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TORONTO STAR
‘WHERE IS THE PROFESSIONALISM HERE?’ JUDGE SLAMS TORONTO COPS FOR MESSAGING EACH OTHER WHILE TESTIFYING IN DOMESTIC VIOLENCE TRIAL

Thu., July 14, 2022 | Alyshah Hasham Courts Reporter

A recent trial was “irrevocably tainted” when two Toronto officers were apparently messaging each other while one was testifying, a judge has found.

As a Toronto police officer testified by Zoom in a domestic violence trial, Ontario Court Justice André Chamberlain heard the ping of what seemed to be a social media messaging app. Then he saw the officer and the officer in charge of the case, also on the Zoom call, both suppress laughter at the same time.

A few minutes later, it happened again.

In a scathing ruling released Friday, Chamberlain said that after reviewing notes and a special transcript he is convinced Const. Jade McMurray and Const. Sarah Chippior were in communication while Chippior was testifying — which, if true, would seriously undermine confidence in the justice system.

“How could a defendant, in an open court, whose liberty is at stake and who faces significant consequences if found guilty, feel as though he’s had a fair trial if the witness and the officer in charge are communicating surreptitiously while testifying?” the judge wrote.

Chamberlain said he did not know what the communication entailed — whether it was about the case or entirely unrelated — because no records were ever obtained by the Crown and disclosed to the defence. Chamberlain, a former federal Crown, criticized the prosecutors for not obtaining those records given that the content could call into question both the credibility of the witness and of the entire investigation.

“I was deeply troubled by the complete inaction of the Crown on this issue,” he wrote.

Defence lawyer Paula Rochman, who acted as a “friend of the court” for the self-represented accused man, Islamuddin Attayee, said it is outrageous that any witnesses — let alone the officer-in-charge of the case and the officer who arrested the accused — would be communicating while testifying.

“It’s astounding that they thought this was acceptable at so many different levels,” Rochman said.

Rochman said the failure to find out what the communication was about and whether there was a totally innocuous explanation makes the incident even worse.

“Where is the professionalism here?”

A spokesperson for the Ministry of the Attorney General said it would be “inappropriate” to comment on the ruling during the appeal period.

A spokesperson for the Toronto Police Service said that, when notified, a “negative judicial finding” is referred to Professional Standards, who will decide if an investigation is needed. “If misconduct is substantiated after an investigation, the Police Services Act provides for a number of disciplinary measures to be imposed from lost pay to dismissal,” the spokesperson said.

Chamberlain acquitted Attayee on charges of assaulting his wife and a bystander who intervened because he could not rely on the eyewitness identification of Attayee by three witnesses in court. Attayee’s wife did not participate in the trial.

The three witnesses testified they saw a man strike the face of a woman with a stroller and rushed over to stop him, according to the ruling. The man then punched one of the women who confronted him in the face.

The man fled the scene. Police later arrested Attayee at his wife’s home.

While all three witnesses identified Attayee in court as the man they saw that day, Chamberlain pointed out that one witness did so over Zoom where Attayee was identified as the “accused.” Attayee was also wearing a mask at the time due to COVID-19 restrictions in court, and that the trial was taking place two years after the alleged assaults.

Chamberlain said that in-court identification should be used with extreme caution and noted that no photo lineup or any other process to identify Attayee as the perpetrator was done during the investigation.

While the judge did not acquit Attayee over to the communication issue, Chamberlain noted that the incident caused tension between Attayee and his lawyer and that Attayee ended up having to represent himself. The court then appointed Rochman to assist in making sure Attayee had a fair trial.

“This trial was irrevocably tainted by the actions of this witness, the officer in charge and the Crown,” Chamberlain wrote, adding that he feels for the two complainants and the witnesses who stepped in to help a vulnerable woman and “now find the whole process undermined by the actions or inactions of some of the players.”

Rochman said this case highlights serious issues with Zoom trials that do not exist in physical courtrooms.

It is impossible to control what people are looking at when they are appearing on Zoom or to be sure they aren’t looking at another screen, or a phone, she said.

Zoom courts also lack the formality and solemnity of a physical courtroom, she said, though a police officer should know looking at messages and laughing in court is not appropriate.

She added that the decision should be automatically reported to police and the Crown’s office so that follow-up action can be looked into.

recent Torstar investigation by Rachel Mendleson and Steve Buist found that when judges find officers have violated the rights of the accused, those decisions often fly under the radar of police forces, and even the officers themselves.

 

 

THE LAWYERS DAILY   LexisNexis 
ATTORNEY GENERAL DISREGARDS BENCH/BAR | Michael Lesage

Friday, March 04, 2022 @ 12:56 PM | By Michael Lesage
Responsible for co-ordinating and administering court services throughout Ontario, the Ministry of the Attorney General has long fallen well short of expectations. In addition to failing to note the advent of the Internet or taking effective steps to digitize court operations prior to the pandemic (which most other legal jurisdictions had done years earlier), it operated in an unaccountable and imperious manner, without seeking feedback from the public or the profession.

The result was a low-performing court system that couldn’t timely try cases, with average lawyer salaries that were correspondingly lower than in neighboring jurisdictions. Things had seemed to improve since the court system collapsed two years ago, but the Friday, Feb. 24 Notice to the Public and Legal Profession represented a significant step backwards.

Before we get into the notice, it must be recognized that the Ontario legal landscape is artificially “unique” in a bizarre, Kafkaesque manner. Though, like in other jurisdictions, Ontario lawyers represent the interests of their clients in (and outside of) court, Ontario lawyers are additionally required to continually fight with court services staff merely to accept routine legal documents for filing. In this regard, court services staff arbitrarily reject one third of all (civil) paperwork submitted. Despite that, Friday’s Notice expanded, rather than restricted, the grounds upon which court staff could reject documents. Despite big talk and conciliatory words, it was yet another example of the Ministry of the Attorney General disregarding the roles of the bench and the bar.

For those unaware, Friday’s Notice limited acceptable formats for electronic signatures used in litigation, beyond those provided by the Electronic Commerce Act, 2000, S.O. 2000, c.17. Acceptable signatures are now limited to certificate-based signatures, such as Adobe or DocuSign, scans of “wet-ink” signatures, and certain non-wet handwritten signatures generated using a stylus, trackpad or touchscreen. Merely typing names, with or without font changes, are now verboten, though no guidance was given on whether signatures could be drawn, using a mouse, or cursive fonts used. Moreover, court staff were provided further discretion to reject documents based upon their subjective determination as to whether or not signatures meet the new requirements.

At minimum, Friday’s Notice demonstrates a lack of understanding as to how those pretty tabbed and bookmarked court filings are actually created. Increasingly, this is done by lawyers working alone, who create the documents (typically affidavits) in word processing software. Same are then sent to clients for review, modification and ultimately approval. To date, a quick call could be held, at which point the lawyer could witness the client signing the document (by for instance typing in their name) and e-mailing it back, after which the lawyer could commission it. Thereafter, the lawyer would utilize their (expensive) secretarial toolkit to convert the document to pdf, and then assemble it along with any exhibits, vestigial tab pages, back pages and exhibit stamps and add bookmarks, prior to filing or attempting to file same.

Friday’s Notice adds further time and expense to the process, for apparently little benefit. Many motions are exceedingly routine; i.e. motions to amend, undertakings motions, or revolve around the failure to pay debts. To follow the dictates of the new Notice, lawyers would need to acquire further software, load the Word document into that software and then walk clients through its use. Alternately, their clients would have to print out the documents, sign them, scan them and then e-mail them back (or revert to in person meetings).

For lawyers’ own signatures, they would likely have to upload a copy of their signature once, and then insert that image (picture) into every document requiring their signature thereafter. While it’s understandable that certain documents need additional security (i.e. deeds), it is hard to see the new requirements as doing other than making routine litigation in Ontario even less efficient or affordable, while the additional ‘security’ offered is likely negligible and in most cases simply unnecessary (to say nothing of security issues arising from maintaining a large electronic database of lawyer and party signatures).

Intentionally or not, with Friday’s Notice, it appears that the attorney general is also calling the competence of Ontario’s judiciary into question. Specifically, the rules of the Superior Court are set by various committees (including the Civil Rules Committee) whose membership is made up mostly of the senior judiciary. Is the Attorney General really implying that Ontario’s judges are not competent to determine whether an electronic signature is fit for a particular purpose? Likewise, if the attorney general dictates the rules of court, why even have rules of court, a rules committee or separation of powers?

Like most problems in Ontario’s legal system, Friday’s Notice arose from a lack of consultation, feedback or accountability. The attorney general identified a real or perceived problem, then ordered a top-down solution, , without any input from, or consideration by those who would be affected. In the process, he succeeded in taking an inefficient system, and making it more so, which is in contrast to the stated purpose of the court rules. He would have heard that had he consulted with the bench or bar beforehand, but as we know, that is seldom done in Ontario. 

In advance of publication, I reached out to the ministry with respect to this Notice. Specifically, I inquired as to what evidence there was as to the need for this new rule, what mischief it was intended to address, along with what consultations, if any, were held beforehand. Likewise, I inquired as to the anticipated impact this new rule would have upon the rate of documents being rejected, along with whether any thought had been given as to anticipated costs to the public and profession. At the time of publication, no response had been received.

Unlike space exploration, running a court system is not rocket science. In fact, most jurisdictions in Canada and the U.S. manage to do it much more effectively than Ontario. , we do not need so much to “blaze a new trail”  as to simply copy what is being done by jurisdictions that have better functioning court systems.

For Ontario, this means having better mechanisms for feedback (ideally at the local level), so that when problems are identified, prompt corrective action can be taken. This is accomplished in the U.S. by electing attorney generals (directly), judges and clerks of court. Perhaps it’s time to explore that kind of accountability here?
  
Michael Lesage is a trial lawyer and the founder of Michael’s Law Firm, a litigation boutique that specializes in complex cases involving professional negligence, business litigation, insurance coverage disputes and cases of serious injury. When not representing clients, he can often be found playing competitive sports. He also sits as a bencher at the Law Society of Ontario. You can e-mail him at This email address is being protected from spambots. You need JavaScript enabled to view it..
 

 

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.

 **********

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....  

**********

 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 ....

**********

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.

 **********

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.

**********

 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.

**********

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.

**********

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.

**********

 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.   

**********                                                                                                                                                                                                                                                               

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.

**********                                                                                                                                                                                                 

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.

********** 

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.

********** 

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.” ....

**********

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

**********

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.  

READ MORE

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

 

 

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