Canadian Lawyer

8 J U N E 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m A decision from the Supreme Court of Newfoundland and Labrador has reaffirmed the importance of video testimony — for individuals and for the judicial system. The court concluded in R. v. Welyhorski that the benefits of testi- mony via video link outweighed the incon- venience to the defence. The decision is not surprising, says Brian Gover, a partner with Stockwoods LLP in Toronto. Video testimony, he says, "is fast becoming stan- dard operating procedure across a range of litigation areas." In this case, a witness in Halifax was given permission to testify in a St. John's trial because of ill health that precluded air travel and the cost of alternative transpor- tation, which could have run upwards of $2,000. The witness was also a complain- ant in one of the alleged assaults and his evidence was considered essential. Several factors are driving the increas- ing use of video testimony. First, the technology is improving. Second, video testimony is often cost effective. Justice Carl Thompson referenced both issues in his seven-page decision. He cited the Crown attorney's affidavit that the video link, between the St. John's and the Halifax provincial courts and provided through Memorial University's professional devel- opment and conferencing services, dis- played a sharp image and that the witness did not express difficulty understanding questions and his answers were clear and unabated. Thompson also determined, "The cost to appear personally is significantly higher than the cost to testify remotely which I understand is approximately $20 per hour." In addition, he pointed to the location of the testimony in the provincial courthouse in Nova Scotia as an important consider- ation. Another critical factor is also at play in the increasing use of video testimony: demeanour. At one time a critical consid- eration for judges and juries, this element is now underplayed. "Jurors are expressly told not to focus on demeanour," says Gover. "There is greater sensitivity that giving testimony can be stressful, and there are cultural differences." Gover also points out that the use of video testimony is becoming common- place outside courtrooms. "We can't lag behind and allow private dispute resolu- tion systems to adopt this process. This could stunt the growth of the common law if important cases are decided privately." — DONALEE MOULTON donalee@quantumcommunications.ca REGIONAL WRAP-UP AT L A N T I C \ AT L A N T I C \ C E N T R A L \ W E S T NOVA SCOTIA TO REDRAFT GROUNDBREAKING CYBERBULLYING LAW I n December, the Supreme Court of Nova Scotia determined the province's Cyber- safety Act violated ss. 2(b) and 7 of the Charter of Rights and Freedoms and struck the legislation down in its entirety. Now, the minister of justice has announced the province is drafting new legislation. "In our new digital world, bullying has gone well beyond the playground. We must continue our efforts to protect victims of cyber- bullying," Justice Minister and Attorney General Diana Whalen said in a release. Whalen also had a very practical problem to grapple with in the wake of Justice Glen McDougall's 65-page decision declaring the legislation — the first of its kind in the country — unconstitutional. This finding effectively called a halt to the work of the province's newly established CyberSCAN investigative unit, what Halifax lawyer David Fraser, who represented the respondent in the constitutional challenge, has called "the cyberbullying SWAT team." The unit was intended to respond to complaints, negotiate resolutions, and, if necessary, seek a cyberbullying prevention order. Now, an announcement on its web page states that the CyberSCAN unit will continue to operate but shift its focus to education and public awareness. "Victims of online bullying can still call us for advice and help to redirect their cases to the appro- priate authority or agency for help. Effective immediately, however, any complaint involving criminal behaviour like harassment or threats will be directed to the police. Police will not deal with cyberbul- lying unless it has a criminal element," the announcement states. Nova Scotia's new act, which may be introduced as early as this fall, promises to address the court's constitutional concerns while ensuring Nova Scotians have a high level of protection when faced with cyberbullies. "We have work to do over the next several months to gather the legal expertise and input needed to make sure the new act is strong, protects the public, and addresses the concerns raised in the court decision," says Whalen. "We want to get this right and that means finding a balance between the important right to freedom of speech and the protection of victims of cyberbullying." Part of that balance will apparently include consulting with Fraser, whose successful Charter challenge put an end to Canada's only provincial cyberbullying legislation, at least temporarily. — DM ation. Ano in the in demean eration is now told no Gover. giving t are cult Gov video te place ou behind tion sys Court reaffi rms importance of video testimony

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