The lawyers sometimes referred to each other by their first names, a no-no under courtroom decorum.
Stranger still, no one stood or bowed when the judge appeared. But, then, she was presiding over the trial from her office, not perched up on the dais. And she wasn鈥檛 wearing her judicial robe and red sash, just conservative business attire.
But with only minimum social distancing and no need for masks to prevent the spread of COVID-19, Ontario鈥檚 first major criminal 鈥淶oom case鈥 is winning rave reviews from two veteran defence lawyers representing the men on trial for gun-trafficking charges.
鈥淭he process is much more efficient and, more importantly, egalitarian and fair,鈥 Reid Rusonik wrote in an email. 鈥淭he accused aren鈥檛 shoved away in a box, and the defence also has its office and resources nearby.鈥
During the global pandemic, videoconferencing apps such as Zoom have emerged as tools for people looking to carry on as before, with everything from business meetings to yoga classes shifting online.
As people get used to the idea of also conducting trials on the internet, the technology could be 鈥渁 game-changer for efficiency,鈥 added John Struthers, who is president of the Criminal Lawyers鈥 Association.
Four months after COVID-19 forced the near shutdown of courts across Ontario, courthouses across the province are slowly resuming in-person hearings, including major criminal cases. And although more logistically challenging jury trials remain on hold at least until September, experts say this week鈥檚 experiment in virtual justice could help reduce the backlog of cases that has ballooned since March while just maybe revolutionizing justice in the process 鈥 for better or for worse.
鈥淚t鈥檚 not business as usual in Canadian courts,鈥 Ottawa law professor Amy Salyzyn observed in Slaw, Canada鈥檚 online legal magazine.
While emergency measures have been in place since the spring 鈥 allowing bail hearings by teleconference, for instance 鈥 鈥渢here is reason to believe that this moment may well mark the start a shift toward increased use of virtual hearings in the longer term,鈥 she writes, noting that the move presents 鈥渘ew risks鈥 to public access to court, protecting privacy and maintaining the integrity of court proceedings.
Struthers and Rusonik say they agreed to videoconference because the trial otherwise would not have happened until next May 鈥 three years after their clients Bill Allison and Kamar Cunningham were arrested as part of a 2018 海角社区官网police investigation called Project Patton.
The nature of the case, which primarily involves the playing of wiretaps and surveillance footage, and the fact there were only police witnesses also suited the virtual format, the lawyers said.
It was not a 鈥渃lassic credibility case,鈥 such as a sex assault, in which the demeanour of a civilian witness is important during cross-examination, Struthers explained. With police officers, their manner in court is 鈥渧ery rarely as important as the logical destruction of their stories,鈥 he added.
Rusonik, who like Struthers is known for aggressively grilling witnesses in cross-examination, added he found the virtual format almost better than in a traditional court setting.
鈥淐ross-examination is actually easier because you鈥檙e seated and more comfortable with all of your preparation at your fingertips,鈥 he said.
Still, a multi-screen virtual courtroom via Zoom does not replicate the real thing. And, of course, as anyone with a computer or smartphone knows, technology is far from infallible 鈥 although the trial, which continues next week, has been relatively glitch-free.
Court staff are currently being trained on how to host Zoom trials. Judges and lawyers are being trained as well but this is still in the early stages.
Meanwhile, produced by a number of legal organizations has been released.
The guide notes that eating and drinking is still not allowed, and advises participants to be mindful of facial expressions when not speaking, and to use appropriate names.
Participants should test their connections, reduce background noise and ensure they appear in front of a suitably neutral backdrop, the guide says.
Rusonik appeared from his office. Prosecutors Carolyn Otter and Sam Scratch were also in an office setting, seated in front of whiteboards. The two accused men, Allison and Cunningham, who are not in custody, appeared in front of blank walls from nondescript rooms.
Struthers explained his client, Cunningham, had no difficulty hearing or seeing the proceeding, watching from 鈥渁 local, safe location with good internet.鈥
Meanwhile, the lawyer himself picked a courtroom as a digital background, a suitable option for virtual hearings, according to the guide.
Throughout, Superior Court Justice Jane Kelly seemed relaxed and comfortable with the process, going out of her way to acknowledge a reporter鈥檚 presence 鈥 and to offer assurances that access to exhibits would be granted, which they were. She also made clear that just like in a real courtroom, it was still illegal to take photos, screen captures, or recordings for broadcast. How that would be policed if Zoom trials become widespread is unclear.
鈥淭he next generation will do this easily,鈥 Kelly commented at one point, smiling.
Still, Struthers, Rusonik and others say Zoom won鈥檛 work for every case. And no one in Ontario is seriously talking about the much more complicated prospect of virtual jury trials, at least not yet. (Although one did recently take place in the United States in a civil case.)
Daniel Brown, a 海角社区官网defence lawyer and CLA vice-president who wasn鈥檛 involved in the gun-trafficking case, said there is some evidence to suggest that people may seem less trustworthy over a videolink than in-person.
With Zoom, there are also concerns that a witness might secretly refer to notes.
Another major concern is whether accused people and witnesses, especially from marginalized communities, have access to the necessary technology 鈥 a computer, stable Wi-Fi, video-conferencing software, a cellphone, headphones 鈥 as well as a quiet space where they can sit for several hours. There are also unanswered questions about language barriers, disability accommodations and technological literacy.
Some lawyers have observed that Zoom courts do not have the same gravitas and weight of a physical court.
鈥淲hen a witness comes to court and puts their hand on the Bible ... in front of the judge and promising to tell the truth and is surrounded by all these eyes on them, it kind of drives home to them the importance of the situation and the solemnity of the situation,鈥 Brown said.
It even changes a lot of what trial lawyers are used to in court 鈥 there鈥檚 no pacing, not even standing.
鈥淭here鈥檚 a bit of theatre and drama in a courtroom,鈥 Brown said. 鈥淭hat鈥檚 simply lost over Zoom.鈥
Omar Ha-Redeye, executive director of Durham Community Legal Clinic, said his biggest concern about Zoom trials relates to witnesses.
鈥淭he entire purpose of a testimony is about credibility, and contrasting the testimony of various witnesses,鈥 he said. 鈥淚t鈥檚 going to put enormous challenges on the trier of fact 鈥 judges are going to have an incredibly difficult time executing this.鈥
The barriers that low-income accused persons and witnesses will face 鈥 such as a slower connection freezing or even appearing via a low-quality camera 鈥 means they 鈥減otentially are going to be presenting less effectively within the legal system,鈥 he said.
It also can take more time to prepare for a Zoom trial 鈥 from testing software to sending emails in lieu of having a quick hallway conversation with opposing counsel.
(Struthers and Rusonik unreservedly said this week鈥檚 proceeding was more, not less, efficient.)
Ha-Redeye is also concerned that journalists and members of the public can no longer simply walk into a courtroom.
There鈥檚 a risk the need to request permission and to be identified to be in a courtroom can have a chilling effect on the open court principle, he said. There are other issues, too: How many people can watch a Zoom trial? Are privacy issues invoked differently when a trial is occurring by Zoom than in person, where there is more of a barrier to entry?
On the other hand, Jacquelyn Burkell, a professor at Western University who researches the impact of video technology on human interactions, says there could be positive implications for a witness who may feel more comfortable testifying from a familiar space at home rather than in an imposing courtroom.
But she also wonders about Zoom fatigue, how it can be tiring and difficult to concentrate for long periods 鈥 in part, she said, because it requires more for our brains to process than we realize.
Meanwhile, the province has so far been enthusiastic about the technology鈥檚 potential 鈥 鈥淚t opens up so many possibilities to move things along faster, more efficiently, cheaper,鈥 Attorney General Doug Downey said in a recent interview.
Law professor Karen Eltis, an instructor at the University of Ottawa鈥檚 Centre for Law, Technology and Society, said the challenge is how to use technology to enhance access to justice.
There must be careful consideration about relying on private technologies such as Zoom for public services because, 鈥渋n the end, what鈥檚 at stake is the confidence in the justice system,鈥 she said.
鈥淲e absolutely have to move forward. But we have to move forward cautiously 鈥 the justice system can鈥檛 afford to, in Facebook鈥檚 words in a different context, 鈥榤ove fast and break things.鈥欌
Betsy Powell is a Toronto-based reporter covering crime and courts for the Star. Follow her on Twitter:
