By: Mackenzie Coleman, Law Student at the University of Alberta
Earlier this year, Justice Simonsen determined in R v DMS that witness testimony does not necessarily need to be in the courtroom.[1] Justice Simonsen stated that the “trial judge erred by summarily dismissing its application under section 714.1 of the Criminal Code, for an order permitting the complainant to testify remotely by videoconference”.[2] The appeal was allowed and a new trial was ordered.[3]
The Criminal Code “provides for other alternatives to facilitate the testimony of a witness and access to justice (such as remote testimony)”.[4] 714.1 of the Criminal Code allows a court to use technology in order for a witness to testify by audioconference or videoconference if appropriate.[5]
In 2019, section 715.22 was added to the Code which states that allowing a witness to testify by videoconference is appropriate if it serves “the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice”.[6]
In R v DMS, the accused was charged with attacking eight sex trade workers. Two section 714.1 applications were made. The first application was for five Ontario-based police officers to testify via videoconference.[7] The second application was for the complainant who had no identification suitable for flying, did not own a car, and was not able to travel via motor vehicle.[8] The Crown applied for the complaint to testify via Microsoft Teams from either her home or local police station.[9]
The trial judged dismissed the section 714.1 applications, citing R v SDL.[10] In SDL, eight guiding principles were proposed when considering section 714.1 applications.[11] Principle one states that “as long as it does not negatively impact trial fairness or the open courts principle, testimony by way of video link should be permitted. As the case law suggests, in appropriate circumstances, it can enhance access to justice”.[12]
Justice Simonsen, however, stated that the trial judge erred in applying the principles set out in SDL. Instead, the trial judge should have used the principles in R v JLK.[13] SDL predates 715.22 of the Criminal Code and “held that a strict test should apply, particularly where credibility of the proposed witness is at issue”.[14] JLK rejected the strict test, “opting for a discretion-based approach that focuses on consideration of all relevant circumstances”.
In JLK, the principles in SDL were rejected for two reasons. The first was the addition of 715.22 of the Criminal Code which did not include witness credibility as a relevant factor or require exceptional circumstances when credibility is at issue.[15] The second reason is that since SDL, videoconference technology “now permits the parties in the courtroom including the trier of fact and counsel, to see and hear the witness clearly such that the witness’ testimony can be properly tested and assessed”.[16] Additional factors should not be considered; the test should instead be whether “it is appropriate to order remote testimony by having regard to all the circumstances”.[17] The goal of section 714.1 is to “balance the practical and logistical issues of testifying in court with any potential impact from remote testimony on the fairness of the trial and on an accused person’s ability to make full answer and defence.”[18]
On appeal, the court determined that the trial judge gave undue weight to Crown conduct. The trial judge also suggested that remote testimony should only be used in exceptional circumstances for credibility-based evidence, which is a higher standard than is required by law. Finally, the trial judge incorrectly suggested that remote testimony should be given from a courtroom whenever possible. A police station was incorrectly deemed an inappropriate location.
Remote testimony under section 714.1 of the Criminal Code highlights access to justice concerns. The Court of Appeal recognized that the trial judge’s approach to videoconferencing was too strict and unfairly prevented the complainant from testifying. Videoconferencing should not have unnecessarily high thresholds, especially for vulnerable witnesses. Virtual options should be considered by the courts if there are barriers to in-person attendance. Having a standard of “exceptional circumstances” hinders access to justice, fairness and efficiency of the legal process should be considered.[19]
Videoconferencing and remote testimony can improve access to justice by reducing barriers for participants in legal proceedings. These forms of technology offer practical solutions to longstanding challenges in the justice system. Remote testimony allows individuals in rural or remote communities to participate in proceedings without time-consuming travel. Courts and litigants may save time and resources because proceedings do not have to be delayed due to scheduling conflicts or time restraints. Alongside this, vulnerable witnesses do not have to appear in the same place as the accused which can reduce retraumatization and increase full participation in the proceedings. DMS, and other case law in Manitoba and across Canada, demonstrate a shift towards allowing remote testimony as a standard tool in legal proceedings. Remote testimony is not an ‘exceptional measure’. Videoconferencing is not merely about convenience; it is a necessary tool for a fair and accessible justice system.
[1] R v DMS, 2025 MBCA 16 [“DMS”].
[2] Ibid at para 1.
[3] Ibid at para 104.
[4] Ibid at 96.
[5] Criminal Code, RSC 1985, c C-46 s 714.1.
[6] Ibid at s 715.22.
[7] DMS, supra note 1 at para 7.
[8] Ibid at para 11 and 12.
[9] Ibid at para 14.
[10] Ibid at para 24 and 25.
[11] R v SDL, 2017 NSCA 58.
[12] Ibid at para 32.
[13] R v JLK, 2023 BCCA 87 at para 87.
[14] DMS, supra note 1 at para 76.
[15] Ibid at para 82.
[16] Ibid at para 83.
[17] Ibid at para 84.
[18] Ibid; see JLK at para 50.
[19] DMS, supra note 1 at para 33.