Remote Attendance of Witnesses

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General Principles

The truth seeking function of a trial generally requires the presentation of evidence in court. However, personal attendance is not always possible. Consequently, sections such as 714.1 and 714.2 provide exception to this rule to allow for evidence to be taken remotely.

"In person" testimony is said to assist in testing "truth telling".

s. 2 ...
"audioconference" means any means of telecommunication that allows the judge or justice and any individual to communicate orally in a proceeding; (audioconférence)
"videoconference" means any means of telecommunication that allows the judge, justice or chairperson of a Review Board, as defined in subsection 672.‍1(1) [mental disorders – definitions], and any individual to engage in simultaneous visual and oral communication in a proceeding; (vidéoconférence)
...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1; 2022, c. 17, s. 1.

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Must Give Reasons For Not Taking Evidence Remotely

Reasons

714.4 If the court does not make an order under section 714.1 [audioconference and videoconference – witness in Canada] or does not receive evidence under section 714.2 [video links, etc. – witness outside Canada] or 714.3 [audio evidence — witness outside Canada], it shall include in the record a statement of the reasons for not doing so.

1999, c. 18, s. 95; 2019, c. 25, s. 290.
[annotation(s) added]

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Cessation

714.41 The court may, at any time, cease the use of the technological means referred to in section 714.1 [audioconference and videoconference – witness in Canada], 714.2 [video links, etc. – witness outside Canada] or 714.3 [audio evidence — witness outside Canada] and take any measure that the court considers appropriate in the circumstances to have the witness give evidence.

2019, c. 25, s. 290.
[annotation(s) added]

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Inside Canada

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”.

Audioconference and videoconference — witness in Canada

714.1 A court may order that a witness in Canada give evidence by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness were to appear personally;

(c) the nature of the witness’ anticipated evidence;

(d) the suitability of the location from where the witness will give evidence;

(e) the accused’s right to a fair and public hearing;

(f) the nature and seriousness of the offence; and

(g) any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the court were to order the evidence to be given by audioconference.

1999, c. 18, s. 95; 2019, c. 25, s. 290.

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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.

Presumption

There is a presumption that "unless the circumstances warrant dispensing with the usual practice, the witness should be called to the witness stand to testify." 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"

Analysis

The court may allow video testimony if it is "appropriate" in "all the circumstances" including:

• the location and personal circumstances of the witness
• the costs that would be incurred if the witness had to be physically present; and
• the nature of the witness’ anticipated evidence.

s. 714.1

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."

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

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

Factors

Factors to consider include:

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.

Nature of the Evidence

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

Some suggestion that video only be considered in "exceptional circumstances" that "personally impact" the witness. And where the witness is a complainant it must be "compelling" reasons.

Cost-Savings

However, "cost saving to the state,...,in and of itself does not justify" the use of video conferencing.

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. | Where the quality of the technology is a concern, there are instances the Court has been given an opportunity to see the proposed video link in operation or "alternatively makes an order conditional on a satisfactory test run."

Procedure

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

See also:

• R v Hinkley, 2011 ABQB 567 (CanLII), per Marshall J
• R v Denham, 2010 ABPC 82 (CanLII), per Rosborough J

Outside Canada

Sections 714.2 addresses the circumstances where the court may take evidence by video link from a witness located outside of Canada. The section states:

Videoconference — witness outside Canada

714.2 (1) A court shall receive evidence given by a witness outside Canada by videoconference, 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) [video conference – witness outside Canada] 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 10 days before the witness is scheduled to testify.

1999, c. 18, s. 95; 2019, c. 25, s. 290.
[annotation(s) added]

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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 its use would be "contrary to the principles of fundamental justice"

The difference in the standard between 714.1 and 714.2 "reflects the mischief being addressed", which includes the high cost of litigation and the disruption to the lives of those witnesses, which will be greater when out of country.

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

The court must allow video testimony unless it is contrary to the "principles of fundamental justice", including the right to full answer and defence.

s. 714.2

Factors to Consider

Other factors other than cost include:

• ability or willingness of a witness to attend;
• nature of the testimony;
• dependence on exhibits;
• necessity; and
• reliability.

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.

Audio-only Testimony

Section 714.1 addresses the circumstances where the court may take evidence from a witness located within Canada by means of audio telecommunication. The section states:

Outside of Canada

Section 714.3 and 714.4 addresses the circumstances where the court may take evidence from a witness located outside of Canada by means of audio telecommunication.

Audioconference — witness outside Canada

714.3 The court may receive evidence given by a witness outside Canada by audioconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including those set out in paragraphs 714.1(a) to (g).

1999, c. 18, s. 95; 2019, c. 25, s. 290.

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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.

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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.

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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.

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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.

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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.

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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.

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Misc Consequences

Costs of Costs of technology

714.7 Unless the court orders otherwise, a party who calls a witness to give evidence by means of the technology referred to in section 714.1 [audioconference and videoconference – witness in Canada], 714.2 [video links, etc. – witness outside Canada] or 714.3 [audio evidence — witness outside Canada] shall pay any costs associated with the use of the technology.

1999, c. 18, s. 95; 2019, c. 25, s. 290.
[annotation(s) added]

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Consent

714.8 Nothing in sections 714.1 to 714.7 [video and audio evidence] is to be construed as preventing a court from receiving evidence by audioconference or videoconference, if the parties so consent.

1999, c. 18, s. 95; 2019, c. 25, s. 290.
[annotation(s) added]

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See Also

• Testimonial Aids for Young, Disabled or Vulnerable Witnesses
• Precedent - Testimony by Video-link