BC Court of Appeal Considers Appropriateness of Remote Testimony

In this week’s decision, R. v. J.L.K., 2023 BCCA 87, the British Columbia Court of Appeal considered the issue of when remote testimony by video conferencing is appropriate in the context of a criminal trial. In 2021, the appellant J.L.K. was convicted in the Provincial Court of British Columbia of 17 offenses including sexual assault, unlawful confinement, obstruction of justice, threatening, harassment, and breach of conditions. Most of these charges involved the complainant S.M. with whom he had a tumultuous intimate relationship.

At the outset of trial, Crown counsel advised the trial judge that the complainant was uncooperative and that her whereabouts were unknown. On the fifth day of trial, the Crown advised the judge that the complainant had been located, and the Crown would be bringing an application pursuant to s. 714.1 of the Criminal Code to permit her to testify remotely. Crown counsel advised that the complainant had been diagnosed with COVID-19 and was staying in a quarantine hotel outside of Vancouver. They argued that if she was not permitted to testify then the trial would be delayed. Counsel for the appellant opposed this, arguing that there was no evidence about the medical diagnosis, and that the Crown did not specifically know where the complainant was. With credibility of the complainant being a central issue at trial, they argued that J.L.K. had the right to confront her in trial.

The trial judge granted the Crown’s application and held that the complainant would be permitted to testify remotely with certain requirements. However, there were numerous technological problems and various interruptions from the outset of her testimony. The appellant argued, among other things in his appeal, that problems with the video link and resulting transcript necessitated appellate intervention.

The Court of Appeal held that the gaps in the transcript of the complainant’s evidence did not give rise to a miscarriage of justice by depriving the appellant of his ability to properly advance an appeal. Apart from an allegation that the interruptions undermined the process and adversely impacted his ability to make full answer and defence, J.L.K. failed to identify the specific terms of how he was prejudiced by technological problems. The various interruptions due to remote video conferencing problems were not proven to impact on the overall fairness of the trial. Similarly, the gaps in the transcript stemming from these interruptions did not cause the parties present in the courtroom to misunderstand or misapprehend the complainant’s evidence, and thus this was not a reason to grant the appeal.