Videoconferencing Technologies and How It Challenges the Fundamental Tenets of Our Criminal Justice System in Canada
Since the onset of COVID-19 and the requirements for physical distancing, the Canadian court system has been criticized for being archaic, outdated, out of touch with the modern era and too deeply traditional. Most commentators have vigorously pushed for our criminal courts to utilize videoconferencing technologies to deliver justice – arguing that using videoconferencing technology platforms to conduct court business will be more beneficial to Canadians, ease the growing backlog of cases, reduce cost and improve access to justice.
As a result, courts across Canada have increasingly accepted videoconferencing technology as a fair and efficient way to move judicial proceedings forward in the face of the pandemic, stating that this is a watershed moment when the highly conservative court system is finally catching up with the future and that COVID-19 has completely changed the judicial landscape, see Arconti v. Smith, 2020 ONSC 2782, R v Roberts, 2020 ABPC 99, Rodrique Levesque et al v. Syngenta Canada Inc. et al 2020 NBQB 209 , and Hudema v. Moore, 2020 BCSC 1502. The use of technologies to conduct remote hearings in Canadian courts and administrative tribunals is now seen as a natural progression and evolution of our time, which might continue post-COVID.
Grounded in this new reality, funds previously earmarked by the Ontario Government for the construction of a new courthouse in the Halton Region were reallocated for the development of technology infrastructure in Ontario courthouses. The Attorney General of Ontario stated that it is high time to modernize the justice sector in Ontario and investing significantly in technology is the way to go. Canada is not alone in embracing videoconferencing tools and investing in technology, courts around the world are heavily investing in technology solutions and are replacing in-person hearings with audio or video hearings using technology platforms such as Zoom, MS Teams, Skype and Kinly.
In my other capacity as a tribunal member, I have immensely enjoyed the ease of using technology to conduct hearings remotely, but it wasn’t until a person incarcerated in a provincial jail appearing before me via teleconference referred to me as “Bro” and consistently referred to me throughout the entire administrative proceeding as “Bruh”, “Bro” or its variations, that I had an awakening that while using technologies to conduct hearings is beneficial, it could undermine the fundamental tenets of our entire judicial system, grossly distort the image of a judge and be prejudicial to the interests of the persons appearing before our courts.
While nothing dramatic is yet to be reported in our courts, our neighbour to the south have experienced a share of embarrassing moments which threatened the integrity of court proceedings. For instance, in California, hackers played music and danced during a remote court hearing. During a jury trial in Texas, a juror left the computer screen for seven minutes to take a phone call. In Missouri, a judge used the mute button on a criminal defense attorney eight times during a 48-minute hearing leading to complaints that the Judge violated the accused person’s right to counsel and due process.
There are obvious, and sometimes significant limitations with using technology to conduct remote hearings, such as screen freezing, lack of reliable internet access to people in remote areas, lack of private space, understanding overlapping conversations during videoconference, amongst others. Yet, there are deeper and structural issues and as we become more comfortable with remote hearings as our new normal, it is important to flag how remote hearings disrupt traditional court rituals and in turn, the legitimacy of a judge, the act of judging and also pose negative consequences for litigants, particularly accused persons in our criminal justice system.
The architectural layouts of our courthouses are designed to symbolize certain ideals and community values in the public sphere, convey the solemnity and seriousness of the business being transacted in the “hallowed hall of justice” and in turn foster the basic political legitimacy of our judges and the social control they exercise over all the participants in their respective courtrooms as well as the general public. Reducing our judges to a computer interface showing just their heads and shoulders weakens their legitimacy, depersonalizes the entire judicial process and drastically minimizes effective judicial engagement which is one of the hallmarks of therapeutic justice frequently deployed by our judges in Gladue, mental health and drug treatment courts all over Canada. An Australian study on remote hearing, conducted before the pandemic, suggests that the use of video links: ‘alters the representation of the judge as the embodiment of law, weakening symbolic and cultural dimensions and undermining the gravity and decorum of court proceedings.’
Also, the all familiar long-standing court rituals of the court clerk ushering in the judge by yelling “Oyez, Oyez, Oyez, anyone having business before the Queen’s Justice of the Superior Court of Justice draw near and you shall be heard, Long live the Queen”, standing up when the judge enters, and bowing to the court on departure, all have performative effects of casting the judge as legitimate, an independent authority and the custodian of our community values. It also sets the stage for the acceptable civil modes of address as well as respectful and polite behaviour expected from all the courtroom participants. Virtual hearing tends to remove some of these perceptual cues which normally trigger the performance of this long-standing symbolic and performative rituals.
While critics could argue that these rituals should be done away as being relics of the past, some judges would not easily agree with dispensing with them. Judges reported that some litigants were unruly while remotely participating in court proceedings, emboldened by the fact that they are not in the same room as the judge and are on their own territory, as such they don’t have to be told what to do or how to act in their own environment. In the US, Judge Dennis Bailey issued a blunt message to the Weston Bar Association in Florida that court hearings on Zoom are “not casual phone conversations” and that formality of the courtroom still applies and cannot be abandoned.
Beyond the above, there is a growing body of evidence that suggests that virtual hearing could result in constitutional violations and worse outcomes for accused persons. Several studies have shown that cases where hearings are conducted remotely via videolink or through the use of videoconferencing technologies are less beneficial to the accused persons, as the accused persons are less likely to seek legal advice and representation largely because they do not understand the significance of the process. Studies in the UK and US found that accused persons who appeared by video, saw the process as less legitimate, were less likely to have legal representations, see University of Surrey and UK Ministry of Justice . This failure to obtain legal advice and representation may be linked to an accused person’s diminished ability to effectively present their case, see Remote Adjudication by Ingrid V. Eagly and Baltimore Study and which consequently have a negative impact on outcome, see Walsh and Walsh and Anne Poulin’s Criminal Justice and Videoconferencing Technology.
A September 2020 report issued by the Law Society of England and Wales raised significant concerns that a mere 16% of solicitors polled indicated that vulnerable clients were able to effectively participate in remote hearings. In situations where clients had no particular marker of vulnerability, 45% of solicitors indicated that they were able to participate effectively. The report also indicated that “people who do not communicate regularly [via phone and or video conferencing] find the experience very disconcerting and struggled to follow what is in an already unfamiliar legal process and find it difficult to adequately present their case. Body language and signs of distress can’t be picked up on as easily.”
Furthermore, a study in the US found that in-person testimonies are usually more believable than those provided through a videolink or a videoconferencing technology platform. This could be linked to the fact that videos take away the ability of the judge to assess non-verbal cues; and video conferencing technologies can actually filter out voice frequencies associated with human emotion, which are critical to assessing credibility and reliability of witnesses and the accused person if they choose to testify.
While remote hearing via technology has kept our courts from grinding to a sudden halt, as our courts undergo rapid transformations and the physical courtroom becomes a contested space, there is a serious need to closely interrogate the assumption that making our criminal courts remote will reduce cost and increase access to justice without putting accused persons at a disadvantage or breaching their procedural rights. Studies conducted elsewhere are suggesting that promoting an overenthusiasm for the use of video-conferencing technologies in our criminal courts risk significantly undermining our criminal justice system. In the continued use of videoconferencing technology in our criminal courts, it is important to carefully curate how the image of the judge is presented to all court participants and the public and ensure that the authority of our judges and the legitimacy of our courts are protected. Also, it is very important to know that a criminal justice system hurriedly reconfigured due to the COVID-19 pandemic might not be the best model for an effective criminal justice system post-COVID-19.
PS: Dr. Ayodele Akenroye is also a Tribunal Member with the Immigration Division of the Immigration and Refugee Board of Canada. The views expressed here are his own.