Accused Appearing at Trial Via Video Conference from Foreign State

 

I recently received a question from a friend about whether Canada permits accused persons to appear at their trial via video conferencing, when they are located in a foreign state. I did a spot of research (i.e. I emailed a bunch of friends who are criminal law practitioners). The most interesting thing that has come up so far* is this late 2020 decision from the Manitoba Provincial Court, R. v. Berent. Here the accused were in Los Angeles, CA and were set for a 3-week trial in Manitoba. They brought an emergency motion to be permitted to attend the trial via video conference, because Canadian COVID travel restrictions would require them to quarantine for two weeks after arriving, and they did not have the resources to do this.

The judge denied the motion but found that, in principle and exceptionally, appearance via video conference from a foreign state could be permitted. The judge cited case law from other provinces and essentially rested this conclusion on interpretations of s. 650 of the Criminal Code (which deals with the presence of the accused at trial) and ss. 715.21-.23, which were more recently added to the Code to deal with video appearances. 

This motion essentially foundered on the lack of a detailed plan. Judge Krahn noted that the technological pieces would need to be sorted out in some detail, so as not to endanger the accused's right to a fair trial; and also took into account the Crown's quite sensible argument that if the accused were found guilty, there would need to be some firm arrangement in place so that the judgment could be enforced, since a Canadian court could not compel them while located in a foreign state.

I would predict we are going to see this emerging as a procedural issue fairly often in the future. One outgrowth of COVID has been increased comfort with using technology like video-conferencing for court proceedings, and we can expect accused persons to be more aggressive in pursuing options like this. Yet enforcement jurisdiction remains key, as the court noted in Berent. Whether this is a welcome innovation or a Pandora's box remains to be seen.

 

*Many thanks to Ami Kotler, a provincial Crown prosecutor in Manitoba, for alerting me to Berent (which is an odd case quite apart from this aspect). Needless to say, neither Ami nor the Attorney General of Manitoba should be taken as agreeing with what I say here.

Comments

[El roam]

Important case or issue these days. Worth noting, that, notwithstanding the pandemic, and being or residing in foreign state, the judge, has stated clearly, other reason for denying the motion for virtual trial:

And it is, the lack of concrete plan and right infrastructure, for overcoming fundamental technological issues here.

I quote for example:

" Counsel frankly admitted there were a number of challenges he had not thought of such as, how would an Internet connection be facilitated for multiple laptops, who would obtain and pay for the laptops on which the Zoom platform could be used. Counsel suggested possible solutions, to quote him, “on the fly” during his submissions."

Or:

"The Crown points out the case is complex. They intend to call 20 witnesses, rely on surveillance video evidence, tender still photographs, have witnesses comment on these pieces of evidence and point out things in this evidence. They intend to play 911 calls. There is no evidence before me to explain how the Berents would be able to see this evidence. Zoom video technology generally captures a headshot of the speakers. Most people now have a familiarity with Zoom technology. The more participants on the call, the smaller the image becomes of each camera shot. While I am aware of presentation features, where the screen is filled with only the presentation by a presenter, this would not work in a criminal trial where the participants need to be visible to each other at all times. There is a real concern the Berents would not be able to effectively see and appreciate the evidence that was being led against them."

Thanks