Trials by Zoom shouldn't become normal, judge says
Remote hearings a necessary evil, MPS told
OTTAWA • The COVID-19 pandemic has ushered in a long-delayed technological revolution in Canada’s courts, but judges and other legal experts told MPS on Tuesday that in-person trials must still be resumed as soon as possible.
When the pandemic halted court proceedings in March 2020, hearings were gradually held with a heavy reliance on video streaming and teleconferencing — a massive change for courts across the country that were still largely dependent on paper and fax machines.
But Nova Scotia Supreme Court Justice Mona Lynch, speaking on behalf of the Canadian Superior Courts Judges Association, told the House of Commons justice committee that while some of the technology reforms are long overdue and helpful, the virtual proceedings have also caused a range of new problems.
“A colleague of mine was conducting a family hearing by phone, and one of the parties said, ‘Oh, just a minute,’ ” Lynch said. “There was silence. And then she heard: ‘Can I have a medium double-double?’ ”
She called the incident amusing and “quintessentially Canadian,” but said it also reveals “the lack of respect and attention participants pay when the court proceedings are not in-person, in the courtroom with a judge.”
While access to justice has been improved in some ways by virtual proceedings, Lynch said it also causes problems for those who don’t have good internet access — such as people living in poverty or in rural areas.
And then, of course, there are the kids.
“Not everyone has child care and is able to concentrate solely on a court proceeding when they’re in their home,” Lynch said. “We learned very quickly that when a young child wants a parent, the judge is no longer in charge of the proceeding.”
Furthermore, she said virtual proceedings “do not allow the same back-and-forth with lawyers, and some of the non-verbal cues are missed.”
“So while we want to keep the good (of the technology), we want to stress that in-person hearings are fundamental to the justice system,” Lynch said.
Justice Kristine Eidsvik of the Alberta Court of Queen’s Bench told the committee that courts have been experimenting with different setups during the pandemic, with the biggest challenge being the space requirement for socially distanced jury trials.
“In most jurisdictions now, courtrooms have been built in theatres, convention centres, concert halls, community centres, or like in Calgary, the stampede grandstand,” Eidsvik said. “Rarely are we completely in-person anymore. We have witnesses, complainants, interpreters, and even the accused appearing remotely.”
Jody Berkes, a lawyer speaking on behalf of the Canadian Bar Association, told MPS that despite all the difficulties, the pandemic will have an enduring positive change on the courts.
“There is no turning back from the pandemic-fuelled modernization of the criminal justice system,” he said. “The move to digital courtrooms has enhanced the access to and openness of the justice system.”
As one example, he cited the June 2020 livestream of Ontario Justice Joe Di Luca reading out his ruling that found Toronto police Const. Michael Theriault guilty of assaulting Dafonte Miller, a 19-year-old Black man.
“Over 20,000 people watched that decision,” Berkes said
“Such widespread, first-person access to the justice system would never have occurred pre-pandemic.”
Still, Berkes said the Canadian Bar Association also believes the courts must return to in-person proceedings as quickly as possible.
He said it’s true that conducting hearings over Zoom has some advantages, such as reducing client costs relating to travel and allowing lawyers to assist more clients in different locations. He also said the expanded ability to do electronic filing of documents has reduced costs, increased efficiency and reduced paper waste.
“Despite these efficiencies, civilian witness testimony represents a major drawback of virtual hearings,” Berkes said. He said police and other expert witnesses are at least trained in how to give court testimony, making it easier to do it from different locations. But he said civilian witnesses have a much tougher time giving testimony by video.
“Courtroom testimony requires formality, accuracy and solemnity as opposed to engaging in everyday conversation,” he said. “With the pivot to Zoom trials, witnesses’ courtrooms occur in the same place they have casual conversations with their friends or relatives, such as the dining room table.”
He said even testifying from a controlled environment such as a police station doesn’t have the same effect as doing it from the formality of a courtroom.
“Allowing witnesses to testify remotely is a necessary evil of the pandemic,” Berkes said.
“The alternative would have been to shut down trials for over a year.”