I wanted to discuss a very interesting issue today and that is whether having a virtual trial that is a trial by Zoom or Skype, JVN technology, where witnesses are testifying remotely whether that’s a viable option for you, whether the court system is moving towards that and whether it’s effective or whether you should resist and try to you know, have an in person trial.
First of all, in Canada, we have an absolute right to an in person trial. So you don’t have to agree to a virtual trial. Now, what’s happened during the COVID pandemic is our court system, the Ontario Court of Justice, the Superior Court of Justice, the Ministry of Attorney General, has spent a lot of money on modernizing our courtrooms, and they’ve made virtual trials an option. Their have been a few that went on and I can tell you this, a lot of criminal defence counsel are very resistant in the province, and there’s competing arguments on both sides. There’s pros and cons’ to that. Some of the competing arguments are this, “well how, how can you effectively cross examine the person via video hook up, how can the judge access their demeanour, the way they are coming across, could they be coached by someone else in the room, could they be reading notes”.
I can tell you what my experiences with virtual trials and virtual preliminary hearings, I’ve had many virtual preliminary hearings where witnesses testify from across the, different provinces, and I have found frankly no disadvantage I felt that I was able to effectively cross examine the witnesses, it was very clear that they weren’t being coached and very clear that they were not reading notes and you can examine their demeanour. It was quite, surprisingly effective in my view. I’ve also done trials. Under our system, if it’s a child witness under eighteen they can potentially testify via closed circuit TV even today, and you have, that’s an application, I found that very effective too. The witness is in another room; they are there with a support worker. I found actually young people more forth coming when I wasn’t in the room, I was able to gleam more information from them. So I tend to be in the pro camp for this. There’s very early returns on this. There’s been a few virtual trials. Not a lot of counsel are agreeing to it yet. You do not have to do that. I may have some client’s that say to me “ yeah, I want a virtual trial, I would do that, absolutely, I would do that” . I would say this “even though I am quite open to it, that I think it could be a good thing, I don’t want to be the guinea pig, I want to see how other trials proceed and get some feed back from other people”. But sometimes we can be closed minded at things without thinking it through just because we are soo use to something. But with the technology we have today, why couldn’t a virtual trial work, it’s something to consider, at least, and again, my advice to a client right now would be “No, I wouldn’t agree to that, you have a right to an in person trial, let’s see how it goes, I’m going to speak to other lawyers, see how it goes in the province and go from there”, and there be some studies done about that but to put your head in the sand and say this can’t work, I don’t’ think that’s the right idea and of course, I may be wrong. It may turn out that some of these negatives are in fact negative, that has not been my experience on the virtual cases I have done in the past. That’s available for preliminary hearings by the way and that’s also available for young people, even in normal times. So those are some of the issues that have emerged in the COVID-19 pandemic in our court system with modernization. I know that the Ministry of the Attorney General are encouraging people to consider virtual trials, but another option, even if you, like the negative about the virtual trials, the potential negative is cross examining witnesses and seeing their demeanour and whether we can judge credibility, that is the judge or jury via through a camera. But the thing is, you could do certain aspect of the trial virtually quite easily which don’t depend on demeanour. For example, there’s opening argument, there’s closing argument, to a jury or judge alone, there’s pretrial motions or evidence that’s not called, there’s submissions. So there’s all sorts of things that whether could be a combination of virtual and not virtual and I think most defence counsels are not open to that. So you either run into one camp, you’re saying, “ I’m on the pro camp, for virtual trials, or I’m in the con camp, but I think most people in the pro camp, like me, well I don’t want to be the guinea pig , it’s not going to be my client that goes first, let your client go first” so anyways, it’s going to be a very interesting up coming months, and years in the criminal justice system as we modernize and to see what extent virtual trials take place, and whether in fact they are good and viable options and make no difference whether it’s in person or not in terms of your odds of being able to successfully challenge the credibility of a witness.