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VIRTUAL JUSTICE
REVISITED ... lest we forget
Virtual courtrooms are changing how justice is served. Court transcripts are revealing the failures and potential demise of the administration of justice ... KEEP READING
October 2022
As we enter the winter months and various predictions loom ahead about another deadly surge or another untamed variant of COVID could be in the making, some courthouses across the province have timidly returned to in person proceedings. Other courthouses are experimenting with HYBRID combinations of in-person and remote ZOOM attendances. In HYBRID proceedings ZOOM remains incompatible with the digital recording equipment in the courtrooms. Instead of trying to figure out how to accommodate in person attendances, many courthouses have opted to just let everyone connect by ZOOM links even if they are together in the courtroom. That solution is no different then if they attended from remote locations which subsequently produce inferior one channel ZOOM recordings. There is no explanation as to why the full digital recording system with multiple mics and all channels operating is not the most logical solution.
Also, with return to in person proceedings, more times than not, the digital recording equipment is no longer operating at optimum configurations because sound quality or proper mic placement was never a concern to an IT person or court staff when it came to dismantling everything to accommodate ZOOM. None of that mattered. So, just as it was dismantled without any real concern, now when courts are returning to in-person, most of the existing technology has not been restored or put back together again properly, much like Humpty Dumpty. Having taken the system apart and now trying to put it back together has proven to be difficult, and how it’s put ‘back together again’ is hit-and-miss, courtroom to courtroom.
These attempts to put what once was state of the art technology back together again, or to try to configure virtual reality with real time in-person reality, two realities that likely cannot co-exist, has demonstrated little or no improvement, or restoration of the court system to where it once was. We fear it will never be put back together again ... just like Humpty Dumpty.
All three courts seem to have different visions of what will be. At the annual opening of the courts ceremony, each level of leadership reflected on modernization emerging from the COVID-19 pandemic.
The Superior Court of Justice this year released guidelines for how to decide, going forward, whether a matter should be heard in person or virtually. “A return to in-person hearings, especially for complex cases, is an integral part of the justice system”, said Superior Court Chief Justice Geoffrey Morawetz.
"Having said that, we also know that the availability of virtual hearings has been transformational for the courts. When deployed for the right types of proceedings, virtual hearings open our court to greater flexibility and accessibility," he said in his remarks. "There is no going back: virtual hearings have become a permanent fixture for court proceedings."
Ontario Court Chief Justice Lise Maisonneuve outlined a "post-pandemic vision" and said the court is striving to make the most of the pandemic challenges that have proven to be opportunities, such as the use of technology for remote appearances.
"A hybrid model of justice that can accommodate virtual, in-person and dual proceedings, with the ability to seamlessly transition from video to in person, across all regions, is essential," she said in her remarks”. Technology is helping to address a case backlog, Maisonneuve said, but "there is a vital need for more." ....
From the Appeal Court, Associate Chief Justice Michal Fairburn issued a more lukewarm endorsement of virtual appearances, though that court doesn't deal with as many brief appearances as the lower courts, instead often handling long and complex legal arguments.
"While we now encourage parties to attend in-person, we have, and plan to continue, for at least the immediate future, providing parties with the flexibility to attend remotely if required," she said.....
Mixed messages from each level of court. PT CRAO has been consistent in its message since the onset of ZOOM in forewarning the consequences of virtual justice. The comments made by the three Chief Justices as they foresee the future are troubling.
The article below gives us some optimism that perhaps there has been an awakening as to the decline and harm the justice system has incurred, and will continue to do so, if no one recognizes it. It gives us hope that the time has come now to restore what has been lost, finally. Maybe it’s an indication that perhaps everyone who bought into this new way of serving justice will start realizing the Emperor has no clothes, a fable with a message that rings true with reality in these circumstances.
READ BELOW
Is virtual justice real justice? | Guy Pratte
Wednesday, October 26, 2022 @ 2:09 PM | By Guy Pratte
The Lawyer’s Daily
When the pandemic first hit in the spring of 2020, I would not have believed that our courts could do so much virtually as has been done. Indeed, what was made possible through video platforms is simply astounding. By and large, the wheels of justice continued to turn much better than we could have anticipated.
But now that the courts have fully “re-opened” and that in-person hearings are again possible with very few if any restrictions, an important question emerges: to what extent should parties and counsel be required (or at least entitled) to appear in-person for court proceedings henceforth?
Judges and advocates are quite divided about the benefits and costs of “virtual justice,” namely the ability to appear in court through sophisticated software without actually being in court. Some believe that platforms like Zoom and Teams are actually better than in-person attendance. In their view, the ability to communicate with the court virtually is essentially equal to that of in-person attendances, while access to justice is enhanced by eliminating the need to travel to the court. Judges, parties and their counsel, and witnesses are able to participate effectively from their offices or their homes, thus making justice cheaper and more convenient.
Even the Supreme Court of Canada seems to have subscribed to this view, as it has now extended its directive that parties granted the right to intervene cannot appear in-person, but must do so virtually. A good argument is a good argument, it is said, and it makes no difference whether it is delivered in person or remotely.
Thus, many argue that the world of in-person attendances is old and passé, and that in-person hearings should become the exception rather than the other way around; that the convenience and increased access to justice made possible by virtual hearings vastly outweigh any potential benefits in-person hearings might offer. With respect, I disagree. For the following reasons, I hold that, except for the most routine matters (such as case management conferences designed to address timetables) or in exceptional circumstances (e.g., limited evidence from a far-away witness), that view is unsound.
So, why do we have in-person hearings?
The quality of justice
One major reason for insisting on an in-person hearing is that in-person attendance promotes communication. The court can observe witnesses directly; examinations and cross-examinations are more natural (and often more effective) when a witness “feels” the court: there is undoubtedly a “disciplining” effect on all the participants being in the same room in the presence of a judge. Moreover, exchanges between the bench and counsel are unquestionably more natural and dynamic when everyone is together in a courtroom: there are no screens to “freeze” and participants that forget to “unmute” themselves.
It may well be that some witnesses’ evidence will not be affected by the medium of delivery, be it virtual or in-person. But no one will ever convince me that the discipline that is introduced by a witness being physically in a courtroom, with a judge looking over his or her shoulder, is not real and preferable to the witness who is sitting in his living room, cup of coffee to the side and slippers on his feet. You can never know in advance whether a witness’s evidence might be affected by the fact that she is not in the presence of a judge.
As for exchanges between counsel and the bench, whether in the context of significant motions, arguments during trials, or appeals, there is a dynamism that is introduced by in-person hearings that is simply absent in virtual hearings. Remote hearings are just that: they are remote, and I for one never feel the same sense of immediacy as I do when I can look at a judge directly, as opposed to being limited to the view that is offered on my small screen by whomever is managing the remote hearing.
There are many definitions of “virtual.” We can use it in the technical sense of using a computer to approximate a “real” experience. The question is whether this approximation suffices. It may well be that, in many cases, this approximation does suffice, but the fact is that we can never be certain in which cases that is so. Yet as long as we know that we are not actually in a real courtroom, we also know that things could have turned out differently had we been there in person.
The institutional value of in-person hearings
No one will ever be able to demonstrate that the quality of justice is detrimentally affected by remote hearings. But short of the access to justice arguments, which I address below, I don’t believe it can credibly be argued that virtual hearings are qualitatively better than in-person hearings. At best, they are rough equivalents. But why should a party that has taken a dispute to court ever be left in any doubt that the result might have been different if the witness being cross-examined by her counsel had been sitting 10 feet from the judge, rather than viewed through a small screen and sitting 500 kilometres away? Or if her counsel had been able to engage in the dynamic cut and thrust of legal argument with the judge, which, on screen, is virtually impossible (pun intended)?
In life, all of our most important activities are almost always carried out in person. You can fire a person by e-mail or on Zoom if you want, but is that not the height of hypocrisy or cowardice? You have selected such an impersonal mode of communication because you wanted to avoid the personal contact that being in the same office produces, which proves that remote communication is lacking the human immediacy we prize. We can now attend weddings and funerals online. But will anyone seriously believe that doing so is as meaningful to the newlyweds or the grieving as if you had made the effort to attend in person?
For almost anyone who takes a case to trial or on appeal, the matters at issue are extremely important. Between the time parties file the court papers and the ultimate decision being handed down, the hearing on the merits is often the only time that parties actually see their judge(s) in action: why should they ever be denied the right to appear in person and be assured that the result was not affected by the mode of hearing chosen by the court? And why should judges not want that same assurance? For, in reality, no one can know that the evidence or the arguments might not have been any different in an in-person as opposed to a virtual hearing. The institutional value of justice depends on it being delivered optimally, and that in turn requires that citizens not second-guess its mode of delivery.
The access to justice argument
The main argument in favour of virtual hearings is that they promote cost efficiency and access to justice. By and large, I believe this argument is misconceived. Obviously, for routine matters, it is not (and never has been, or at least not since the telephone has been invented) justified to require in-person attendances.
But for matters that actually do go to trial or on appeal, the cost savings involved in proceeding remotely will usually be minuscule compared to the cost of preparing for and arguing the case (remotely or in-person) itself. Let us remember that only a very small proportion of cases launched ever go to trial, and fewer still go on appeal. Those that proceed obviously have some importance for at least one of the parties involved. Most cases will be heard in a courtroom relatively proximate to the lawyers and parties involved. In any event, the cost of travelling to court compared to the hundreds of hours that will be involved in preparing and arguing the case will be insignificant.
The same is true of cases at the Supreme Court of Canada — including interventions where the court only allows five minutes. On the face of it, it does seem ridiculous that a party should want to travel to Ottawa to deliver a five-minute argument. I will not renew here my criticism of that five-minute rule, but I say that if an intervenor does want to send counsel to be in court in person, it should be their right to do so. For paying clients, the costs of preparing an intervention vastly outweigh any travelling costs; for pro bono matters, such costs will typically be absorbed by the lawyer or firm representing the client, and therefore do not constitute an impediment to access to the court. In either case, therefore, the case for denying access to the court to any party or intervenor wishing it is, with respect, ill-founded.
Convenience is not synonymous with justice
Lawyers who prefer in-person appearances do not, as is sometimes alleged, do so for selfish economic reasons. In fact, many law firms have benefited from the institution of remote hearings and client meetings as they have been able to reduce their operating costs significantly. And, truth be told, it is often much more convenient to attend a hearing from one’s home — sometimes even from one’s cottage — and dress just enough so that the camera reveals that you are properly attired even if you are wearing jeans and sneakers under your robe.
But impressive courtrooms and proper court attire exist because they signify that the delivery of justice — like a vote in Parliament or a church service — are among the most important human activities we undertake. We could, no doubt, dispense with all our court buildings, and allow judges to sit behind a virtual background made of historical photos of their former courthouses, and if they need offices at all, rent space in some cheap mall wherever they live. Why do we need fancy and very expensive courtroom buildings to maintain and restore at huge public expense if virtual justice is just as good (if not better as some contend) as the old-fashioned kind delivered in person? Governments, for whom the justice portfolio seems increasingly to be of little importance, would no doubt relish the prospect of transferring all judicial proceedings online under the pretext that its quality is in no way diminished and that doing so promotes access to justice.
But by making things too easy, don’t we risk diluting and debasing the importance that we have attached — and should continue to attach — to the delivery of justice? Why did we erect those impressive buildings in the first place, be it the Supreme Court building in Ottawa or the historic courthouses in many of our smaller towns and cities? Why are we spending hundreds of millions on restoring the House of Commons, the Senate and the Supreme Court of Canada if virtual is as good as in-person attendance? Why did we insist that lawyers and judges dress formally —sometimes with judicial robes and gowns — when they undertook their tasks in the justice system? Why did we assume that almost all significant proceedings need be carried out in person rather than in writing or by phone?
I submit that, while promoting access to justice is undeniably important, it should not be confused with informality and mere convenience if the price is to debase the exercise such that it becomes equivalent to an online commercial transaction. Most of us still dress up and prefer to attend weddings and funerals in person because, while that requires effort and to that extent is less convenient than wearing casual clothes and watching the proceeding on our computer screen, the effort and costs attest to the importance that we attach to the proceedings.
There is little doubt that access to justice remains a very significant and unresolved problem in this country (as in many others, like the United States and the United Kingdom). But, in reality, it will not in any meaningful way be addressed by insisting that significant matters before the courts should as a rule be heard remotely. Not only would the costs savings involved be miniscule, but whatever convenience for the judiciary and the bar would come with the certain cost in which a losing party that had preferred an in-person hearing would always be left with the doubt that the outcome might have been different if the matter had proceeded in-person, and ultimately with the cost that our justice system — which is already undervalued — would be debased further.
Virtual reality is great, but it is not reality. Nor is virtual justice the real justice we should aspire to.
Guy Pratte is senior counsel at BLG. He is a former president of The Advocates’ Society and a fellow of the American College of Trial Lawyers.
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PT CRAO EXECUTIVE TEAM
We remain optimistic....
Joanne Hardie Gloria Scheerer Linda Lebeau
President, PT•CRAO Treasurer, PT•CRAO Secretary, PT•CRAO
Professional standards ● Best Practices ● Code of Conduct Protocols
Back to court ... Question is, where exactly are we?
Virtual or in-court
PT CRAO EXECUTIVE TEAM
LONG RANGE REVIEW
August 2022
It's been a minute we know since the last PT CRAO executive team update ... lots of things have been going on. We are now officially back to school and getting back to court slowly. Covid seems to be fading away but it has left those of us responsible for producing court transcripts still feeling the consequences of it, and probably will for some time to come. PT CRAO’s five year plan had to come to a standstill because of Covid and we need to examine just why we were halted in our tracks. PT CRAO executive has been in full battle mode because of the consequences of ZOOM. Even though ZOOM was likely the only solution at the time the courts faced this pandemic, right from the start we knew there was trouble ahead if it became the only solution because it was evident Covid was not going away any time soon. A page rate increase was being driven successfully by a separate group and PT CRAO executive team made the decision we didn't need to get into that. Instead, we needed to concentrate on the long term consequences to the justice system that we could see coming from the Ministry's jump to ZOOM as its only response to Covid.
It was only a matter of time, and once corrupted audio recordings related to proceedings conducted via ZOOM were common and being provided to produce court transcripts, PT CRAO conducted a broad spectrum communication blitz to warn all stakeholders in the justice system. SEE HERE. We launched a strategy to work with MAG’s Court Reporting Services team and the digital software provider to implement a long term available solution that would properly integrate the ZOOM platform into the DRDs in courtrooms across the province. Instead of our efforts generating meaningful dialogue we received no clear response from the Court Reporting Services team at MAG. The breakthrough was finally made when PT CRAO connected to a PR consultant who arranged a ZOOM meeting (ironically) with three members of the AG's staff who confirmed that ZOOM was MAG’s only immediate and ongoing solution to Covid and there was no plans for integration of the two systems, and no plans for the future post Covid. The AGs team would not confirm that once Covid was over, that ZOOM would be over. It was at that moment in time, that it became clearly evident that everyone liked ZOOM, the convenience of it, the ‘modernization’ of it, and no one wanted to hear about the consequences of it.
That meeting with the AGs team was the turning point for PT CRAO because we found the truth we were seeking. During this time, MAG’s Court Reporting staff created a survey to track specific time stamps of ZOOM problems. The survey was a clear illustration that they were not acknowledging they had already been fully informed of what the problems were, and was an attempt to show an interest that would satisfy the mainstream. The latest message from MAG, once the fees were lifted, was for ACTs to complain about ZOOM related audio problems directly to supervisors of court locations, which was previously offered as a response to the crisis. PT CRAO executive has consistently reported these ZOOM-related audio problems directly to supervisors on a number of occasions on behalf of its membership with little or no meaningful response.
PT CRAO has been tracking how courts are being conducted since vaccines have gone up, cases have gone down and restrictions have been lifted. There has been some shifting back to court but it’s not consistent. Unfortunately, not all courthouses are doing the same thing. There seems to be no pattern. We have been tracking which courthouses are back or attempting to operate in person, and the feedback we are getting is that there has been no province-wide directive on how to go back to court in the usual way, so, each courtroom iwe find a surprise to try to figure out what they’ve done to reconnect or try to find, ‘normal’.
In some courthouses, even though all parties can be attending in person in the courtroom, with recording equipment and all mics visible for everyone to see, they are still only operating through ZOOM links on one channel, and the DRD is essentially non-functional, overlooked entirely. In this circumstance, someone, or on consent, the decision was made even though all parties attend in person with each other in the same room actually looking at each other, that ZOOM is how they will conduct the proceedings, recording everything they say together on one channel of the DRD, and we have no idea why. It makes no sense but they are doing it. We are finding many courtrooms where court staff or an IT person has connected only two channels onto the DRD resulting in multiple parties all jammed together along with an open ZOOM link. That kind of installation only puts cutting edge digital technology back to the time of analogue tapes. The exact opposite of, ‘modernization’.
As the impact of Covid is declining and courts are tenderly re-opening, the impact of ZOOM remains, because the fact is that none of the corrupted audio recordings of countless court proceedings conducted over that time period, two-and-a-half years, can ever be restored or recovered after the fact. There is no magical transcribing equipment or software that can now fix the problems created by ZOOM-related audio recording failures. We are not even counting the massive numbers of OCJ bail hearings that continue to be conducted via teleconference connections where participants attend by audio only from multiple unknown locations. The attached article is an example of a recent ZOOM bail hearing. SEE HERE
We are now at another crossroads in our journey ... until all parties return to court in person, until all digital recording systems are once again operational, equipment is functional, and until all recordings created from ZOOM no longer exist, we can only define where we are as being in a time of, ‘buyer beware’.
Transcripts are now going up for Appeal that have been transcribed from ZOOM and ZOOM hybrid proceedings. The Court of Appeal is directly seeing the adverse effects ZOOM has had on the justice system. At the same time, there is turmoil across different sectors and press coverage complaining about the fact that judges are ordering in person trials and no longer holding court via ZOOM. Ironically, the parties with the loudest voices lobbying for ZOOM to continue, often do not require transcripts or transcripts are restricted by court order, so, ZOOM suits their needs. We are watching that dialogue unfold, but see the push to get back into court is coming from the judiciary and we are hopeful the message becomes stronger and that the justice system returns to stability. Unfortunately, we are also sure if we have to pivot, everything in the court system will revert back to ZOOM with the same adverse impact because there seems to be no back up plan.
If you have received transcripts produced during the period of Covid that you suspect were conducted via ZOOM or a combination of ZOOM virtual and in attendance appearances, here’s a couple of descriptions that should assist you in defining consumer expectations.
ONE CHANNEL ZOOM COMBINATION HYBRID ZOOM and IN PERSON
We remain hopeful that if there is no pivot, and the judiciary message stays strong to instruct that parties are to attend in person across the province, the fear that we were doomed to ZOOM forever has somewhat declined.
PT CRAO EXECUTIVE TEAM
Joanne Hardie Gloria Scheerer Linda Lebeau
President, PT•CRAO Treasurer, PT•CRAO Secretary, PT•CRAO
Professional standards ● Best Practices ● Code of Conduct Protocols
VIRTUAL JUSTICE?
QUOTES FROM THE TRENCHES
Virtual courtrooms are changing how justice is served. Court transcripts are revealing the failures and potential demise of the administration of justice ... KEEP READING
February 2022
PT CRAO executive team has been active over the last two years in alerting stakeholders and the public about the concerns we have with the sub standard recordings ACTs (Authorized Court Transcriptionists) are receiving from the Ministry that result from court proceedings conducted remotely over ZOOM links or teleconference through one recording channel on digital recording devices (DRDs) located in courtrooms across the province.
At the onset of COVID, Zoom was an immediate solution that fit in with the AG's desire to modernize the courts. However, once it became apparent the failures and consequences of unreliable one channel recordings PT CRAO began raising the issue. We questioned why the Ministry continued using ZOOM and had not integrated a remote platform that would separate speakers across 8 channels into the digital recording systems that are already in place in every courtroom across the province, within the Ministry's infrastructure, at their fingertips. Instead, the Ministry has chosen Zoom to conduct its business for the people of this province, and ignored the standard of justice the people of this province deserve.
Bail hearings are still being conducted by telephone with a mic stuck over a Polycom speaker, and everyone speaking through one channel of recording equipment. Parties phoning in from McDonald's drive through's, custodial institutions, sureties testifying from unknown places with babies and dogs barking. Murder prelim transcripts going up to SCJ with the interpreter, the judge, the witnesses, everyone else, all zoomed in by links converged on to one channel on the DRD recording equipment, in order for the Ministry to meet its obligation to provide a .dcr file to an ACT to produce a transcript. We can't separate voices over talking each other on one channel. We can't identify same gender speakers, everything becomes a blur over one channel, speech becomes obscured, the audio is corrupted. It's impossible.
This kind of audio corruption also happens when a remote mic or headset is either not compatible, or not in proper working order, or at times when the ZOOM connection or Wi-Fi becomes unstable and begins to warble, and then words become garbled or words cut in and out. That warbling and cutting in and out might be seen by an observer in the proceedings when the screen freezes. Sometimes a frozen screen is not visible, but the audio becomes frozen or corrupted. That's why court monitors don't even know when any of this stuff happens because the actual audio corruption really only happens when all these converged ZOOM links are recorded and preserved together on one channel of the .dcr file created by the DRD.
The Ministry must use this method of converging ZOOM links into one channel of the DRD because ACTs can only produce transcripts from .dcr files created by the Liberty Court Recorder software program created specifically and implemented in 2010 for court proceedings. The .dcr files must be preserved within the DRD and each .dcr file must be named in very specific filing conventions so the judges can access them, and so that each .dcr file can be uploaded at the end of every day for storage to a main server located somewhere in MAG. ACTs would be in breach of their Undertaking to the Court if they were not given a .dcr file that the Ministry must deliver to them. ACTs cannot fix any of these problems. ACTs can't restore lost audio. ACTs can't guess at what might have been said. ACTs can't transcribe what they think someone wanted to say, wherever words were obscured. ACTs can't fix up speech. ACTs can't clean up the mess or fix the problems or the chaos that happens real time in a virtual justice system conducted via ZOOM. ACTs will not be held responsible for the failure of the Ministry to meet its obligation to ensure the administration of justice is carried out.
Here we are, almost two years later, and as Justice Morawetz announced in his address at the opening of the courts in September, there have been 34,000 virtual hearings held since the beginning of COVID in the Superior Court of Justice alone. There are hundreds of thousands more Zoom proceedings that have been held in OCJ, civil and family courts. We fear these numbers. The justice system is in serious trouble. ACTs are now getting 70-80 percent of their orders from recordings that were produced from Zoom. PT CRAO has contacted every association, all the Chief Justices, the Ministry's court reporting services office, the AG's office, anyone with a vested interest in the administration of justice to alert them. We have broadened our message far beyond our own membership to ensure there is a record for the future.
Prior to the arrival of Omicron, the courts started to develop HYBRID solutions, a mix of parties attending in-court and parties attending remotely via ZOOM links. That has been an epic fail because, even though it’s possible to have both, which would separate speakers into separate channels, the Ministry hasn’t figure out how to do it and each courthouse is managing hybrid solutions in their own way without any instruction to utilize the concept.
Below is a selection of quotes and examples of the challenges and repercussions resulting from remote proceedings via Zoom.
VIRTUAL
DEFINITION
Very close to being something without actually being
QUOTES and EXAMPLES
FROM THE TRENCHES
I just wanted to provide you with an update. This transcript is not going very well. I have about 20 minutes to go, but there's about 150 + inaudible words. I wasn't expecting it to take so long, but I have to re-listen to each sentence 4-5 times. I'm sorry it's a bit longer than usual, but I should be able to finish it today.
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Here are the two witness excerpts. I still had to try and listen to channel one as there is no way of separating the interpreter from other speakers on channel 8. Such a mess. The judge does interrupt a lot through the one channel and there is no way to tune her out through one channel....
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Day 6 is back to the nightmare one channel, muffled horror that is zoomed into a DRD in that training room or wherever they are holding this, it’s not in a courtroom, it’s just channel one and everyone is coming through a fog. It actually makes me a little crazy every time I have to say ZOOM OBSCURED ....
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The first witness' last name is Sing(ph), I think it should be Singh but ZOOM audio cuts out and it records as S-I-N-G, so that's what I used. If you have any info that has the spelling, I can only guess it would be, Singh. Sorry.
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I should have this transcript done for you tomorrow at some point. In case you are wondering how it's going. ZOOM is a disaster. In this prelim, they have spent so much time starting and stopping because of ZOOM connection. And by February of 2021 I would have thought they would have figured out the ZOOM hearings. And, yes, the judge is super loud. I have to wear my headphones behind my ears when she talks.
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I have completed the second day of the BH and have it attached. The recording is, what can I say, as good as we all expect when we are dealing with remote recordings. I have timestamped all the sections that you will need to try to hear or make a note in the transcript. I am glad that the accused doesn't say much because when his phone was unmuted it sounded like he was in a barrel over Niagara Falls. I haven't heard such poor sound coming from a jail before.
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As an ACT that transcribes proceedings, I can advise you that not having a court monitor listening to and in charge of the recording during court proceedings is problematic for a number of reasons.... in the midst of the COVID pandemic, proceedings are often conducted remotely with parties participating using Zoom. There are often issues with the audio recording (including but not limited to feedback, distortion, background noises, etc) that would have gone undetected since no one was monitoring the recording. If the recording equipment had failed for any reason, nobody would have been there to detect or remedy that either.
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Here is an excerpt of a HYBRID ZOOM transcript where some parties attend in court and others participate via ZOOM links all on one channel.
...THE CLERK, THE CROWN, DEFENCE COUNSEL, THE WITNESS AND THE INTERPRETER ARE ALL SPEAKING THROUGH CHANNEL SIX EITHER FROM INSIDE THE COURTROOM OR VIA ZOOM
...THE JUDGE WHO IS PRESENT IN COURT HAS NO MIC BECAUSE THE JUDICIAL MIC HAS TO BE SHARED WITH THE WITNESS ATTENDING IN PERSON IN ORDER FOR TESTIMONY TO BE AUDIO RECORDED ON CHANNEL SIX, SO IT HAS TO BE PASSED BACK AND FORTH BY THE CLERK. SOMETIMES THEY FORGET.
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Another HYBRID example,
I am just working on a recording out of central west region. The judge and clerk are in the courtroom, three counsel and the accused are remote. The judge and the three counsel and accused from the jail are on one channel! There is no reason for that. The clerk has her own channel. Why would they set it up like that? They could at least have the judge on a separate channel instead of the clerk.
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INSIDE STORIES
We had a remote court reporter for that courtroom during that proceeding and therefore we currently do not have that audio file in our server to send out for orders. We have contacted the reporter and we are currently awaiting for the file to be sent. We will update you as soon as we can. Sorry, again for the trouble it has caused.
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NOTE FROM COURT MONITOR: I was thrown into this case remote, in mid examination, and provided no information whatsoever. I have managed to get a copy of the Postmortem report and look up several terms, but there were just too many things to annotate on the fly and with the accent and Zoom there were many things I simply could not understand. Apologies. I did my best.
THE DRD IN THE REMOTE LOCATION WAS NOT TURNED ON BEFORE THE MONITOR WAS CONNECTED TO THE PROCEEDINGS AND SEVEN MINUTES OF WITNESS TESTIMONY WAS NOT RECORDED.
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ENDORSEMENT BY SUPERIOR COURT OF JUSTICE “Today's hearing was fraught with technical difficulties. Both counsels had repeated difficulties connecting with ZOOM. When they were able to connect, they either had no audio connection or it was of very poor quality. It was impossible to know when words were missing from their communication. I too experienced ZOOM difficulties. I was unable to establish a video connection. The accused also did not have a video connection. While the Crown proposed some alternatives whereby the accused could be present with the interpreter and perhaps his counsel in the same room with separate computers, I remain concerned that the problems experienced today would not be addressed. Without the certainty of stable audio and video, a ZOOM hearing would not provide a fair trial. At this stage, with less than a week before the trial, I see no alternative to an in-person attendance at court”.
NOTE: In spite of the judge’s endorsement, this Superior Court of Justice trial was conducted entirely by way of ZOOM and is now at the Court of Appeal. Transcripts for Appeal could not be certified because the audio recordings did not the meet minimum standards required for accurate and reliable transcript production purposes.
VIRTUAL JUSTICE IN THE NEWS
NEWS BULLETIN CP24 November 2021
Four men have been arrested after they allegedly posted recordings of Ontario court proceedings to high-profile Instagram accounts. Toronto police allege that on Feb. 23, the Instagram accounts "thehood6ix" and "thewarinda6ix" posted images of a witness who had been testifying during a preliminary court hearing being held by remote video conference. The next day, police said the Instagram accounts "straighouttathe6ixtv," "thewarinda6ix," "thehood6ix," and "keep6ixsolid" posted an audio recording of this same witness from the same remote video hearing. According to police, there was a publication ban in place on the evidence given during that hearing.
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This is an article in the NATIONAL POST which references comments made by Nova Scotia Supreme Court Justice Mona Lynch ...quote
.... 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.” ....
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OTTAWA CITIZEN
“.,,,there are still technical challenges with “hybrid” trials — involving an in-person jury with some witnesses testifying by Zoom — and lingering concerns over the integrity of the court process. “Hybrid trials are a nightmare, setting up cameras and microphones, sometimes passing a single microphone between (Crown prosecutors and defence lawyers) so we have the ability to be heard by a witness testifying over Zoom,”
...There are also concerns with witnesses who could be observing anonymously via Zoom, which would violate an exclusion order. SEE NEWS BULLETIN CP 24
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There are endless more examples of how much harm has been done to the administration of justice because of ongoing and unresolved problems related to zoom. Too many to count, and we see no relief in the foreseeable future.
PT CRAO EXECUTIVE TEAM
Joanne Hardie Gloria Scheerer Linda Lebeau
President, PT•CRAO Treasurer, PT•CRAO Secretary, PT•CRAO
Professional standards ● Best Practices ● Code of Conduct Protocols
September 2021
PT•CRAO COVID UPDATE...
Since PT CRAO Executive team’s last information update there has been no detailed announcements from the courts specific to plans for fully re-opening post COVID but clearly each level of court continues to conduct virtual proceedings via ZOOM or teleconference or a combination of in-person and virtual referred to as HYBRID court proceedings. The Opening of Courts will be held virtually over YouTube. Jury selection has resumed. READ MORE
Reports from within the trenches and through random feedback from clients indicate that coordination has evolved to the extent that the Ministry can flip HYBRID combined in-person and remote ZOOM courts to one channel ZOOM courts with little notice or effort. So, scheduling dates for HYBRID in-person courts can be unpredictable, because ZOOM links can replace in-court appearances to become fully virtual for whatever reason. Ministry staff can also be moved virtually from one court location to another instead of attending in person. Monitors can attend virtually through VPN connections to a DRD located anywhere, not necessarily in a courtroom, and clerks can attend virtually via a ZOOM link from one jurisdiction to another.
In spite of these newly evolved mixed courts and rapid switching between HYBRID to one channel ZOOM proceedings and the ability to move staffing around virtually, the Ministry has still not resolved the multiple problems related to one channel ZOOM proceedings. A HYBRID in-person court combined with some witnesses or participants attending virtually via ZOOM is not a solution. This option does not eliminate the problems resulting from multiple ZOOM links being connected through one channel located on a DRD in order to create a Liberty.dcr digital file. The fact remains that one channel conversion through a DRD cannot separate multiple speakers. There is no way to miraculously eliminate or correct weak WiFi connections or remove background interference, like dogs barking or babies crying, or overcome the problems related to incompatible equipment and mics that don’t work properly. All those problems just converge together and collide through one channel and become noise across the Liberty.dcr digital file.
PT CRAO executive team continues to reviews articles and editorials from the press and various associations. Of note, we found the following quote from a recent article in the Lawyer’s Daily worthy of further comment,
Michael White, president of the Toronto Lawyers’ Association (TLA), said although the pandemic has been challenging overall for lawyers and the courts, the delays are “very practice specific.” White told The Lawyer’s Daily that the TLA has received feedback from members across many areas of practice about a backlog in the courts.
On a positive note, he said that criminal lawyers have been appearing virtually for issues, such as bail hearings.
“This has actually worked better in many cases than prior to COVID. Those attendances are more administrative in nature and one lawyer can attend in different courthouses without having to take the time to travel out to them, so they can get more accomplished in a single day,” he said, adding that virtual hearings also make it “easier for sureties to attend in court.”
“A surety, in the past, would have to take time off work, conceivably, to show up in a court, which is a pain and a hassle and it makes things more difficult, but with virtual hearings that’s been accomplished much more easily. So, there’s some parts of these changes that I think should be kept because they have served to reduce costs and save time for everybody involved,” he said.
ACTs across the province would disagree with Mr. White about what he thinks is a positive note, that bail hearings, “...are more administrative in nature”. It’s quite the contrary when it comes to contested bail hearings where transcripts must be produced in fairly short turn around times for purposes of bail review. Contested bail hearings still continue via teleconference, they have not been eliminated, they are rarely just administrative, and they are the very most important transcripts that ACTs produce because our justice system and Charter of Rights and Freedoms are based on the belief that everyone is entitled to their liberty until proven guilty of something. Every person has the right to a bail hearing. To reduce the importance of a bail hearing to simply implying they are, ‘administrative in nature’, diminishes that importance.
Bail hearings are all held by teleconference and everyone seems happy with that because no one needs to go to court. Nearly all parties attend via the telephone through one channel on the DRD, even the JP does not have to be in court. ACTs have had to transcribe contested bail hearings where participants are sitting in a parking lot or a McDonald’s drive-through on their phones. Sureties call in from unknown locations, babies are crying, dogs barking in the background. None of those background sounds can be erased.
At one time before COVID someone accused of a crime had to appear in person for their bail hearing. There are reasons for that, to ensure that the right person is before the court, and for the court to assess the person’s condition, if they are injured, or need medical care. You can’t see that over a telephone. Sometimes they are connected through JVN so they are visible, but often it’s a connection made by telephone from the institution.
Contested bail transcripts are very difficult to transcribe and when you can barely hear what multiple speakers are saying through a one channel teleconference call it is almost unfathomable that anyone thinks it’s a good idea to conduct a bail hearing in that manner, or that it’s just administrative in nature. There are too many problems associated to proceedings conducted by teleconference calls to be able to fully describe in detail here. Transcripts must address these issues as they occur in order to be truthful.
Over the past year and a half ACTs have tried to work with the solution because ACTs believe they are an integral part of the justice system. Without reliable and accurate transcripts there would be no way to seek liberty, victims cannot be heard, justice cannot be served. Unfortunately, we see no acceptable change in spite of the Ministry’s attempt to introduce a HYBRID-ZOOM as a positive solution. It is not. The problem of one channel ZOOM-teleconference proceedings continue and the concerns and potential consequences that ACTs have expressed over the past year and a half have not been heard.
ACTs acknowledge that everyone in the justice system has had to adapt and face hardships because of COVID. ACTs have also struggled and suffered, some to the point where they cannot continue to work under these conditions, or they have refused business. No one has noticed or acknowledged the contributions and sacrifices ACTs have made to keep producing transcripts that don’t compromise the truth so the administration of justice can continue to function. Continuing to maintain production of transcripts under such challenging circumstances with no relief in sight is very disheartening.
On a final note, we would be remiss if we did not include a recent article which discusses that the Ontario Court of Appeal and the Ontario Court of Justice, Canada’s largest trial court, are both working on COVID-19 vaccination policies for their judges. We sincerely hope the courts do not decide there’s an added benefit for justices to preside virtually via ZOOM or teleconference in order to replace the necessity for vaccination. READ MORE
PT CRAO EXECUTIVE TEAM
Joanne Hardie Gloria Scheerer Linda Lebeau
President, PT•CRAO Treasurer, PT•CRAO Secretary, PT•CRAO
Professional standards ● Best Practices ● Code of Conduct Protocols
June 2021
PT•CRAO COVID UPDATE...
Although COVID numbers are dropping and vaccinations are on the rise in the Province of Ontario, PT CRAO membership believes ZOOM-teleconference transcripts resulting over the past year or so because of COVID will continue to speak for themselves, and that as independent ACTs it is incumbent upon us to continue to be transparent and to disclose the problems candidly and directly with our clients and to the public through updates on the PT CRAO website.
According to the most recent update from the Ontario Court of Justice the courts are still operating under the declaration of state of emergency and stay-at-home orders. READ MORE here.
As we await the re-opening of the courts, PT CRAO remains concerned and cautious about what that 'new normal' will look like. We know from statements made publicly by John Struthers, the President of the Criminal Lawyers' Association, that he believes it could be a situation that OCJ first appearance and adjournment courts, even possibly bail courts, pleas, et cetera, will continue to be held remotely, virtually, phone-in courts, no personal appearances, post COVID. Also, the three Chief Justices recently appeared as a panel on TVO and they referred to the future after COVID as being a combination, or a type of hybrid virtual justice system, parties appearing remotely and other parties present in the courtroom. A mix. These technological innovations or advancements to achieve virtual justice post COVID will still require integration over separate channels of an approved digital recording device. We cannot embrace a 'new normal' that does not meet the required standard of integrated digital recording technology. There needs to be a viable solution in advance of OCJ courts re-opening and SCJ jury trials resuming post COVID.
Apart from the likelihood that hybrid courts will result in serious recording problems post COVID, we found the words that Justice Mona Lynch shared about her perspective on the impact of COVID on the justice system with the House of Commons Standing Committee on Justice and Human Rights to be very compelling and important:
....“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”.... - Justice Mona Lynch
Justice Lynch has it exactly right. There’s nothing funny about what has been happening in the age of virtual justice that was brought upon us by COVID. There is nothing funny about a kitten appearing on ZOOM during a court proceeding. This lack of human interaction and judicial presence in our courts during COVID, in our view, has caused a great loss for which we as ACTs grieve.
As we have been watching the numbers dropping and vaccinations rising, PT CRAO has communicated with the Ministry of the Attorney General voicing our concerns that once COVID is behind us it still leaves a year of ZOOM-teleconference recordings that often do not meet the required standard for transcripts to be certified. To mitigate further consequences arising from hybrid remote and in person ZOOM recording options, there must be a solution that fits all levels of courts before we enter post COVID operations.
Joanne Hardie Gloria Scheerer Linda Lebeau
President, PT•CRAO Treasurer, PT•CRAO Secretary, PT•CRAO
Professional standards ● Best Practices ● Code of Conduct Protocols
April 2021
PT•CRAO ADVISORY UPDATE... Is the official court recording and accountability in the Age of Virtual Justice in jeopardy...what are the consequences? READ MORE here.
This letter was sent to Board members of the following organizations: Ontario Bar Association, OBA; Criminal Lawyers' Association, CLA; Ontario Association of Senior Crown Attorneys, ONTASCA; Ontario Crown Attorneys' Association, OCAA, the Association of Law Officers of the Crown, ALOC and the Law Society of Ontario.
February 2021
PT•CRAO is a not-for-profit business association with membership spanning across the Province of Ontario. Through 55 years of operation PT CRAO membership has had to adapt and evolve to meet many challenges. PT CRAO mandate has never changed. Membership is committed to ensure that the profession of court reporting and transcription services are provided to the highest standard possible in both the private and public sectors. Over the decades many traditions, relationships and technologies have changed and the profession has withstood each challenge head on.
For recent context, the last 10 years have seen the greatest shift in both tradition and technology.
In 2010 there was a huge technological change when state-of-the-art four and eight channel digital recording equipment was installed in every courtroom in the Province along with compatible transcribing software. Digital recordings were safely and easily stored and the sound quality of the audio was game changing for transcription production. This new digital technology demonstrated an immediate and monumental difference from the sound quality of four channel analogue tapes and replaced the old Sony or Lanier courtroom recording equipment. Technology in the private sector was slightly ahead of the courts, depending on reporting firms, or agencies and for the most part, were not directly affected by the change in the court judicial system.
In 2014 relationships and traditions changed dramatically. Traditionally, the court reporter in the courtroom almost always produced certified transcripts from any proceeding they were assigned to in the courthouse where they worked as a MAG employee. There was no choice and the Ministry controlled the relationship between the reporter and the ordering party. In a sense the Ministry staffed the court and supervised transcript production. Transcripts were housed for pick up, and staff at front counters acted on behalf of the court reporters to exchange the transcripts and receive payment. There was virtually no direct contact between the court reporter and whoever ordered the transcript.
In June of 2014, the Ministry introduced a new model where two separate roles were created in which MAG court reporting and production of transcripts were split in two. Court reporting remained a MAG position, and transcription services became an independent business. The dramatic difference with this split was clients and-or participants in the justice system had the choice to decide who they wanted to produce certified transcripts for them and the role of the independent Authorized Court Transcriptionist (ACT) emerged. The Ministry, the middleman, was out of the equation. MAG reporters were given the opportunity to also become independent ACTs, but they were not permitted to conduct any transcription business on the courthouse premises or during court time.
Make no mistake, this was a very tough transition for all parties to make. It took a bit of a learning curve to understand the new system and there were many bumps along the way, but we all made it to 2020. There have been many success stories, along with the failures of the system, but most importantly new relationships and new traditions have been built and the profession has survived.
Now, here we are in the early part of 2021, in the midst of a second surge of COVID, and ACTs across the province are struggling and their voices need to be heard.
After all the accomplishments we have experienced with these improvements, it is now necessary to describe the devastation, the impact, that COVID has had reversing the progress that was made in the digital technology recording and transcribing system the Ministry invested in 10 years ago.
COVID has forced the courts to modernize at rapid speed. Everyone’s been on board to push change. Unfortunately, in the Ministry’s haste to ZOOM or to teleconference, to go paperless, do everything remotely, the fundamental importance of the official digital recording systems in the courtrooms of this Province has been completely overlooked and ignored.
To put it as simply as possible, the Ministry, up to this point in the COVID pandemic, has failed to integrate the eight-channel digital recording equipment in the courtroom into the virtual ZOOM platform, or remote teleconference call proceedings. This failure makes it almost impossible to certify transcripts because the audio recording is so deficient.
Here are a few examples of deficiencies. Because the ZOOM video platform is not integrated into the authorized digital recording system, the audio is recorded on one channel from multiple remote locations with multiple speakers. The other seven channels are dormant and not integrated into the virtual platform. So, the one channel which ACTs are left to transcribe from is not only picking up all speakers, but also background sounds coming from remote locations. Over talking cannot be separated from one channel of audio. Because of a variety of problems associated to the recording or visuals coming through the ZOOM platform from participants in remote locations, WiFi can be unstable, incompatible equipment, speakers, headsets, different volumes, there are also gaps in the recording, lost words, lost audio, ticking, distortion from open mics coming out of remote locations, parties speaking in the background, dogs barking, distortion, echoing, the audio at times is muffled, warbled, background beeping because parties go in and out of the session. The need to stress, ‘lost audio’, is important because in any court of law, and often argued strenuously in a court of law, no audio should ever be lost.
Here’s why...The official court recording is the most important foundation of the justice system. It is fundamental to the justice system. Without a reliable, safely preserved audio recording, there can be no challenge to any words that are said in an open court of law. The audio recording presently is so deficient it cannot be relied upon to any degree of accuracy to certify a court transcript. That’s the danger. Without a reliable audio recording, there are no checks and balances in the justice system. That’s why independent ACTs who provide certified transcripts are so very important, why they need to exist is to ensure that every spoken word is accurate, which safeguards that no one is above the law and everyone can be held accountable for their words. There is no mechanism at the moment to keep the justice system safe.
This push to modernize the courts during COVID has stripped away any progress, and effort, and time that went into developing this state-of-the-art digital recording technology and has pushed the fundamental importance of the checks and balances in the court system to non-existence. It has put the justice system in harm’s way.
PT CRAO Executive Team feels it is very important to review all the accomplishments of the past decade and to also address the present dilemma we are facing now in 2021 in an open and transparent way, because where we are now, cannot ever be considered the new normal. The importance of this profession needs to be acknowledged and, unfortunately, it has been entirely overlooked by decision makers pushing modernization of the court system during this pandemic.
Many efforts have been made to express these serious concerns to the Ministry and to discuss possible solutions, with no success. On behalf of our membership, we can no longer remain patient or silent.
Joanne Hardie Gloria Scheerer Linda Lebeau
President, PT•CRAO Treasurer, PT•CRAO Secretary, PT•CRAO
Professional standards ● Best Practices ● Code of Conduct Protocols