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After COVID-19, will technology change the Canadian court system for good?

A major bill in Parliament would modernize Canada’s criminal justice system in response to the lessons learned from the pandemic.

During COVID-19, the country has had to create new conditions to keep people safe. Canadian courts were no exception, having had to downsize normal operations. As we approach the time when we can put the worst parts of the pandemic in the rear-view mirror, the House of Commons has before it a major bill. This legislation would make major changes to the Criminal Code and the Identification of Criminals Act by establishing permanent procedures for the use of technology in the criminal justice system in appropriate circumstances.

Major provisions of the bill

On Feb. 24, 2021, the federal government introduced the bill in the House of Commons. Some of the main provisions in the bill (C-23) include:

  • Enhancing technical means to “draw” jury candidate names
  • Enabling accused individuals in some cases to appear remotely in court proceedings via video or audio platforms at the court’s discretion, with the consent of the parties and with safeguards, including potentially at preliminary inquiries, trial (with exceptions), pleas and sentencing hearings
  • Allowing jury candidates to appear in the selection process via videoconference if all parties consent, the court agrees and with safeguards
  • Postponing fingerprinting of the accused if exceptional circumstances exist
  • Expanding the types of orders that law enforcement can request through the telewarrant process
  • Expanding the authority of courts to make rules that expand the circumstances under which court staff could assist unrepresented accused people with administrative matters

The bill aims to establish a process that the judicial system can use in another public health crisis or another similar emergency that curtails Canadian court operations. Still, remote court appearances would be the exception and not the norm but available when appropriate. The legislation would also create safeguards for unrepresented criminal defendants to understand and participate voluntarily in decision-making during remote proceedings and provisions for represented individuals to confer with their lawyers while appearing remotely.

Goals and outreach

The federal government incorporated suggestions from provinces and territories into the bill’s provisions, focusing on effectiveness, accessibility, public safety and efficiency in modernizing the criminal courts. The provisions are meant to give criminal courts the flexibility to respond to emergency and other future circumstances that would otherwise interfere with normal operations.

Justice Minister and Attorney General David Lametti, who introduced C-23, explained that the bill would allow the criminal process to proceed in a timely fashion while protecting the rights of the accused and the interests of victims in “unprecedented circumstances” like those that evolved during the coronavirus.

Reasonable minds can disagree

Bill C-23 is likely to undergo careful scrutiny because of the need to protect the important legal and constitutional rights of those involved.

For example, here is a snippet of responses to the bill. Conservatives are saying the action is a year late given the diminished capacity of the courts, according to CTV News. The president of the Indigenous Bar Association in Canada said during legislative proceedings that the bill does not go far enough to address systemic deficiencies that harm the indigenous community. In the same proceedings, one NDP MP expressed concern that continuing the use of platforms like Zoom after COVID could fundamentally change the justice system in ways that could harm marginalized populations.

Advocates for protecting the rights of those accused of crime will watch this bill with keen interest, including defence lawyers dedicated to protecting the rights of their clients now and during any future, new court procedures and processes.