While virtual trials theoretically let public and media easily attend, limitations remain
Before the pandemic, media advocates argued that cameras in the courts would improve the public understanding of the justice system. With Zoom trials now the norm, cameras have entered virtually every courtroom.
While this is seen as a positive development for open court advocates, many say that new challenges in covering the courts remain in this uncharted territory.
Some high-profile trials that have taken place over Zoom have been lauded as a success. The trial of Alek Minassian, who pled not criminally responsible for killing 10 people when he deliberately hit pedestrians with his van along a busy stretch of Yonge Street two years ago, is a recent example.
“I actually think [it] was a real success story,” says Alyshah Hasham, who reported on the trial in late 2020. “For virtual access, I think it worked extremely well.”
Hasham, who is the courts and justice reporter at the Toronto Star, says virtual trials still present many logistical challenges for reporters. Attending Zoom trials can be much more convenient than having to fit into a packed courtroom, but determining what virtual trials are happening and accessing login details can be a real challenge since there is no centralized docket.
“Normally, you would just go down to the courthouse and pop in. But now you have to send an email and hope that somebody reads it and gets back to you and they give you the link in time for you to access the hearing.”
The Superior Court of Justice in Ontario, where many of the high-profile trials such as R. v. Minassian take place, says the court continues to expand the hearing information available to those interested in observing proceedings.
“Our challenge has been technological,” the office of the chief justice of Superior Court of Justice told Canadian Lawyer in an email. “With the court’s current case inventory system, we do not have the ability to automatically generate Zoom co-ordinates for every hearing. We are working on a solution with the Ministry of the Attorney General that will enable us to provide Zoom co-ordinates for certain court proceedings to the media.”
As for access to the public, the office of the chief justice pointed to several countervailing considerations, such as a potential for “inappropriate interference,” as well as privacy concerns in, for example, family cases involving children and civil and criminal trials involving victim testimony.
“Section 136 of the Courts of Justice Act makes it an offence to record and publish a court proceeding,” wrote the office of the chief justice. “But how will enforcement of this statutory provision occur if someone outside Ontario or Canada breaches this provision?”
“The conflict really now is that we do not yet have a ‘televise the courts’ rule,” says John Struthers, who is a criminal lawyer in Toronto and president of the Criminal Lawyers’ Association.
“I very much support open courts and have very much supported the fact that anything filed in the court should be public,” says Struthers. “But there are also issues of confidential informants, there are issues of complainant confidentiality, there’s evidence that is sometimes medically compromising.
“We are all learning, [but] it’s a situation where I think we’re moving much more toward open public access to all court proceedings.”
Struthers says the CLA was keen on virtual trials from the beginning of the pandemic, designing a mock Zoom trial that ended up being used as a template in B.C. and Alberta.
Virtual trials offer many additional advantages along with media access, says Struthers, especially where there are strict physical distancing and masking requirements for physical trials.
“Somebody who’s on a 32-inch screen, that I’m listening to on earphones directly in front of me so I can see their eyes dilate and listen to their breathing, is going to be a much easier person to evaluate than somebody sequestered behind all sorts of barricades inside a physical room.”
Russell Alexander, a family law lawyer at Russell Alexander Family Lawyers in Markham, Ont., supports having cameras into the courtroom because “so many cases would settle overnight because nobody wants to air their dirty laundry.”
Alexander says that, even though there are cameras in every virtual trial, “the public access to these types of hearings is really limited because there’s not that much information other than notices to the profession, which usually goes to lawyers and stakeholders.
“We’re so tied to the paper-based system [and] just catching up on transitioning to digital that that aspect of public access has been not left behind but delayed.”
Minassian trial on Zoom
Alek Minassian’s judge-alone trial, in the widely reported ‘Toronto van attack’ case, began in November 2020 as one of the first in the country to proceed over Zoom.
The trial had:
399 registered viewers on a Zoom webinar made available to victims, victims’ relatives and members of the media
Just less than 50 people observing from a room at the Metro Toronto Convention Centre where masking requirements and social distancing were in effect