By: Zachary R. McDonald
Courts in Ontario have been using the ZOOM video conferencing program for months now, in order to facilitate the demand that is still pressing on the justice system in the era of COVID. This has meant that despite the impossibility of holding court in person as usual, the system has still been able to accommodate thousands of Ontarians who need access to justice. But this has not been without hiccups, and particularly these major examples — bad courtroom audio and video disruptions — may place the accused at a disadvantage.
What does it mean?
Court transcriptionists, professionals who listen to the audio recordings of court room appearances and write down every word that is said by every party present, are required to access court room audio to do their job. And it’s an important one — in order for an accused to have an appeal of his or her trial, they need a copy of the court transcript. And right now, that has become a difficult task.
You see, if the audio on recordings is bad, it makes the transcriptionist’s job almost impossible, in some scenarios, and in all others, it becomes time-consuming and strenuous. Sound glitches, muffled noises, background interference, and unaware ZOOM participants who don’t know how to mute their microphones, all contribute to a messy audio recording. This leads to a court record that is sometimes indecipherable by transcriptionists. If they can’t create an appropriate transcript of your trial, it has massive impact on your ability to appeal.
In general, the bad audio also makes it difficult for parties at the trial to hear and understand everything that is being said. At a trial, you need to be able to hear the judge, opposing counsel, and witnesses clear enough so that you can respond when you need to. And there are also individuals who are hard of hearing to consider. It is the court’s job to provide an appropriate institution where the administration of justice can be carried out.
Your very livelihood may be at stake, because losing the trial may mean serious sanctions against you, and the possibility of jail time is always a hanging shadow.
We feel it here too! See below some of the things we’ve come across in our defense of the accused in the age of COVID:
Bandwidth in virtual hearings has been a problem so large chunks of time are being lost in screen-freezes and outages. In a trial, 3 seconds is a lifetime of observation gone. Since some are just zoom calls, rather than video, the non-verbal cues and communications are not there to rely on either, so the majority of context is lost to begin with. If any of these decisions are being appealed – and they will be, in the thousands I would bet – the transcriptions are going to be a major factor and most likely prejudice the accused, as the appellant or respondent.”
-Jami Sanftleben, Paralegal
One Aitken Robertson lawyer expressed frustrations in his virtual trial because the Crown was not really playing by the rules. Their name has been removed, and their quote paraphrased, to protect the identity of the parties:
The witness was not visible at times, and the Crown was not ensuring [the witness] wasn’t reading a statement or something like that. I was playing by the rules and that’s why it’s so frustrating. It would be very easy for me to lead a witness with off-camera gestures during a cross-examination, but I don’t. I asked they assure the court that [the witness] was in the box, they responded by asking why that would that matter, which is deliberately obtuse because they know it matters greatly.”
Next is a picture showing an example of the stopgap measures and adaptations defence counsel must make to accommodate a virtual trial:
Compare that to the resources and IT departments of the Crown and the Court. This defence counsel has cables run all over the place for temporary monitors, cameras, etc., all to be compliant with the new standards.
Has the court done the same? The prevalence and severity of audio issues in virtual court over the last few months seem to indicate no.
The Ontario court system has been dealing with COVID since the beginning of last year. There is no excuse for the audio at virtual trials to be at the state that it is. The justice system has millions upon millions of dollars at its disposal and an army of IT experts and specialists. Furthermore, the quality of their audio recording equipment can be the difference between an accused having their fair say at trial, and the accused needing to appeal or argue for a mistrial (and if those fail, they have nothing).
The solution is something the justice system needs to implement, and fast. There can be no delay in fixing the present issues with court audio equipment and re-evaluating the use of ZOOM as a medium for trials and hearing. Numerous alternatives exist, and if all else fails, the justice system can consider its own platform for holding audio and video conferences. But something needs to be done, and the courts need to communicate with the public and legal representatives that they are heading towards a solution.