particular in high profile cases, and the particular security circumstances that may be present in a particular case.
The CBA Section also recommends adding language so that a judge may grant a remote appearance “on any terms appropriate in the circumstances.” This allows judges to address issues such as choosing a suitable location for testimony early on, rather than waiting for them to arise on the day of a hearing or trial.
Plea and sentencing hearings
When it comes to allowing accused persons to appear by audioconference or videoconference, the CBA Section raises some concerns. The first concerns the possibility of verifying the identity of a person appearing remotely. “We suggest it only be used when the identity of the person can be established with certainty, for example, if they are present with a lawyer.”
The second concerns the need for stakeholders to invest in the necessary technology. Members of the CBA Section say prisons often summon defendants by phone because there aren’t enough video suites available. “The defendant is then faced with the choice of consenting to proceed by telephone or requesting an adjournment to another day to facilitate the videoconference,” the letter states.
The third concern relates to scheduling issues created by the fact that trial judges work in different jurisdictions that 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 requests of this nature and free up judicial 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 into the jury selection process. In the latter case, the letter indicates that it is a valid option “for introductory matters to be handled by videoconference, for example the trial judge’s opening comments or the preliminary verification of citizenship , language and non-contestation for case selections”.
When it comes to challenges for cause, taking oaths or solemn affirmations, videoconferencing is not recommended. “There is significant qualitative value in having the potential juror look at the defendant and vice versa. This is the first time the two have seen each other, and attorneys may have to comment on subtle aspects of the juror’s reaction to bias or other parameters of juror fitness.
The CBA Section warns that changes to the Identification of Criminals Act “should balance society’s interest in collecting fingerprints to investigate a crime against the right to privacy of persons solely charged with a criminal act”. An accused person is not a criminal and should not be required to comply with a summons to be fingerprinted if the charges are not brought to court.
“The privacy interests of those for whom criminal cases do not proceed should be considered,” writes the Section, “particularly the impact of police station attendance on young, vulnerable and racialized”.
Brigitte Pellerin is the editor-in-chief of publications for the Canadian Bar Association.