In March of 2020, COVID-19 halted the court’s routine in-person delivery of services, and its system was adapted to a remote format. The suddenness of the pandemic led to a lack of clarity on how remote procedures were to be conducted, and how long the remote delivery systems were to remain in place. In response to these concerns, parliament has introduced Bill S-4 to clarify the remote proceeding process in criminal courts. Its second reading was recently completed on March 31, 2022, and is currently in the consideration process. The Bill will amend the Criminal Code by expanding the rules for video and audioconference and the telewarrant process. It will also amend the Identification of Criminals Act to allow fingerprinting to occur at a later time.
The Bill will provide explicit legislative mechanisms to allow accused persons to appear remotely for preliminary inquiries, indictable conviction trials, and summary conviction trials via videoconference. In this, accused persons may appear remotely for the entirety of a trial, except where evidence is taken in jury trials. The reforms also clarify that accused persons may enter a plea or appear at sentencing hearings by video or audio conference. However, the ability to be physically absent in the courtroom would remain subject to judicial discretion. The courts must still ensure that the accused’s right to a fair and public hearing is satisfied; and that those that do not have access to legal advice are still able to understand the proceedings. The reforms also allow jurors to participate in remote proceedings via videoconference, subject to the discretion of the courts.
The ability to obtain telewarrants was formerly limited in scope under the Criminal Code to indictable offences. Bill S-4 allows telewarrants to become available for a wider range of offences and removes the requirement for police to appear personally when submitting telewarrant applications. The procedures surrounding fingerprinting will similarly be amended to accommodate pandemic conditions. The current rules on timing require a person to attend for fingerprinting as specified in a notice or undertaking issued by a police officer or summons issued by a justice. However, this inflexibility may cause undue health risks for state representatives and accused persons. The amendments will give the justice or judge the discretion to issue a summons to appear for fingerprinting if a) procedures were not completed and the person was previously required to appear for fingerprinting and b) the judge or justice must be satisfied that the reasons they could not attend were exceptional. The courts may also make an order for fingerprinting when an accused person is released on bail.
Through these amendments, Bill S-4 seeks to modify the current criminal court rules and regulations to adapt to the health and safety challenges posed by the pandemic. However, they also hold the potential to limit an accused person’s section 2(b), 7, 8 and 11(d) Charter rights. Legal practitioners must remain aware of these amendments to ensure the rights of their clients are being upheld in criminal court proceedings, and that their Charter rights are not violated.
For more information on these amendments and how they may impact the Charter rights of an accused person, visit the Government of Canada’s here.
