Trial by Zoom

There has not been a great deal of good news arising from the Covid crisis in 2020, but one positive are the improvements happening in workplaces.  Changes that were on the horizon, but incredibly slow moving have been forced upon us at breakneck speed out of necessity.  

The increased use of video and audio technology is here to stay.  Working from home has been a revelation.  Somewhat surprisingly, employers are finding employees are often more efficient and productive working from home.  And interestingly, employees are often finding they miss going into the office. 

A hybrid model is likely to eventually emerge – a split work week, with some days at the office, where social interaction and the exchange of ideas are so important, and some days at home, where one can have a break from the grind of the daily commute.

The changes in our criminal law system have been profound.   Many cases that previously required accused persons, lawyers, police officers and witnesses to attend busy and crowded courtrooms in person are now being done by video, audio and / or email.  Adjourning cases to future dates while the lawyers arrange to obtain disclosure and have preliminary discussions with the Crown Attorney and Judge, or resolving matters by way of guilty pleas or the withdrawal of charges are now all being done relatively quickly and efficiently via remote access.

Ontario has also recently begun allowing trials to be conducted by video.  The Judge, the court staff, the Crown Attorney, the defence lawyer, the accused person, the police officers, the witnesses – all in separate locations, participating in the trial remotely by video.  This concept of “trial by zoom” represents a huge change in our traditional system of criminal justice and it will be interesting to monitor future developments.

The advocates of trial by video note the increased efficiency in the system (less travel time and courthouse delays and interruptions), cost savings (less physical court space to operate) and greater equality and fairness (lawyers are in their offices with access to resources and support; accused persons are in a personal comfortable setting as opposed to the sometimes cold and intimidating setting of a formal courtroom).

Critics of this new model point to several potential dangers and concerns.   Assessing the credibility of a witness and their testimony may be more difficult over video than in person.   The level of access to and familiarity with technology will vary among accused persons and witnesses.  The lack of solemnity that traditionally characterizes a criminal trial in person in a courtroom.  The potential for abuse of the system, with witnesses being assisted by notes or individuals that are offscreen and not visible to the others.  The loss or weakening of the “open court” principle, where members of the public are free to walk into any courtroom in the country to watch and listen to the proceedings, without the need to identify themselves or explain their reason for being there.

Interesting times indeed.  2020, what a year.