In cases where testimony at trial is needed from witnesses who are far away, the courts’ traditional preference that witnesses should ordinarily testify in person, enshrined in Rule 1.08 (5) (a), can make trials needlessly expensive. Fortunately, there are encouraging signs that the courts are now more willing to permit testimony via video conferencing for foreign witnesses. The Ontario Superior Court of Justice, in Chandra v. C.B.C. etal 2015 ONSC 5385 found that “the use of video or similar technologies does not now represent a significant deviation from the general principle favouring oral evidence in court”. (para. 20)
In Chandra, a defamation case, the C.B.C. sought permission for five witnesses to testify at a jury trial via video conferencing. Four were in the United Kingdom and one was in the United States. None could be compelled to testify in person. Two would face hardship for health reasons if required to travel. The witnesses’ testimony would not take long: between half a day and a day and a quarter for each witness. Rule 1.08 specifies six criteria to guide the court’s discretion as to whether to allow testimony by video conference. Two of those criteria (Rule 1.08 (5) (c) and (d)) pertain to the ability to make determinations about the credibility of the witnesses and the importance of observing their demeanour.
The Court gave permission on conditions, including: a.) that the court be satisfied with the reason for the witness not testifying in person, b.) that the court be satisfied with the video conferencing arrangements, and c.) that the party whose witnesses will testify by video conference bear all the costs of the videoconferencing.
In reasons given after the trial, Mew J. stated that the video conferencing was entirely satisfactory. The picture and sound quality were excellent, and the flow of testimony was not markedly less spontaneous than if the witnesses had testified in person. Regus (Regus.ca) and whygo (Whygo.us) provided the video conferencing. Screens were already in place in the court room.
The Court observed that the giving of testimony through video conferencing does not impede its ability to observe the demeanour of the witness or make determinations about the credibility of the witness. In fact, video conferences offer important advantages: the Court has the benefit of a “full face on-view of the witness as opposed to the profile seen in court” (para. 23), and the testimony can be replayed at will. “The witness can be closely observed and most if not all of the visual and verbal cues that could be seen if the individual was physically present can be observed on the screen.” (para. 20). Video conferencing has been used in criminal proceedings even where credibility is a key issue: Paiva v Corpening 2012 ONCJ 88.
The parties worked out amongst themselves what documents should be sent to the witness in advance in a document bundle. Technology permits putting documents to the witness in a contemporaneous way. The court allowed cross-examining counsel to exclude certain documents from the bundle for tactical reasons, i.e. if giving a certain document to the witness in advance “would lessen the chances of the witness giving a contemporaneous or unvarnished answer” about that document.
Chandra tells us that going forward, concerns about the ability to determine credibility and the ability to observe demeanour are not sound reasons to refuse video conferencing. For this reason, the weight to be given to the traditional preference for in-person testimony (the first criteria) is to be reduced. I would say the same goes for the second criterion, importance of the foreign witnesses’ evidence. In fact, the Court stated that in the case of non-party witnesses, if the reason for not testifying in person is reasonable, and unless video conferencing facilities are not available, the court “should be reluctant” to refuse video conferencing. (Para 25)