Skip to content

Testifying by video conference

This is a post that I’m going to try to update over time with new case law.

I saw this article on the Toronto Star – Prosecutor blames Toronto police vacation plans as impaired driving case collapses:

She explained in court that a trial notification for next month’s trial had been sent to Toronto police on June 23, 2016, but it was only in January that the officer in charge of the case emailed Kromm to say he didn’t believe many of the officers requested to testify were necessary.

“I told him there was a charter application before the court and it was my opinion that those officers were necessary and I required them to be here for trial,” Kromm told Horkins, according to a court recording obtained by the Star.

She said she then received a further email informing her that two of the officers were “unavailable for trial because they were going on vacation to Florida.”

One point that could have saved these charges from being stayed was Section 714.2(1) of the Criminal Code:

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.

This section mandates the Court to receive testimony from an out-of-country witness, unless Defence or Crown can show it is contrary to the principles of fundamental justice (ie. unfair). This appears to have been an option for the prosecutor and the judge in the case above. Or, if you give 714.2(1) a strict interpretation, it was not an option but a requirement.

Here are some cases where the witness was permitted to testify pursuant to 714.2(1) of the Criminal Code. It’s worth noting that, in every case I could find, out of country witnesses were  allowed to testify pursuant to 714.2(1) of the Code:

Witness allowed – R. v. Galandie, 2008 BCPC 6

Witness allowed – R. v. D’Entremont, 2009 ABPC 374

Witness allowed – R. v. Turner, 2002 BCSC 1135

Witness allowed – R. v Al-Enzi, 2017 ONSC 304

Witness allowed – R. v. Schertzer, 2010 ONSC 6686

Witness allowed – R v Nguyen, 2015 SKQB 382

Witness allowed – R v Singh, 2015 ONSC 6823

Witness allowed – R. v. M.M., 2012 ABPC 73

Witness allowed – R. v. Stevenson, 2012 BCSC 800

If the witness is located inside Canada, but away from the location of where court proceedings are being held, then 714.1 of the Criminal Code allows for a witness to testify by video conference:

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.

Under this section, the courts have been generally open to some witnesses testifying by video conference, where there is a good reason for it. But they have not been inclined to allow police officers or correctional officers inside Canada to testify remotely. Here are a few cases. I hope to update these over time:

Officer denied – R. v. Munro, 2009 YKTC 125 (CanLII)

Officer denied – R. v. Fleury, 2004 SKPC 53 (CanLII)

Officer denied – R. v. Ross, 2007 BCPC 244 (CanLII)

Officer denied – R. v. Munro, 2009 YKTC 125 (CanLII)

Officers allowed – R. v. Kim MacNearney and Craig MacNearney, 2010 NWTSC 77 (CanLII)

Videoconference capabilities have improved since these sections of the Criminal Code were introduced in 1999. It is likely they will get even better in the future.

%d bloggers like this: