Testimony by Videoconference (Precedent)

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Notice

Style of cause  

C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]

IN THE [LEVEL OF COURT] OF [PROVINCE]

IN THE MATTER of an Application under section 714.1 of the Criminal Code

– and –

BETWEEN:

HIS MAJESTY THE KING

– and –

[ACCUSED NAME]

---

NOTICE OF APPLICATION
(Pursuant to section 714.1)

---

WHEREAS the accused, [accused name], has been charged that [on or about/between] [dates of the offence] he/she is alleged to have committed offences contrary to section(s) [list sections] of the Criminal Code;

WHEREAS the trial for these outstanding charges is currently scheduled to begin before the [level of court] on [date] at [time].

AND WHEREAS the Crown seeks to call [name of witness] as a witness in the upcoming trial.

TAKE NOTICE that an application will be brought at [time] a.m./p.m. on the [date] day of [month], [year], at [address] for an order granting [relief being sought].

THE APPLICANT RELIES ON THE FOLLOW GROUNDS

Law

1. Section 714.1 authorizes the trial judge to permit material witnesses located within Canada to give their evidence at trial by video conference.
2. The relevant statutory factors to consider consist of:

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness were to appear in person;

(c) the nature of the witness’ anticipated evidence;

(d) the suitability of the location from where the witness will give evidence;

(e) the accused’s right to a fair and public hearing;

(f) the nature and seriousness of the offence; and

(g) any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the court were to order the evidence to be given by audioconference.

For additional common law factors, see R v Young, 2000 SKQB 419 (CanLII), 150 CCC (3d) 317, per Wright J, at para 8

3. The presumption is that a person will testify within the courtroom, however, exception under 714.1 can be made when considering the cost upon the witness and system to procure their attendance and the prejudice suffered by the accused through video testimony.

5. Where the witness's credibility is not at issue, the standard can be one of a balance of convenience: see R v SDL, 2017 NSCA 58 (CanLII), 352 CCC (3d) 159, per MacDonald JA (3:0), at para 32.

4. ...

Facts

5. [named witness] is a witness who will be called by [Crown/Defence]. The applicant believes their testimony will provide evidence concerning [describe what part of the offence.

6. he/she is in his/her [range of age] and resides in [community that they reside], ... [any other relevant background information];

7. [described limitation upon this person:

• mental or physical disability, including what sort of accommodations they require in their life
• major employment or financial limitations;
• family limitations (e.g. child care)]

8. The applicant will argue that these limitations [compare the the relevancy of the evidence to the hardship]

9. Any additional grounds as counsel may advise and this Honourable Court may permit.

IN SUPPORT OF THIS APPLICATION, THE APPLICANT RELIES ON THE FOLLOWING EVIDENCE:

1. [SET OUT documents and transcripts upon which the applicant relies upon; e.g affidavit, transcript, business records, oral evidence]
2. ...
3. Any additional evidence as counsel may advise and this Honourable Court may permit.

THE APPLICANT SEEKS THE FOLLOWING RELIEF:

1. An Order permitting [name of witness] to testify by means of videoconference under the following conditions:

• The videoconference equipment is functioning properly where the witness is visible and audible throughout their testimony;
• Should the quality of the connection degrade, the court has discretion to cancel the order on the basis that the witness testimony cannot be properly received and evaluated by the court;
• The witness shall testify from a room without anyone else present in the room unless specifically approved by the court;
• While testifying, the witness shall read any documents or communicate any other persons in their room unless known and approved by the court;
• The witness room will be free of audible or visual distractions that may affect the taking of the witness’s evidence or the solemnity of the proceedings;

FOR THE PURPOSE OF THIS APPLICATION, THE APPLICANT MAY BE SERVED AT:

In accordance with the appropriate Rules of Court,

[party name]
[party title]
[address]
[address]
[address]
Tel: (xxx) xxx-xxxx
Fax: (xxx) xxx-xxxx
Email: xxx@xxxxxx.xxx

DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___.

_________________________________
[Counsel's name]
[Counsel's title]

[Internal File Coding]

Affidavit

Style of cause  

C A N A D A File# ________________

PROVINCE OF [PROVINCE]

COUNTY OF [COUNTY]

IN THE [LEVEL OF COURT] OF [PROVINCE]

IN THE MATTER OF SECTION 527 OF THE CRIMINAL CODE

– and –

BETWEEN:

HIS MAJESTY THE KING

– and –

[ACCUSED NAME]

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AFFIDAVIT OF [AFFIANT NAME]
'

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I, [Affiant name], of [City], in the [Community] and Province of [Province], make oath and say as follows that:

1. I have personal knowledge of the matters and facts hereinafter deposed to except where stated to be on information and belief and where so stated, I verily believe the same to be true.
2. I am aware of information, obtained through the usual and ordinary course of business and believed to be reliable, that has lead me to believe that [accused name] is currently being held in [correctional/remand facility] located at [address of correctional/remand facility], that that the prisoner is required to appear before the [level] at [location of the court house], [Province], on [date], [year], at [time] for the purpose of [purpose].
3. I believe the ends of justice require that an order be made to bring the prisoner before the Court for that purpose.

SWORN/AFFIRMED TO at [city], in the region of [region], Province of [province], this [day] day of [month], 20____, before me: ________________________________ Commissioner of Oaths/Barrister of the [level] Court of [province]

) ) ) ) ) ) _____________________________ ) [Affiant Name] ) [Affiant title] )

[Internal File Coding]

Order

Style of cause  

C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]

IN THE [LEVEL OF COURT] OF [PROVINCE]
([name] Region)

BETWEEN:

HIS MAJESTY THE KING

– and –

[ACCUSED NAME]

---

ORDER TO PERMIT TESTIMONY BY VIDEOCONFERENCE
(Pursuant to Section 714.1 of the Criminal Code)

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BEFORE THE HONOURABLE Judge/Justice __________________________ at [city], [province].

UPON the Application of counsel for [party] for an order pursuant to section 714.1 of the Criminal Code that [name], an anticipated trial witness situated in Canada;

WHEREAS the accused, [accused name], has been charged that [on or about/between] [dates of the offence] he/she is alleged to have committed offences contrary to section(s) [list sections] of the Criminal Code;

AND WHEREAS I am satisfied that testimony by audioconference/videoconference would be appropriate having regard to all the circumstances;

IT IS HEREBY ORDERED that [name] be permitted to give sworn or affirmed evidence at the upcoming trial by way of videoconference, subject to the following:

• The videoconference equipment is functioning properly where the witness is visible and audible throughout their testimony;
• Should the quality of the connection degrade, the court has discretion to cancel the order on the basis that the witness testimony cannot be properly received and evaluated by the court;
• The witness shall testify from a room without anyone else present in the room unless specifically approved by the court;
• While testifying, the witness shall read any documents or communicate any other persons in their room unless known and approved by the court;
• The witness room will be free of audible or visual distractions that may affect the taking of the witness’s evidence or the solemnity of the proceedings;

DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___.

_____________________________
[name of title and judge]

TO:	[applicant counsel] [address]
AND TO:	[respondent counsel] [address]

[Internal File Coding]