INTRODUCTION AND BRIEF DESCRIPTION
This section allows for witnesses to give evidence via technology if it is deemed appropriate by the court based on various circumstances.
SECTION WORDING
714.3 The court may order that a witness in Canada give evidence by means of technology that permits the parties and the court to hear and examine the witness elsewhere in Canada, if the court is of the opinion that it would be appropriate, considering all the circumstances including (a) the location and personal circumstances of the witness; (b) the costs that would be incurred if the witness had to be physically present;(c) the nature of the witness’ anticipated evidence; and (d) any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them.
EXPLANATION
Section 714.3 of the Criminal Code of Canada allows for witnesses in Canada to give evidence through technology that allows the parties and the court to hear and examine them from a remote location. The decision to use this method of evidence depends on whether the court believes it is appropriate considering all the circumstances, including the location and personal circumstances of the witness, the costs of physically transporting the witness, the nature of the evidence the witness is expected to provide, and any potential prejudice either party may experience if the witness is not seen in person. This section was added to the Criminal Code to help overcome some of the challenges faced by witnesses in criminal proceedings. Witnesses in remote locations, for example, may not be able to attend court due to the high costs of travel. Other witnesses may need to travel long distances due to personal circumstances, such as health or family responsibilities. Allowing these witnesses to give evidence remotely through technology can help reduce costs for parties and ease the burden on witnesses. However, there may be drawbacks to remote witness testimony. Witnesses who are not seen in person may give less credible testimony, as it can be more difficult to observe their body language and facial expressions. Additionally, it may be more difficult to cross-examine witnesses remotely, which could lead to concerns about fairness for the parties involved. Overall, section 714.3 of the Criminal Code represents a balancing act between the interests of witnesses and the fair administration of justice. Its inclusion in the Code reflects an awareness of the challenges faced by witnesses and an attempt to address these challenges in a way that is fair and efficient.
COMMENTARY
Section 714.3 of the Criminal Code of Canada is a provision that allows for the use of technology to enable witnesses to give evidence remotely. This section recognizes that there may be situations where it may not be feasible or practical for witnesses to be physically present in court to give their testimony. This provision enables the court to order that such witnesses be allowed to give evidence via technology, allowing the parties and the court to hear and examine the witness elsewhere in Canada. The use of technology to enable remote testimony has become increasingly common in recent years, with many courts around the world adopting this practice. The use of this technology can be particularly helpful in cases where witnesses are located far away from the court, or where their personal circumstances may make it difficult for them to travel to the court. In such situations, the use of technology can help to reduce costs, save time, and make it possible for witnesses to provide evidence without having to undergo significant hardship. Section 714.3 of the Criminal Code recognizes that there are several factors that the court must consider in determining whether the use of technology to enable remote testimony is appropriate. These include the location and personal circumstances of the witness, the costs that would be incurred if the witness had to be physically present, the nature of the witness' anticipated evidence, and any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them. The first factor, the location and personal circumstances of the witness, recognizes that there may be situations where a witness is unable to be present in court due to their location or personal circumstances. For example, a witness located in a remote area may not be able to travel to the court because of the time and expense involved. Similarly, a witness who is elderly or has health issues may not be able to travel to the court without undertaking significant hardship. The second factor, the costs that would be incurred if the witness had to be physically present, recognizes that there may be significant costs associated with bringing a witness to court. These costs can include transportation, accommodation, and lost wages. In some cases, the costs of bringing a witness to court may be so high that it becomes impractical to do so. The third factor, the nature of the witness' anticipated evidence, recognizes that there may be different types of evidence that require different methods of presentation. For example, a witness may need to demonstrate a physical object, or provide visual or auditory information. The use of technology can help to enable such evidence to be presented in a way that would not be possible if the witness were required to be physically present in court. The fourth factor, any potential prejudice to either of the parties caused by the fact that the witness would not be seen by them, recognizes that there may be situations where the parties may need to observe the witness in order to assess their credibility or demeanor. In such situations, the use of technology to enable remote testimony may not be appropriate. In conclusion, Section 714.3 of the Criminal Code of Canada provides a useful mechanism for enabling witnesses to give testimony remotely in appropriate circumstances. The provision recognizes that the use of technology can help to reduce costs, save time, and make it possible for witnesses to provide evidence without undergoing significant hardship. However, it is important for the court to consider all the relevant factors in determining whether the use of remote testimony is appropriate in each case.
STRATEGY
Section 714.3 of the Criminal Code of Canada provides for the use of technology-assisted witness testimony in criminal trials. This section allows a witness to give evidence via technology from a location outside the courtroom. The use of technology-assisted witness testimony is an important development for the Canadian justice system, as it has the potential to reduce the costs and inconvenience associated with traveling to give testimony. In addition, it has the potential to increase accessibility for vulnerable witnesses who may have difficulty traveling or appearing in court. However, the decision to allow technology-assisted witness testimony should not be taken lightly. There are several strategic considerations that lawyers must keep in mind when dealing with this section of the Criminal Code. Firstly, lawyers must consider the nature of the witness's anticipated evidence. Technology-assisted witness testimony is most appropriate when the witness's testimony is non-controversial or uncontested. Witnesses who are expected to provide highly contentious or disputed evidence may benefit from being physically present in court to testify. Secondly, lawyers must take into account the potential prejudice to the parties caused by the fact that the witness would not be seen. The absence of the witness from the courtroom may be detrimental to the ability of the jury or judge to assess the credibility of the witness. Additionally, the inability to observe the demeanor of a witness may limit the effectiveness of cross-examination by the defense. Thirdly, lawyers must consider the location and personal circumstances of the witness. This includes the practical considerations of the availability and technical expertise of suitable technology at the remote location of the witness. It is important to ensure that the technology used will allow the witness to give reliable testimony, and that it is installed and operated correctly. Furthermore, lawyers must consider the personal preferences of the witness, who may be uncomfortable with technology or may prefer to give evidence in person. Finally, lawyers must consider the costs that would be incurred if the witness had to be physically present. Adopting technology-assisted witness testimony is justified only when the potential cost savings outweigh the benefits of having the witness testify in person. This consideration is particularly important in complex criminal cases that involve multiple witnesses or extended trial periods. In light of these strategic considerations, lawyers can consider several strategies when dealing with this section of the Criminal Code. Some strategies include conducting a cost-benefit analysis to determine the most effective way to present evidence, carefully preparing the witness for technology-assisted testimony to ensure reliability and comfort, and ensuring the technology is properly installed and maintained. In conclusion, technology-assisted witness testimony is a valuable development for the Canadian justice system, but it requires careful consideration of strategic issues to ensure that it serves its intended purpose of reducing costs and increasing accessibility without compromising the integrity of the criminal justice system. Lawyers should consider the nature of the evidence, potential prejudice, location and personal circumstances of the witness, and costs associated with using technology-assisted witness testimony when deciding whether to pursue this option.