section 714.2(1)

INTRODUCTION AND BRIEF DESCRIPTION

Courts must allow witnesses outside of Canada to testify through technology unless there is a violation of fundamental justice.

SECTION WORDING

714.2(1) 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.

EXPLANATION

Section 714.2(1) of the Criminal Code of Canada outlines the conditions under which the testimony of a witness outside Canada can be admitted as evidence in a court of law. This section allows for witnesses to testify from outside the country with the use of technology, provided that their virtual presence is acknowledged by all parties involved in the proceedings, including the court. The primary reason for this law is to ensure that individuals located outside Canada can effectively participate in legal proceedings and that their evidence can be presented in a timely and efficient manner. However, there is one important caveat that must be met before this law comes into play. The opposing party must satisfy the court that the reception of such testimony would be contrary to the principles of fundamental justice. This means that if the admission of the witness's testimony would compromise the rights of the accused, the evidence may not be admissible. For instance, if the accused is unable to cross-examine the witness or confront them in person, this could be seen as a violation of their rights. Overall, Section 714.2(1) is an important provision in the Criminal Code of Canada that recognizes the need for technological advancement in the legal system and promotes fair and efficient justice for all parties involved.

COMMENTARY

The Criminal Code of Canada provides guidance for the reception of evidence given by witnesses located outside the country by utilizing technology which allows virtual attendance in a courtroom. Section 714.2(1) is a well-crafted provision that ensures the principles of fundamental justice are respected while allowing the use of technology to gather evidence in a court of law. The provision is of paramount importance in ensuring that the courts have access to relevant evidence that supports the fact-finding process in criminal trials. The advent of technology provides various tools which can be used to allow witnesses to give evidence despite their physical absence from the courtroom. For instance, video conferencing and teleconferencing technologies enable witnesses resident in other countries to give evidence virtually in a trial. The Criminal Code of Canada has taken cognizance of the importance of technology in the justice system by allowing virtual presence of witnesses. The central idea behind this provision of the Criminal Code of Canada is to make it easy for courts to receive evidence from witnesses residing outside the country. The witnesses' availing themselves through technology will give an account of what occurred during the crime and potentially offer supporting information that otherwise might have been challenging to obtain. Moreover, the use of technology will guarantee that the principles of equal access to justice, the right to fair hearing, and the right to an attorney cannot be denied. However, the use of technology to receive evidence may pose challenges to the conduct of the trial if one party objects to the use of the technology. The Criminal Code of Canada has guarded against such inevitable disagreements by setting out a test to be applied by the court in such circumstances. The provision stipulates that the court must receive the evidence given by an absent witness unless it is proven by one of the parties that the reception of the evidence is contrary to the principles of fundamental justice. In other words, the basis of objection must be rooted in the violation of the principles of fundamental justice. The phrase 'fundamental justice' refers to the bedrock principles of the justice system that individuals are entitled to underpin their rights to the fair administration of justice. Although the provision allows the use of technology to receive evidence, several potential issues may arise. For example, technology malfunctions, a breach of the accused's rights by admitting hearsay, and emotional reactions to the absence of a witness in person. These issues must be addressed as they arise to ensure that the principles of fundamental justice are not obstructed. In conclusion, the provision in section 714.2(1) of the Criminal Code of Canada is a progressive measure that recognizes the importance of technology in the justice system. It is a carefully crafted provision that ensures that the issues posed by virtual hearings are addressed while creating an opportunity to receive important evidence. It limits the objections of one of the parties and does not give undue advantage to the other during a criminal trial while still guaranteeing the principles of fundamental justice.

STRATEGY

Section 714.2(1) of the Criminal Code of Canada is a provision that allows for the use of technology to allow a witness to testify remotely in criminal proceedings. This provision was introduced in recognition of the fact that witnesses may be located outside of Canada and may not be able to physically attend court. The use of technology in this manner can be a valuable tool, but there are strategic considerations that should be taken into account when dealing with this provision. One important strategic consideration is the potential impact that remote testimony may have on witness credibility. Witnesses who testify remotely may be seen as less credible than those who appear in person, due to the fact that they are not physically present in the courtroom and cannot be observed closely. Additionally, the use of technology can introduce potential technical problems that could affect the reliability of the testimony. As a result, it is important to take steps to ensure that the remote testimony is conducted in a manner that is as reliable and credible as possible. One strategy that could be employed to address concerns about witness credibility is to ensure that the witness is subject to the same kinds of questioning and cross-examination that they would receive if they were testifying in person. This could involve preparing more detailed and rigorous cross-examination questions that are designed to test the credibility of the witness. Additionally, it may be advisable to obtain the assistance of an expert to help ensure that the technology being used is reliable and that the witness's testimony is being accurately recorded. Another important strategic consideration is the potential impact that the use of remote testimony may have on the defendant's right to a fair trial. If the defendant is unable to effectively cross-examine a witness who is testifying remotely, this could be seen as a violation of their right to confront their accusers. As a result, it is important to take steps to ensure that the defendant's rights are protected during the remote testimony process. One strategy that could be employed to protect the defendant's rights would be to use technology that allows for live video and audio feeds between the witness, the court, and the defendant. This could help ensure that the defendant is able to observe the witness's demeanor and body language during testimony, which could be important in determining the credibility of the witness. Additionally, it may be advisable to have a lawyer or other legal representative present with the defendant during the testimony to ensure that their rights are being protected. Overall, the use of technology to allow for remote testimony in criminal proceedings can be a valuable tool, but it is important to approach this process with careful consideration of the potential strategic implications. By taking steps to address concerns about witness credibility and protect the defendant's rights, it may be possible to use remote testimony in a manner that is fair and just for all parties involved.