Video testimony common in trials for serious criminal charges, says court
The Alberta Court of Appeal has recently affirmed a master’s decision to permit remote questioning via video conferencing, given COVID-19-related health and safety concerns.
In Mostafa Altalibi Professional Corporation v. Lorne S. Kamelchuk Professional Corporation, 2022 ABCA 239, litigation commenced in 2017 between two dentists and their respective professional corporations over the cost-sharing agreement between their orthodontic practices.
In May 2020, the respondents wanted to conduct questioning and proposed to do this via video conference, considering the COVID-19 pandemic. They asked for a court order to this effect after the appellants refused.
In November 2020, the master ruled in the respondents’ favour. He set a timeline for questioning by video conference and directed the parties to comply with the Alberta Protocol for Remote Questioning.
The master made the following statements:
- COVID-19 cases were rising, as a matter of general knowledge
- Restricted social interactions correlated with fewer cases
- Courts had ordered video conference sessions even before the pandemic and presently relied on them to continue to function
- Questioning entailed a lengthy interaction in a relatively small space
- Questioning should not be indefinitely postponed until the end of the pandemic
- Transcripts prepared from questioning would not reflect witness demeanour.
While the appellants appealed, the respondents proceeded in the interim to question the appellants’ witness via video conference sessions held in February, March, and April 2021.
In December 2021, the chambers judge agreed with the master’s findings on all points and dismissed the appeal. The judge adopted the analysis in R v. Sears, 2020 SKQB 239. In that murder case, the trial judge permitted testimony through video conference and rejected the credibility concerns of the defence upon finding that an exceptional circumstance justified the use of remote testimony.
On appeal, the appellants argued that video conferencing would prevent their counsel from evaluating the credibility of the witness being questioned.
Court of Appeal agrees to video conference questioning
The appellate court dismissed the appeal. Video testimony was permissible under s. 714.1 of the Criminal Code and was common even for trials involving serious criminal charges, the court ruled. Technology had improved, as other courts had noted, the appellate court said.
The chambers judge thoroughly examined the credibility issue and found that testimony via video conferencing was not necessarily inconsistent with assessing credibility, the appellate court held.
The judge also properly exercised her discretion when she endorsed the master’s determination that video conferencing was a successful and effective way to conduct legal matters and to move litigation forward, particularly amid a pandemic with potential health and safety concerns that caused difficulties in conducting in-person questioning, said the appellate court.
Lastly, in response to the appellants’ issue with the chambers judge’s imposed timelines, the court found that they failed to seek permission to appeal on this ground as required by Rule 14.5(1)(b) of the Rules of Court, Alta Reg 124/2010.
