ARTICLE ● Hybrid Zoom Hearings ● OTTAWA CITIZEN Dec 28, 2021

“We still haven’t figured this out”:  Courts face technical challenges as Ontario accelerates modernization plan

December 28, 2021 | By Aedan Helmer

With COVID-19 creating a state of flux in Ontario courthouses, the provincial government is “accelerating” plans to outfit courtrooms with videoconferencing capabilities in the next phase of its modernization strategy.   The long-range plan, according to Ministry of the Attorney General spokesperson Brian Gray, will “break down barriers in the justice system and speed up access to services — remotely, in-person and online,” and will deliver “the most significant upgrade to justice services in Ontario history.”

But some critics say that change is happening too gradually, with in-person access still under restrictions at Ontario courthouses while remote access — by Zoom or other teleconferencing — has presented some technological challenges.

“The courts belong to the public, and the public ought to have full access, and nearly two years into the pandemic we still haven’t figured this out,” said Ottawa criminal defence lawyer Leo Russomanno on behalf of the Defence Counsel Association of Ottawa.  “We’re not only talking about members of the public who are observing, but also family members of parties that, for reasons beyond their control, cannot attend at the courthouse. People want to be responsible and limit their attendance in these indoor gatherings, or they may have a condition that prevents them from attending. But for whatever reason, if they can’t attend by Zoom because that access is being restricted, there is simply no excuse for that nearly two years into the pandemic. “There is an open court principle that ought to be adhered to, and it’s not in some of these cases.”

The ministry “remains committed to the open court principle and providing access to justice services for all participants,” Gray said.   “The judiciary have the exclusive authority to control the process of their courts, including deciding whether the court proceeding is held in-person or remotely.”   Some proceedings at the Superior Court of Justice can only be held virtually where the parties consent, and all judicial officials are “encouraged to be flexible and mindful of the position and circumstances of all participants … ” Gray said. “In instances where a matter will proceed virtually, the ministry will work with the victims and witnesses to ensure they are able to participate.”   Gray cited investments and recent “breakthroughs” in moving justice services online with remote hearings and other key changes to judicial procedures and the court process to improve access, including in rural, northern and Indigenous communities.

The ministry has provided courts with 635 new teleconference lines, a portal to access and recover recordings, and technology to enable remote hearings in 349 courtrooms since resuming operations in July 2020, Gray said.  Judicial officers and court staff have also been equipped to work remotely and securely.   The ministry is currently “accelerating investment” in videoconferencing equipment, Zoom licenses and bandwidth upgrades, with plans to retrofit another 70 courtrooms with videoconferencing capabilities.  The ministry took a phased approach to resuming in-person court operations and, as of early December, had resumed proceedings in 74 courthouse locations, with 721 courtrooms open across Ontario, 11 satellite court locations and four off-site jury locations.

Russomanno said the DCAO has long been calling for some of the changes the province implemented in its modernization strategy.  “The defence bar has been saying for a while now that we need to find efficiencies in the system in terms of filing documents electronically and finding a more efficient way to appear in court on administrative matters,” Russomanno said. “It took a global pandemic to sort of drag the justice system kicking and screaming into modernity.” There are still some glaring gaps in the government’s plan, Russomanno said.   “While I applaud the government for (its modernization efforts), it’s hard to give too much credit when we’re still having bail hearings where an accused person is on the phone at the jail, where there’s no video capability … We still don’t have the ability to have remote hearings from the jail, and almost two years into the pandemic that’s unacceptable.”

Several high-profile murder trials went ahead in Ottawa prior to the Dec. 19 announcement that all new jury selections would be halted.   Russomanno said 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,” Russomanno said.

There are also concerns with witnesses who could be observing anonymously via Zoom, which would violate an exclusion order.

The ministry said officials have worked with justice participants “to keep Ontarians safe and maintain the administration of justice, including the integrity of court proceedings, as determined by the presiding judicial official,” according to Gray.

“There are definitely challenges with hybrid proceedings and with Zoom, and these are all things we’re dealing with as we go,” Russomanno said. “So there is a bit of a gap between what the government says it’s doing and what is actually happening on the ground.”


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