Testimony In Court Via Video-Conference: Some Considerations
Technology has infiltrated every area of our lives from communications to entertainment to business to litigation. A recent Ontario Superior Court decision examined whether witnesses could attend court and give their evidence via video-conference. Prior to commencement of trial, the defendant Canadian Broadcasting Corporation (CBC) made a motion requesting that five witnesses, all of whom lived outside of Canada, be allowed to attend and testify by video-conference. In determining that the witnesses could provide testimony via video-conference, Justice Mew provided the following insights:
Hryniak v. Mauldin, 2014 SCC 7 (CanLII), has shifted litigation culture to one which maintains fair process that results in a just adjudication of disputes but does so in a way that is proportionate, timely and affordable. Technology can assist in such a culture shift.
Rule 1.08(5) of the Rules of Civil Procedure provides factors that the court must consider when deciding to permit testimony by video-conferencing. It states:
5) In deciding whether to permit or direct a telephone or video conference, the court shall consider,
(a) The general principle that evidence and argument should be presented orally in open court;
(b) The importance of the evidence to the determination of the issues in the case;
(c) The effect of the telephone or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;
(d) The importance in the circumstances of the case of observing the demeanour of a witness;
(e) Whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;
(f) The balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and
(g) Any other relevant matter.
A court should be reluctant to deprive itself of the ability to receive testimony from non-party witnesses.
The use of video or similar technologies does not represent a significant deviation from the general principle favouring oral evidence in court. Such evidence is given orally, under oath or affirmation, and is observable “live” as it would be with the witness present in the courtroom. Questions are asked and answers are given in the usual way. The witness can be closely observed and most if not all of the visual and verbal cues that could be seen if the individual was physically present can be observed on the screen. The evidence is received by the court and heard and understood by counsel and any members of the public who may be present in the courtroom at the time.
Available technologies include not only the ability to examine a witness but, also, to put to that witness in a contemporaneous way documents and other exhibits.
The court granted permission for the witnesses to testify via video-conference, subject to the following conditions:
All reasonable efforts should first be made to secure the personal attendance of the witness.
(b) Where, despite (a) a witness cannot or will not attend in person to give evidence at trial, not less than three full court days before the day that it is intended to call the witness, the court should be provided, in writing, with the reason(s) for the unavailability of the witness to attend in person. The court reserves the right to determine whether the reasons so given are acceptable, and hence, whether to permit that witness to testify by video conference.
(c) The proposed arrangements for the video conference (or similar) must be satisfactory to the court.
(d) All costs associated with the video conference or similar technologies being used will be borne by the CBC defendants.
(e) No less than two full court days before the witness is scheduled to testify, the parties shall, subject to (f) below, identify and notify to all other parties all documents which he/she/it wishes to have included in a document bundle to be made available, electronically, on paper or both, to the witness. The CBC shall be responsible for assembling the witness bundles and making them available to the witness.
(f) Where a cross-examining party determines that the procedure in (e) may lessen the chances of the witness giving a contemporaneous or unvarnished answer in respect of a particular document, or where the need to refer to a document only arises from the trial testimony of the witness, a document may be put to the witness that is not in the bundle. The CBC shall ensure that arrangements are in place for such additional documents to be readily accessible by the witness (electronically or otherwise).
(g) Such other terms as the court may deem appropriate.
Clearly, the issue of putting documents to a video-conferenced witness is trickier than simply handing a document to a witness in a courtroom. Preparing for video-conference witnesses and will require cooperation between counsel especially in document heavy cases. However, with technology, including the use of emailing documents and split screens which can "keep everyone on the same page" it is possible to overcome the challenges involved. It will simply take a little advance preparation and cooperation.
It is suggested that the party relying on technology test-run the technology in advance of the video-conference. Arrange to attend the courtroom in advance to ensure that there is ample electrical outlets, space for cables, screens and whatever other hardware is needed. Technological difficulties will frustrate the litigation process (and likely the trier of fact, witnesses and counsel) and, at least to some extent, are likely to lessen the credibility of counsel by making him or her look unprepared. A little advance preparation will go a long way to ensuring the smooth presentation of evidence which will assist in the culture shift as courts move to use technology to ensure timely, affordable and proportionate adjudication of legal disputes.
Chandra v Canadian Broadcasting Corporation et al, 2015 ONSC 5385 https://www.canlii.org/en/on/onsc/doc/2015/2015onsc5385/2015onsc5385.pdf
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