Long Distance Testimonial Aids

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General Principles

The truth seeking function of a trial generally requires the presentation of evidence in court.[1]

In person testimony assists in testing "truth telling".[2]

Exception to In-Court Testimony
Section 714.1 of the Criminal Code allows a court to use “means of technology” to allow a witness to testify as a “virtual presence”.

Video links, etc. — witness in Canada
714.1 A court may order that a witness in Canada give evidence by means of technology that permits the witness to testify elsewhere in Canada in the virtual presence of the parties and the court, if the court is of the opinion that it would be appropriate in all the circumstances, including

(a) the location and personal circumstances of the witness;
(b) the costs that would be incurred if the witness had to be physically present; and
(c) the nature of the witness’ anticipated evidence.

1999, c. 18, s. 95.


CCC

Purpose
The purpose of s. 714.1 is to "address not only the high cost of litigation, but also the inconvenience of disruption to the lives of witnesses" where the witnesses are outside of Canada. Consequently, the higher the cost and inconvenience harder it is to resist video link as an option.[3]

Preumption
There is a presumption that the "unless the circumstances warrant dispensing with the usual practice, the witness should be called to the witness stand to testify."[4] Section 714.1 "does not replace the established procedure of calling witnesses to the witness stand in criminal cases or of allowing the accused to face his or her accuser" [5]

Analysis
The court can do "a sort of distance-cost, benefit-prejudice analysis" to decide. Naturally, most applicants have witnesses that are in "more remote regions of Canada."[6]

Where credibility is not at issue, the consideration is a "balance of convenience".[7]

It has been said that only in the "rarest of cases" that a complainant should testify by video-link.[8]

  1. R v Bradshaw, 2017 SCC 35 at para 19 ("The truth-seeking process of a trial is predicated on the presentation of evidence in court. ")
  2. Bradshaw at para 19
  3. R v Galandie, [2008] BCJ No. 79 (P.C.), 2008 BCPC 6 (CanLII)
  4. R v Chapple 2005 BCSC 383 (CanLII)
  5. Chapple, ibid.
  6. R v Allen, 2007 ONCJ 209 (CanLII), [2007] OJ No 1353 (ONCJ)
  7. R v SDL, 2017 NSCA 58 (CanLII) at para 32
  8. R. v. Dessouza, 2012 ONSC 145 at para. 26
    R v SDL, 2017 NSCA 58 (CanLII) at para 25

Factors

Factors to consider include:[1]

1) will a video appearance by the witness impede or impact negatively on the ability of defence counsel to cross‑examine that witness?
2) the nature of the evidence to be introduced from the witness and whether it is non‑controversial and not likely to attract any significant objection from defence counsel, for example various police and technical witnesses who testify to routine matters with respect to exhibits and the like and other matters that would not attract any particular objection on the part of the accused's counsel;
3) the integrity of the examination site and the assurance that the witness will be as free from outside influences or interruptions as that person would be in a public courtroom;
4) the distance the witness must travel to testify in person and the logistics of arranging for his or her personal appearance;
5) the convenience of the witness and to what degree having to attend in person at a distant location may interfere with important aspects of the witness's life, such as his or her employment, personal life and the like;
6) the ability of the witness to attend who lives in a country or area that makes it difficult to arrange for travel or travel in a reliable fashion;
7) the cost to the state of having the witness attend in person; and
8) a fact to consider also is that the witness is effectively beyond the control of the Court in the trial jurisdiction, and whatever powers a judge may have over such a person, they are certainly extraterritorial.

While the form of the order is at the discretion of the judge, the court should always order that witness be able to testify in a manner in which he can be seen, heard, and questioned by the parties. The court may also request the evidence only be given while the witness is in a courtroom and in the presence of a peace officer.[2]


Nature of the Evidence
A case where credibility is central to the dispute will weigh on the side against the use of video testimony.[3] Courts should be "very reluctant" when an issue of the case is one of credibility.[4]

Some suggestion that video only be considered in "exceptional circumstances".[5] And where the witness is a complainant it must be "compelling" reasons.[6]

Cost-Savings
However, "cost saving to the state,...,in and of itself does not justify" the use of video conferencing.[7]

Technology
As the quality of video links improve to a point where the distinction from in-person testimony is "almost negligible", judges have increased their support in their use.[8]

Procedure

It has been recommended that there needs to be a "strong evidentiary foundation" before a court should permit video link.[9] This is especially so when credibility is at issue with the witness, in which case "compelling evidence" is required.[10]

See also:

  1. R v Young, 2000 SKQB 419 (CanLII) at para 8
  2. e.g. R v Osmond, 2010 CanLII 6535 (NL PC) at para 29
  3. e.g. R v Petit, 2013 ONSC 2901 (CanLII) at para 7, 8
  4. R v Chapple, 2005 BCSC 383 at paras 50 to 55
    R v SDL, supra at para 26
  5. SDL, supra at para 32
  6. SDL, supra at para 32
  7. R v Ross, 2007 BCPC 244 (CanLII), [2007] BCJ No. 1753 (P.C.)
  8. R v Denham, 2010 ABPC 82 (CanLII), -- judge speculated that it "will soon become essential to the conduct of court business"
  9. R v SDL, 2017 NSCA 58 (CanLII) at para 27
  10. SDL, ibid. at para 27

Outside Canada

Video links, etc. — witness outside Canada
714.2 (1) A court shall receive evidence given by a witness outside Canada by means of technology that permits the witness to testify in the virtual presence of the parties and the court unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice.
Notice
(2) A party who wishes to call a witness to give evidence under subsection (1) shall give notice to the court before which the evidence is to be given and the other parties of their intention to do so not less than ten days before the witness is scheduled to testify.
1999, c. 18, s. 95.


CCC

Once an application is made with proper notice, Section 714.2 creates a presumption that places the onus is upon the party that opposes the use of the video link to establish that it's use would be "contrary to the principles of fundamental justice"[1]

Up to 2017, all published decisions resulted in a granting of testimony by video link.[2]

Costs
The costs associated with any application under s. 714.1 to 714.4 concerning evidence by audio or video link will be covered by the party calling the witness.[3]

  1. R v D'Entremont, 2009 ABPC 374 (CanLII)
  2. R v Al-Enzi, 2017 ONSC 304 (CanLII)
    R v Christhurajah, 2016 BCSC 2399 (CanLII)
    R v Nguyen, 2015 SKQB 382 (CanLII)
    R v Singh, 2015 ONSC 6823 (CanLII)
    R v Sorenson, 2014 ABQB 464 (CanLII)
    R v Schertzer, 2010 ONSC 6686 (CanLII)
    R v D'Entremont, 2009 ABPC 374 (CanLII)
    R v Galandie, 2008 BCPC 6 (CanLII)
    R v Turner, 2002 BCSC 1135 (CanLII)
  3. s. 714.7

Audio-link Testimony

Audio evidence — witness in Canada
714.3 The court may order that a witness in Canada give evidence by means of technology that permits the parties and the court to hear and examine the witness elsewhere in Canada, if the court is of the opinion that it would be appropriate, considering all the circumstances including

(a) the location and personal circumstances of the witness;
(b) the costs that would be incurred if the witness had to be physically present;
(c) the nature of the witness’ anticipated evidence; and
(d) any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them.

1999, c. 18, s. 95.


CCC

Outside of Canada

Audio evidence — witness outside Canada
714.4 The court may receive evidence given by a witness outside Canada by means of technology that permits the parties and the court in Canada to hear and examine the witness, if the court is of the opinion that it would be appropriate, considering all the circumstances including

(a) the nature of the witness’ anticipated evidence; and
(b) any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them.

1999, c. 18, s. 95.


Oath or affirmation
714.5 The evidence given under section 714.2 or 714.4 shall be given

(a) under oath or affirmation in accordance with Canadian law;
(b) under oath or affirmation in accordance with the law in the place in which the witness is physically present; or
(c) in any other manner that demonstrates that the witness understands that they must tell the truth.

1999, c. 18, s. 95.


CCC

Evidence Outside of Canada

Order for examination of witness in Canada
46. (1) If, on an application for that purpose, it is made to appear to any court or judge that any court or tribunal outside Canada, before which any civil, commercial or criminal matter is pending, is desirous of obtaining the testimony in relation to that matter of a party or witness within the jurisdiction of the first mentioned court, of the court to which the judge belongs or of the judge, the court or judge may, in its or their discretion, order the examination on oath on interrogatories, or otherwise, before any person or persons named in the order, of that party or witness accordingly, and by the same or any subsequent order may command the attendance of that party or witness for the purpose of being examined, and for the production of any writings or other documents mentioned in the order and of any other writings or documents relating to the matter in question that are in the possession or power of that party or witness.
Video links, etc.
(2) For greater certainty, testimony for the purposes of subsection (1) may be given by means of technology that permits the virtual presence of the party or witness before the court or tribunal outside Canada or that permits that court or tribunal, and the parties, to hear and examine the party or witness.
R.S., 1985, c. C-5, s. 46; 1999, c. 18, s. 89.
Enforcement of the order
47. On the service on the party or witness of an order referred to in section 46, and of an appointment of a time and place for the examination of the party or witness signed by the person named in the order for taking the examination, or, if more than one person is named, by one of the persons named, and on payment or tender of the like conduct money as is properly payable on attendance at a trial, the order may be enforced in like manner as an order made by the court or judge in a cause pending in that court or before that judge.
R.S., c. E-10, s. 44.
Expenses and conduct money
48. Every person whose attendance is required in the manner described in section 47 is entitled to the like conduct money and payment for expenses and loss of time as on attendance at a trial.
R.S., c. E-10, s. 45.
Administering oath
49. On any examination of parties or witnesses, under the authority of any order made in pursuance of this Part, the oath shall be administered by the person authorized to take the examination, or, if more than one person is authorized, by one of those persons.
R.S., c. E-10, s. 46.
Right of refusal to answer or produce document
50. (1) Any person examined under any order made under this Part has the like right to refuse to answer questions tending to criminate himself, or other questions, as a party or witness, as the case may be, would have in any cause pending in the court by which, or by a judge whereof, the order is made.
Laws about witnesses to apply — video links etc.
(1.1) Despite subsection (1), when a party or witness gives evidence under subsection 46(2), the evidence shall be given as though they were physically before the court or tribunal outside Canada, for the purposes of the laws relating to evidence and procedure but only to the extent that giving the evidence would not disclose information otherwise protected by the Canadian law of non-disclosure of information or privilege.
Contempt of court in Canada
(1.2) When a party or witness gives evidence under subsection 46(2), the Canadian law relating to contempt of court applies with respect to a refusal by the party or witness to answer a question or to produce a writing or document referred to in subsection 46(1), as ordered under that subsection by the court or judge.
Nature of right
(2) No person shall be compelled to produce, under any order referred to in subsection (1), any writing or other document that he could not be compelled to produce at a trial of such a cause.
R.S., 1985, c. C-5, s. 50; 1999, c. 18, s. 90.
Rules of court
51. (1) The court may frame rules and orders in relation to procedure and to the evidence to be produced in support of the application for an order for examination of parties and witnesses under this Part, and generally for carrying this Part into effect.
Letters rogatory
(2) In the absence of any order in relation to the evidence to be produced in support of the application referred to in subsection (1), letters rogatory from a court or tribunal outside Canada in which the civil, commercial or criminal matter is pending, are deemed and taken to be sufficient evidence in support of the application.
R.S., 1985, c. C-5, s. 51; 1999, c. 18, s. 91.


CEA

Oath or Affirmation Outside of Canada

See also: Competence and Compellability#Oaths and Affirmations

Oath or affirmation
714.5 The evidence given under section 714.2 or 714.4 shall be given

(a) under oath or affirmation in accordance with Canadian law;
(b) under oath or affirmation in accordance with the law in the place in which the witness is physically present; or
(c) in any other manner that demonstrates that the witness understands that they must tell the truth.

1999, c. 18, s. 95.


Other laws about witnesses to apply
714.6 When a witness who is outside Canada gives evidence under section 714.2 or 714.4, the evidence is deemed to be given in Canada, and given under oath or affirmation in accordance with Canadian law, for the purposes of the laws relating to evidence, procedure, perjury and contempt of court.
1999, c. 18, s. 95.


CCC

Oaths taken abroad
53. Oaths, affidavits, solemn affirmations or declarations administered, taken or received outside Canada by any person mentioned in section 52 are as valid and effectual and are of the like force and effect to all intents and purposes as if they had been administered, taken or received in Canada by a person authorized to administer, take or receive oaths, affidavits, solemn affirmations or declarations therein that are valid and effectual under this Act.
R.S., c. E-10, s. 50.


CEA

Misc Consequences

Costs of technology
714.7 A party who wishes to call a witness to give evidence by means of the technology referred to in section 714.1, 714.2, 714.3 or 714.4 shall pay any costs associated with the use of the technology.
1999, c. 18, s. 95.


Consent
714.8 Nothing in sections 714.1 to 714.7 is to be construed as preventing a court from receiving evidence by means of the technology referred to in sections 714.1 to 714.4 if the parties so consent. 1999, c. 18, s. 95.


See Also