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Rule of law in era of virtual hearings: Doing justice? | Joseph Groia

Thursday, November 26, 2020 @ 8:35 AM | By Joseph Groia

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Joseph Groia %>
Joseph Groia
Like the rest of the world, the legal profession has spent the last eight months isolating or socially distancing and implementing countless other changes. As a result, the way in which the legal system operates has undergone a significant shift. A fundamental part of this shift, and the main subject of this small note, is the move to videoconferencing technology, such as Zoom or WebEx, now widely used as a substitute for in-person meetings.

Let me begin by stating the obvious; I am not against videoconferencing in general and indeed if I was, it wouldn’t matter. The legal profession needs to embrace these changes, especially because videoconferencing solutions such as Zoom can help provide access to justice to a wider audience by cutting costs and time and helping lawyers provide services to a wider clientele. Rather, what I am going to suggest is that in certain cases videoconferencing can have deleterious effects on the rule of law and that we need to be judicious in when and how we use it. So, my plea is that we carefully assess when and how we move towards a greater use of video technology.

A lot has been said before both by Canadian courts (for example, Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177) and by various legal professionals in articles about the importance of non-verbal communication and the importance of in-person hearings where credibility of a witness is at stake, so I will not repeat these arguments here. However, I cannot understate the importance of these aspects of record creation. There is a fundamental distinction between advocacy and testimony that I fear is being ignored. The lack of a human connection in videoconference hearings is less than satisfactory and this problem is particularly acute while trying to examine or cross-examine a witness on a screen when defending a client in a criminal trial.

Many of my cases involve complex factual matrices which require several witnesses to provide testimony and to be cross-examined. Now imagine that the trial moves forward via videoconference and the videoconferencing platform breaks down just as the cross-examiner is about to challenge the witness after a long and careful foundation has been laid. Or suppose one of the key witnesses changes their testimony when asked the same question (central to the issue) twice because of an audio glitch in the midst of the trial. These problems will be particularly acute when defending a client in a criminal trial or a respondent in a government regulatory proceeding. Having cross- examined hundreds of witnesses over the last 40 years and a handful in the last 40 weeks I say that no trial lawyer ever wants to be hamstrung in their representation of their client by the limits and vagaries of videoconferencing technology.

In my own experience, in the last month alone, I have argued a motion at Investment Industry Regulatory Organization of Canada (IIROC), a motion at the Ontario Securities Commission about in-person hearings, a motion in front of the Ontario Superior Court of Justice, a case conference in the Ontario Superior Court of Justice and an appeal in the Ontario Court of Appeal, all via videoconference. I have also used videoconferencing technology for my meetings with the Law Society of Ontario, as well as for lectures delivered at the University of Toronto and the University of Manitoba. I encountered numerous technological issues throughout the course of all of these sessions including dropped connections, missing audio, interruptions, video lags, etc.

The good news is that there is no doubt that everyone in the legal profession is working hard to continue to provide access to justice as this terrible disease continues to tear a destructive path across the globe. I also do not believe that any of these mishaps will substantively affect the result of these proceedings. However, unfortunately, videoconferencing is simply not a substitute for in-person testimony when we are creating an evidentiary record.

Where a videoconference hearing is set to take place against the wishes of one party or where the accused has a complicated case and multiple witnesses need to be examined and cross-examined, not only would proceeding in such a way cast a shadow on the ability of the Canadian Charter of Rights and Freedoms to guarantee life, liberty, and security of a person under s. 7, but it would also violate traditional notions of fundamental justice and procedural fairness.

Joseph Groia is the chair of the Law Society of Ontario’s Audit and Finance Committee. He has been a bencher since 2015. He is a founder and principal at Groia & Company Professional Corporation, where he practises corporate and securities litigation.

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