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A motion by one party to take part in the trial and testify, solely by electronic hookup from another province, failed. The trial judge's reasons for denying the request are lengthy, thoughtful, and appear to be well researched. The reasons reveal many more relevant considerations than one might think of on one's own. The decision is well worth reading. It is Hamilton v. Kosc 2026 ABKB 227 (Mar 24).

The decision properly concludes that letting a plaintiff or defendant testify remotely is much less desirable where that party's evidence will be very important and where credibility will be a big issue.

But the decision states that physical presence and demeanor are not that big an element in deciding credibility. I would give more weight to “demeanor” when the person attending remotely is the plaintiff or the defendant.

First, credibility is not the only issue. If the witness is also a party, and the alleged actions and motivation of that party are important elements in the suit, then his or her actions and motives are also in issue. So seeing that party up close becomes even more important for those fact findings, than for credibility alone.

Second, courts constantly say that a trial judge who has seen and heard the witness has a great advantage over an appeal court which has not. That is not the only reason for appellate deference, but it is probably the most important one.

Furthermore, when credibility or motivation are in issue, then spontaneity is critical. It is very easy to cheat when one answers questions on an electronic hookup. Especially if one answers from a room of one's own choosing and control. The judge and counsel hundreds of miles away have no idea who else and what other prompting aids are present, and whether the party/witness is largely a ventriloquist's dummy. They do not know what electronic hookups or other connections to warnings and advice are present. Getting coached during adjournments or interruptions of cross-examination then becomes natural and easy. I believe that this trial judge was aware of all that, but the reasons for decision do not clearly explain or emphasize that.

During the Covid epidemic and for some years after, many persons appearing “before” Canadian Parliamentary committees testified and were cross-examined remotely from their own home or office, or other undisclosed location. Cross-examination and clarity often failed.

I am told that when university or professional examinations are to be taken on line, often the examining body has someone inspect or provide the room where the candidate is, and ensures that no other person or source of information or advice is present or connected.

People sometimes forget that a trial is a psychological confrontation among counsel, the parties, the witnesses, and the judge. A judge or counsel a few feet away often dominates. It is harder to lie in public to trained counsel with an experienced judge presiding. And much easier to lie to some talking head a thousand miles away, in another province outside the trial judge's control. And as the justice says in this case, the plaintiff chooses the forum, and the defendant usually acquiesces in it.

– Hon. J.E. Côté

EVIDENCE FROM TALKING HEADS