This is a very long Bill with a fairly simple premise: Update the criminal justice system to line up with what we learned from the COVID pandemic, mostly in terms of allowing for more remote options in the process and lessening the requirements for people to be physically present. These changes should also help reduce the delays in the system.
Criminal Code
Warrants and Telewarrants
There’s a few minor changes here, such as doing away with references to faxes, but the main change is making it so telewarrants are more accessible. Previously an officer had to make a case for applying for a warrant without appearing in person (telewarrant) and had to justify why it was necessary to not be present. S-4 would remove this requirement and normalize using telecommunication to apply for a warrant instead of it being an exception.
Note that this isn’t a blanket allowance, there’s a list of warrants that can be applied for without needing to be physically present:
- Warrant for the seizure of copies of terrorist propaganda, both publications and digital material
- Warrant for the seizure of a weapon, ammunition, or explosives
- Warrant for the seizure of copies of voyeuristic recordings, intimate images, obscene publications, child porn, or ads for sexual services or conversion therapy, both publications and digital
- Warrant for the seizure of hate propaganda publications and digital material
- Warrant to obtain blood samples to determine blood alcohol or drug concentration
- Warrant to search for valuable minerals
- Warrant for the seizure of proceeds of crime
- Restraint order prohibiting the disposal or altering of property
- Warrant to search for an seize evidence related to the commission of an offence
- General warrant to use a particular device, investigative technique, or procedure as long as it does not authorize the observation of a person by video camera or other similar electronic device. There’s a new bit here that requires the application to be submitted by means that produce a writing
- Order to preserve computer data or produce a document, trace a specified communication, produce transmission data, tracking data, or financial data
- Revocation or variation of a production order
- Order prohibiting disclosure of a preservation or production order
- Warrant to take bodily substances for forensic DNA analysis
- Warrant for handprint, footprint, or print or impression of another body part
- Order denying access to information related to a warrant, order, or authorization
- Warrant for a tracking device on a thing, vehicle, or person
- Warrant for the covert removal of a tracking device
- Warrant to obtain transmission data using a data recorder
Warrants and Telecommunication: Application
The amendment does distinguish between telecommunications that produce a writing (such as an email) and those that do not (such as a video call) and lines them up with existing procedures. (For example, a video call would be treated the same way as a phone call, and emails are treated the same way as faxes)
Current alternatives to swearing an oath in person are preserved, so an email could include a written statement regarding its truth.
There’s a new requirement that prefers written communications over audio ones. Now if an applicant for a warrant wants to apply via audio communications (video call, phone call, etc) they need to justify why a written application is impractical. There’s also rules requiring that the audio communication needs to be recorded in some way, such as a transcript or recording. If the judge decides the reason for not applying by writing isn’t good enough they can deny the application.
S-4 removes the restriction on publishing, broadcasting, or transmitting information related to a search warrant from warrants issued by telecommunication. It also removes these warrants from the requirement that they be executed by day, but if they’re being executed by night the warrant has to specifically authorize it.
Warrants: Bodily Substances, Fingerprints and Other Types of Prints
Just a bit of housekeeping here. Currently applying for a telewarrant to take blood samples or obtain fingerprints requires justification, but the new rules change how those work. This bit just brings this in line with the new rules.
Warrants: Arrest
Once again just brings current procedure in line with the new one. There’s also a change here that allows applications for arrest warrants to a breach of a release condition to be placed via telecommunication.
Warrants: Wiretaps
Written telecommunications can be used to apply for the following:
- Warrant for a third-party wiretap
- Warrant for covert removal of a wiretap after expiration of the original warrant
- Extension of a third-party wiretap
- Extension of the period required before written notification to a target of a wiretap
- Renewal of a warrant for a wiretap
All forms of telecommunication can now be used to apply for:
- Warrant for a wiretap of a private communication with consent from a participant
- Warrant for an emergency wiretap
S-4 will also remove the 36-hour expiration limit on telewarrants for wiretaps with consent from a participant.
Duties when Executing: Warrants and Notices
A number of changes have been made here regarding presenting warrants. Biggest one is the removal of all references to “fax”, instead just requiring a copy of the warrant to be presented.
Case Management of Unrepresented Accused
Currently court staff are able to assist the accused with administrative matters outside of court if the accused has a lawyer. S-4 removes the requirement that the accused be represented, so anyone can get help with administrative matters.
Attendance by Audioconference or Videoconference
Currently the accused is expected to be physically present for the entirety of the proceedings with a few exceptions. S-4 allows them to be present by videoconference or audioconference, with the consent of both the prosecutor and the accused. For most situations audioconference also requires justification on why the accused can’t attend by video.
S-4 also extends some protections for remote attendance. Right now someone in prison and without access to legal advice can only attend remotely if the court believes they’ll be able to understand the proceedings. S-4 extends this to anyone attending remotely. Similar changes are made to the right to private communications with your lawyer while attending remotely.
Remote Attendance by Others and Generally
S-4 makes it so a court may allow a “participant” (someone other than an accused, offender, witness, juror, judge, or justice) to attend by audioconference or videoconference when appropriate. (Participants are usually council, court support workers, or members of the public)
With the expanding scope of remote attendance, S-4 makes some changes that require the court to give reasons for denying a request for remote attendance to anyone, as well as giving the court the ability to halt anyone’s use of remote attendance. (Currently this only applies to an accused or participant)
Appearance of Prospective Jurors During Jury Selection
S-4 allows courts to allow or require prospective jurors to attend the jury selection process by video where appropriate, with the consent of the prosecutor and the accused. It lays out some circumstances that need to be considered in determining if video participation is appropriate, and it can only be required if the court provides an approved location from which prospective jurors can attend. Otherwise jurors have the option to appear in person.
Electronic Jury Selection
S-4 allows a court to use an electronic or automated means of randomly selecting prospective jurors, instead of the current process of drawing names from a box.
Identification Measures Under the Identification of Criminals Act
Context
Currently under the Identification of Criminals Act an accused or offender can be subject to fingerprinting or other identification measures, but it looks like someone who isn’t in custody can only reliably be summoned for that as part of another summons, such as a court attendance. With the issues created by COVID people haven’t always been able to attend the fingerprinting when they were supposed to, and there isn’t really any processes that cover this. The changes from S-4 would fix this.
Amendments
First, a judge or justice will have the ability to issue a summons to an accused if the identification measures weren’t completed as a previous appearance for exceptional reasons, but only if the matter in question is ongoing. (So no calling you in for fingerprints after your court case has been resolved)
Second, the judge can now add appearing for the purposes of identification to bail conditions.
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