Canada – SLAW Article: Virtual Court Proceedings: Fictional and the Real Thing

If you  read one article about virtual courts this year we suggest this be the one….Patricia Hughes writes for SLAW

Addicted as I am to tv dramas (and sometimes comedies) about the law, I’ve been watching All Rise. Located in Los Angeles, it follows the professional lives of various characters involved in the criminal court there (and as a “popular” show, it also follows their personal lives). Sometimes it raises some important legal issues, but its finale was its best performance: it did a fine job of responding to the coronavirus crisis by being filmed on Cisco Webex, with all the actors working from their own homes. Apart from the kind of personal issues many people are facing in our COVID-19 world, the show portrayed a virtual bench trial, presenting many of the advantages and problems as possible within the hour. (For reviews, see here and here). How did it compare to the protocols developed for virtual proceedings in real courts

Public defender Emily Lopez’s client, Kurt Beto, sitting in jail, should be having a trial to determine his brother’s (Joey Beto) allegations that Kurt assaulted him and stole his car. Kurt is keen to get out of jail because his girlfriend, Rosa, is pregnant. Obviously, an in-person trial is out of the question.

The stage is set. Chief Judge Lisa Benner holds a Zoom meeting with Judge Lola Carmichael and other judges who appear from time to time on the show. The judicial discussion revolves around how, on the one hand, an online trial would require the accused to give up at least some of his constitutional rights (such as the right to face his accuser), and on the other, the reality that inmates face increased risks of infection. Eventually, Judge Benner leaves it to Judge Carmichael to figure out a way to handle it.

The first episode began with the appointment of former deputy district attorney Lola Carmichael’s judicial appointment; surprising no one, she quickly becomes an interventionist, activist judge who finds herself more than once in some difficulty as a result. She is the perfect candidate to figure out how to be innovative in the time of COVID-19. Although reluctant at first, DDA Mark Callan, Judge Carmichael’s best friend, is finally convinced to go ahead. (You may question Mark’s appearance in Lola’s court, given that he and Lola continue to meet on the backstairs to discuss their problems, but he receives permission under these extraordinary circumstances; some of their interactions in virtual court illustrate why it’s not a good idea for friends to be judge and lawyer in the same courtroom, virtual or otherwise.) Mark and Emily come to an agreement to have a bench trial. Kurt Beto waives certain rights.

Judge Carmichael’s clerk, Sherri Kansky, who keeps the judge in line, often protecting Judge Carmichael from herself, takes it upon herself to replicate an in-person trial as closely as possible, even though everyone is participating from home and in Kurt’s case, from jail. She ensures the court’s seal is prominently displayed in its own square, instructs everyone to stand before proceedings begin (this after they initially don’t), insists that Judge Carmichael wear something resembling a black gown and that she wields a gavel (Lola uses a meat tenderizer), requires the lawyers to dress in business attire and ensures anyone who wishes to address the court holds up their hand.

While the trial begins calmly enough (a nice touch is that the cheque used to pay for the car is displayed), it soon descends into chaos, despite Sherri’s best efforts. Everyone talks over everyone else, inevitably Kurt and his brother accuser engage in their brotherly quarrel and Kurt announces he wants to renege on his waiver of his rights. Sherri shows the advantage of the virtual approach when she calls a time out and mutes everyone for 10 seconds (on their return, Lola advises the others that there was a “technical difficulty”).

Judge Carmichael, after a virtual conversation with her mother unrelated to the trial, figures out how to reach the brothers. Reliving some of their history, they realize their relationship is more important than the dispute. Kurt accepts if he wants to have any chance of getting home to Rosa, he needs to keep his agreement. Mark reveals that Joey changed his story and he Emily reach a deal that results in Kurt’s immediate release and probation. As the show ends, we see Kurt and Rosa together. So a happy ending to the experiment!

All Rise managed to raise some of the major issues a virtual trial would raise, although there are many it could not within an hour that also included the characters’ virtual personal lives: Lola’s concern for her mother who insisted on going out to help others (Lola worked her magic here, too, convincing her mother to stay home), the difficulties of working remotely with others in the house (Emily was staying with her brother’s family, including small kids), Lisa Benner’s efforts to cook, Sherri’s obsessive organizing of her spices, Mark and his girlfriend figuring out how to have a relationship with each in isolation (they don’t, they decide to live together), the forgetting to mute when they leave the computer and so on. And not every virtual trial will have a Judge Lola Carmichael who, as Mark says, once they are connecting as friends again, “There’s something magic about you in that chair.”

So how do the protocols for virtual hearings in real courts compare?

Obviously, a real trial is rather more complicated. Appellate hearings or other matters that involve only the judge(s) and the legal representatives can be handled without enormous difficulties, once technical issues have been conquered. But virtual trials with witnesses are more challenging.

I’ve selected — arbitrarily — several protocols to see how well they address some of the complications of real legal proceedings, particularly trials involving witnesses. (By arbitrary, I mean I haven’t attempted to “cover” all Canadian jurisdictions and references to courts elsewhere mean only that they popped up when I did my Internet search.) My review is not meant to be exhaustive, but merely illustrative of the kinds of expectations courts have about how participants will conduct themselves. Although in some ways dissimilar, one recurring characteristic is that they still want to look like courts; for example, several explicitly stress the importance of decorum and many require lawyers to be gowned.

Some courts are openly working their way through the option of virtual hearings. The Nova Scotia Supreme Court, for example, has issued a description of what they are doing, including practice and training sessions. The court offers Skype settlement conferences when the parties agree and virtual proceedings for civil motions or applications when certain criteria are met, including the “[p]arties are represented by counsel; [t]he matter will take four hours or less; [t]here is no viva voce evidence, including cross-examination; and [a]ll parties consent, or a judge otherwise orders”. The court provides instruction on the use of technology and the requirements necessary to make the hearing run smoothly. It’s “anticipated” the virtual process will expand to “lengthier matters, those requiring direct and cross-examination, those involving self-represented litigants and possibly trials”.

The Nova Scotia courts are not alone in delaying the application of virtual proceedings to proceedings involving viva voce evidence and full trials. Even of those that have, few appear to have considered — or at least included in their protocols — how to address some of the difficult issues that might arise. Similarly, few protocols include useful instructions about how to introduce documents during the hearing if necessary. Several of the protocols, though, do provide very precise instructions about how to use the technology the court will be employing.

Given the uncertainty of the coronavirus and its impact on the legal system, however, it is highly likely the courts will be required to make sure everyone understands the rules as regards witness participation in a virtual hearing. An Australian law firm’s “Tips and tricks for online hearings” refers to a ruling by the Federal Court of Australia that a case with 50 witnesses that was scheduled for six weeks would proceed virtually, despite the objection of one of the parties (Capic v Ford Motor Company of Australia Limited (Adjournment)). (It is also of note that the judge in Capic also instructed the parties in how to conduct themselves to conform to health and safety requirements, including working from home and not in their offices (paras. 4 and 5).)

The Family Court of Australia guide, after it describes how to use the technology in detail, provides detailed instructions for witnesses, indicating that these are subject to directions from the presiding officer. Witnesses are expected to address the judge and counsel as if they were at an in person hearing and “to be alone, in a secure room with doors closed”, ensuring there will be no interruptions or if that is not possible, “they should advise their legal representatives as soon as practicable”. They may have a glass of water, but nothing else to eat or drink, unless given permission, may take notes, as long as it does not interfere with the flow of evidence, and have blank paper available. (On this last point, there is no instruction for the witness to show the paper is blank, although presumably the judge could require it. There is, however, a requirement that the witness show they are alone.) Many courts have not yet begun hearings that involve witnesses, but even those that have, few appear to have considered — or at least included in their protocols — how to address some of the difficult issues that might arise. Similarly, few protocols provide useful instructions about how to introduce documents during the hearing, as opposed to how to provide them to the court before the hearing. Several of the protocols, on the other hand, seem less concerned about the court process than about the technology, with some including what appear to be screen shots of how to use it.

The witness must have prepared by rereading their affidavits and statements and have a “clean copy” with them, placed face down on the desk until required; they must place e-copies on their computer desktop. The practitioner must ensure the witness has all documentary evidence relevant to the testimony in advance (this includes a practitioner who will cross-examine a witness). The protocol does not consider the process if the need for testimony in relation to a document arises in direct examination. If an issue requires the witness’s absence, “the witness may be asked to mute their computer or otherwise be virtually ejected from the meeting space and invited to re-join when the objection has been dealt with”. The witness may communicate by phone with “their practitioner”, but not when giving evidence. Other rules are more or less the same as for in person hearings.

An Australian law firm, in a general discussion of the protocols in Australian courts also addresses the issue of witnesses. The parties should specify whether a witness will give evidence by video-link or telephone (I note that when a witness testifies by telephone, it does not, of course, permit an assessment of the witness’s demeanour), where the witness will be located (whether in the lawyer’s office — in Australia, this means counsel’s chambers or solicitors’ conference room — or at home) and provide the court with “direct” contact details for the witness. Information about interpreters (courts in Canada would normally be advised of the need for an interpreter, but evidently in Australia, the party requiring translation provides the interpreter).

Unlike the protocol of the Family Court of Australia, this law firm advice contemplates there may be someone in the room with the witness and if so, the identity of this person must be provided — here again, this could be a problem if the evidence is given by telephone. Finally, “[i]f there will be expert witnesses, whether there will there be concurrent evidence, and how that will be achieved (for example, whether the
witnesses will be in the same location or not).”

A number of protocols explain carefully how to submit documents prior to the hearing, but few I came across addressed the question of wanting to introduce documents during the hearing. Many courts seem to assume that no new documentary evidence might arise during the hearing and that documents can all be provided to the court ahead of the hearing (or, presumably, that the judge will be able to address the matter). The Federal Court of Australia “Special Measures Information Note: Appeals and Full Court Hearings” does: when a party wants to introduce materials not included in the Appeal Book, they must obtain permission of the court and if leave is granted, the Full Court may direct the party to tender the document via a particular electronic method, such as: (a) The sharing function on Microsoft Teams; (b) a nominated file sharing service; or (c) by email.” Presumably, the other party or parties receive the document in the same way. This would also work if counsel wants to introduce new documentary evidence for a witness to address.

The courts all emphasize that a virtual hearing is still a court hearing and most require counsel to gown (if that would be the case with an in person hearing), while other participants are to dress professionally. (See, in contrast, the Ontario Superior Court of Justice, which explains that counsel and judges will not gown, but wear business attire.) However, they draw the line at standing when the judge joins the hearing (unlike the All Rise court!) and remain seated when speaking (as with the All Rise court). (A problem with standing, as the All Rise court showed, is that only the lower part of the parties’ bodies are likely visible!)

A number of protocols remind everyone that the courts are open and may provide for accessibility by the public. For example, in the Federal Court of Australia, the daily court lists indicate members of the public may join an online hearing; members of the public must remain silent and hidden and not record the proceedings.

Some of the protocols also stress that the hearing is public in order to ensure that care is taken with confidential documents (see, for example, the Australian Federal Court’s Special Measures Information Note). In this regard, the Family Court of Australia notes that litigants should take care of their safety when participating in virtual hearings, including using a blank background on video and “[i]f there are safety concerns about appearing with video turned on, the Judge may permit litigants to participate in the hearing using only audio”. The National Practitioners and Litigants Guide to Online Hearings from the Federal Court of Australia makes an exception to the requirement that participants announce their names when joining the online hearing: “Parties should give consideration as to whether a participant’s name (and/or face) should not be displayed (for example, for their safety) and liaise with the Court accordingly in advance of the Online Hearing.”

In some cases, the protocols acknowledge that it may not be possible to follow the usual procedures, as was the case in All Rise when the accused had to agree not to raise objections to the procedure followed during the bench trial. For example, the Ontario Court of Justice Protocol Re Bail Hearings recognize that the procedures governing sureties in bail hearings may be difficult to observe in the COVID-19 world. Thus while giving direction on how defence counsel should ascertain the identity of the surety, the protocol also acknowledges, “because duty counsel’s ability to interact with a proposed surety may be particularly restricted due to the COVID-19 pandemic, it may not be feasible for duty counsel to complete a surety declaration and ascertain the surety’s identity in some cases”; the surety should attend the bail hearing to permit the court to satisfy itself about their identity.

The Ontario Superior Court of Justice makes the same point in its “Notice to Accused Persons, Profession, Crown, Public Prosecution Service of Canada, Correctional Institutions, Witnesses, Jurors, The Public and The Media Regarding Criminal Operations“:

The emergency created by COVID-19 may, in some instances, render strict compliance with the procedural rules set out in the Criminal Proceedings Rules impossible or impractical. The rules were drafted without contemplation of how virtual court hearings would be conducted in a pandemic. These functional gaps cannot be an impediment to the timely, fair and just adjudication of matters heard by the Court.

In this time of emergency, the inherent jurisdiction of the Superior Court of Justice may be relied upon, as it is entrenched in s. 96 of the Constitution Act, 1867 and as confirmed in s. 11(2) of the Courts of Justice Act.

Accordingly, the court may use its inherent jurisdiction to relieve compliance when it is

just or equitable to do so, reasonable and necessary to control the Court’s own process during this time of emergency, required to render justice between litigants, essential to prevent obstruction and abuse of the Court, [or] necessary to secure convenience, expeditiousness and efficiency in the administration of justice.

As Sherri required in All Rise, the Guide to Remote Proceedings issued by the Provincial Court of British Columbia instructs counsel to raise their hands if they wish to speak if on video (and to wait for an appropriate moment to interrupt if using audio only) (p.2). (This protocol also makes it clear why only paper and pen are allowed for notes: the sound of keyboarding can be distracting.)

While court procedures can be confusing for self-represented litigants, virtual proceedings may pose their own challenges. Few protocols refer to self-represented litigants explicitly. One exception is the Ontario Superior Court of Justice, which has dispensed with the requirement of personal service, requiring email service instead; it explicitly advises self-represented persons without access to email to contact the trial coordinator, providing a list individuals can access.

The Alberta Court of Appeal’s Reference and Etiquette Guide for Electronic Hearings For Counsel/Self-Represented Parties mixes technical information with the more informal advice about how to be effective in a virtual hearing (for example, place a lamp behind the device the individual is using if the person can’t be close to a window and where the individual should position themselves for the most effective appearance). Much of this would likely be of help to an unrepresented litigant. The court also has a different kind of requirement, however, for non-lawyer participants, including self-represented litigants: they must sign an undertaking not to record the proceedings (see here). (The Alberta Court of Queen’s Bench requires the same.)

Courts in Canada have already held videoconference proceedings under certain circumstances. Reg. 194 (R.R.O. 1990, Reg. 194) under the Ontario Courts of Justice Act, the Rules of Civil Procedure, provide for telephone or videoconference proceedings, for specific proceedings, including “At trial, the oral evidence of a witness and the argument”, but not an examination for discovery (see Rule 1.08) In determining whether to hold a hearing by telephone or videoconference, the court, which may order such a hearing on its own initiative or on the motion of a party, must consider the following:

(5) In deciding whether to permit or to direct a telephone or video conference, the court shall consider,

(a) the general principle that evidence and argument should be presented orally in open court;

(b) the importance of the evidence to the determination of the issues in the case;

(c) the effect of the telephone or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;

(d) the importance in the circumstances of the case of observing the demeanour of a witness;

(e) whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;

(f) the balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and

(g) any other relevant matter.

In Arconti v. Smith, Justice Myers was required to decide whether “the plaintiffs ought to be required to conduct an examination out-of-court by videoconference rather than in person”. Justice Myers decided that if they wanted to examine Scott Fenton, a defendant, they must do so by videoconference. The defendants had objected to discovery by videoconference for the following reasons:

a. that they need to be with their counsel to assist with documents and facts during the examination;

b. it is more difficult to assess a witness’s demeanour remotely;

c. the lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and

d. the plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process. (Arconti v. Smith, para. 18)

Justice Myers had little sympathy for these objections, noting “‘It’s 2020’”. The technology is available to communicate remotely effectively. However,

That is not to say that there are not legitimate issues that deserve consideration. Technology is a tool, not an answer. In this case, the parties cannot attend in the same location due to health concerns and governmental orders. So, the question is whether the tool of videoconference ought to be required to keep this matter moving or if the mini-trial ought to be delayed further due to the plaintiffs’ desire to conduct an examination for discovery in person. (Arconti v. Smith, para. 20)

Justice Myers acknowledged some of the concerns, such as witness prompting by another person at the witness’s remote location (or the use of another computer), that witnesses might feel “too comfortable” at home rather appreciating the formality of the courtroom, that lawyers will not be able to have their “team” with them or that some counsel will be less comfortable using technology than will other counsel and thus be (or feel they are) at a disadvantage. None of the problems identified pose due process concerns and “in 2020, use of readily available technology is part of the basic skillset required of civil litigators and courts” (Aconti v. Smith, para. 33). As he pointed out, Zoom, if used, has “breakout rooms” where a lawyer may consult with a colleague.

As for whether cross-examination is more difficult or less effective, Myers J. referred to the judge’s comment in the Australian case of Capic v. Ford Motor Company that he had found he could read witnesses’ faces more easily than in an in-person situation. Justice Myers concluded, “As things stand at present, I do not doubt that there are perceived, and possibly very real shortcomings associated with proceeding remotely rather than in person. However, in this case at least, the benefits outweigh the risks. The most obvious benefit is that litigation will not be stopped in its tracks.” (For a contrasting view, see Miller v. FSD Pharma, Inc., in which Morgan J. refused a request, opposed by the other party, to hold a two-day motion for leave virtually because of due process concerns.)

The courts in Canada and elsewhere are gradually developing protocols for virtual trials, including lengthy trials with viva voce testimony. They currently provide instructions and advice to different degrees and do not necessarily address the same topics, even in relation to the same type of proceeding. For example, some protocols list specific rules about the use of the technology, others do not mention it.

There are obvious advantages to not ceasing court operations (other than for emergencies or specific proceedings), but there are also issues that still need to be addressed. Virtual hearings do not have the same advantage of “time out” while judge and counsel/self-represented litigants decide what to do when something “new” arise; none of the protocols I viewed addressed summoning witnesses; counsel or parties may be prevented from attending an in-person hearing on time or at all because of unforeseen circumstances, but the failure of technology will occur more often.

A consideration of some of the problems that might arise (and have arisen in the United States — including a lawyer who made an appearance while in bed) can be found here. So far jury trials are not on tap. And the reality is that everyone has less of an opportunity to assess the room and the other participants. Much effort is being put into making virtual proceedings run smoothly and fairly: there will be an opportunity “after all this” to determine when they may be most effective (appeal cases, motions, assignment court), indeed, preferable to an in-person proceeding, and when in-person (full trials) is still the better way to go.