Back to the Future: Reviving the Use of Video Link Evidence in Canadian Criminal Courts

Abstract

Section 714.1 of the Criminal Code of Canada allows for witnesses and victims to testify remotely via video link, within Canada. The legal test embedded within this provision – “appropriate in all the circumstances” – has led to inconsistent application across the country. Some jurists have embraced the flexibility provided by the video link process. Others have expressed reluctance, articulating the position that in-court testimony is to be preferred and permitting the use of video link evidence only in exceptional circumstances. R. v. S.D.L. is the first treatment of 714.1 by an appellate court. The Nova Scotia Court of Appeal has provided a set of clear guiding principles for trial judges. The Court recognized that applications for testimony via video link “should be permitted” so long as they do not negatively impact upon trial fairness or the open court principle. More specifically, where reliability (rather than credibility) is the central issue with respect to evaluating a witness’ evidence, video link applications should routinely be granted. The use of technology in the courtroom can thus contribute to the truth seeking function of the trial process and provide support for vulnerable victims and witnesses who may otherwise face greater personal costs through the process of testimony.