Court File and Parties

Court File No.: CR-24-6372 Date: October 10, 2025 Superior Court of Justice - Ontario

Re: His Majesty the King v. Brian Marbury

Before: Justice I.F. Leach

Counsel:

• Emile Carrington and Jenna Wright, for the Crown
• Kenneth Marley and John Semaan, for the Accused

Heard: September 16, 2025

Endorsement

Introduction

[1] On the second day of the extended jury trial of this matter (i.e., on September 16, 2025, following jury selection but prior to the presentation of evidence), I received submissions from the parties, in the absence of the jury, in relation to:

a. a Notice of Intention delivered by the Crown counsel on August 15, 2025, indicating that the Crown primarily would ask to have two anticipated Crown witnesses testify from outside Canada by video-conference pursuant to s.714.2 of the Criminal Code ("the Code"), failing which the Crown would ask in the alternative to have evidence from those two witnesses presented on the preliminary inquiry into the charges against the accused read into evidence at trial pursuant to s.715(1)(d) of the Code; and

b. a Notice of Response delivered by the defence on September 9, 2025, indicating that it would be seeking an Order dismissing the Crown's request and requiring the witnesses in question to testify in person at trial.

[2] After receipt and consideration of those submissions, and having regard to pressing time constraints of the trial, I indicated that, for reasons to follow, I would be making an Order granting the Crown's s.714.2 request subject to certain specified terms and conditions that would be set out in a formal Order to be released (and which was released) later that day.

[3] These are those reasons.

Further Background

[4] Perhaps it would go without saying, but the relevant background and context for my decision in relation to the Crown's request pursuant to s.714.2 of the Code was and always has remained that presented when the issue was presented for my consideration and determination at the time of submissions on September 16, 2025, without regard to what followed thereafter during the remainder of the trial.

[5] In particular, trial of this matter began with jury selection on Monday, September 15, 2025, and continued thereafter until delivery of the jury's verdict in the late afternoon of Wednesday, October 8, 2025, at which time the accused was found, in relation to the two counts of the indictment, "Guilty of First Degree Murder" in relation to Count 1, and "Guilty of Improperly or Indecently Interfering With or Offering Any Indignity to a Dead Human Body or Human Remains, Whether Buried or Not" in relation to Count 2.

[6] A great deal of further information and evidence accordingly was presented during the course of the trial subsequent to argument of the Crown's s.714.2 request, and prior to my having an opportunity to prepare these reasons following conclusion of the trial; evidence including the entirety of the actual testimony received from the two witnesses who were permitted to testify by videoconference from the United Kingdom pursuant to my ruling on the Crown's s.714.2 request.

[7] However, nothing that transpired after the indication of my ruling in that regard, for reasons to follow, was taken into account at the time of that ruling, or thereafter, in the formation of the reasons for my s.714.2 decision set out herein.

[8] With that important caveat in mind, further background to the Crown's request pursuant to s.714.2 of the Code, and the defence opposition to that request, included the following:

a. The accused in this matter, Brian Aaron Marbury, by way of a two count indictment, had been charged with first degree murder contrary to s.235(1) of the Code, and improperly or indecently interfering with or offering any indignity to a dead human body or human remains, whether buried or not, contrary to s.182(b) of the Code.

b. Both charges related to the accused's wife, Sahra Bulle. It was the Crown's contention that the accused had murdered his wife in a particular room of the Bestway Motel in Windsor, Ontario, and thereafter had taken steps to conceal and dispose of her body, during a specified period in late May of 2023.

c. Pursuant to s.714.2 of the Code, the Crown asked the court to receive evidence at trial via videoconference from two witnesses outside of Canada; i.e., Serah Hamid and her husband Michael Scanlon. In that regard, I received indications from Crown counsel (largely undisputed by defence counsel, apart from suggestions that there was any basis for asserting that there were any health risks associated with Ms Hamid and/or Mr Scanlon attending in person to testify at trial) that included the following:

i. Ms Hamid and Mr Scanlon both had testified at the preliminary inquiry for this matter, under oath or affirmation but by way of videoconference, in the presence of the accused and his counsel.

ii. Ms Hamid and Mr Scanlon both reside ordinarily in the United Kingdom, where both were located at the time of trial.

iii. At the time of the accused's alleged offences, Ms Hamid and Mr Scanlon nevertheless had been visiting Canada; i.e., touring a number of locations across the country (such as the Rocky Mountains and Niagara Falls), which had included a tourist stay in Windsor, Ontario.

iv. From the Crown's perspective, Ms Hamid and Mr Scanlon were important witnesses, whose anticipated evidence would include the following indications:

1. During their visit to Windsor, the two had stayed at the Bestway Motel in a first or ground floor room located directly below the room which, according to other evidence to be presented by the Crown, had been occupied by the accused and Ms Bulle at the time of the accused's alleged offences.

2. Ms Hamid and Mr Scanlon each would be indicating that they heard noises, sounds and voices emanating from the room directly above them, having regard to the direction from which the noises and voices were being heard.

3. The noises, sounds and voices Ms Hamid and Mr Scanlon would describe included words being spoken by a male voice and words uttered by a female voice, which led Ms Hamid and Mr Scanlon to make a complaint to the manager of the motel about what was going on in the room above them, in turn leading to the motel manager taking some action in response.

4. Ms Hamid and Mr Scanlon also would speak to the fact that, although they thereafter continued to stay in the same room of the Bestway Motel for a number of additional days, there was an absence of noises from the room above them after the making of their complaint to the motel's manager.

v. Crown counsel would be arguing at trial that the noises, sounds and voices heard and reported by Ms Hamid and Mr Scanlon, emanating from the room said to be occupied by the accused and Ms Bulle at the Bestway Motel, permitted a strong inference that a violent event had occurred in that room, particularly when the testimony of the "auditory" witnesses Ms Hamid and Mr Scanlon was considered in combination with other evidence the Crown would be presenting; evidence that would include historical information indicating a troubled relationship between the accused and Ms Bulle, as well as other photographs, videos and exhibits suggesting indirect inferences as to what had happened in the relevant Bestway Motel room they had shared. Again, the Crown would be relying on that combined evidence to argue that various inferences should be drawn about what happened in that room at the time of the alleged offences (including serious violence), despite the obvious absence of any direct eyewitnesses in that regard. Without limiting the generality of the foregoing:

1. It would be the Crown's contention at trial that the accused murdered Ms Bulle in the relevant motel room (i.e., the room directly above the motel room occupied by Ms Hamid and Mr Scanlon), at or around the time of the noises, sounds and voices said to have been heard coming from that room by Ms Hamid and Mr Scanlon.

2. In particular, the Crown's theory of the case was that the accused murdered Ms Bulle in the relevant motel room during or immediately after Ms Hamid and Mr Scanlon heard what they heard, with Ms Bulle being rendered either dead or dying, and unable to respond, by the time the motel's manager then attended and appeared outside the room in response to the complaint/report made by Ms Hamid and Mr Scanlon because of what they had been hearing.

3. Ms Hamid and Mr Scanlon therefore were said to be the only "auditory witnesses" available with evidence relating to the most critical point in time in this case, and much in the trial would depend on their evidence as to what they heard and did not hear before and after their complaint/report to the motel manager.

vi. It was noted that, while Ms Hamid and Mr Scanlon had been witnesses willing to testify by videoconference during the preliminary inquiry (at which time they provided evidence by videoconference in the presence of the accused and his counsel, who had and exercised an opportunity to cross-examine them), and remained generally willing witnesses, their testimony at the preliminary inquiry also had indicated that their trip to Canada in May of 2023 was beyond the ordinary for them in a number of ways; i.e., that it was an unusual trip in terms of frequency of occurrence (undertaken for the limited purpose of a tourism visit), and in terms of their ability to make or afford such a trip, insofar as they were not young people but retired or semi-retired, and they had been required to stay at very modest budget hotels such as the Bestway Motel during their trip to Canada.

vii. While the Crown had taken measures to ensure that Ms Hamid and Mr Scanlon were sent subpoenas in relation to the trial, it was recognized that such subpoenas were not binding on Ms Hamid and Mr Scanlon as citizens of the United Kingdom resident in that country, and that the Crown had no ability to compel their provision of in person testimony at the trial of this proceeding in Canada. Moreover, both had indicated only a willingness to testify in the same manner as they had at the preliminary inquiry; i.e., by videoconference. It also was clear that Ms Hamid and Mr Scanlon having to travel from the United Kingdom to Canada to testify in person at trial would entail a cost of many thousands of dollars (e.g., in relation to airfare, accommodation, food and other such travel expenses), which have to be paid by Ms Hamid and Mr Scanlon personally or by the Canadian government (if approved), with a risk that the trial would be delayed and/or disrupted significantly if such arrangements had to be explored, possibly approved, and then possibly made. Any such travel solely for the purpose of testifying at the trial of this matter also would entail the possibility of both witnesses having to testify while suffering from "jet lag" (insofar as time in the United Kingdom was five hours ahead of the time in Ontario), and/or the risk of health complications, given that Ms Hamid and Mr Scanlon were not young. In the result, there admittedly had been no discussion with Ms Hamid and Mr Scanlon attending in person at trial.

viii. If Ms Hamid and Mr Scanlon were permitted to testify by videoconference during the trial of this matter, it was contemplated that would occur through use of the same "Zoom" technology and equipment employed to permit receipt of their testimony by videoconference during the preliminary inquiry; i.e., technology and equipment, overseen and operated by the Registrar of the Court, which had permitted the delivery of videoconference testimony from Ms Hamid and Mr Scanlon via a connection between their home and the courtroom that had proved to be stable, presenting no apparent issues or problems; e.g., in the nature of delays/lags or "glitches". It also was emphasized that the technology and equipment would be tested again, immediately prior to either witness being formally called at trial, to ensure that the same stable and constant Zoom connection had been established and that the trial would not be delayed by any technical issues.

ix. It was emphasized that the same Zoom technology used to facilitate Ms Hamid and Mr Scanlon providing testimony at the preliminary inquiry via videoconference, to be used again at trial in the same manner if permitted, allowed for exhibits to be shown to the witnesses and identified by them via a process of "screen sharing".

x. It was emphasized that nothing to date indicated or suggested that there would be any behavioural issues associated with Ms Hamid and/or Mr Scanlon providing testimony by videoconference, or any concerns about the court's inability to address such issues effectively, if they were permitted to testify by videoconference rather than in person. In particular, it was noted that nothing had occurred during the preliminary inquiry testimony of Ms Hamid or Mr Scanlon presented by videoconference to suggest that either would not follow and abide by court directions, that either would interrupt the court or counsel, that either would refer to any material contrary to provided instructions in that regard, or that either would breach any etiquette or protocol of the court. Moreover, each had testified while alone in a room in their house, without interruption from or interaction with anyone else in the home.

xi. Ms Hamid and Mr Scanlon also had indicated their willingness, despite the five hour time difference between the United Kingdom and Canada, to make themselves available to provide testimony by videoconference during our "regular" court sitting hours here in Canada; i.e., between 10:00am and 4:30pm EST (Ontario time), or between 3:00pm and 9:30pm UTC (United Kingdom time), with Ms Hamid and Mr Scanlon further indicating that, "no matter what happened, they would accommodate the court's desires" in terms of the precise times at which they might be permitted to testify at trial by way of videoconference.

xii. It was contemplated and proposed that, if Ms Hamid and Mr Scanlon were permitted to testify at trial from the United Kingdom via videoconference, they would do so subject to any additional terms and conditions the court considered appropriate, including but not limited to the following:

1. Each would be required swear an oath or make a solemn affirmation at the outset, in compliance with s.714.5 of the Code.

2. Each would be required to confirm that he or she had no documents with them, except for any holy book upon which they desired to be sworn.

3. Each would be advised expressly of the anticipated witness exclusion order to be made in the trial.

4. Each would be required, while testifying, to be alone in a room, in circumstances completely "out of earshot" (i.e., incapable of being overheard), by anyone outside of that room.

xiii. It was also contemplated that the testimony at trial of Ms Hamid and Mr Scanlon would be relatively brief, at least insofar as the Crown's contemplated examination-in-chief of each witness was concerned; e.g., with the Crown contemplating examining each witness for no more than approximately 30-60 minutes.

d. If Ms Hamid and Mr Scanlon were not permitted to testify at trial from the United Kingdom via videoconference pursuant to s.714.2 of the Code (with their appearance to testify in person at trial being rendered unlikely owing to the considerations set out above), the Crown would seek to have their evidence given on the preliminary inquiry admitted as evidence at trial pursuant to s.715(1)(d) of the Code; i.e., insofar as that preliminary inquiry evidence had been taken in the presence of the accused (with the accused and his counsel having a full opportunity to cross-examine in that regard), and Ms Hamid and Mr Scanlon were now "absent from Canada". Crown counsel clarified and confirmed that the Crown, in that event, would be seeking only to "read in" evidence from the transcript of testimony given at the preliminary inquiry by Ms Hamid and Mr Scanlon; i.e., rather than asking to play any video recording of their testimony in that regard.

Party Positions

[9] I turn next to a broad outline of the parties' respective positions in relation to the requests made by the Crown and defence opposition in that regard.

Crown's Position

[10] General points advanced by Crown counsel in support of its primary request to have Ms Hamid and Mr Scanlon testify at the trial from outside Canada by videoconference, pursuant to s.714.2 of the Code, included the following:

a. It was emphasized that the wording of s.714.2 was mandatory (barring any demonstration that receiving the trial testimony of Ms Hamid and Mr Scanlon would be contrary to the principles of fundamental justice), and reflected one aspect of a very deliberate objective emphasized by our courts and embraced broadly by legislators; i.e., an objective favouring efficiency, the saving of costs and the avoidance of procedural delay in relation to criminal proceedings.

b. It was argued that nothing in the proposed reception of testimony of trial testimony from Ms Hamid and Mr Scanlon via videoconference would be contrary to principles of fundamental justice. Without limiting the generality of the foregoing:

i. It was emphasized that this was not a case involving the Crown seeking to invoke s.714.2 of the Code to facilitate testimony by videoconference from a witness normally resident in Canada and only temporarily absent from the country, and/or a witness who had left the country temporarily despite knowing the approaching dates of a criminal trial at which his or her evidence would be required, and/or after deliver of a subpoena, thereafter seeking to testify by videoconference as a mere matter of preference and convenience. Ms Hamid and Mr Scanlon were ordinarily resident in the United Kingdom (notwithstanding their unusual presence in Canada and Windsor in particular at the time of the alleged events underlying the charges against the accused), and naturally had returned to their home in England after their visit to Canada as tourists. Moreover, they had done so before they, the police or the Crown had realized that Ms Hamid and/or Mr Scanlon might be possessed of evidence relevant to the missing person and subsequent murder investigation relating to Sahra Bulle that evolved over time in relation to this case.

ii. Although the Crown admittedly had not indicated any intention to make a request pursuant to s.714.2 or s.715(1) at the time of the judicial pretrial held in relation to this matter, and did not serve its s.714.2(2) notice of intention until one month before the scheduled commencement of trial, counsel emphasized that did not reflect any intentional delay or other effort by the Crown to obtain any sort of tactical advantage in that regard. Failure to address the s.714.2 issue earlier was instead an oversight resulting from inadvertence by the retiring Crown attorney with previous carriage of this matter, and an oversight addressed and remedied as soon as carriage of the matter was assigned to new Crown counsel. Moreover, the notice delivered by the Crown was still more than compliant with the requirements of s.714.2, which merely required delivery of such notice no less than 10 days before a relevant witness outside Canada was scheduled to testify.

c. Permitting Ms Hamid and Mr Scanlon to testify at trial by videoconference from outside Canada was said to be particularly appropriate, having regard to considerations such as the following:

i. the considerable distance they would have to travel to appear in person from a jurisdiction thousands of miles and multiple time zones away;

ii. the Crown's inability to compel their personal attendance at trial, with a corresponding risk that their admittedly crucial testimony might be lost if they were not permitted to testify by way of videoconference as requested;

iii. the ability demonstrated at the preliminary inquiry to have Ms Hamid and Mr Scanlon provide testimony and undergo cross-examination by videoconference in this proceeding with any technical or other difficulties being encountered;

iv. the absence of any defence suggestion that provision of such testimony by videoconference at the preliminary inquiry had compromised the accused's ability to make full answer or defence, or was contrary to the principles of fundamental justice; and

v. the preferability from a truth seeking perspective of having Ms Hamid and Mr Scanlon testify in a live and interactive manner, both in chief and in cross-examination and possibly reply, compared to the possible alternative of having their static testimony from the preliminary inquiry "read in" at trial pursuant to s.715(1) of the Code.

d. Although the contemplated testimony of Ms Hamid and Mr Scanlon was contentious, there was nothing in the provisions or interpretation of s.714.2 to suggest that the contentious nature of contemplated evidence per se was a factor to be considered in the section's application.

Defence Position

[11] General points advanced by defence counsel, in opposition to the Crown's request, and in support of the defence position that the court's reception of the contemplated testimony of Ms Hamid and Mr Scanlon in this case by videoconference would be contrary to the principles of fundamental justice, included the following:

a. It was emphasized that, although the defence had consented to Ms Hamid and Mr Scanlon testifying by videoconference at the preliminary inquiry, there had been no suggestion whatsoever that such consent would extend in any way to Ms Hamid and Mr Scanlon testifying at trial, before the ultimate trier of fact (i.e., the jury), in the same manner.

b. It was noted (albeit as a minor concern) that Ms Hamid was found to have a copy of her statement to the police with her when she testified at the preliminary inquiry, although defence counsel conceded that was a matter that likely could be addressed by more specific court direction.

c. It was emphasized that the Crown, while admittedly complying with the formal requirements of s.714.2(2), had mentioned nothing, at the judicial pretrial of this matter, of any intention to ask that Ms Hamid and/or Mr Scanlon be permitted testify at trial by videoconference from the United Kingdom, pursuant to s.714.2 of the Code, and that the Crown apparently had not given any thought to the possibility of making arrangements to have Ms Hamid and Mr Scanlon appear in person at trial. In that regard, it was emphasized that the Crown's s.714.2 request was being addressed on the second day of what was scheduled to be a four week trial; i.e., such that there might still be sufficient time for the making of suitable arrangements to have Ms Hamid and Mr Scanlon brought to Canada in order to testify in person at trial.

d. It was acknowledged that 21st century court proceedings in Canada had transitioned into a "Zoom age", where such videoconferencing technology had improved and its use by courts and our criminal justice system in Canada was now common and prevalent. However, it was argued that the testimony of Ms Hamid and Mr Scanlon was problematic in various ways, but central to the Crown's theory of the case in relation to what was arguably the most serious offence in our system of criminal justice, such that the principles of fundamental justice and a fair trial required an in person attendance of those witnesses to enable a proper assessment of their credibility and reliability by the jury. In that regard, reliance was place on judicial comments, such as those in R. v. J.D., 2022 ONSC 2540, at paragraph 7, disagreeing with suggestions that the ability to observe a witness on a television, monitor or computer screen might be superior to in-person observations; e.g., opining that facial expressions observed electronically might be "every bit as good as those seen in the courtroom", but that "overall demeanour and body language" are more readily observed in person.

e. If Ms Hamid and Mr Scanlon were permitted to testify at trial by way of videoconference, it was submitted that would need to be subject to terms and conditions designed to prevent any possible intended or unintended witness collusion or other potential improprieties and concerns; e.g., by requiring each witness to testify alone in a room at a courthouse or police station, and more generally with no one else present and no reference material with them. In that regard, it was suggested that nothing short of requiring each witness to testify in an objectively controlled environment, such as a courthouse or police station, should suffice or be regarded as acceptable.

f. It was emphasized that, if the court was disposed to grant either of the Crown's requests in relation to the evidence of Ms Hamid and Mr Scanlon, pursuant to either s.714.2 or 715(1), it definitely should grant the former rather than the latter; i.e., so as not to deny the defence the right of interactive cross-examination before the jury.

Code Provisions and General Principles

[12] Before returning to my assessment of those competing positions, and my reasons for granting the Crown's s.714.2 request in this specific case, I pause to note the provisions of the Code governing the Crown's requests, and general principles governing the interpretation and application of s.714.2 of the Code in particular.

Code Provisions

[13] While there are other provisions in the Code addressing other aspects of such requests (and I have regard to all such provisions), for present purposes I think it sufficient to note expressly the text of ss.714.2 and 715(1) of the Code, which read in part as follows:

714.2. VIDEOCONFERENCE – WITNESS OUTSIDE OF CANADA

(1) A court shall receive evidence given by a witness outside Canada by videoconference, unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice.

(2) A party who wishes to call a witness to give evidence under subsection (1) shall give notice to the court before which the evidence is to be given and the other parties of their intention to do so not less than 10 days before the witness is scheduled to testify.

715. EVIDENCE AT PRELIMINARY INQUIRY MAY BE READ AT TRIAL IN CERTAIN CASES

(1) Where, at the trial of an accused, a person whose evidence … was taken … on the preliminary inquiry in the charge … (d) is absent from Canada, and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

[14] As noted above, the Crown in this case served notice as required by s.714.2(2) of the Code on or about August 15, 2025; i.e., a month before the scheduled and actual commencement of the trial of this matter, and therefore clearly more than 10 days before Ms Hamid and/or Mr Scanlon would be scheduled to testify at trial.

General Principles

[15] General principles and judicial observations relating to the interpretation and application of s.714.2 of the Code include the following:

a. The wording of s.714.2 of the Code dealing with the possibility of testimony by videoconference from a "Witness Outside Canada" stands in marked contrast to the wording of s.714.1 of the Code dealing with the possibility of testimony by audioconference and videoconference from a "Witness Inside Canada", and reflects a clear intention by Parliament that the two situations be approached differently. In particular:

i. Pursuant to s.714.1 of the Code, the court "may order that a witness in Canada give evidence by audioconference or video conference" (emphasis added), "if the court is of the opinion that it would be appropriate having regard to all the circumstances" (emphasis added), including: the location and personal circumstances of the witness; the costs that would be incurred if the witness were to appear in person; the nature of the witness' anticipated evidence; the suitability of the location from where the witness will give evidence; the accused's right to a fair and public hearing; the nature and seriousness of the offences; and any potential prejudice to the parties caused by the fact that the witness would not be seen by them, if the court were to order the evidence to be given by audioconference.

ii. In contrast, s.714.2 of the Code is written in mandatory language, and presumptively grants a party (either the Crown or the accused) whose witness is outside Canada, the ability to introduce the evidence of that witness by videoconference; i.e., insofar as s.714.2(1) of the Code indicates that a court "shall receive evidence given by a witness outside Canada by videoconference, unless one of the parties satisfies the court that the reception of such testimony would be contrary to the principles of fundamental justice". (Emphasis added.)

iii. The mandatory terms of s.714.2 are said to "reflect the reality that a potential witness who is out of the country cannot be compelled to return to Canada to testify", and Parliament's intention to provide an efficient way of obtaining the testimony of such witnesses. The legislation also seeks to address the costs (to witnesses and to the general public), inconvenience and disruption caused to the lives of witnesses upon whom our legal proceedings depend. In particular, where proposed witnesses are outside Canada, Parliament has assumed, not unreasonably, that such costs, inconvenience and disruptions are likely to be greater. The provisions also reflect an acceptance by Parliament that technology now has advanced to a point where the reception of testimony by videoconference is assumed to be easily accomplished at a high quality level, capable of offering a reasonable and adequate substitute for the more traditional "in person" form of trial testimony; a reality reflected in the increasing use of video technology for the administration of the criminal justice system across Canada and internationally, especially having regard to the improvements to such technology made in the wake of the COVID-19 pandemic. Hence, the higher and "significantly more stringent" standard or threshold that must be met if a request for receipt of testimony by videoconference is to be resisted in such circumstances.

iv. Whereas a party proposing to have a witness within Canada provide testimony by audioconference or videoconference is required to bring an application in that regard, and persuade the court that granting an Order pursuant to s.714.1 of the Code is appropriate, a party proposing to have a witness outside of Canada testify by videoconference need only give the notice required by s.714.2(1) in that regard, following which the party opposing the reception of such evidence by videoconference has the onus of satisfying the court that use of the procedure would be contrary to the principles of fundamental justice, on a balance of probabilities standard.

b. Opposition to evidence being received from witnesses outside Canada by videoconference, based on assertions that the reception of such testimony would be contrary to principles of fundamental justice, often focuses on concerns related to suggested impairment of a trier's ability to assess the credibility and reliability of a witness testifying by videoconference rather than in person. In that regard:

i. Such concerns about assessment of witness credibility usually relate to suggestions that provision of testimony by videoconferencing deprives the court and the parties of the ability to observe the entire physical demeanour of a witness during his or her testimony, thereby impairing the ability to assess the credibility of a witness testifying in such a manner. However:

1. As we routinely instruct our juries, it would be a mistake to conclude that a credibility assessment depends solely on in-person observations of physical demeanor of a witness.

2. It should be remembered that, in enacting s.714.2 of the Code, Parliament did not create any exception to be applied to "key witnesses", or cases where credibility is at issue. It also should be remembered that the receipt of such testimony by videoconference has been presumptively authorized by Parliament. While every case depends on its facts, it would be an error to approach the required analysis from a perspective that mere existence of credibility issues somehow alters the nature of the analysis required. It does not.

3. In enacting s.714.2 of the Code, Parliament also did not create any exception to be applied based on the nature of the charge or charges facing an accused, or the extent to which that a charge faced by the accused may be regarded as more serious than others. In that regard, it should be noted that s.714.2 of the Code has been employed to facilitate the provision of testimony by videoconference in trials addressing charges up to and including first degree murder.

4. As noted above, s.714.2 presumptively grants a party the right to tender witness evidence through videoconferencing unless it is shown to be contrary to principles of fundamental justice. While the requirements of fundamental justice embrace the requirements of procedural fairness (at a minimum), the entitlement to procedural fairness and to make full answer and defence do not entitle an accused to "the most favourable procedures that could possibly be imagined".

5. Moreover, the jurisprudence now clearly establishes that, while in-person confrontation of witnesses may be desirable, it is not a principle of fundamental justice. Nor is it necessary to ensure the right to a fair trial or to properly assess the credibility and/or reliability of a witness. The right to full answer and defence also does not entitle an accused to be in the same physical space or courtroom with a witness, even when the credibility of that witness is in issue. There are many ways in which an accused's ability to physically confront and assess the demeanor of a witness are curtailed in the criminal justice system; e.g., through the use of interpreters, in situations where a witness has a physical or medical limitation making it difficult to assess his or her demeanor (such as a stroke affecting facial expressions or a speech impairment), the s.715(1) ability to admit a transcript of evidence of a witness unable to attend trial because of death, intervening insanity, a health disability preventing travel or testimony, and/or absence from Canada, the power conferred on courts to permit even material witnesses to give evidence by telephone or videoconference, and the multitude of exceptions to the hearsay rule. While the physical presence of a witness at trial may be desirable, it has never been the only means of obtaining evidence for purposes of a fair criminal trial. Moreover, courts repeatedly have held that the development and current state of video technology permits effective cross-examination of witnesses.

6. Many courts also have opined that evidence received by videoconferencing arguably enhances, rather than impairs, the ability to assess the credibility of a witness (e.g., offering advantages such as enlarged, close-up and direct views of a witness, rather than observations made from a distance at oblique angles), such that we "can no longer hide behind our belief" that truth can be discovered "only in the face-to-face confrontations of the courtroom". The court also has the ability to impose terms and conditions upon the receipt of testimony received pursuant to s.714.2 of the Code; e.g., to include requirements that the equipment and technology to be used meets the standards necessary for a fair trial, to require that the party seeking to present testimony using such equipment and technology test and ensure its audio and video adequacy with the involvement of the opposing party if and as necessary before its anticipated use at trial (i.e., prior to the relevant witness being called), and to emphasize the court's ability (already confirmed by s.714.41 of the Code), to terminate the use of such videoconferencing at any time and take any measure the court considers appropriate in the circumstances to have the witness give evidence.

7. For such reasons, bald assertions of concern that the receipt of testimony by videoconferencing will have a negative impact on ability to assess the demeanor and credibility of a witness generally will not suffice to deny the receipt of testimony by videoconference pursuant to s.714.2 of the Code.

8. To the extent concerns have been expressed that a witness outside the jurisdiction may take an oath or affirmation less seriously in the absence of enforceable perjury sanctions, Parliament must be taken to have considered that such concerns were not determinative when enacting s.714.2 of the Code, and other courts have emphasized that it is the very essence of an oath or solemn affirmation that it binds the conscience of a witness even in the absence of temporal sanctions.

ii. Concerns about assessment of witness reliability, if a witness is permitted to provide testimony by videoconference, usually relate to suggestions that provision of evidence in that manner may create difficulties or concerns which the court has less ability to monitor and/or control than it does when a witness is testifying in person. For example, it has been suggested that allowing a witness to provide evidence by videoconference creates the potential for a witness to be uncooperative or otherwise undermine the dignity and solemnity of proceedings in a manner the court may not be able to address and control sufficiently (e.g., through contempt or perjury sanctions), may make it more difficult to detect and prevent "off-screen" coaching and/or intimidation of a witness or their improper resort to materials and/or other sources of information, limit or prevent the ability of a court to know and control what a witness does and/or whom a witness speaks to during breaks in his or her testimony, or otherwise ensure the integrity and suitability of the site from which such evidence is being provided by videoconference. However, courts repeatedly have addressed such concerns through the imposition of terms and conditions, and other possible remedies. In that regard:

1. While it is true that difficulties may be encountered if a witness permitted to testify by videoconference fails to answer proper questions or is otherwise uncooperative, such arguments are frequently premature. Without any reason to believe that a witness testifying by videoconference will be uncooperative, such issues generally should be left to be addressed if and when they arise. In particular, the mere fact that such difficulties may arise is not regarded as a principled reason to refuse the receipt of testimony by videoconference pursuant to s.714.2 of the Code. If such difficulties do arise, they can be met during the course of receiving such evidence by videoconference, up to and including a court direction that the procedure be discontinued, that the evidence of the witness be accorded no weight, and/or that the witness attend to testify in person if his or her evidence is to be considered.

2. Courts have held that it is the responsibility of the party calling a witness, permitted to testify by videoconference pursuant to s.714.2 of the Code, to ensure that reasonable steps are taken to maintain the dignity and solemnity of the proceedings, as well as the suitability of the site from which such evidence is received by videoconference and the equipment being used in that regard. If such standards required for a fair trial are not maintained, the court has the ability to discontinue use of the videoconferencing procedure, and attribute any resulting delay to the proceeding to the party who has failed to meet the court's expectations.

3. Concerns relating to the potential for off-screen coaching and/or intimidation of a witness generally go to the merits of the legislative policy underlying Parliament's enactment of s.714.2 of the Code, and not to the court's discretion to exclude evidence proposed to be tendered by videoconference. Moreover, courts have the ability to give directions, and impose terms and conditions governing the receipt of testimony by videoconference pursuant to s.714.2 of the Code, including but not limited to the making of any directions necessary to ensure the witness testifies from a room where he or she is alone and without improper or unauthorized access to any reference material, to control the camera angle and depiction of the witness, and/or to regulate the conduct of the witness during breaks. In that regard, it nevertheless also should be borne in mind that s.714.2 does not impose a requirement that a witness outside of Canada must testify in a courtroom or any other specific type of building or environment; such a witness may testify from his or her home.

4. Bald assertions that the receipt of testimony by videoconference will impair assessment of the reliability of a witness therefore generally are not entertained without actual evidence that such concerns are a "live issue" in the case, and/or without consideration as to whether the court's imposition of appropriate terms and conditions would suffice to address any such potential concerns.

iii. When considering whether or not the reception of testimony from a witness outside Canada pursuant to s.714.2 of the Code would be contrary to the principles of fundamental justice, it also needs to be remembered that those principles are not focused solely upon the interests of the accused person but also consider the broader question of fairness having regard to the court's truth-seeking exercise, and the need to balance both public and private interests, including those of victims and witnesses. What might be described as the "convenience" of a witness outside of Canada also enters into that analysis to the extent that the prospect of losing access to the evidence of such a witness is one that the court must consider in relation to the principles of fundamental justice.

iv. While due regard to the principles of fundamental justice may include the court refusing to countenance an abusive or cavalier resort to s.714.2 of the Code (e.g., to address a situation where a witness ordinarily resident in Canada has made a deliberate choice to leave the country for a brief period for business or pleasure despite the witness having knowledge of a pending trial at which the witness is expected to testify, a situation where the Crown has deliberately delayed giving notice to the defence of an intention to call testimony from a witness outside of Canada by videoconference, or a situation where the Crown has been negligent in serving a subpoena on a witness ordinarily resident in Canada before the witness has temporarily left the country so as to make the Crown the author of its own misfortune in failing to issue a subpoena sooner), taking the situation outside the "spirit and intent" of s.714.2 or otherwise making a mockery of the justice system and principles of fundamental justice, a reasonable basis must be established by the party opposing the receipt of testimony by videoconference pursuant to s.714.2 to substantiate any such concerns.

v. It also should be remembered that, while it may be preferable for the court to receive testimony from a witness outside of Canada in person (especially an important witness whose credibility and reliability are in issue), and "in person" testimony rather than remote testimony remains the norm and the "gold standard", that does not make receipt of testimony from such a witness by videoconference something contrary to the principles of fundamental justice for the purposes of s.714.2; i.e., as in-person testimony from such a witness is not necessary to ensure a fair trial, and in many cases "in person" and remote testimony are functionally equivalent.

Assessment and Reasons for Decision

[16] With the provisions of s.714.2 and such principles in mind, I turned to their application in this specific case.

[17] In this case, the reasons for my granting the Crown's s.714.2 request in relation to the contemplated trial testimony of Ms Hamid and Mr Scanlon included the following:

a. Not only were Ms Hamid and Mr Scanlon witnesses "outside Canada", thereby satisfying the substantive textual requirements of s.714.2(1) of the Code giving rise to a presumptive ability of the Crown to present their trial testimony by videoconference, but they also were resident outside of Canada ordinarily, in the United Kingdom. There was absolutely nothing in the circumstances of this case to suggest that they were ordinarily resident within Canada, only temporarily absent from Canada (for reasons of business, pleasure or some other rationale), or had left Canada knowing that their testimony would be required in this proceeding; i.e., such that resort was being made to s.714.2 only as a matter of convenience or similar abuse of process, in a manner that might be regarded as undermining the principles of fundamental justice. In my view, the circumstances presented herein fell within the "spirit and intent" of s.714.2, and represented precisely the sort of situation the provisions of s.714.2 were designed to address; i.e., where Parliament contemplated use of such provisions as an efficient means of obtaining and presenting testimony of potential witnesses who are out of the country and cannot be compelled to return to Canada to testify.

b. The Crown had served the notice required by s.714.2(2) of the Code (serving it not just 10 days but 30 days before the commencement of the trial herein and any possible scheduled appearance of Ms Hamid and/or Mr Scanlon as trial witnesses), thereby satisfying the procedural requirements of s.714.2. Moreover, in my view no reasonable basis had been established by the defence (which bore the relevant onus in that regard) to support any suggestion that the Crown had deliberately delayed service of its s.714.2(2) notice or otherwise intended any abuse of process in a manner that might be regarded as undermining the principles of fundamental justice. It also was difficult to see how the timing of the Crown's notice had prejudiced the defence in any way; e.g., insofar as the manner by which Ms Hamid and/or Mr Scanlon would be testifying would not affect preparation of the substantive cross-examination contemplated by the defence in relation to either witness, and the defence was left with ample time (and certainly significantly more time than the minimum 10 days required by Parliament) to prepare its contemplated opposition to the Crown's s.714.2 request.

c. I readily accepted that any consent by the defence to having Ms Hamid and Mr Scanlon testify by videoconference at the preliminary inquiry was not meant to carry over to the trial of this matter, and should in no way have been construed as any form of waiver or estoppel in terms of the ability of the defence to oppose the Crown's s.714.2 request to have Ms Hamid and Mr Scanlon testify at trial by way of videoconference. Not only was there nothing to suggest that the defence had intended the consent in that regard provided at the preliminary inquiry to extend to the trial per se, but the two contexts presented different considerations, including possible defence concerns (raised during the s.714.2 submissions presented for my consideration) about the impact (if any) the manner of presenting testimony from Ms Hamid and Mr Scanlon might have on the trier's assessment of their credibility and reliability.

d. Having said that, the fact that Ms Hamid and Mr Scanlon presented their testimony at the preliminary inquiry by videoconference from their home in the United Kingdom, without any apparent technical issues (in relation to connection stability, clarity of audio-video presentation, or ability to share and display documents electronically for review), without any apparent interruptions, without any suggestion of problems relating to witness cooperation or failure to abide by the court's directions or standards of decorum, and without incurring any delay or significant expense, provided a very tangible demonstration of how the testimony of Ms Hamid and Mr Scanlon could be presented readily at trial by videoconference, and allow for proper and unhampered cross-examination to the extent desired by the defence, without causing any disruption, inordinate delay, significant expense, or any other apparent concerns.

e. It was not disputed that the anticipated trial testimony of Ms Hamid and Mr Scanlon was extremely relevant and important to a just determination of the substantive issues raised by the trial. Indeed, the defence highlighted the importance of testimony of Ms Hamid and Mr Scanlon as a consideration which, in the submission of the defence, militated strongly in favour of such trial testimony being presented only in person at trial; i.e., so that the defence could confront such witnesses and challenge their testimony directly, and have their credibility and reliability assessed directly by the jury, as a suggested means of promoting a fair trial and full answer and defence from the defence perspective. However, as noted above, such direct witness confrontation and direct credibility and reliability assessment are not components of the fundamental principles of justice, whereas the possibility of highly relevant and important evidence effectively being lost and undermining the court's truth-seeking function is a relevant concern in that regard. In this case, the Crown had no ability to compel the return of Ms Hamid and/or Mr Scanlon to provide testimony in person at trial. Any suggestion of their returning to Canada at their own expense (i.e., personally incurring the significant airfare, ground transport, accommodation, food and other expenses inevitably necessitated by such an in person attendance), no doubt would have acted as a significant financial disincentive to their doing so. Any suggestion of the Canadian public effectively incurring such an expense (especially in relation to witnesses whose respective testimony in chief was intended to last no more than 30-60 minutes), seemed antithetical to Parliament's underlying purpose in enacting s.714.2; a purpose which, as noted above, included the intended promotion of efficiency and cost reduction. Even if approval to have the Canadian government or public incur such expenses was obtained, there was nothing to indicate that Ms Hamid then would be able and willing to return to Canada, or do so in time to appear at the scheduled trial without the risk of disruption or delay.

f. I was not persuaded that the credibility or reliability assessment issues suggested by the defence created any concerns sufficient to suggest that permitting Ms Hamid and Mr Scanlon to testify at trial by videoconference would otherwise be contrary to the principles of fundamental justice, in terms of compromising an assessment of their credibility and reliability. Without limiting the generality of the foregoing:

i. Experience had shown that Zoom facilities at the Windsor courthouse were sophisticated. Images of any witness testifying by Zoom would be presented in high definition, via the anticipated stable Zoom connection, on a number of very large screens visible to every member of the jury, in addition to the monitors also making any such witness visible to counsel, myself and other members of the court staff and members of the public in attendance. Multiple microphones around the courtroom also would enable fully interactive communication with any such witness by all concerned, including defence counsel conducting cross-examination of such a witness.

ii. Such high quality videoconferencing was commonly used for criminal proceedings conducted via Zoom at the Windsor courthouse and, as noted above, would offer a reasonable and adequate substitute for more traditional "in person" testimony. While such a presentation of testimony was unlikely to permit a complete assessment of "overall demeanor and body language", in my view (and with respect), the importance of such considerations in relation to assessment of credibility was exaggerated in defence counsel submissions, and/or would be offset by the enhanced and enlarged view the jurors would have of the upper body movements and facial expressions of Ms Hamid and Mr Scanlon while they were testifying.

iii. As also noted above, the fact that credibility and reliability of Ms Hamid and Mr Scanlon were in issue, that their contemplated testimony was contentious, and that "in person" testimony may have been preferred or the "gold standard", were not sufficient considerations individually or collectively to support a finding that permitting Ms Hamid and Mr Scanlon to testify by such videoconferencing would compromise the accused's right to a fair trial, make full answer and defence, or be contrary to the principles of fundamental justice. Nor did the seriousness of the charges faced by the accused support such a conclusion, or any finding that use of s.714.2 was inappropriate in the case of an accused charged with first degree murder.

iv. While I agreed that permitting remote videoconference testimony from Ms Hamid and Mr Scanlon inherently gave rise to possible concerns about matters such as the court's ability to ensure that such testimony came without interruption, coaching, intimidation, improper resort to reference materials, and/or improper discussion of testimony (including but not limited to the possibility of Ms Hamid and/or Mr Scanlon speaking with others while under cross-examination and/or in contravention of the witness exclusion order, especially since they were married to each other and living in the same residence in England), it seemed to me that such concerns likely were capable of being addressed adequately by the imposition of terms and conditions imposed as a condition of the court receiving such testimony by videoconferencing, especially since the provision of such testimony by videoconferencing at the preliminary inquiry apparently had given rise to no notable concerns in that regard. Moreover, if such concerns materialized unexpectedly, the court did not lack other methods of addressing such concerns; i.e., by terminating the use of such videoconferencing, directing that the testimony provided up until that point be disregarded or given no weight, and other alternatives to address any manifested issue by way of appropriately targeted and suitably fashioned responses. Defence counsel also would have the ability to expressly question Ms Hamid and Mr Scanlon about the possibility of any discussion between them and/or with others regarding their testimony, supplemented by possible argument about any perceived collusion or tailoring of evidence that might be evident from the substance of the testimony provided by Ms Hamid and Mr Scanlon, all of which would allow the jury to make its own assessments in that regard.

v. In my view, permitting Ms Hamid and Mr Scanlon to testify at trial by videoconference in an interactive manner (particularly during cross-examination) would be far more conducive to the accused's ability to make full answer and defence than confining the accused to a reading in of the testimony provided by each witness during the preliminary inquiry, pursuant to s.715(1) of the Code. Doing so similarly would be preferable, in terms of furthering the court's truth-seeking function, to having the jurors attempting to make credibility and reliability assessments from a static and sterile reading in of transcribed testimony from the preliminary inquiry.

vi. On the whole, I accordingly was of the view that the defence had not established that the reception of trial testimony from Ms Hamid and Mr Scanlon by videoconference would be contrary to the principles of fundamental justice, and that the Crown's presumptive ability to present such testimony by videoconference pursuant to s.714.2 therefore had not been displaced.

Conclusion

[18] For the above reasons, I decided that the court should receive evidence given by Serah Hamid and Michael Scanlon, Crown witnesses outside Canada and in the United Kingdom, via videoconference pursuant to s.714.2 of the Code, subject to the following terms and conditions set out in my formal Order made on September 16, 2025:

a. Each of the witnesses was to be advised of the witness exclusion order made in this proceeding.

b. Each of the witnesses was to testify from a private room where he or she was to be alone while testifying, in a location ensuring:

i. that she or he could establish a videoconference link between the courtroom and the said private room, and those locations alone, by way of a stable and reliable high speed internet connection;

ii. that she or he would be free from interruptions and distractions while testifying; and

iii. that her or his voice, and the voices of others being transmitted during the videoconference, were incapable of being heard by anyone outside that private room.

c. After the video-conference link between the courtroom and the said private room had been established in relation to each witness, but before the witness began testifying, and at any other time while the witness was testifying when requested to do so by the trial judge, the witness would be required to move the camera on the device she or he was using to demonstrate that no one else was present with the witness in the said private room. The camera on the device the witness was using otherwise was to remain in a stable and fixed position while the witness was testifying, and the witness was to remain on camera at all times during her or his testimony, in a manner permitting her or his face to be seen clearly at all times.

d. After the video-conference link between the courtroom and the said private room had been established in relation to each witness, but before the witness began testifying, she or he also was to confirm the documents in her or his possession to which he or she had access in the said private room. While the witness was testifying, she or he was not to review any documents or other sources of information other than those which might be put to the witness expressly during examination-in-chief, cross-examination or re-examination which the witness was expressly asked to review.

e. All electronic devices in the said private room other than the device being used by each witness to give evidence by videoconference, including but not limited to any mobile phone or phones, were to be turned off while the witness was testifying.

f. While testifying, neither witness was to use the keyboard, mouse or trackpad of the device she or he was using to give evidence by videoconference.

g. Neither witness was permitted to interact with anyone during any recess or recesses occurring during the giving of his or her evidence.

h. Each witness was to be warned that no recording of the hearing is permissible.

[19] My Order nevertheless also expressly indicated that nothing herein was to restrict the ability of the court, at any time, pursuant to section 714.41 of the Criminal Code, to cease use of the technological means associated with the aforesaid provision of evidence by videoconference and take any measure the court considered appropriate in the circumstances to have the witness give evidence.

[20] As the Crown's primary request to have the court receive the evidence of Ms Hamid and Mr Scanlon by video conference pursuant to s.714.2 of the Code was granted, there was no need to consider the Crown's alternative request made pursuant to s.715(1) of the Code.

Ian F. Leach Justice I.F. Leach

Date: October 10, 2025