R v S.D.L.: A Guidepost for the Admission of Video Link Evidence
It is the role of a provincial Appellate Court to clarify the law and when necessary, to change the law. Professor Peter Sankoff has described the role as “providing clear guidance regarding the core principles that govern the use of discretion must be an essential function of the appellate court.”1 The Supreme Court has also weighed in on the clarification and guidance role of the Courts of Appeal in the case Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General) where Binnie J. described the important role of provincial appellate courts as to “rein in overly elastic interpretations.”2
In a recent Nova Scotia Court of Appeal decision, R v S.D.L., MacDonald CJNS engages in an exercise to limit judicial discretion conferred on trial courts by Parliament. The subject of interpretation is provision 714.2 of the Criminal Code of Canada which permits the admission of video link evidence into a trial.
In this provision, trial judges are given discretion in the admission of such evidence. MacDonald CJNS, in this decision clarifies the law by placing a limitation on judicial discretion to admit video link evidence in the form of eight general principles which a trial judge must adhere to in order to preserve trial fairness.
Trial judges use the discretion conferred to them by the common law and statute based law in sentencing, the imposition of remedies and in admission of evidence. The discretion typically takes the form of the gatekeeper function where trial judges weigh the probative value of evidence against its prejudicial effect. Even if such provisions are broad, it is not enough to warrant concern about the fairness of a trial as trial judges exercise this function in other circumstances, for example in expert opinion evidence where a judges gatekeeper function is well established. An issue may arise when the discretion goes hand in hand in technology.
Trial judges should be cautious around technology. As MacDonald CJNS points out, there are instances where relying on technology can cause harm. For example, in S.D.L. there was an issue with the video link freezing during the examination. Such interruptions can “break the flow of any meaningful examination or cross examinations for witnesses that represented essentially the Crown’s entire case; a case where credibility is the only issue.”3 However, trial judges should also not forbid such evidence since there are benefits, particularly in sexual assault cases or in cases where a witness may not be able to appear in person in the courtroom.
As there are both possible risks and benefits that trial judges must weigh, scrutiny is required in order to meet trial fairness. This is why the Nova Scotia Court of Appeal has deemed it necessary to limit the discretion of trial judges by taking the broad provision in the Criminal Code and interpreting it in such a way that fairness and convenience are met.
To balance the rights of an accused and the admission of video link evidence, in paragraph 32 of his decision, MacDonald CJNS sets out what he refers to as “guiding principles” which are outlined below:
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.
That said, when credibility is an issue, the court should authorize testimony via 714.1 only in the face of exceptional circumstances that personally impact the proposed witness. Mere inconvenience should not suffice.
When the credibility of the complainant is at stake, the requisite exceptional circumstances described in #2 must be even more compelling.
The more significant or complex the proposed video link evidence, the more guarded the court should be.
When credibility will not be an issue, the test should be on a balance of convenience.
Barring unusual circumstances, there should be an evidentiary foundation supporting the request. This would typically be provided by affidavit. Should cross examination be required, that could be done by video link.
When authorized, the court should insist on advance testing and stringent quality control measures that should be monitored throughout the entire process. If unsatisfactory, the decision authorizing the video testimony should be revisited.
Finally, it is noteworthy that in the present matter, the judge authorized the witnesses to testify “in a courtroom…or at the offices of Victims’ Services…”. To preserve judicial independence and the appearance of impartiality, the video evidence, where feasible, should be taken from a local courtroom.
These eight principles are the Chief Justice’s limit on judicial discretion of trial judges. When deciding whether or not to admit video link evidence, trial judges must apply MacDonald’s principles to the facts to ensure there is trial fairness even if the video evidence is admissible. This is a significant change in the application of the law as before this case, judges could simply conducts a cost benefit analysis in determining admissibility. The limitation on the discretion of trial judges is warranted in order to preserve trial fairness. The unfairness in this case, would be prejudicial effects of an overbroad provision of the Criminal Code. This is why, while video link evidence is an innovation that can be beneficial in some circumstances, it must be balanced with trial fairness.
This decision by the Nova Scotia Court of Appeal has changed the law in Nova Scotia by placing limitations on judicial discretion when trial judges are deciding whether or not to admit video link evidence. SDL has also seen application outside of Nova Scotia and made an impact on Ontario jurisprudence. In the Ontario Superior Court of Justice case, R v Humberto Dapena-Huerta, Healey J. cited R v S.D.L. and utilized MacDonald CJNS’s guiding principles in assessing whether the Crown would be able to adduce witness testimony via video link.4 The Healey J. also recognized these guiding principles as a balancing exercise to ensure trial fairness.
The use of judicial discretion is an important feature of the adversarial system. It is a balancing act; there are the rights of an accused that must be balanced against the search for truth. MacDonald CJNS, in R v S.D.L. creates guiding principles that assists trial judges in the exercise of their judicial discretion in cases of video link evidence. SDL represents a significant shift in the application of s 714.2 of the Criminal Code to preserve trail fairness and the integrity of the Canadian justice system. The interpretation of s 714.2 and limitation placed on judicial discretion clarifies an overly broad provision and ensures that trial fairness is upheld where video link evidence is tendered.
1 Peter Sankoff, “The Search for a Better Understanding of Discretionary Power in Evidence Law” (2007) 32 Queen’s L.J. 487 (WLNext Can).
2 Canadian foundation for Children, Youth & the Law v Canada (Attorney General), 2004 SCC 4, at para 122.
3 R v SDL, 2017 NSCA 58.
4 R v Humberto Dapena-Huerta, 2017 ONSC 7530.