Evidence via Video Link

Section 714.1 of the Criminal Code states:
714.1 VIDEO LINKS, ETC—WITNESS IN CANADA -- 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.
In R. v. Young, 2000 SKQB 419 (CanLII), 201 Sask. R. 158, at para. 8, the Court—expanding upon the three factors listed under section 714.1—set out a non-exhaustive list of eight factors which should be considered:

(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.

Tips
·         If video conference evidence is permitted, it is important that the party who is presenting such evidence liaise with court administration in advance of the hearing to ensure that the proposed video link is workable and effective. 
·         The witness should generally provide an affidavit as to her personal circumstances or any prejudice or inconvenience arising from her attending in person. A Court will be very reluctant to infer inconvenience, for instance, without an evidentiary basis for its doing so.
·         Consider not only the cost of having the witness attend in person, but also the cost of providing the evidence through video link.  The difference between these two cost may not be significant.
·         Where reliability -and not credibility - is an issue, as in the case of most expert evidence, an order under 714.1 may make sense (see, for example,R. v. Hinkley, 2011 ABQB 567 (CanLII)).
·         For those seeking to have the witness provide evidence via video, consider establishing through affidavit evidence the capability of the technology being used so as to advance the proposition that the technology is able to provide a meaningful substitute for an in-person assessment. For instance, is it anticipated that the witness will be cross-examined with respect to certain documents (such as statements to police), and how effectively can this type of cross-examination be done across video link? [FN].

FN: Some video conferencing firms can provide for separate camera applications so that a witness may be observed on one television screen and the document in question on another screen which will be the subject of a specialized camera application.

Comments

Post a Comment

Popular posts from this blog

Warrantless Drug Searches (Section 11(7) of the CDSA)

Were there exigent circumstances? Did the exigent circumstances render it impracticable to obtain a warrant? Section 11(7)   of the Controlled Drugs and Substances Act states: (7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. Subsection (1)   of s. 11 empowers a peace officer to conduct a warranted search of a place for, inter alia , a controlled substance and to seize it. Section 11(7), therefore, empowers a peace officer to conduct a warrantless search for a controlled substance, so long as conditions for obtaining a warrant existed and exigent circumstances made it impracticable for the officer to obtain a warrant. For a warrantless entry into a residence to satisfy section 11(7) , the Crown must show that the entry was compelled by urgency, calling for immediate police action to prese
Read more

Night time Execution of a Search Warrant

Warrants Authorized under the Criminal Code The Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code , s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code .    Section 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under the authority of section 11 of the CDSA, which may be executed “at any time”.  R. v. Shivrattan, 2017 ONCA 23; R. v. Saunders , 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27, 31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505; R. v. Dueck , 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and R. v. Newell , [2007] O.J. No. 2348, at para. 47 (Ont. S.C.). Warrants Authorized under the Controlled Drugs and Substances Act Unlike warrants issued under the Criminal Code , there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. unless night t
Read more

Arrested at Home: Feeney Warrants

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made. See R. v. Landry , 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145 , and Eccles v. Bourque et al. , 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 ). However, in the 1997 decision of R. v. Feeney , the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.    R. v. Feeney , 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code , which, among other things, creates two distinct authorizatio
Read more