Parties' consent should serve as guiding principle to determine if accused may appear remotely: CBA
The Canadian Bar Association has weighed in on a proposed federal law to make the criminal justice system more accessible, efficient, and effective amid the ongoing COVID-19 pandemic.
On Feb. 8, the federal government introduced Bill S-4 to help criminal courts address the impact of the COVID-19 pandemic on the criminal justice system, particularly in the operations of criminal courts. The bill proposed several changes to the Criminal Code, the Identification of Criminals Act, and other federal legislation to expand technology use and access in criminal courts across Canada and give judges increased flexibility in conducting criminal proceedings and issuing orders.
Although it generally supports these proposed changes, the CBA raised concerns over some provisions in the bill.
In particular, the CBA said that the parties’ consent should serve as the guiding principle to determine if an accused may appear remotely, and the consent requirement should be extended to all remote appearances where evidence is heard.
“Consent of the accused is paramount because many of them do not have ready access to audioconference or videoconference technology,” the CBA said. “While videoconferencing is an important tool for access to justice, it cannot be the norm for many persons involved in the criminal justice system.”
In addition, the CBA provided additional factors for the courts to consider in deciding whether to allow parties to appear remotely. These are:
- Whether the parties have the necessary technology to maintain a stable connection, present exhibits, and hear the proceedings
- Any special considerations needed to maintain the open courts principle, especially for high profile cases
- Any special security circumstances that may exist in the matter
“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,” the CBA said.
The CBA also noted that it does not fully support the proposals to incorporate video conferencing into the jury selection process. While the CBA says videoconferencing may be a valid option for introductory matters, such as the trial judge’s opening comments and preliminary vetting for citizenship, the association does not recommend it for adjudication of the challenge for cause process or administration of the oath or affirmation.
“There is an important, qualitative value to having the potential juror look upon the accused and vice versa,” the CBA said. “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.”
Moreover, the CBA suggested that proposed changes to the Identification of Criminals Act and the Criminal Code must balance the societal interest in collecting fingerprints to investigate a crime and the privacy interests of persons only accused of a criminal act.
According to the CBA, the bill should have “greater clarity” when the accused has a valid summons to attend for fingerprinting, but no underlying charges have been laid in court. The CBA also called for greater clarity where charges are withdrawn or stayed in court before the return date on a fingerprint summons.
“In both circumstances, the absence of a criminal charge before the court should remove a person’s obligation to comply with the fingerprint summons,” the CBA said. “This could be accomplished, for example, by requesting that the summons be rescinded like a bench warrant, or alternatively, a provision can be added to specify that the summons is of no force if no charge is laid by the date listed in the summons.”
