PT•CRAO ADVISORY UPDATE ● ZOOM proceedings in the Age of Virtual Justice Apr 19, 2021
April 19, 2021
TO Ontario Bar Association
Criminal Lawyers’ Association
Association of Law Officers of the Crown
Ontario Association of Senior Crown Attorneys
Ontario Crown Attorneys’ Association
Law Society of Ontario
FROM PT CRAO Executive
SUBJECT ZOOM/Teleconference Audio recordings
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 adapted and evolved to meet many challenges. Our mandate has never changed. We are committed to ensure the profession of court reporting and transcription services are provided to the highest professional 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. Now, we have COVID, and we face the biggest challenge ever.
The PT CRAO executive team has been tracking various articles and opinions about how COVID has pushed modernization of the courts. Unfortunately, modernization has gone straight to ZOOM and teleconference calls as a way to continue in a virtual world that COVID created and digital audio recording technologies have been pushed backwards to primitive standards.
We say this with all seriousness. Everyone who has a vested interest in the justice system - judges, Crowns, lawyers, every stakeholder from the top down, decisions-makers - have completely overlooked the most important foundation of the justice system: the official court record. The public would and should be outraged if they only understood exactly what that means. The official court recording is the only checks and balances to the entire justice system. Without a stable audio recording, properly preserved and securely stored so that a certified transcript can be produced, there is no accountability. A certified transcript cannot be produced where audio is obscured or lost. Lost or obscured words cannot be substituted by something, “it might be”. That's not the measure. We work in absolutes, the truth, not what might be, or what was maybe said, or "...that might be something that someone wanted to say, I'll put that in there". We can't do that, no one can regain lost audio, lost words. The voice of a victim, or a witness to a crime once their words are lost because the audio is lost, their voices are no longer heard, there’s no record. It's that important. Without a safely preserved audio recording of every spoken word, anyone can say whatever they want, even judges, and there can be no challenge. No one should be above the law, and no voice should go unheard or be lost.
Here we are in April 2021, and the official court recording, the most important foundation of the justice system, has become a one channel ZOOM or teleconference chat line. This could not be more backwards or more primitive. All speakers on one channel from multiple unknown remote locations. On one channel you cannot separate speakers if they talk over one another. That's lost audio. On one channel, if there is nothing to identify same gender speakers, then they are simply noted as UNIDENTIFIED FEMALE/MALE VOICE. ACTS or transcriptionists can't guess who's speaking. That would be too risky. Dogs are barking, babies are crying, doors slamming. One judge was presiding in his kitchen while the sound of his wife washing dishes is audio recorded in the background. There are bail hearings where lawyers are sitting in their cars on cell phones in parking lots participating via teleconference; the audio recording cannot pick up what they are saying. People actually laugh at what's going on. More times than not, transcripts cannot reflect where anyone is, because locations are not identified. Sometimes participants phone in so they are
not visible, often from custodial institutions, sometimes they appear via ZOOM, but the most the transcript can reflect is that they are all participating from multiple unknown locations. Here’s another virtual solution, there are examples of Bell recordings of family court proceedings being uploaded into a DRD to store the recording, which is likely located in someone’s living room, and then converted to .dcr files. There’s a reason why the Bell audio recording has to be converted to a .dcr file, but that is a separate concern.
However, the effect is the same with the Bell recordings, all speakers through one channel and all the problems associated with that, but also without Form 1s, without annotations or timestamps. The problem is, regardless of whether there is lost audio, it’s impossible to certify a transcript in Form 2 without a Form 1 certified by a court monitor.
Ultimately, transcripts must reflect the truth ... AUDIO MUFFLED WORDS OBSCURED = Audio lost. Any time something in the background interferes with someone speaking, that's lost audio. It’s impossible to separate interference that is audio recorded in the background. You can mute mics and that will silence a remote location, but it’s not often done. If a speaker has a headset with the mic too close to their mouth, or some kind of volume level at the source that is set too high, then you get HIGH VOLUME AUDIO DISTORTION which equals lost audio. That lost audio cannot be fixed or somehow preserved through a ZOOM or teleconference recording. There is no way to eliminate distortion; distortion obliterates spoken words = Lost audio. Or, if the Wi-fi connection is unstable, or weak, then, guess what? AUDIO CUTS IN AND OUT AUDIO WORDS GARBLED DISTORTION AUDIO FADES IN AND OUT WARBLED AUDIO. These are all descriptions of deficiencies, of lost audio, that must be reflected in transcripts. Otherwise an ACT who does not reveal the problems, or overlooks the deficiencies, or hides the fact there is lost audio, would be falsely certifying the Form 2 which is a serious breach, because that would be ignoring the truth with potential consequences.
INDECIPHERABLE is a word that was given to ACTs when they struggle with the audio, and is entirely not applicable. Indecipherable means something that cannot be read or understood because something is illegible. It does not reflect lost audio.
In a recent Toronto Star article, there was an examination of a ZOOM or teleconference transcript where there were 44 INDECIPHERABLE’s in 24 minutes of audio recording. That degree of lost audio is unacceptable in any level of civil or criminal court, bail hearings, or tribunals, NCR or ORB hearings, or even an adjournment court.
INDISCERNIBLE is another word that is frequently used but does not and cannot demonstrate lost audio in any way whatsoever. Indiscernible is something that cannot be seen. It’s not lost audio.
Are these words, these definitions, supposed to be used to replace the voice of a witness or a victim?
We are all for whatever makes justice run smoother and more quickly. But by doing so, by making those things priorities, we are sacrificing the most important element that keeps the justice system safe. The audio recording captures the truth, the words that victims deserve, words that need to be preserved, that lawyers and Crowns spend hours on defending their positions. The public deserves the truth, not gaps, not faded or unsure guesses at what someone might have said.
The Liberty digital recording and software system that was implemented in 2010 by the original MAG Court Reporting Services team was almost flawless. We had moved from four-channel analogue tapes, to state-of-the-art digital recording and transcribing equipment. 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.
PT CRAO has been advised that Liberty Recorder Systems, which is the approved recording system in every courtroom across the province, has presented a virtual platform solution to the Ministry of the Attorney General which would restore 8 channel digital recording. We view that as a viable solution. SEE BELOW
We are not asking a lot. ACTs just want to be able to produce, and truthfully certify transcripts to the professional standard the people of this province are entitled to. We can no longer wait this out, without knowing what the solution will be now. PT CRAO believes it is time ACTs speak now. We have been patient long enough. Without a rapid vaccine response in our communities, we are fearful this ZOOM/teleconference solution will continue to do harm. We ask that you consider the consequences that will arise because the official court digital recording system has been overlooked and replaced with a quick-fix solution.
We believe our organizations have common interests. We both have members across the province, and as associations it is our duty to inform our members and ensure the public and the administration of justice is well served. Transcripts that cannot be certified, serve no one All courts in the justice system matters. Your members and the people of this province deserve better. We would ask you to please share PT CRAO's position that we have submitted to you with your members, or invite them to visit our website at http://www.ptcrao.ca.
We welcome further discussion, and if you need examples of transcripts that are being produced as a result of this COVID solution, please do not hesitate to contact us by REPLY ALL email.