The business as usual mentality is not the state of our current justice system in Canadian courts. The COVID-19 pandemic has resulted in the slight transformation of our court trials. In light of the new social distancing protocols there has been a move to switch from in-person court hearings to video-conferencing or online trials. While some may see this shift to the online perspective as abysmal, there are those that feel this is the exact push the province needed in order to move towards virtually-mediated court hearings. The Chief Justice of the Ontario Superior Court, took to Twitter to state his opinion that “…we cannot go back… it is time for Ontario to push forward…we cannot go backward”.
But this begs the question, what does this mean for open court privacy and what impacts will this have when it comes to day to day court proceedings?
Before the COVID-19 pandemic there, by law, everyone has the right to enter a Canadian courthouse to sit in on a court proceeding. This regulation was taken up by usually people involved in the case and extended family and friends, as well as media personnel (if applicable) and court personnel. While it may seem as though the open court principle is easy to uphold there is usually a multitude of factors that can influence someone’s physical presence at a hearing.
The availability of timing, a current location of a person, and hearing and ability to physically enter a courthouse building are a couple of the factors that may influence one’s presence. Also the mental capacity to enter a courthouse and feel comfortable possibly seeing those you are not accustomed to and just general calmness while being seated in a possible uneasy time are a few issues that physical presence can include.
Public entry can be also limited by the courts such as judges issuing publication bans or hearings including minors or young adults. This results in the access to information being transmitted through media outlets and other online broadcasting platforms.
Although there are some negatives to in-person court hearings, physical presence aids members of the media by allowing them to have first-hand exposure to current headline-worthy trials. This is something that can be tarnished with the switch to virtual hearings.
This new wave of virtual legal communication can come as a powerful change to the operation of our courts. Virtual hearings can help mitigate the physical presence factors that may influence someone’s ability to view a court proceeding. Virtual trials allow for anyone in any location to sit in on a case with the added benefit of doing so from the comfort of their home. People can stay calm and comforted knowing they are safe at home. The recorded hearing also allows for people to watch it on their own time and at their own discretion. Lastly, if trials were live-streamed and/or recorded there is a possibility of increasing viewership as access to a case becomes much easier.
With any pre-coronavirus case there was the possibility of banning cameras and media from courtrooms, but again by law we are allowed to enter and watch trials which let us still have the chance to see what happened in court. This works vice-versa as well. However, if the court were to exclude the public from virtual hearings including the media, then no one other than those involved would know what was going on. This is a very dangerous deviation from the engagement of open court.
What happens if the courts continue to introduce video-conferencing trials into long-term procedures?
The easiest way to address that question is to make sure that there is readily available public access to certain hearings. This access should be given in a meaningful way and held to the highest extent possible. Privacy and participant experiences depend on it.
In such uncertain times it should be seen as comforting that our laws and regulations that govern this country are still being met. It gives a sense of normalcy in such an odd time. We are very fortunate to have the means and technology to put forth these new operations that there should not be a reason not to. Whether these operations stay in place after the COVID-19 pandemic is completed or if they do not, the courts and legislatures have a duty to keep our legal systems running efficiently and that our rights as citizens are still being met.