It’s not business as usual in Canadian courts. The COVID-19 pandemic has upended court operations, just as it has upended every other aspect of daily life. One response to the need to ensure physical distancing has been to move in-person court hearings to virtual formats. Beyond the utility of virtual hearings as short term emergency measures, there is reason to believe that this moment may well mark the start of a shift toward increased use of virtual hearings in the longer term. In discussing the impact of COVID-19 on courts, the Chief Justice of the Ontario Superior Court has stated, “we have been forced and the Ministry has been forced to accelerate its plans to move to electronic hearings and also to electronic filings and we cannot go back….it is time for Ontario to push forward…we cannot go backwards.”
It’s not business as usual in Canadian courts. The COVID-19 pandemic has upended court operations, just as it has upended every other aspect of daily life. One response to the need to ensure physical distancing has been to move in-person court hearings to virtual formats. Beyond the utility of virtual hearings as short term emergency measures, there is reason to believe that this moment may well mark the start of a shift toward increased use of virtual hearings in the longer term. In discussing the impact of COVID-19 on courts, the Chief Justice of the Ontario Superior Court has stated, “we have been forced and the Ministry has been forced to accelerate its plans to move to electronic hearings and also to electronic filings and we cannot go back….it is time for Ontario to push forward…we cannot go backwards.”
This column considers what our commitment to open courts should look like in a world where virtual hearings are, if not ubiquitous, quite suddenly much more common. I argue that in addition to providing meaningful public access to virtual hearings, courts must also consider important interests, like privacy, and be alert to the possibility that moving court proceedings online can have unintentional impacts on participant experiences and case outcomes. Virtual hearings bring important benefits, but also bring new risks that are worthy of attention.
Two caveats
In discussing virtual hearings, my analysis here focuses on the transfer of what would usually be in-person judicial hearings to an online format. Stated otherwise, “trial by Zoom” is my concern rather than the use of more inventive Online Dispute Resolution systems, like the impressive Civil Resolution Tribunal in British Columbia. This is not to say that we shouldn’t move towards adopting more inventive ODR systems. My point is simply that we need to thoughtful about moving what would otherwise be in-person hearings to virtual formats, something we have already seen happen and will no doubt see more of.
I should also make clear that the point of this column is not to critique the patchwork of inventive measures that courts have rapidly adopted to deal with operations in the short-term. It strikes me that, generally, many justice stakeholders have worked very hard and cooperatively to make things quickly work in an extremely challenging situation. My goal here is to raise some issues for consideration in the medium to longer term, if we continue to increasingly adopt virtual formats for court hearings.
The presumption of open courts
The Supreme Court of Canada has repeatedly stated that “[p]ublicity is the very soul of justice”[1] and that open courts are “a hallmark of a democratic society.”[2] More specifically, the Court has confirmed that “the open court principle requires that court proceedings presumptively be open and accessible to the public and to the media.”[3]
The presumptive nature of the open court principle reflects the fact that public access to court proceedings can be limited. There are common law limitations, like the ability of a judge to order a publication ban, and statutory limitations on access in certain contexts, such as proceedings involving young offenders or child protection issues.
In addition, there are practical physical and temporal barriers to open courts. Although everyone has the right to enter a Canadian courthouse and watch court proceedings, whether a given individual can in fact exercise that right depends on myriad factors, like whether the person is available at the same time as a court hearing, can travel to the courthouse, and whether the courthouse building is physically accessible to all. There are also potential informational and psychological barriers: a person must know when and where to attend and feel comfortable entering a highly formal and securitized environment.
Public access to virtual hearings
These non-legal limitations to open courts operate as powerful constraints. Although media reports are available to those who are unable or unwilling to attend court in person, this is a second-best measure in certain respects. Reading or hearing a summary of what took place is not the same as watching it first-hand. Additionally, not every proceeding receives media coverage. Reporters are not and cannot be in every courtroom, every day.
Virtual hearings have the potential to mitigate or eliminate many of the non-legal barriers to open courts. If hearings are online, the burden of travelling to courthouses, and concerns about the physical accessibility of the space, disappear. Many people will be able to access hearings from the comfort of their homes. If online hearings are recorded, there is the possibility that the public can access court proceedings at the time of their choosing. Last Saturday, over 3,500 people apparently watched a YouTube livestream of oral arguments taking place in the Kansas Supreme Court over Zoom. This is an example of how technology can profoundly increase access. As one lawyer observed on Twitter, the number of people accessing the Kansas Supreme Court livestream amounted to “many times more than could have fit in the courtroom in the Judicial Center. Kansas is a huge state, and most of those watching probably couldn’t have made it to Topeka even under normal circumstances.”
In some ways, the touted benefits of public access to virtual hearings echo arguments in favour of allowing cameras in courtrooms. Like holding public virtual hearings, video-broadcasting in-person proceedings make it easier for the public to see the justice system at work because the need to physically attend court is eliminated. There is a very important way, however, in which the virtual hearing context is distinct from the cameras in the courtroom context, at least as the latter was framed in pre-pandemic times when courthouses were open public spaces. If cameras are not allowed in courts, the public and the media can still see what happens in court proceedings if they assume the burdens of attending court in person. In contrast, if the public is denied access to virtual hearings, which entirely supplant in-person proceedings, then no one other than the participants in the proceeding can know what is going on. This represents a profound and dangerous departure from our commitment to open courts.
It is not an option to simply exclude the public from virtual hearings. Fortunately, courts around the world have taken steps since the onset of COVID-19 physical distancing mandates to allow the public to access virtual hearings, as in the Kansas example, above. In Ontario, the Superior Court of Justice has issued a notice stating that the Court “remains committed to the open court principle throughout the COVID-19 pandemic” and has detailed a procedure for the public and media to access remote proceedings. More concretely, the Ontario Divisional Court recently issued an endorsement regarding a future virtual hearing which stated that “it is currently anticipated that the hearing will follow a webinar format and will accommodate up to 500 members of the public.”
Potential impacts on privacy interests, credibility assessments, and emotional connections
If courts continue to increasingly adopt virtual hearings in the medium to longer term, what should courts be thinking about?
A basic matter is ensuring there is, in fact, public access. Although it is easy to find examples of courts prioritizing public access to virtual court proceedings, these “good news stories” are not universal. The Marshall Project recently published an article detailing how public access to American court proceedings “has been spotty as each court comes up with its own rules on the fly” in this era of physical distancing requirements. Closer to home, an article in the Toronto Star noted challenges faced by members of the media in obtaining access to some court proceedings in Toronto. To be sure, and as acknowledged above, the COVID-19 pandemic has sparked unique, and fast-changing challenges that require quick solutions; expecting perfect responses is not appropriate or fair at this time. But if we continue to increasingly move to virtual court proceedings, universal public access must be a priority in the medium to longer term.
The access provided must also be meaningful. In a recent column, Justin Safayeni discusses several important practical considerations, including ensuring: (1) that the listing information for all virtual hearings is available online; (2) the public has access to a means to view virtual hearings in “real-time” or, if this is not possible, then access to a recording upon request; and (3) a protocol to allow members of the media and the public to access public court documents.
But ensuring meaningful public access is not the end of the story. Changing the medium of our court processes will impact other interests. In the remainder of this column, I consider two areas of risk: (1) privacy and (2) impacts on participant experiences and case outcomes.
(a) Privacy
The flipside of making court proceedings easier to access by moving them online is the loss of “practical obscurity.” The idea of practical obscurity recognizes that “there is a privacy interest in information that is not secret but is otherwise difficult to obtain.”[4] Practical obscurity is often discussed in the context of transferring information from physical documents to a digital format. For example, my colleagues Jane Bailey and Jacquelyn Burkell have argued that the open court principle needs to be reconsidered in relation to online accessibility of court records because of the loss of practical obscurity (e.g. not having to go the courthouse to request access to documents). They contend that maintaining a presumption of openness in relation to online court records “could have devastating consequences for privacy, without substantially contributing to the fundamental underlying objective of the open court principle: that is, transparency and accountability of the justice system.” Among other things, Bailey and Burkell observe that “online access to court records places parties’ and witnesses’ personal information that is contained in those records within relatively easy reach of those who, legally or illegally, seek to realize financial gain from that information.” They also express concern about increased access “satisf[ying] a voyeuristic rather than educational function.”
Like court records, witness testimony often includes significant personal information. Although such testimony is generally viewable in open court and accessible in written form via court transcripts, it is not as readily accessible to the general public as it would be if streamed online. If virtual hearings are recorded and publicly available, witness testimony has the potential to be misused in new ways. For example, could the existence of a large cache of recorded virtual hearings allow for individuals to use technology to “mine” a set of hearings and use the results for financial gain? Indeed, the Globe24h saga has already revealed how court records can be targeted by those who wish to exploit them for profit. No doubt, protections can be put in place to guard against certain types of misuse. However, it is necessary both to identify privacy invasions as a potential concern in the context of virtual hearings, and to understand the specific nature of these risks in order to put optimal protections in place.
Relatedly, how will witnesses view participating in virtual court proceedings if their testimony is available online as opposed to restricted to the eyes and ears of those in a courtroom? Concerns about adverse effects on witnesses feature prominently in cameras in the courtroom debates. As Michael Spratt wrote in 2016:
The proverbial bright lights of the camera may heighten anxiety and increase the reluctance of witnesses to testify at all. Imagine the poor Good Samaritan who has relevant evidence to give in a high-profile gang trial, or the sexual assault victim forced to relive indignities before the flashing red recording light. Testifying can already be a harrowing experience. Cameras may feed the public’s appetite for immediate informational gratification — but the quality of that information will suffer.
If the question is simply whether we should add cameras to in-person proceedings that the public is permitted to attend, there is a relatively tidy solution to concerns about witness privacy – only allow cameras in proceedings where there are no witnesses. This option is of course not possible in the context of virtual hearings. If we prohibit public access to all virtual hearings that involve witnesses, then we do not have open courts in any meaningful sense.
Another possible solution would be to decide that the privacy interests of witnesses participating in virtual hearings must yield entirely to the need for open courts. To this suggestion, I note that the Supreme Court of Canada has expressed caution about balancing the openness of courts against privacy concerns. In 2011, the Court upheld a rule that prohibited the media from broadcasting official audio recordings of court proceedings, largely on the basis that broadcasting the audio would have negative impacts on the privacy interests of participants in the proceeding, especially witnesses. In short, the decision recognized that it is one thing to have to testify in open court but quite another thing to have this testimony broadcast into the houses of Canadians.
The best policy responses, in my view, will involve creative balancing between the need for open courts and respect for the privacy interests of court participants. In many cases, this will likely include trade-offs of some sort. For example, one could imagine a policy stipulating that virtual hearings that do not involve witnesses must be openly broadcast online and easily available in a recorded format, but those that do involve witnesses will be accessible only upon request and perhaps not readily available, if at all, in a recorded format. A cursory review suggests that this might already be a favoured approach of courts to the issue of access to virtual hearings. Do measures such as these sufficiently guard against new privacy impacts surfaced by virtual hearings? Can more privacy-protective approaches – like, for example, removing certain types of cases from public viewing entirely – co-exist with our commitment to open courts? Should courts even be in the business of intentionally creating barriers to public access to court proceedings? If so, how do we evaluate which measures are legitimate and which go too far? Ultimately, hard choices may have to be made.
(b) Impacts on perceptions and outcomes
Transferring in-person hearings to a virtual format can also change what happens in the proceedings themselves. There is already a significant body of research about how introducing new technologies can impact the experiences of court participants and affect outcomes.
Much of this research has focused on the use of video technologies to allow remote participants to testify or otherwise appear in court. The relevant research contains a variety of observations that sometimes pull in different directions. In a recent column, Meredith Rossner and David Tait discuss a study they conducted that simulated a criminal trial using mock jurors. They found, among other things, that “defendants appearing via video were no more likely to be found guilty than if they were sitting beside their lawyers in court.” But Rossner and Tait are careful to note the existence of other research which suggests different impacts, including studies which found:
- “defendants who appear remotely from police custody or jail are more likely to have a higher bail set, plead guilty and receive longer sentences than those who appear in person”;
- “asylum seekers appearing remotely from detention are less likely to actively participate in their tribunal hearing and more likely to be deported”; and
- “some defendants have reported feeling disorientated, not being able to hear or understand the proceedings and lacking confidence in the fairness of the hearing.”
(The original column written by Rossner and Tait hyperlinks to the studies being referenced).
Although numerous questions remain about why video-conferencing might impact what happens in court hearings, much of the literature focusses on potentially adverse impacts on credibility assessments and emotional connections between courtroom participants (see, for example, a summary of some of this research I prepared in 2012 as part of this article). Although poor quality technology is a significant reason for some adverse effects, the studies also point to the ways that subtle choices like lighting and camera angles can impact how witnesses are perceived. More generally, researchers have also pointed to the potentially “dehumanizing” effect of using technology to replace in-person courtroom presence.
There are valid questions about how past research on video-conferenced court appearances translates to the current context of virtual hearings. Technology has advanced. Additionally, much of the past research, as Rossner and Tait note, focusses on hearings where “the judge, prosecutor and often defence counsel, as well as court staff and members of the public, are all grouped together in the actual courtroom, while the defendant is alone on a screen”, resulting in an inherent imbalance that does not exist if everyone is appearing remotely in a virtual hearing.
These qualifications aside, there is still an important lesson for the current environment: when we change the medium of court proceedings, there can be negative consequences that we do not intend.
Recently, the Law Society Gazette reported on the “first ever trial conduced entirely by Skype” in England. The article includes an account from one of the witnesses in the trial – the daughter of the man at the centre of the proceedings – that speaks to some of these points more concretely:
‘I’d like the judge and lawyers to know that this hearing was not about bigging yourselves up because you did the first Skype trial. This is about my dad. I’m left wondering whether I should have waited and insisted on a face-to-face hearing. It just felt like a second-rate hearing.’
The reduced formality, noises from pets and the backdrops of people’s homes added to her distress. She says: ‘I wanted my dad to have his day in court – not in someone’s front room.’
…‘I wanted to make them hear the truth, but I was looking at a computer screen.’
Unfortunately, the daughter also “heard the banter between the judge and lawyers that in court would be conducted sotto voce, and heard herself spoken about.”
The fact that virtual hearings may impact how proceedings are conducted and experienced does not mean, of course, that virtual hearings are inherently bad. It does mean, however, that courts need to be alert to the possibility of unintended effects and, as Rossner and Tait observe, pay attention to design principles that could help mitigate such effects. Here, there may be helpful lessons from research on video-conferencing and the more recent and growing body of study on immersive virtual courtrooms (see, for example, here).
Conclusion
Virtual hearings hold great promise in granting the public better access to the operations of our courts. This is a good thing. Openness, however, is not the only variable at play. Two other important concerns are the privacy interests of participants and how moving from a physical to virtual space can impact the experiences and treatment of participants. There are, no doubt, additional factors that also need to be weighed – like, for example, gaps in the technological competence of some lawyers and judges and uneven public access to the internet and the hardware necessary to view virtual hearings (e.g. computers, smartphones or tablets). As we move forward and make decisions about what the courts of the future will look like, we ought to engage in a robust analysis that embraces the full complexity of the issue.
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[1] Attorney General of Nova Scotia v MacIntyre, [1982] 1 SCR 175 at 183 citing Jeremy Bentham, ‘Draught of a New Plan for the organisation of the Judicial Establishment in France: proposed as a Succedaneum to the Draught presented, for the same purpose, by the Committee of Constitution, to the National Assembly, December 21st, 1789’ (henceforth ‘Judicial Establishment in France’), printed in London, 1790, 25–6 (Bowring, iv. 285–406, at 316–17).
[2] Vancouver Sun (Re), 2004 SCC 43 at para 23.
[3] A.B. v. Bragg Communications Inc. 2012 SCC 46 at para. 11.
[4] Patrick C. File, “A History of Practical Obscurity: Clarifying and Contemplating the Twentieth Century Roots of a Digital Age Concept of Privacy” (2017) 6 U. Balt. J. Media L. & Ethics 4.
