Giving Evidence at Trial from Outside of Canada

Section 714.2(1) of the Criminal Codes allows for a witness outside of Canada to provide their evidence remotely, that is, by videolink. The party who wishes to call the witness must give notice to their intention to do so at least 10 days before the witness is scheduled to testify.

Section 714.2(1) provides:   

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.

Formerly, this section also required that “the technology must be such that it "permits the witness to testify in the virtual presence of the parties and the court." This requirement was removed in 2019 when Bill C-75 became law. [FN1]

The 2019 amendment of section 714.2(1) also removed the broad term “technology” and replaced it with the form of technology required: videoconference.  The term videoconference is defined at section 2 of the Criminal Code.  In short, a videoconference requires simultaneous visual and oral communication to occur.

Section 2, Criminal Code.

“videoconference” means any means of telecommunication that allows the judge, justice or chairperson of a Review Board, as defined in subsection 672.1(1), and any individual to engage in simultaneous visual and oral communication in a proceeding; (vidéoconférence):

Although the provision is mandatory, in the sense that it uses the word "shall" in relation to the reception of evidence from a witness outside of Canada, the use of audio‑visual technology is subject to two important limitations.

1.      The technology must provide simultaneous visual and oral communication within the proceeding;

2.      The section does not apply if one of the parties satisfies the court that the reception of such testimony would be "contrary to the principles of fundamental justice."

The term fundamental justice is not defined within the Criminal Code.  However, it appears within section 7 of the Canadian Charter of Rights and Freedoms, [FN2] and in that context has been defined in the case law as a legal principle which is fundamental to the way in which our legal system ought fairly to operate.

The principles of fundamental justice find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens.  (The right of the accused to make full answer and defence, for instance, is a principle of fundamental justice). 

R. v. Malmo‑Levine, [2003] 3 S.C.R. 571;

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76.

There is good reason to think that the definition suitable for section 7 of the Charter is also what Parliament had in mind when they included the term within the Criminal Code.

Some things to consider:

·         there is no right of an accused to have a face-to-face confrontation with the complainant.

 R. v. Levogiannis, 1993 CanLII 47 (SCC): “I do not think that, by reason of the absence of face to face confrontation, any principle of fundamental justice has been infringed in such a trial.”

·         Courts have rejected the notion that demeanour is determinative of credibility.

“Sometimes members of the public, lawyers, and perhaps even judges make the mistake of concluding that the assessment of credibility depends on observations of physical demeanour during the course of the witness testifying. In my experience, those observations are rarely determinative of credibility, as a judge who relies solely on physical observations of demeanour is likely to err.”

 R. v. Turner, 2002 BCSC 1135, at para. 12.

·         There are undoubtedly ways in which technology might fail to operate in a given case in such a way as to impact on the fairness of the trial, for example, when the quality of the image or sound deteriorates. The standard for evaluating the quality of an audio‑video link cannot be a standard of perfection. When substandard quality impacts the fairness of trial is a matter of degree.

·         Section 714.1 allows for audioconference and videoconference when the witness is in Canada but requires the court to consider a number of factors as to whether having a witness provide evidence this way is appropriate. These factors include the personal circumstances of the witness, the costs that would be incurred if the witness were to appear personally, etc.  Section 714.2 has no such factors expressly listed.

 

Stuart O’Connell (Barrister/Solicitor)

 

[FN] See An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts. S.C. 2019, c. 25.   Prior to the 2019 amendments, s. 714.2(1) read as follows: ”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.”  [Emphasis mine].

[FN2] Section 7 of the Canadian Charter of Rights and Freedoms: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”