Wheels of Change, Critical Considerations: Visual & Digital Technologies in Canadian Criminal Courts

Wheels of Change, Critical Considerations: Visual & Digital Technologies in Canadian Criminal Courts

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Okay let's try that again I’ve had to resolve  that so sorry about that I’m Kamari Clarke,   a professor at the Centre, and I’ll  be moderating this session today.  I would like to begin with a land acknowledgement  in order to express gratitude to those who reside   here, and to honour the Indigenous  people who have lived and worked on   this land historically and presently. “We wish to acknowledge this land on   which the University of Toronto operates. For  thousands of years it has been the traditional   land of the Huron-Wendat, the Seneca, and most  recently, the Mississaugas of the Credit River.  

Today, this meeting place is still the  home to many Indigenous people from across   Turtle Island and we are grateful to have  the opportunity to work on this land.”  While we seek to understand our history and  place here that has brought us to this land.   This expression of gratitude is a way  of honouring the Indigenous people   who have been living and working on the land  from time immemorial, and say thank you. Today, I have the pleasure of introducing the  lecture and our guest and I will of course be   moderating. The lecture takes on a  range of key and critical developments   since the onset of COVID-19 and the  requirements for physical distancing.

And as a result, several Canadian courts embraced  digital technologies to conduct remote hearings   of cases. This has included the e Supreme Court of  Canada. What we have seen is the way that digital   technologies in criminal courts have led some to  advocate for their expanded use after COVID-19. While on one hand, using digital technologies  in our criminal courts has proven beneficial,   on the other hand it also has had cultural and  political implications for how we understand the   role of the judge, the accused persons, as well  as the accused person's perception of this role,   it raises a whole set of questions about pervasive  social inequality and one of the key questions   that will be at the core of our discussion today  and of the presentation really has to do with the   extent to which video conferencing technology  is actually changing the social landscape   and the implications for social inequality  in our world and we're interested in the   implication for ratio, the ratio of people  and people in general, and what this these   technologies mean on this changing landscape. But before we go to what is going to be really a   an exciting conversation both presentation  and conversation with our moderators   or commentators, let me just go over a couple  of logistics related to the event for today,   the event will be live streamed via YouTube  it is being live streamed now as we speak.

The format for today is one where the presenter  will introduce his paper he'll have about 50   minutes to do that, and then we will have two  responders who will comment both affiliated one a   graduate student a PhD student in our program and  another a faculty Member who is teaching in the   program and so they'll have about thirty minutes  15 each to comment on the paper and then from   there we'll give professor Akenroye a chance to  respond and and then we'll have an additional half   an hour to 45 minutes for questions and comments. Questions and comments will be taken in the chat   so feel free to put them in the chat as we're  going along, of course, on the YouTube chat.   So, as we go along or toward the end  that's fine as well, and when we get to   that point I’ll be keeping track of the  questions reading out the questions and   asking our speaker as well as our um discussants  to engage in some of the questions in the chat   And so, so that's the plan for today we have about  two hours, so we all my job will be to moderate   and to try to move up the long and it really  is a pleasure to to engage in a topic that's   so significant and has serious consequences,  both in the ways that COVID-19 is being managed   this pandemic is being managed  in in our own backyards but also   what the implications are for future  adjudicatory processes in our country,   and so the first so next I’ll introduce our guests  it's really a pleasure to introduce Dr. Ayodele   Akenroye who is currently a Postdoctoral Fellow at  the Centre for Criminology and Sociolegal Studies   at the University of Toronto. His ongoing  research closely interrogates the use of   videoconferencing technology in Canadian criminal  courts and how its usage clashes with the Charter   rights of accused persons. In this regard, he is  interested in challenging the cultural assumptions  

about how the role of the judge is performed  and the image of what the judge ought to be. Dr. Akenroye is also a Tribunal Member he's an  immigration judge with the Immigration Division of   the Immigration and Refugee Board of Canada with  the Government of Canada where he makes decisions   in admissibility hearings and detention reviews  for foreign nationals or permanent residents   believed to be inadmissible to, or removable  from Canada under the law, or detained by   the Canada Border Services Agency. And so he really does come with a wealth of  

experience, especially of late,  and in the what he draws from his   research and to date he's much of the work  that he's presented it's a work in progress   that is also being supplemented by  qualitative and quantitative work. He received his Bachelor of Laws Degree from  Obafemi Awolowo University in Nigeria in 2007;   a Master of Laws Degree in International Law from  the University of Manitoba, and then a PhD most   recently International Criminal Law from McGill  University in Montreal, and that was in 2018. now uh he's he has extensive of course law  experience in multiple fields he has served   uh acted as the deputy chief commissioner  of the Residential Tenancies Commission   with the Government of uh Manitoba and he has been  called to the court to the bar in Ontario and has   practiced as a criminal barrister before different  courts in Canada he also has tremendous it's worth   saying this because the paper is certainly  concerned with um some of these juridical   questions about law and the judge and law making  and um so it's not just the domestic but in the   international realm Dr Akenroye has years of  experience working in international criminal   law and it's actually in that context where I came  to know him and and his work when he was working   as a professional a legal professional  for the International Criminal Court in   in the Hague and also under the uh he  has worked with ECHOWAS Commission in um   in Abuja Nigeria so I could go on and on with  his bio as a young and up and coming scholar he   has tremendous work experience and has  done tremendous work not only in Nigeria   uh and in the African context but um in  relation to international criminal law   and so it really is a pleasure having him at the  Centre he's the author of book chapters articles   um and he really is a wonderful interlocutor  so it's a pleasure to have him with us today   his talk is entitled Wheels of Change, Critical  Considerations: Visual and Digital Technologies   in Canadian Criminal Courts so please join  us in welcoming our guest today Dr Ayodele.  Thank you, thank you. For the introduction   I’ll be sharing my screen now, so please  give me a minute to share my screen.

Can you see my screen.  Yes, we can see it fine Good Thank you.  Good afternoon and thank you  for attending my talk today.   I want to start by thanking Prof. Kamari Clarke for giving me the platform

to conduct my research at the Centre and  for acting as the moderator this afternoon. I also want to appreciate Prof Audrey Macklin   and all the good people at the Centre for Criminology and Socio-Legal Studies for giving me the resources to conduct my research  on digital justice in Canadian Criminal Courts. Let me start by sharing a work story.

In my other capacity as a tribunal member,   I have immensely enjoyed the ease of using technology to conduct hearings remotely, but it wasn’t until a person incarcerated in  a provincial jail who was appearing before  me via teleconference referred to me as “Bro” and consistently referred to me throughout the  entire administrative proceeding as “Bruh”,   “Bro” "bra" or its variations, that I had  an awakening that while using technologies   to conduct hearings is beneficial,   it could undermine the fundamental tenets of our  entire judicial system, grossly distort the image   of a judge and be prejudicial to the interests  of the persons appearing before our courts. My objective in my presentation today is to  illuminate or to explore how the adoption  of videoconferencing technologies  such as Zoom, Webex, Ms Team and other electronic platforms in Canadian  Criminal Courts are challenging the legitimacy   and authority of the Judge and reshaping and  renegotiating the cultural image of a judge. This presentation is part  of my larger postdoctoral   study at the University of Toronto and it is far from been concluded, so feedback   and comments on my study are welcome. Since March 2020 when COVID-19 was  declared a pandemic worldwide and the  resulting imposition of related restrictions  on travel and in-person gatherings, most courts in Canada cancelled  all previously scheduled trials. This led to an exponential increase in the  already sizeable backlog of cases waiting to  be adjudicated, affecting the mental health of  people in detention due to the increased use   of medical isolation, quarantine and  solitary confinements as measures to   contain the spread of the virus in prisons,  and eventually eroding victims’ confidence   in the ability of the criminal justice system to deliver a fair verdict. Stakeholders such as criminal defense lawyers  critiqued the Canadian criminal justice  system as being outdated, archaic and  heavily reliant on close physical contact,   paper documents and personal appearance  —all outdated approaches that have failed   to adopt new technologies at the same  pace as other Canadian institutions.

This led to a strong push for Canadian courts   to adopt videoconferencing technology to deliver meaningful justice to the accused,   victims, witnesses and people, such as First  Nations constituencies, in remote locations. As a result, there is an increasing use of  video-conferencing technological capabilities in   the criminal justice system in case preparation,  plea negotiations and potentially for trials. In fact, courts across Canada have increasing  accepted videoconferencing technology as   a fair and efficient way to move judicial  proceedings forward in the face of the pandemic. Grounded in this new reality, the Ontario  Government reallocated the funds earmarked  to build a new courthouse in  the Halton Region to technology, arguing that that it is high time to modernize  the justice sector in Ontario and investing  significantly in technology to take  Ontario courts online is the way to go.

Canada is not alone in embracing  videoconferencing and investing in technology. Courts around the world are  investing in technology solutions   and are replacing face-to-face hearings with audio or video hearings using technology  platforms such as Zoom, Ms Teams and Skype. As courts in Canada undergo rapid transformations,   the physical courtroom is becoming a contested space in which questions abound about the importance of the administration  of justice reflecting the changing needs of  society.

Through this narrative, there is an assumption   that the integration of videoconferencing technology into the courtrooms would reduce cost and increase access to justice without  putting accused persons at a disadvantage or  breach their procedural rights. While this could be true to an  extent, the alternate narrative   is that videoconferencing technologies disrupt and call into question longstanding assumptions  about the need for a physical location as  the central domain for the  authorial execution of justice. Through space, the hallowed halls of the  court room, the declaration through speech,   acts that all should rise for the judge to be  seated - the actual physicality of hierarchy   is disturbed. Both sets of narratives highlight  the image of a judge but one demands contemporary  solutions to contemporary problems and the other insists of the  necessity of ritualized space to be   central to the authorial power of the judge.

In reflecting on this dynamic, what we see   at the heart of the contestations is the contemporary nature of judgecraft. Through the identification of judgecraft as  a process for the skilful management of legal  decisions through not only the use of  various technological tools to interpret and apply the law but also the presumed command  of the authority of the court through  the perceived legitimacy of its office, I argue that it is the production of authority  and power alongside the technocratic tools  to rationalize legal decisions that  are at the heart of contestations. In doing so, what we see is that there is a need  to closely interrogate how the legitimacy of the   judge is challenged and the social control  wielded by judges is lost in the process.   These questions are not merely academic or  tangential but the stakes in the move to  virtual hearings are high particularly  in the criminal justice system where Canadian courts must zealously protect  the Charter rights of accused persons,  including the rights to speedy trial,  confrontation of witnesses and an open courtroom. I will now turn my attention to the role  of architecture in our court system.  Since antiquity, authoritative  justice has been performed   at a “proclaimed place” known to the entire community.

While the “proclaimed place” is not fixed  and has evolved over time from outside like  the stones on which the judges sat as  depicted on Achilles’ shield in the Iliad, or the trees under which the South African  community tribunals were traditionally  convened, to the present day modern  imposing courtroom architecture   primarily dedicated to the adjudication of disputes. Courthouses are designed to symbolize  certain ideals and community values in the  public sphere and define the sorts of  acceptable behaviours and experiences   that participants experience in inside. It also signals that the place of the trial is   in some way special and out-of-the-everyday. This  fosters the basic political legitimacy of courts   everywhere and the social control it exercises over the participants in the   justice systems as well as the general public. Over time, the physical place of justice   has been synonymous with the location of the judge and physical courtrooms are widely believed to imbue  judgecraft with “a mystique   of authenticity and legitimacy”.

The contemporary carefully conceived  and curated iconography of the physical  courthouse conveys to the public and all the participants who attend  its “hallowed hall of justice” of the society’s ideals of how justice is to  be dispensed in the maintenance of law and  order and the promotion of  shared community values. According to Piyel Haldar, “architecture marks  off and signifies that authority-to-judge  which can only be found inside  a court of law and nowhere else; it assigns legal discourse to a proper place.” For instance, in constructing the Supreme  Court of Canada building in Ottawa, the goal  was clearly communicated as ‘…for the highest court in a democracy,   the architect had to convey an impression of unquestionable authority, through the use of vast proportions and a  severe décor, and transparency of action,  symbolized by natural light…’ By its very nature, attending a physical   courthouse conjures an understanding  of being part of a special   and culturally acknowledged type of activity  which requires appropriate behaviours. Nothing represents the society’s conception  of justice being not only done but seen to  be done than the spectacle of trial by  jury – “peers” in our criminal courts. The carefully spatial layout of the courtroom  with the royal coat of arms behind the  raised dais where the judge sits  representing the full majesty of the law, the docks where accused persons are seated  while waiting for the verdicts of their  peers, and the twelve juror – “wise  men” - seated in their jury box, lawyers fully robed in their legal regalia,   witnesses called and sworn to tell the truth, the whole truth and nothing but the truth and court proceedings watched by the  public and reported by the press or court  watchers all contribute to  distinguish the office of the judge, promote the legitimacy and the authority  of the judge who is charged with the role   of making life-changing pronouncement  on behalf of the community. Therefore,   judges’ decisions require particular  social, temporal and spatial framing to  have effect and the need to establish a  special judicial space – a civic space – through which these pronouncements are made,   is therefore important to help legitimate the adjudication.

I will now turn my attention briefly  to how the Supreme Court of Canada has  interpreted this The first-ever   fully virtual hearing of the Supreme  Court of Canada has concluded –  June 9, 2020 through Zoom and  livestreamed on the court's website. In his opening speech, the Chief Justice  of Canada – Right Honorable Richard Wagner  said open court just remember that we are  here for your arguments, not the angle   of your camera or your facility with the  mute button will get through this hearing,   just as we get to this pandemic and of court. Excuse me. Ayo I’m sorry about this, you may not realize but  we're having an issue with the the translation.  And the there's a suggestion  that perhaps we ask you to turn   off your camera and that might allow us to  see the the translator the sign translator.  And if you could just turn it off, while we're  watching the the the PowerPoint that might help   so that others who need the the translation  can actually see the sign interpreter. So if you don't mind if you don't mind  turning off your camera will still hear you   and we'll see your PowerPoint and then as soon  as you're ready to release the PowerPoint you   bring back on your put back on  your camera is that OK, with you.

That works for me. So sorry for the interruption, no problem, no problem. Okay, so let's see if this works, then,  if we're able to see the interpreter. Maybe I know if you could start speaking yet  turn off the camera, and if you start speaking,   we can see if the interpretation can  happen, alongside your presentation thank.

is OK now to proceed. Why don't you start continue  and we'll see if we can. Okay, working and I’ll let you know,  thank you, sorry about that okay great so. The Chief Justice of Canada said on an open court  again so that I can go back to that quote he said “..Just remember that we  are here for your arguments,   not the angle of your camera or your facility with the mute button.

We will get through this hearing, just  as we will get through this pandemic." And of course, there was a  hiccup – one of the counsel   appearing had issues with his sound and video and the Supreme Court had to take a  break to resolve the technical glitch. Let’s look at what happened just  3 months after this first virtual   hearing. On September 22, 2020 – the  Supreme Court of Canada conducted the first   physically- distanced hearing.

In a notice to the public, the Supreme Court  stated that measures were put in place in  the courtroom to meet physical  distancing requirements, and hearings will also take  place by way of videoconference   for counsel who cannot attend a hearing in Ottawa. Even in this hybrid format, you can see  some court room rituals were practised. I will now turn my attention to the  role and place of rituals in court.  

Centrally located in the legitimation of the  law-making role of the judge is the role of  rituals in legitimizing their  decisions and judgments. Rituals such as the stare decisis doctrine,  doctrinal formulas, and rules of procedure  were considered to be nothing but  “magic solving words”, “word rituals”, or “legal myth” concealing the influence  of personal preferences and ideology on  decision-making. For instance, the all-familiar  long-standing court rituals of the court clerk   ushering in the judge by yelling “ Oyez, Oyez, Oyez, anyone having business  before the Queen’s Justice of the Superior  Court of Justice draw near and you  shall be heard, Long live the Queen”, court participants standing  up when the judge enters,   and bowing to the court on departure, all have performative effects of casting the judge   as an independent authority and the custodian of our community values. It also set the stage for the acceptable civil  modes of address and well as respectful and  polite behaviour expected of  all the courtroom participants. Thurman Arnold refers to judicial rituals as  “magic realism” which posits that symbolic  aspects of judicial practices are  useful and have practical relevance; and the character of judicial systems would thus  be profoundly altered if we were to do without   this folklore and spiritualism. Allen theorized judicial rituals as   “a ritual-magic mode of adjudication that is  not necessarily contrary to legal reason.”

The primary function of adjudication  is not to explain the decision   but to transform the social fabric: [L]aw constitutes and transforms social  meaning by helping to create and recreate the  social situations at issue in adjudication. Ritual magic is a long-recognized  mechanism of such transformations. In law, as in ritual magic, transforming the  meaning of a set of social circumstances can  happen through common formal and performative techniques that may look  like mere distractions or ways to disguise  what is really going on. In fact, some  functions of law in our society may depend   on these techniques, not because they confer  logical-rational correctness or predictability, but because they may contribute  to judicial impartiality   and because they may provide  a mechanism through which   official legal decisions take on some of  the affective power of lived experience and so generate the personal  and collective commitment that   leads to social transformation. In particular, rituals reaffirm the power  of judicial decisions by replicating and re-  enacting conflicts in a  symbolic fashion during trial, they enhance the judge and jury’s impartiality,   and they symbolically replicate the triumph of social life over death and morbidity. In an essay on judicial rituals and  the functions of judging, Antoine   Garapon, a French magistrate and author, argues that judicial rituals are a condition  sine qua non for law to exist in practice.  

He identified three functions of judicial  rituals at trial: (1) breaking out of ordinary  experience, (2) purifying the experience  of crimes that are re-enacted during trial, and (3) representing and  commemorating legitimate authority. Rituals put tensions at ease and defuse  violence by transforming real fights   into symbolic struggles. He argues that the actual person of the judge does  not count as much as his or her symbolic figure.   The judge is a fictitious entity,  just as the legislator is.

He or she carries out an act of speech, which  gains, by virtue of the surrounding ritual,  a performative function. In other words, with the ritual and robe, a judge  renders justice whenever he or she utters the law. Garapon argues against the desacralization  of judicial rituals. Without rituals, it  becomes difficult to know who  renders an authoritative decision. Without rituals, the decision of a judge  is no longer presented as being the right  decision. This could result in the reasons for  the decision being questioned, and indeed, even in 

the disappearance of a need to give reasons.  One of the central arguments in the use of   videoconferencing technology is that the criminal  justice system needs to undergo structural reforms in order to make adjudication of trial more  efficient and in achieving this objective, there   is a need to reduce or completely discard judicial  ritual which can be time- consuming and expensive. But the reality is that the entire judicial  system is built around rituals in other to provide  it with the self-sustaining logic  and legitimacy and a de-ritualized   criminal adjudication may result in  the loss of legitimacy for the judges. It is therefore necessary to consider that  there may be other ways of creating judicial  rituals in order to produce legitimate decisions. For example, greater participation by the parties,   including an opportunity to define the appropriate rituals, could not only ensure that  judicial rituals remain at the   forefront of any decision rendered, but  also that the dispute resolution process   is more efficient. I will now turn  my attention to the Image of a Judge   With the increasing adoption of videoconferencing  technologies, particularly in the  context of COVID-19, the unique image and  role of the judge is being renegotiated, dispersed and their relationship with court  participants and the public has dramatically  shifted as judges are now not confined  to the same courthouse or courtroom   as other participants. Court proceedings are now  

a spatially distributed event extending the  boundary of the court to other buildings, such as libraries, lawyers’  offices, police stations   and now the private homes of accused persons. The wholesale migration to remote hearings with  the use of videoconferencing technologies such   Zoom, Webex, Ms Teams, and other virtual platforms disrupts the way judges usually appear to court  participants, how they are imagined culturally   and the mystique and aura that judges have  enjoyed historically is likely stripped away. Remote hearing tends to remove some of  the perceptual cues which normally trigger   the performance of long-standing symbolic  and performative rituals as previously  discussed and different empirical studies  conducted in Australia, the UK and the US   show that attending court from remote locations   significantly alter the experience  of justice for all involved.

The lack of formality and highly  dispersed distributed court environment   that remote hearings portray has significant  implications on the experiences and outcomes   for judges, accused persons, victims  and indeed the Canadian public, this requires further interrogation,  and I will attempt to do so.   The public facing aspect of the role  of a judge helps to create and sustain   their cultural image. As previously discussed, the judge embodies the  authority of the court, as the final arbiter   of disputes with the integral role of managing  the court and other courtroom participants. Rowden and Wallace argued in their work that  any dissonance between the image of the judge   and the nature of their role potentially  detracts from their effectiveness because courts, unlike other branches of government, rely  on public acceptance of their legitimacy. In a typical criminal court with an  adversarial model, the judge is tasked with  conducting preliminary hearings, taking  guilty pleas, presiding over trials, sentencing accused persons, delivering  rulings or judgments and hearing appeals with  the integral responsibility of  controlling and monitoring the proceedings to comply with the applicable rules of evidence  and procedure and ensuring that all the  courtroom participants behave appropriately.  The judge decides what evidence is admissible  

and how it is given, such as whether in the form of in-court testimony or by video link. The judge may also direct questions to a  witness although this has to be carefully done. A judge with the fact-finding mission will  listen to evidence presented throughout the trial   and draw conclusions from them  to make a determinative decision.

This might include forming opinions as to the  credibility and reliability of a witness to  determine if the witness is  telling the truth or not. In a jury trial, the judge sums up the facts   for the jury and direct them as to the  applicable law in reaching their verdict. This fact-finding work of a judge usually  involves a series of cerebral operations,   some simple, others complex,   some sequential, others simultaneous. It can  be frustrating and excruciatingly difficult.   With the move to remote hearings via  videoconferencing technologies, judges are now  in an informational environment  that is more intensive, more extensive and less controllable than it was   in the past with far reaching consequences on participants.

For instance, it is argued in Weberian terms  that judges’ performance or enactment of  their authority in the courtroom  reinforces law’s claim to legitimacy and this requires an assurance of procedural  fairness, which, in turn, requires a degree of  engagement between the judge and  other courtroom participants. Remote hearing disrupts this in a number of ways,   including that the technology or connection does not always function properly, the video takes away the judge’s  ability to assess non-verbal cues and video-conferencing technology can actually  filter out frequencies associated with  human emotion which are very critical in  assessing credibility and reliability. Also, the use of videoconferencing technology  in criminal trials could depersonalize the  entire process and drastically  minimize effective judicial engagement   which is one of the hallmarks of therapeutic  and problem-solving aspect of judgecraft and frequently deployed in our Gladue,  mental health and drug treatment courts.   During sentencing, judges employ a range  of communication strategies to achieve  legitimacy such as directing their gaze and speech directly to the accused person to  create ‘a more engaged, personal encounter’. This communication strategies employed  by judges are usually deployed   to address offending behaviours in drug  addiction, houselessness and mental health cases. Anleu and Mack, and Wallace et al.,  

argue that judges require a more relationship approach to judicial work and judges make greater use of their personal and  interactional skills to secure more effective   sentencing outcomes. What is currently  left in any criminal court proceeding   is a computer interface showing the head and shoulder shots of the judge,   the crown attorney, the defence counsel, the members of the  jury and the accused persons are shown with  no meaningful engagement between the participants. Due to the lack of bodily co-presence and  full sensory engagement with remote hearings,   most participants including  judges feel “depersonalized”   and as a “less human experience” “less humane”. In fact, an Australian judge emphasized the  importance, for them, that all litigants came  together in one place, as a  reminder of the “human condition” and that the difficult  decisions being made in court   are not undertaken lightly or flippantly.

The judge believed that those sentiments  were difficult to convey to a person  appearing remotely. In a virtual hearing, the typical court  “atmosphere” - which is very important   in conveying solemnity and framing the  judge as legitimate and authoritative,   and the spatial distances between all  the court participants, evaporates. I will now turn my attention to what  happens when we lose the structure of the  court. The notion of “court atmosphere” is  also called “affective atmospheres” which  

means the assemblage of affects, that both the  material and human give cause to, and reproduce. It is used to explore collective affective  qualities that are perceivable as they emerge  between bodies and their environment. This ‘affective atmospheres’ are usually  materially crafted in physical courtrooms, and  engineered through the material  arrangements of the courtroom.

Philippopoulos-Mihalopoulos argued in his  book that there can be neither law nor  justice that are not articulated  through and in space. What this argument highlight is that court  architectural designs provide the spatial  arrangement for the engineering and  crafting of the affective atmospheres which communicates community values and  the important of the maintenance of the  law and order in the Canadian society. The interior arrangements and aesthetical  layout of the courtrooms create resonance   between the physical bodies, provide  judges control over the situations   and at the same time project the visual and  material representations of law in operation.   The physical courtroom arrangement also cue  particular type of behaviours to encourage   participants to conform to the  norms of the legal ritual occurring. These cues have been described as the coercive  power of the courtroom and the judge as defiant   behaviour by participants could lead to a  charge of being held “in contempt of court”. Participants participating in court proceeding  via videoconferencing technology lose the   “affective atmospheres’ of solemnity, respect,  deference and the formality of a courtroom, and in turn the judge loses the authority  and power of disciplining erring participants   far from the physical reach of the judge.

In fact, some judges reported that some  litigants were unruly while remotely  participating in court proceedings,  emboldened by the fact that they are not in the same room as the judge  and are on their own territory, as such they  don’t have to be told what to do or  how to act in their own environment. Remote hearings reconfigure the encounters  in the courtrooms and remodified the  relation between law and the people subject to it.   While embracing the virtual hearing environment  could be seen as an easy solution to making   the “court atmosphere” less daunting and  easily accessible to vulnerable people,   minors and first-time users of the court system, it might actually have unintended consequences. For instance, a study conducted in Australia  revealed that interviewees indicated that  the video links fundamentally  disturbed courtroom interactions and its rituals with these interviewees less  comfortable with their experience overall. Another Australian study on remote hearing  suggests that the use of video links “alters  the representation of the  judge as the embodiment of law, weakening symbolic and cultural dimensions  and undermining the gravity and decorum  of court proceedings”. Most participants miss the “display of  justice in practice”; the respectful   and solemn atmosphere and behavioural cues conveyed by the impressive  architectural designs of court are lost.  

While the use of videoconferencing technology  opens up the traditional courtroom to multiple,   simultaneous and interactive sites of adjudication  and provide broader access to the public, yet studies have shown that  participants in court proceeding   through the video conferencing technology   most often find themselves in spaces that could  be characterized as bland, ordinary and mundane.  Studies found that accused persons who  participated in remote hearings found the  judicial process as less legitimate with  them less likely to have legal representation as they do not take the  entire process very seriously   and therefore have negative impact on outcome for them. A September 2020 report issued by  the Law Society of England and Wales   raised significant concerns  that a mere 16% of solicitors   polled reported that vulnerable clients were able  to effectively participate in remote hearings. In situations where clients had no particular  markers of vulnerability, 45% of solicitors  reported that they were able  to participate effectively. The report also indicated that  “people who do not communicate   regularly [via phone and or video conferencing]  find the experience very disconcerting   and struggled to follow what is in an already unfamiliar legal  process and find it difficult to adequately   present their case. Body language and signs of distress  can’t be picked up on as easily.”

I will now turn my attention to the impact  on open court principle and judgecraft  One of the significant impacts of remote  hearing is redefining the concepts of open  justice which play a critical  role in the court carrying out important adjudication functions involving  the exercise of judicial power and giving  legitimacy to our judges. Throughout the years, in  the pursuit of open justice,   evidentiary hearings and trials are generally live events conducted in a dedicated physical space accessible  to the members of the public, the press   and court watchers with the goal of ensuring just procedures  and outcomes for all the participants. The “liveness”, “momentousness”, and the  visibility of hearings and trials are what  metaphorically makes the  courtroom a stage and the trial as theatre which is always notionally part  of the spectacle of performance that our  judges engages in every day. It also serves as a reminder that judicial  proceedings are not merely private  interchange, but an important function  performed on behalf of the community, in which   community-wide problems are  addressed and norms are articulated.

For Thurman Arnold, a public trial, particularly   a criminal trial, “represents the dignity of the state as the enforcer of law and at the same time the dignity of the individual  even though he be an avowed opponent  of the state.” Like other common and civil law jurisdictions,  the open court principle is a key bedrock  of our judicial system as enshrined in the Canadian Charter of Rights and Freedoms   and ensures that public confidence in the integrity of the court system and the ideal that the administration  of justice is promoted by openness and   full publicity.  The Supreme Court of Canada held  that the “open court principle”   is a “hallmark of democratic society”  that “gains importance from its   clear association with free expression  protected by s. 2(b) of the Charter.” The move to remote hearings raises the important  questions: “where’s the court located? Whose right   is the right to a public trial? What precisely  is the role of the public in securing this right? These questions are very important as  it is very crucial for the community   to know where to go to see  justice being dispensed,   the need for a court to be easily located by  the public for them to readily view proceedings – which are the hallmarks of  the open court principles. A major criticism of remote hearing  via videoconferencing technology   is that it restricts public access to judicial  proceedings and breaches the open court principle. An opposing argument is that court proceedings can  be broadcasted to the public through technology   platforms such as YouTube and that it  will satisfy the open court principle.

It is further argued that the public   gallery in our courtrooms is typically not  utilized by spectators on a daily basis so the   impact of moving judicial proceedings online and  broadcasting through YouTube is not detrimental   to the open court principle. So, the “virtual  presence outweighs its urban presence”.  To address this issue of open court principle in  light of COVID-19, for instance the Ontario Court   of Justice issued a Notice regarding public  and Media Access to Judicial Proceedings, the court acknowledged that  there might be restriction   to the public participating in the judicial  proceedings could be limited due to   technical limitations, legislation,  publication ban or court order. But in other cases, members of public and  members of the media who are interested in   observing proceedings can email the respective  court houses to obtain access details. The notice did not indicate that judicial  proceedings will be live streamed. As it is currently structured, obtaining access  details is not user friendly and directly  undercut the well-entrenched idea that  one can just stroll into a courtroom without having to make an appointment  or turned away at the door by security. This throws up a critical question: is it  acceptable for some participants to access the  court proceeding remotely,  why not the general public?  I will now turn my attention  to the aspect of judgecraft. 

Exercising adequate judgecraft with the  use of videoconferencing technology is very  important in achieving  temporal goals and can further create space for a more engaged  and legitimate decision-making   process in Canadian criminal court. Judgecraft is a a practical craft and  is firmly bounded with the legitimacy   of judicial authority. Based on the relational  concept of procedural justice,   the legitimacy of judicial authority is bolstered in part to the extent to which courtroom participants perceive   that they are treated fairly by the judges they encounter.

What this means is that there is a need  for more active engagement by judges in our  criminal courts, but this could  at the same time runs contrary to the adversarial norms which requires a  formally passive judicial role with more active  roles for other participants. On a  personal observation of court proceedings   in some Ontario criminal courts I found that  video hearings require additional judgecraft   to effectively manage the hearing  and maintain their authority. It was difficult for judges to manage  participants’ reactions and participants are more  likely to talk over one another due to the  lack of physical cues around turn-taking.

It requires extra time to use formal turn-taking  cues that might otherwise be picked up  visually or intuitively in a physical hearing. Participants including vulnerable persons  are more likely to go off on a tangent   and it was more difficult  to get participants on track   via video hearing unlike when they  are in the same physical space. Another concern includes the  ability of a judge to determine   if the parties are following the  proceeding through video hearing. Due to increasing caseload in criminal  courts and need to the meet the presumptive  ceilings for the completion of trials  as established by the Supreme Court of   Canada in R v. Jordan,

there could be heightened time pressures in  lower criminal courts to quickly complete cases   and this creates additional problems with  actively managing multiple tasks, and  the unpredictability of the  criminal list for judges. With the move to video hearing, these  problems are now more acute and challenges  the ability of judges to create  sufficient time and attention for active engagement required by procedural  fairness values which underpin legitimate  judicial authority. In general, video hearings are more draining,  stressful and tiring for judges, especially  those in the mental health  and drug addiction courts, as significant amount of time is spent on  establishing sufficient technical connections  for all the participants. I will now speak specifically on the  displacement of community values.  A crucial issue is if the use  of videoconferencing technology   for the purposes of remote hearing adequately convey to court participants a sense that the judge is dispensing justice   on behalf of the community and in accordance with its values. The tangibility of that community   through proximity to other community members is visibly absent through remote proceedings.

For instance, Judges in the UK   had mixed feedback about the formality of video hearings, the way their authority was perceived, the challenge of maintaining  authority and a formal   atmosphere without the physical cues of a live courtroom. Most judges felt that it would be useful to have a  court seal included in the video hearing to remind   participants of the authority of the judges to  dispense justice on behalf of the community. This throws up several issues. For instance, if an accused  person being sentenced by a judge   do not have a sense of being in courtroom setting, it may also mean that they do not recognize  that they are participating in a group-   performed ritual with a long tradition that is  enforcing the community values of the society. In turn this alter the perceptions that all  participants have of both the outcome and the  process. I argue that the need for a judge  

to feel that the values they are enforcing are  those of the community they represent and serve, and it reflects the “chain legitimatization”  that authorizes the judge to adjudicate the  dispute. When the judge   loses the community-context of their  work as typified in a traditional  courtroom, there is that anxiety  and fear that the adjudication and any judgment issued will be  perceived as an arbitrary act of violence   against the accused person. The fear is that moving the  court room entirely remote,   participants may fail to perceive the court  and the judge as legitimate and authoritative.

This fear is legitimate as studies in the UK  found that accused persons who appeared by video   saw the process as less legitimate and were  less likely to have legal representation. This failure to obtain legal advice and  representation may be linked to an accused   person’s diminished ability to effectively present  their case resulting in worst outcome for them.  In my talk today, I demonstrates that judicial  architecture and rituals play an important  role in legitimizing the  Canadian criminal justice system. As there is a continued scale up in the use  of the videoconferencing technologies to  conduct remote hearings in our criminal courts, it is very important not to ask the question:   “what do we have to gain or lose from adopting videoconferencing technology”, rather what we should be asking  ourselves is the important question of “how best do we use videoconferencing technology   in a way that corresponds to our fundamental legal principles, project the right image of our judges   and promote their legitimacy as the  custodians of our community values? Over the years, sociologists have suggested  that the perception of legitimacy and due  process are impacted by the space of  law and people's encounter with it.

Therefore, it is safe to argue that the success  of the increasing use of videoconferencing  technology in our criminal court is contingent  on the existing symbolic functions of the   physical courthouse and the rituals not lost but being identified and reimagined.  Our that total disposition over to discuss  on, and I look forward to a rich discussion   of some of the ideas that are activated  in this discussion Thank you everyone.  Thank you, Dr Akenroye  Yes, okay great you've shared your, so I will also  put my video on the PowerPoint is no longer there,   so thank you, so let me just move things  along, then we have to discuss today.  And so much to talk about I mean in your  presentation there's certainly a tension between,   on one hand, questions of legitimacy and authority  of the judge, on the other hand, and the extent to   which space and the place of the courthouse  is essential to that, on the other hand.  You know people's relationship to  this new modality and the implications   for this this sense of authority and. You know their their larger questions about  

the extent to which even prior to covert 19 to  what extent very good authority or whether or not   it's it's always deserved in in all cases. And so clearly you're doing a deconstruction   of ritual and pushing us to think about judge  craft as the particular kind of production   of authority and its implications in this new  situation, but they're there, I think a lot of   unresolved and fascinating as well as Probably  controversial issues at play here and and your   experience as as, certainly in the role of a  judge, as well as in your capacity as a lawyer. Certainly shed light on some of your initial  thoughts, as well as the data you've collected,   thus far, so thank you For that, and I think it's  really time for us now to roll up our sleeves and   take on some of the very forceful arguments, but I  suspect that will also have some disagreements on   on that, so we welcome that as well, so that  our first discussed it is Anne Marie more for,   and I have the pleasure of introducing  her. She’s a principal lawyer at Morphew  

Symes Barristers. She obtained her law degree  at the University of Ottawa, where she graduated   magna cum laude with her J.D. in 2011. While at law school, Anne Marie was awarded  numerous academic and oral advocacy prizes,   including prizes for the highest grades  in several law school courses. She was   called to the Bar in Ontario in 2012.  Her practice focuses on complex criminal   trials and appeals. Anne Marie believes that  being the most prepared person in the courtroom   wins trials and she approaches  every case with that mentality.

She has conducted numerous homicide,  complex fraud, gun, drug, sexual assault,   and impaired driving trials and regularly  appears before all levels of court in Ontario.   And it's really a pleasure to have her with  us today and to serve as the first discussant   our second before we before she comes on, let  me also introduce our second discussant Wumi  Asubiaro Dada who is a Ph.D student in Criminology  and Sociolegal studies at the University of   Toronto where she is working on a dissertation  project related to the complexity of choice   and agency of female combatants within  Boko Haram insurgents in Nigeria She is also a human rights lawyer with decades  of experience working on issues related to   social inequality, gender-based violence, women’s  political participation and legislative advocacy. She received a Bachelor of Laws  degree from Lagos State University,   Nigeria in 1999 and was called to the Nigerian Bar   in 2000 having completed her Law School in  Nigeria. She completed a Master of Law Degree with   specialisation in human rights and democratisation  from the University of Pretoria in South Africa. And she has worked in law and public policy for  the past 19 years where she has designed and   managed projects on women and legal reform and She  has contributed to significant projects connected   to gender and led national research surveys  and done significant advocacy work so both as   a scholar, and as an activist she to will bring an  interesting perspective, as she reflect on on the   top so without further ado, then let's invite  Annemarie to join us first and then we'll just   move straight into Wumi’s presentation, thank you. Thank you so as indicated I practice criminal law,  

I do quite a bit of trial work in mostly  serious cases, which certainly impacts sort of   my view in terms of attending court in person  or participating in virtual or remote hearing,   certainly, since the start of coven 19 in  the courts reliance on video technology. I have participated in a number of guilty  pleas and sentencing hearings various motions   and appeal, as well as many  case management appearances.  I haven't participated in a trial with witnesses  and the Cross examination of witnesses by video   but certainly there's been much  discussion with the Defense bar   Over the appropriateness and the limits that  should be placed on moving to virtual and   digital hearings and I can certainly indicate  there's Quite clearly, a divide, even within the   Defense bar about the appropriate cases and how we  ought to be moving forward using digital and video   Court appearances, because it's quite clear  they're here to stay, and so I do think that   number of the points that have been raised  today and in the paper are quite important,   in deciding and sort of determining how best we  move forward to ensure that the Court maintains   both its legitimacy to the broader public but  certainly to the parties the accuse the witnesses,   the complainant send the victims  and their family and friends   and I will indicate when we when we talk  sort of practically and I’d like to offer   some more practical and sort of personal  insights into how video courts have been   conducted and the issues that arise within  them, but certainly there's there needs to   be a recognition that what a video hearing or a  video court looks like even within Ontario differs   greatly between the jurisdiction that you're in  terms of the courthouse the level of the core. But even sometimes within the actual  courthouse depending on the specific   court room your mater is assigned to the  manner in which the technology is available,   the manner in which it works and what is actually  visible on the screen during a virtual hearing   differs quite significantly and so  depending on that you see a number   of different issues that arise, sometimes  in certain cases that aren't in others.

And I think, for me, certainly as a defense  lawyer, the starting point in criminal law is that   there needs to be a recognition that criminal law  and in the court process it's a very important and   a very significant event for those involved  being charged with a crime has the potential   to be life changing and life altering for that  person and their family. Being the victim of a   crime or even witnessing a crime also brings with  it the possibility of being quite life altering. To those people and their family and friends and  so it's From that starting point that I think   moving forward the courts and the participants me  to ensure that these individuals who participate   in the hearing, are also receiving a fair  hearing and justice. As a defense lawyer   my focus is usually on the accused or my client,  as opposed to sometimes more broader concerns   but certainly I view my job as not only to  help my client in obtaining a favorable outcome   but to ensure my client not only receives a fair  trial and adjust results, but the he or she walks   away from the proceeding feeling themselves that  they received a fair trial and a just result. And built within that and ensuring that we  give that to those accused people is our   adversarial system which centered around having  an independent, excuse me an impartial decision   maker, which is again part of the constitutional  rights that we have provided to accuse people.

And so, where we see the image or the  authority of the judge as that independent   and impartial decision maker  being altered or being eroded,   I do think that there are constitutional  implications with respect to the right to a   fair trial, as well as ensuring the participants  themselves feel that justice is being done. And so I want to start, I do have some comments,  some of them sort of examples of where we see   based on the appearance of the proceedings  once we've removed them from the courthouse   and the Court rooms that certainly raised some  of these concerns that have been discussed today. And again, I think they're related to the  erosion, or the lack of sort of personalization   of a case of the of the justice system, as well  as how the Court is able to personally engage   with those in a particular case that are the be  involved parties as opposed to the broader public.

And for me, one of the features of not only the  courthouse but a court room is that is a place   where justice is done but we're justice is open  in least in theory to all it is available for all,   in theory, the courthouse  and the Court room provides   an equal opportunity for people to  avail themselves of the justice system. And it's the court with the judge  at the helm that aims to treat   all those who come before it with  dignity and respect in an equal manner. And what that to me sort of symbolizes  or focuses on is that whether you're   rich whether you're poor whether  you're on bail or if you're in custody.

If you're white if you're black if you're  indigenous that you can come to the same   building and literally the same building the  same room, with the same judge and receive   access to Justice, whereas with digital and  virtual hearings this equalization or this   equalizing effect of the courthouse is diminished  and it's diminished in particular to certain   groups of people and of course the first would be  the indigent accused or parties who simply don't   have the ability to access digital proceeding. With the speed at which Ontario has attempted to   move towards virtual and video conferencing  hearings there doesn't seem to have been   significant amount of thought put into what  happens to those accused who are not able to   access zoom or video conferencing  systems to participate in court. And we see it continually arising  I see it in my own clients who   are either experiencing homelessness or don't  have a smartphone their flip phone doesn't allow   for the zoom app. I also see it continuously and  remote communities where the Internet simply isn't   strong enough isn't reliable enough to  be participating in court and also just   in more rural areas where, again, there are  issues with the Internet and the availability.

And whether it's the Internet cutting  in and out such that the person isn't   actually following the proceedings  because they are not hearing them. The Internet not working at all.  Or what tends to then happen, the response  is that the accused cannot connect to video   is told that they can just call into a  teleconference number and participate in that way. Which in which they would not be on the video,   they would not see other  people and they're not seen.

And what we then do at that point is we've  taken at least one party one member of the   court proceeding and we've put them into  a different category we've made them   different, they are no longer equal they  are no longer on an equal playing field in   which to participate in the hearing and,  in my view, were diminishing their role,   their ability to engage in the proceeding and  making it less personalized as the judge is   not able to see that individual to have  any sort of engagement, or contact with. And related to that are the accused people who,  not just who don't have the technology, but   those who aren't necessarily comfortable with the  technology and we sort of see that similar ways   in which the focus of the hearing them becomes  on whether they're following along are they   still connected and they're focused on well, am I  doing everything right, am I doing something wrong   and they're not been focused on what's happening  or on what the judge himself or herself is doing. And, of course, within these groups of people who  don't necessarily have the same ability to connect   we see again that it's typically, and not always   but sort of typically the same groups  of people who are already vulnerable   and are already discriminated against in  the criminal justice system whether by the   police and their charging practices or just  generally once they come into court system. And so I do think it's important  moving forward that something is   done some consideration is done to  how we return these vulnerable people   to an equal playing field into an  equal standing in remote hearings. Additionally, setting aside those out of custody  who don't have the ability, there are a number   of concerns I continually see with in-custody  accused people being brought to virtual hearings.

If they're brought, it's been my experience,  to a video conference court appearance,   they don't leave the institution they  don't leave the jail, which means they're   often participating in court wearing their  orange jumpsuit, their jail issue clothing,   and at times they're sort of  last in this small tiny room   without those full comfortable ability  to participate in their own hearing. Whereas if they were brought to  an in person appearance or trial,   they would be given the opportunity to change  into not only their own clothes, but their   clothes that would be appropriate for court  that would allow them to be comfortable   and to participate with a  level of dignity and respect. And it's the judge in those situations, who is  in charge, and has that authority to ensure in   custody accused are being treated with dignity and  respect and are able to appropriately participate   in their own hearings and they're not  sort of left in this room to awkwardly   stand there for two hours, while  everyone else just talks about them. And while these issues are sometimes  address on an individual basis,   case by case, depending on  the lawyers and the judge,   certainly it's something that, as a broader issue  going forward, we need to ensure that these people   in these vulnerable groups are in custody who  again we know tend to be racialized and that   we're over incarcerating indigenous accused  as well as Black accused at a staggering rate. 

That there again brought into this equal playing  field in which to access justice and in which go   before a judge and have that person truly be the  person in charge, and the person who, through   their authority and the respect they command  and the room is in charge of the proceedings.  And maybe just the last point on this that I’ll  add is in specific with respect to the judge. With the increase in virtual and video  conferencing hearings it’s been my experience that   the judge has become much more reliant on other  people and other parties such that it has the   ability, certainly at least appear to be eroding  their authoritative position in the hearing. The judge often no longer has the paperwork  it's all with the Clerk so the judge is   reliant on the Clerk or the Crown to  get any information about the case. what's on the docket for that day  what's going on with the cases   and when all the technological issues arise which  they always do the judges never in a position   to fix them or just send out instructions  about what then happens the judges always   reliant upon other people to come and  or figure out the issue and to fix it.  And some of that, of course, is just a an issue  with resources, but again within custody people   we've reached a point in many jurisdictions in  Ontario where the jails literally run the show,   the jail will send out to the court the schedule  for the day indicating this is when you'll hear   this matter, this is when you'll hear this matter  because those are the only times, we will produce   that accused person who's in our  custody to appear before the court   and on many occasions, it leads to the jail  either not bringing people to court or literally   hanging up the phone or disconnecting the video  when they want to move on to something else,   despite the judge saying we're not done 

2021-02-04 07:44

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