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.