By: Jérémy Boulanger-Bonnelly, University of Toronto, Faculty of Law.
For more on this topic, please see Jérémy’s article, “Public Access to Online Hearings,” available in issue 45:2 of the Dalhousie Law Journal.
The “Freedom Convoy” of February 2022 made its mark on Canadians by blocking the streets of the country’s capital for weeks. Charged with various criminal offences, the convoy’s leaders were arrested and, like any other accused, brought before a judge for their bail hearing.
Those hearings, however, were anything but normal. Held via Zoom, they attracted hundreds of observers and convoy supporters who—despite repeated warnings from the presiding judge—disrupted the proceedings, refused to turn off their cameras and microphones, and live-streamed the proceedings on social media. In the words of one commentator, it was a true circus.[1]
Online Hearings: The Good, the Bad, and the Ugly
This experience illustrates the pros and cons of online hearings, which have become commonplace in the wake of the COVID-19 pandemic.
On the one hand, online hearings have opened our courts more than ever. In a traditional courtroom, it would be unthinkable to see public galleries filled with hundreds of observers for a simple bail hearing. While in-person hearings are technically as open as online hearings, they usually proceed in “practical obscurity,” as many obstacles—including a lack of time, transportation, or financial resources—prevent many observers from attending them. As Cory J once wrote: “Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court.”[2] These barriers are largely absent in the online context. In that sense, the shift to online hearings has given new life to the open court principle.
On the other hand, the convoy bail hearings have shown that without carefully crafted measures, online hearings can quickly degenerate and lead to abuse. Studies suggest that the anonymity provided by the online environment disinhibits people and encourages disruptive behaviour that is seldom observed in person.[3] In online hearings, this anonymity can make members of the public more prone to disrupting the proceedings. It can also jeopardize the privacy and security of litigants and witnesses, who can more easily become the targets of threats and violent actions.
The question is this: How can we leverage online hearings to make our courts more accessible to the public while protecting competing interests such as the proper administration of justice, privacy, and security?
The Courts’ Response
In March 2020, courts were faced with this very question when they transitioned to online hearings. One year later, curious to see how they had addressed that challenge, I decided to review the open-access policies of 53 courts in Canada, the United Kingdom, Australia, and the United States.
This study revealed, first and foremost, that courts had adopted many different responses, which suggests that courts need clearer guidance. The study also identified three main flaws in the courts’ current approaches:
- Lack of information. Before they can access a hearing, online or in person, members of the public must know when and where it will be held. Traditionally, court lists were posted in courthouses for everyone to see, but the online environment makes it more difficult to access that information. While some courts post online hearing lists weeks or even months in advance, others never provide that information or only do so a few hours before the hearing. Members of the public must also know the procedure for accessing those hearings. In person, they could simply enter the courtroom, but online, they need links to access the virtual rooms. While some courts provide their access procedure in a section of their website specifically designed for the public, others provide no information at all or only do so in lengthy “Notices to the Profession” that members of the public are unlikely to read.
- Barriers to access. Courts also impose various barriers to limit access to their online hearings. While some of them, mostly at the appellate level, broadcast their hearings on YouTube or similar public platforms, others reluctantly provide access at their discretion and only after a person calls the clerk’s office to obtain the link. A middle option adopted by several courts, especially at the trial level, is to ask members of the public to fill out a form and confirm that they will abide by the rules of court before they gain access to the hearing.
- Inconsistent approaches. The third flaw identified in the study is the inconsistency of the courts’ approaches. Sometimes, even within one single court, different procedures govern access to online hearings in different districts. This inconsistency makes things more confusing for the public.
To be sure, not all courts suffer from these shortcomings to the same extent. Their practices fall on a spectrum from the most accessible to the most restrictive. However, most courts could improve their practices with respect to at least one of these points.
Building Better Online Courts
This analysis reveals three main conclusions that court administrators should consider as they adjust their online hearing policies for the future.
- First, they should ensure that their websites are user-friendly and allow members of the public to quickly find: (1) the schedule of hearings; and (2) the procedure for accessing online hearings. These changes, which would require relatively little effort, would go a long way toward improving the courts’ informational transparency.
- Second, courts should adopt access policies that appropriately balance open justice with competing interests. Appellate courts should consider broadcasting their hearings on public platforms, while trial courts should consider imposing some minimal limits upon access to counter anonymity and disinhibition. For instance, they could ask members of the public to fill out a form with basic personal information and to confirm that they will agree to abide by the rules of court. These measures should not become so burdensome as to unduly restrict public access to online hearings.
- Third, courts should collaborate to adopt a consistent approach to the accessibility of their online hearings, at least in each jurisdiction. This would make it easier for members of the public to access hearings in multiple courts and districts without having to follow different procedures each time. An existing working group can provide such coordination at the federal level but extending that collaboration to the provinces would be beneficial.
Online hearings are here to stay, but many policies governing their accessibility remain inadequate. As we prepare to integrate online hearings more permanently into our justice system, we should make sure that they appropriately balance open justice with competing concerns. My hope is that court administrators will tackle this significant challenge in the near future.
[1] See e.g. Aedan Helmer, “‘It’s not meant to be a circus’: Convoy bail hearings testing virtual court capabilities and courtroom decorum,” Ottawa Citizen (7 March 2022), online: <ottawacitizen.com/news/its-not-meant-to-be-a-circus-convoy-bail-hearings-testing-virtual-court-capabilities-and-courtroom-decorum> [perma.cc/78QE-VDQR].
[2] Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 1326 at 1340, 64 DLR (4th) 577.
[3] Jane Bailey & Jacquelyn Burkell, “Revisiting the Open Court Principle in an Era of Online Publication: Questioning Presumptive Public Access to Parties’ and Witnesses’ Personal Information” (2017) 48:1 Ottawa L Rev 143 at 170, online: <rdo-olr.org/2017/revisiting-the-open-court-principle-in-an-era-of-online-publication-questioning-presumptive-public-access-to-parties-and-witnesses-personal-information/> [perma.cc/9PM7-NCMX].