Mr. Chair, committee members, I will introduce myself again. My name is Catherine Claveau, and I am the Bâtonnière du Québec. I am joined by Nicolas Le Grand Alary, who is a lawyer with the Secretariat of the Order and Legal Affairs of the Barreau du Québec.

Thank you for inviting the representatives of the Barreau to testify before you concerning Bill S‑4.

For over two years, the COVID‑19 pandemic has created issues and imposed constraints on the criminal justice system. The courts have managed to adapt to the challenges that faced them while complying with the Canadian Charter of Rights and Freedoms.

The objective of Bill S‑4 is to modernize criminal procedure by giving the courts broader powers regarding the conduct of criminal proceedings and allowing them to make orders.

Like other legislative initiatives, Bill S‑4 aims to make the solutions relating to the administration of justice that were implemented in order to respond to the problems experienced during the COVID‑19 pandemic permanent. The impact of these amendments, and particularly the anticipated benefits, must therefore be evaluated well beyond the pandemic context. While the Barreau supports any measure that facilitates access to justice and the efficiency of criminal trials, the quality of the justice done must remain a priority.

One of the bill's provisions is the possibility of appearing by videoconference at various stages of the trial, whether the trial proceeds summarily or by indictment. That possibility is conditional on the consent of the prosecutor and the accused and the permission of the court, which must determine whether proceeding remotely is appropriate. Remote trials are therefore imposed as the rule rather than the exception.

While there are numerous advantages to using technological methods for holding a trial, we wonder about the impact of this new rule. More specifically, we are concerned by the effects of videoconferencing on assessing a witness's credibility. The assessment of testimonial evidence, particularly in emotionally charged cases, lies in the nuances and details. In our opinion, the virtual nature of testimony could affect the ability to do the assessment during an examination.

In an in-person trial, something as simple as a note passed to the lawyer, or a look aimed at a lawyer by the judge or a witness, can send cause the lawyer to veer off course and have a major impact on their strategy and the outcome of the trial. The fact that the parties and their representatives are in close proximity during the trial is not to be disregarded, from the perspective of lawyers who are carrying out their client's instructions. It can be hard to determine whether that proximity will be helpful or otherwise before the trial begins. We therefore recommend that the bill provide that all testimony be heard in person.

We are also concerned about lawyers' professional responsibility to their clients, for example when they are unable to communicate with the clients in real time in a way that preserves the confidentiality of their discussion.

Our last concern is that if the principle of trials by videoconference is incorporated into the bill it will be implemented at the expense of people who live in remote areas, for whom travel may be expensive and more complicated to undertake.

The measures introduced by the bill could therefore vary widely in their application in Quebec, where the availability of resources differs from one region to another. On that point, we would point to the issues associated with self-representation by accused persons who will be appearing virtually.

To summarize, we are afraid that the new status assigned to video appearance in the Code will institute a two-tier justice system, depending on the region, and compromise the lawyer-client relationship.

In addition, the new section of the Criminal Code states: — the court may allow or require an accused who is in custody and who has access to legal advice to appear by videoconference in any proceeding referred to in those sections, other than a part in which the evidence of a witness is taken.

The Barreau du Québec believes that this new section is problematic. We therefore recommend that this proposal be deleted. It is our opinion that the parties must always have the option of asking to proceed in person if they wish.

Denying accused persons who are in custody that option raises serious issues regarding the right to make full answer and defence and the right to a fair trial.

That is an overview of the main issues that the Barreau du Québec wanted to raise with the committee in its consultations on Bill S‑4. We hope that our presentation has contributed to your study, and we are now prepared to answer questions from committee members.

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