In writing the majority decision for a three-member panel of the Nova Scotia Court of Appeal, Chief Justice Michael MacDonald said numerous technical problems with the video link impaired the accused man’s right to a fair trial, resulting in a miscarriage of justice.
As a result, the court overturned the convictions on two counts of sexual touching that involved the man’s son who was seven at the time.
The court ordered a new trial on the charges.
The man, whose name is banned from publication in order to protect the identity of the son, was sentenced May 6, 2016, after a provincial court trial, to three years in a federal prison. He was given credit for the 336 days he spent on remand that reduced the total sentence to two years. He was also ordered to complete a two-year probation period and be a registered sex offender for the remainder of his life.
The accused, now 43, no longer lives in Cape Breton and was serving his time at a federal facility in Ontario. It is believed the man has since been paroled.
Allowing witnesses to testify in criminal trials via video link was first introduced as part of a package of reforms passed by Parliament in 1999.
The Cape Breton case involved the testimony of two witnesses, the victim and his mother, who were located in British Columbia.
The court record from the trial shows technical difficulties arose within seconds of the testimony beginning as the screen froze numerous times.
“In my view, these interruptions completely broke the flow of any meaningful examination or cross- examination for the witnesses that represented essentially the Crown’s entire case, a case where credibility was the only issue,” said MacDonald.
“An objective reading of the transcript leads to the inescapable conclusion that the appellant’s right to make a full answer and defence was jeopardized.”
MacDonald said it is appropriate for the appeal court to offer guidelines for all trial judges when it comes to allowing video testimony in order to prevent inconsistency and uncertainty along with protecting against a miscarriage of justice.
In cases where credibility is expected to become an issue at trial, MacDonald said courts should be very reluctant to use the video technology.
Prior to the trial, Crown made application to the provincial court to allow the link. The defence objected but the trial judge granted the request with certain restrictions.
But as noted in the appeal court decision, the initial granting of the request was made in December 2014 with the trial scheduled to begin in January 2015. However, for unrelated reasons, the trial wasn’t held until February 2016 but the decision to allow the video testimony was never revisited.
A decision on whether the Crown will proceed with a new trial is expected soon.
GUIDING PRINCIPLES
The following is the list of guiding principles to be followed by all judges in the province in deciding whether to allow witnesses to testify by video link.
• As long as it does not negatively impact trial fairness or the open courts principle, testimony by way of video link should be permitted.
• When credibility is an issue, the court should authorize testimony 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 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.
• To preserve judicial independence and the appearance of impartiality, the video evidence, where feasible, should be taken from a local courtroom.
