Special Ideablawg Podcast Series Episode A: Code“Ch-ch-changes” in Section 2: From Audioconferencing to Videoconferencing – Changing the Concept of a Criminal Trial (text version)

Before I dip my pen or pound my computer keys and click on the record button to create the next podcast episode on sections 72 and 73 on forcible entry and forcible detainer, it is incumbent on me to update my previous episodes. Indeed, as David Bowie eerily chants, there are some significant “ch-ch-ch-ch-changes” to the Criminal Code since I started this series, now six years ago. Most of those changes are still to come into force – some in days on September 19 – and some when the snow falls (at least in Calgary) on December 18. So, in this, my special edition of podcasts, I will provide update and discussion of what will change from my previous podcast episodes on sections 2 to 70. 

 No need for me to discuss duelling pursuant to section 71. The section was repealed in 2018 amendments, which is rather sad on a personal level as it was an extremely popular offence in the 1L criminal law classroom. Overall, the changes being made to the Code are significant, hence why I will be providing a series of podcasts. So, sit, back, relax and let’s “turn and face the strange” with thanks to classic rock and the ever-engaging David Bowie.

In this first of several special edition podcasts, I will be expounding on s. 2 changes, which will come into force on September 19, 2019. Section 2, in my view, should be given the “most changes that are a bit hard to figure out” award. Even so, that will not stop any criminal lawyer from digging into each syllable of every word found in this section. I will attempt to elucidate these changes as best as I can, without seeming pedantic, but my best advice is to keep calm and carry on by slowly and methodically working through these changes before advising a client and certainly before attending Court. 

Section 2 is the interpretation section of the Code. Interpreting theCodeis a continual work in progress. Definitions are not exhaustive but crucial to the interpretation of a section. Take a section outlining an offence such as section 130, entitled personating a peace officer. The offence is seemingly straight forward, involving a false representation of a peace officer or a public officer. But to prosecute this offence, the Crown must prove every element of the offence beyond a reasonable doubt. Those essential elements arise from the words of the section themselves and case interpretation of those words. The first step to defending or prosecuting the section requires the lawyer to determine the nature of the charge the accused is facing by looking at the charging documents. This will help delineate the offence. In the case of s. 130, the charging documents will tell us whether the accused is charged as falsely representing a peace officer or a public officer. Let’s imagine the accused is charged with the false representation of a peace officer. Step two will be determining what a “peace officer” is under this section. This matters to the prosecution as the evidence must establish this essential element of the actus reus. This matters to the defence who may see the lack of evidence on this issue or may be able to raise a reasonable doubt on it. Part of the determination of what a “peace officer” is involves looking at the interpretation section to see if it is defined and described. There is indeed a definition of “peace officer” under s. 2 of the Code

Even with these definitions, we still need to turn to case authority to assist us in interpreting the interpretation. In other words, we need to know the meaning of the definition itself. This is all part of the continual statutory interpretation being done in criminal law. The Code is not a closed book. Yes, it reflects the written word, which appears static on the page, but those words are imbued with historical significance coming from common law usage before words were written down. Section 2 is the backbone of the Criminal Code, but it needs teasing out and referencing beyond the four corners of the page. 

Let’s look at that s. 2 definition of “peace officer.” That definition includes “the pilot in command of an aircraft” that is registered in Canada under the regulations of the Aeronautics Act or leased without crew and is operated by someone who is qualified to own an aircraft registered under the regulations of the Act. Additionally, and here’s the kicker, a person, even if they fulfill the above definition, is not a pilot in command of an aircraft unless the aircraft is in flight. What “in flight” could mean for purposes of this definition is also defined in the Code but under a different section, being s. 7(8). As this shows, although significant changes were made to the Code, structural changes were not at the top of the list as this further important defining feature of “the pilot in command of an aircraft” lies elsewhere. This also shows that definitions in the Code can be like sticking your hand in the Cracker Jack box; its messy and you may fish around for a while before you find the prize, that’s surely there, at the bottom.

 Because Code definitions are exceedingly important in criminal law, clarity is key. Too much or too little wriggle room in the definition may result in problems in defending or prosecuting a given offence. The revisions coming our way in a few days, September 19, 2019, will structurally change the definition of “Attorney General” by paring down the s. 2 definition but by adding a further new section, s. 2.3, to support the s. 2 definition. Also, on September 19, there will be two definitions, which were not in the Code previously; “audioconference” and “videoconference.” Audioconference adds a completely new procedure and videoconference simply labels what was already available. 

An audioconference is defined as “any means of telecommunication that allows the judge or justice and any individual to communicate orally in a proceeding.” The definition gives the judge or justice in a proceeding the ability to communicate verbally with “any” individual via telecommunication methods. This is a broad definition both in which circumstances this can occur and with whom. The term “proceeding” is used liberally throughout the Code. There is a definition, which we could work with, provided under the interpretation section 785 of Part XXVII on Summary Convictions, but this definition is less than helpful. I won’t sport with your intelligence by repeating it, but it is never good when a definition includes the word itself. In any event, a better definition for our purposes would simply to use “proceedings” as referencing any court matter such as an action or an application. For instance, a trial is a “proceeding” as is a Charter motion. 

A proceeding in this sense, is a hearing that, by its very nature, requires communication through the spoken language. Of course, there are capabilities for those who do not speak but communicate through sign language but even that is then translated to the spoken word. To be heard, therefore, generally one must speak. Audioconferencing will ensure that even if the people who need to be heard by the judge (defined elsewhere in the Code under the interpretation section 552 for Part XIX, Indictable Offences Without a Jury) or justice (defined under s. 2) are not physically in court, they can be heard. 

Those people can be “anyone” such as a lawyer, a witness or an accused. Although, the definition is broad, it is also circumscribed by other sections of the Code. For instance, according to section 650(1), the accused, subject to certain exceptions, shallbe present for their trial. Although an exception can be found under section 650(1.1) entitled “video links,” which is also being amended on September 19, 2019 to provide for videoconferencing, there is no ability now or in the future for an accused to be “present” at the trial via audioconferencing. The new amendments to s. 650(1.1) will permit the accused to appear, on consent, via videoconferencing, but even this mode of communication is restricted to trial matters “other than a part in which the evidence of a witness is taken.” 

Videoconferencing is defined as “any means of telecommunication that allows the judge, justice or "chairperson" of a Review Board, as defined in subsection 672.1(1), and any individual to engage in simultaneous visual and oral communication in a proceeding.” This ability to videoconference is not new but was not previously labelled as “videoconferencing.” See for example the pre-September 19 s. 650(1.1) that permits the accused appear by way of “simultaneous visual and oral communication.” The essence of “videoconferencing,” permitting the “virtual presence” of a witness, is also already permitted in the current s. 714.2(1). The use of the new term will create a consistent meaning of what is envisioned by this simultaneous seeing and hearing communication.  

Audioconferencing is new and will now, as of September 19, be found under Part XXII of the Code on Procuring Attendance, under the heading, “Video and Audio Evidence” from sections 714.1 to 714.8 and section 714.41. Essentially, these changes will create a regime for permitting witness testimony to be given via audioconferencing using teleconference or computer device capabilities, presumably when there is no simultaneous visual of the witness available or for expediency/efficiency reasons. The Code sections on this certainly do not clearly indicate that videoconferencing is the preferred manner of communication.

Although these changes appear to be in line with the technological age and reflective of the global economy, this new audioconferencing ability is in fact a game changer. It will provide the platform for a subtle shift away from credibility assessment based on observation to assessing credibility in other more objective terms. Although the case law is clear that demeanour alone is not a ground for accepting or rejecting evidence (see R v Hemsworth2016 ONCA 85 at paras 44-45), demeanour is still one of many factors to be considered in determining the credibility of a witness. This permissive ability to proffer evidence that is oral only and unobserved when given, sends the message that other credibility factors, such as internal and external consistencies of the evidence, will be more important. That seems to be consistent with the scientific literature and what we have even personally experienced; that people who are nervous are not necessarily untruthful. 

But where does it leave the accused, who must be present at trial and therefore must give “live” observable evidence? What happens to the nervous but truthful accused who is subject to an observational credibility assessment? It is important to heed Justices Bastarache and Abella at para 20 of R v Gagnon,[2006] 1 SCR 621, in their caution that "[a]ssessing credibility is not a science." In their view, assessing credibility involves not just observational inferences but the emotional response to those observations. As they further contend, "to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events" places the trial judge in a unique and difficult position when crafting their reasons for judgment. This also means the trial judge’s credibility assessment deserves deference, being a more complete assessment than available to the appellate court who lacks that observational dimension. Making observation optional for witnesses but mandatory for the accused may create a trial unfairness.

An accused’s right to full answer and defence may also be engaged by permitting evidence through oral communication only. This right does not mandate face to face examination in every circumstance, there are exceptions in the Codesuch as s. 486.2 permitting witnesses under 18, in certain circumstances, to testify outside of the courtroom or behind a screen. Even in those circumstances, the judge observes the witness even though the accused does not. Here, no one in the courtroom observes the testimony. The new amendments do have discretionary factors for a judge to consider in permitting an audioconference, which would protect this right. For instance, under the new version of s. 714.1, before permitting audioconferencing evidence, the court considers “the accused’s right to a fair and public hearing” and the “potential prejudice” resulting from non-observation of the witness. Certainly, even in the Jordan era, court time will be needed to sort out the very real concerns raised by these changes.

 “Telecommunication” is also part of these new definitions. That word was defined under s. 326(2) of the Codebut the definition was repealed in the 2014 Protecting Canadians from Online Crime Act.This Act brought in a number of cybersecurity measures and specific offences relating to the use of digital images. I suspect the reason for making telecommunications definition-less is an effort to keep the term broadly construed and flexible enough to pertain to all matters of technologically advanced communication. 

This almost innocuous definitional shift in section 2, as I have shown, seems uncontroversial but may actually challenge us to rethink core evidential concepts. Rethinking may be a useful and much needed exercise, but it needs, in my view, to come before Codechanges take place. As I have said before, and will say again, Code revisions should be a mindful exercise and taken with eyes wide open. Big thinking should come before large scale changes. Otherwise, the changes look inadequate or worse, unworkable.

The next set of significant definitional s. 2 changes coming September 19 are found in the newly revised meaning of “Attorney General.” We should in some ways be thankful for these changes as the current definition is a statutory interpretation nightmare and is as long as some criminal records I have seen. Nevertheless, the new definition, although shorter, does not read any better or any clearer. In fact, much of the information contained in the old definition is now off-loaded into a new interpretation section, s. 2.3, which fills in the jurisdictional issues arising from different offences potentially being prosecuted by the provincial Attorney General, the provincial Solicitor General, the Attorney General of Canada, or the Director of Public Prosecutions or a combination of them. In short, these definitions are a real lesson in public service politics. 

Suffice to say, jurisdiction can be important. For instance, for offences involving the sale of tobacco products, a newish regulatory-type crime (which, in my opinion should NOT be in the Code) created by 2014 amendments to the Code, the new definition of Attorney-General combined with s. 2.3 tells us that the offence can be prosecuted by the provincial Attorney General, or the provincial Solicitor General or the Attorney General of Canada and includes the lawful deputy of any of them. Phew. That’s a lot of concurrent jurisdiction. In other words, be sure to check both sections to confirm who is who. 

In the next episode, I will discuss the s. 2 amendments that will come into force in December 18, 2019 and will give us a real run for our money as we talk about the changes to Forms of release, which means changes to bail release procedure.