“Virtual Presence” in Court
Section 714.1 application for witness to testify by video conference denied
With its decision in R v Musseau the Newfoundland and Labrador Provincial Court provided guidance on the use of section 714.1 of the Criminal Code, which allows a witness to “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”. Finding that the preconditions for such an order had not been met the trial judge dismissed the application, but provided guidance about the use of the section nonetheless.
The trial was to occur in Corner Brook Newfoundland, but the complainant was in New Brunswick and did not wish to appear personally, and so the Crown made a section 714.1 application concerning her appearance. The judge pointed out that the Crown’s application simply referred to the complainant in the case (the spouse of the accused, who was charged with assaulting her) appearing by “video conference”, without any description of the actual technology to be used. Section 714.1 requires that the technology make it possible for the witness to be in the “virtual presence” of the parties and the court, and without such evidence he was unable to assess the application. The judge noted that:
…section 714.1 does not, as does section 714.3 of the Criminal Code (evidence of a witness by audio link), specifically require the Court to consider “any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them”. This is a recognition of the significant difference between virtual testimony and audio testimony. Having said this, prejudice to an accused person’s ability to make full answer and defence must always be considered.
Further, the requirement for “virtual presence” was an important and meaningful one. An accused is entitled to face their accuser: although that was not to be taken literally, appearance by video technology had to accomplish the goals behind that principle. Video link technology was sufficiently sophisticated that that goal could be accomplished through its use. Indeed, the judge acknowledged at para 40 the possibility that “the use of video appearances are so common that the virtual presence requirement can be assumed or judicially acknowledged.” Nonetheless he decided that evidence concerning the nature of the technology actually to be used was necessary, and had to be provided either in writing as part of the application or in some other fashion.
In addition it was necessary to have evidence about the location from which the witness would be testifying, such as whether it would be a courtroom or something similar: the judge needed to be able to consider “whether the witness will face the same level of solemnity offered by a courtroom and whether he or she will be as free from outside influences while testifying as she or he would be if they were to testify in person before the trial judge” (para 34).
Summarizing the usefulness of section 714.1 (and quoting his own previous decision on the same issue in another case), the judge noted at para 42:
Section 714.1 of the Criminal Code is designed, in part, to lessen the financial cost and inconvenience caused by requiring witnesses to travel to testify in person to an area in which they do not reside. In a country as large as Canada, it would be foolhardy to stymie the use of such appearances. The reality is that modern technology has made the requirement for personal presence, in many instances, unnecessary and superfluous. Our courts must not ignore the reality of modern technological developments in assessing a demand for the personal presence of a witness.
In this case, because of inadequacies in the form and content of the affidavits, and the failure therefore to establish the requirements of the section, the trial judge denied the application.