Salyzyn, Amy. “A New Lens: Reframing the Conversation about the Use of Video
Conferencing in Civil Trials in Ontario” (2012) 50 Osgood Hall L.J. 429.
p. 433 - Ont. Rule 1.08 introduced 1999 after decisions expressing doubt about
power of civil court in Ont. to allow evidence via video technology
- Rule 1.08 allows admission of video testimony by consent, on motion of a party, or
ex proprio motu (authority to order video testimony ex proprio motu added in 2008
on recommendation of Osborne Report (Civil Justice Reform Project): p. 437-438)
- 7 criteria ct. obliged to consider in exercising discretion to permit evidence to be
given by video technology:
1. The general principle that evidence and argument should be presented orally in
open court;
2. The importance of the evidence to the determination of the issues in the case;
3. The effect of the telephone or video conference on the court’s ability to make
findings, including determinations about the credibility of witnesses;
4. The importance int hecircumstances of the case of observing the demeanour of a
witness;
5.
Whether a party, witness or lawyer for a party is unable to attend because of
infirmity, illness, or any other reason;
6. The balance of convenience between the party wishing the telephone or video
conference and the party or parties opposing; and
7.
Any other relevant matter.
p. 434 - in Pack All Manufacturing Inc v Triad Plastics Inc, [2001] O.J. No. 5882
(S.C.J.) favourable view of videoconferencing expressed by ct. but order refused
primarily because of lack of evidence witness was unable or unwilling to attend in person
[witness was in northern Ont.]
p. 435 – cites several later Ont. cases allowing video evidence where witness outside
Canada
- cites case in which order for video evidence refused because of importance of evidence
to issues in action: (Aly v. Halal Meat Inc., 2012 ONSC 2585 at para. 30, although
another out of country witness was allowed to give ev. by video)
- case in which video evidence not permitted because evidence would involve serious of
issues of credibility that court thought should be assessed in open court: Lynch v Segal,
[2005] OJ No 1275 at para 4 (S.C.J.)
pp. 435-436 - NB – testimony via Skype [i.e., non-CCTV, desktop-based platform]
allowed in several Ont. cases [involving witnesses outside Canada]:
Yunger v. Zolty, 2011 ONSAC 5943 at para. 120; Paiva v. Corpening, [2012] OJ No.
771; Aly v. Halal Meat Inc. (1 of 2 witnesses located outside Canada); Braafhart v
Braafhart, 2011 ONSC 270 at para 15
p. 436 - Ont. courts tend to give dominant consideration to first principle listed in Rule
1.08, i.e. that evidence and argument should be given orally in open court – overall
approach of Ont. cts. to videoconference evidence remains cautious
pp. 439-440:
With the assumption that video-conferencing technology can provide cheaper, more convenient
presentation of witness evidence at trial, the increased use of this technology is treated as a positive
development. In this equation, efficiency is the guiding norm and improved access is repeatedly cited
as the policy goal driving the desire for greater efficiency through increased use of technology. The
overall attitude towards technology is optimistic and there is a sense of inevitability about further
integration of technology in the civil justice system.
p. 440 – assumption constantly made that videoconferencing cheaper than appearance of
witness in person – case in which videoconferencing was not the cheaper alternative:
Asco Construction Ltd v Epoxy Solutions Inc., 2011 ONSC 4464 at para 20
pp. 444-445 – Credibility Assessment Potentially Affected by “Video-Mediated
Environment” - several authors and sources cited indicating credibility assessment
is subject to influence by the “video-mediated environment” [photography] , e.g.
camera angle, lighting – can affect perception of non-verbal signs, - non-alignment
of camera angle and viewing screen can create impression of eye-shifting
- cites Lederer’s article reporting on CLCT controlled experiments that found
videoconferenced expert evidence had no influence on jurors’ assessment of expert
evidence
pp. 447-448 – remote appearance of witness by video technology gives rise to
objectification of witness – disturbing studies cited indicating that perceptions of
accused persons, refugee claimants, witnesses are disproportionately negative
because of disconnection between those in courtroom and person testifying
remotely
[Note comments of Campbell J. in R. v. Fecteau, (1989) 49 C.C.C. (3d) 534
in which an accused in the Don jail had been sentenced via close-circuit television:
“There is another element involved here and that is the human element in the sentencing
process. It is one thing for a judge to sentence to imprisonment a live human being who
stands physically before the judge in open court. The judge before imposing a term of
imprisonment at least has to look the accused in the eye. It may be quite another thing to
sentence to imprisonment a disembodied television image that appears on a screen on the
judge's dais. While the sentencing process has many faults one of its strengths is that it is at
least a human process. It does not add to the human strength of the sentencing process to
turn it into a disembodied electronic exercise.”]
pp. 449-450 - Salyzyn argues lack of emotional connectivity between courtroom
and witness or accused on video can undermine levelling, egalitarian effect of court
procedure that brings all parties, weak and powerful, into the process of
adjudication, giving participants “a diminished subjective sense of inclusion in the
legal process” (p. 449) – could undermine public’s perception of legitimacy of the
legal system
p. 450: NB:
These concerns regarding risks to democratic values and the legitimacy of the legal system are
compounded when one considers that video-conferencing technology has been viewed as a panacea
for addressing access to justice problems faced by northern Canadian communities Many of these
northern communities include significant Aboriginal populations, members of which face systemic
discrimination in the justice system and experience significantly disproportionate levels of illness,
poverty, unemployment, and incarceration. Although video- conferencing technology holds promise in
making access to the courts more convenient and more affordable for northern populations, the quality
of this access is an important consideration that needs to be part of the equation. To the extent that
these communities are already marginalized in relation to the exercise of political and legal power in
Canada, the fact that these communities may disproportionately experience the possible negative
effects of court technologies on the quality of adjudication is a critical concern.
(Underlining added.)
p. 451 – Salyzyn warns of “significant unintended effects” warranting caution in
exploiting video technology in courts
p. 456 – Salyzyn warns of reduction in solemnity of court process
“Speaking from a judicial perspective, former US District Court Judge Nancy Gertner has written
about the impact of video-conferenced testimony on the “gravitas” of the courtroom and queried,
“In the final analysis, should trials have the look and feel of the television evening news?””
Nancy Gertner “Videoconferencing: Learning Through Screens” (2004) 12:3 Wm &
Mary Bill Rts J 769 at 773
NB See Anne Wallace, “‘Virtual Justice in the Bush’: The Use of Court Technology in
Remote and Regional Australia” (2008) 19:1 J L Inf & Sci 1.
p. 460 - disruption of “geography of adjudication” could have adverse and salutary
consequences – adverse because detracts from solemnity, dignity of judicial
proceedings, salutary because it could diminish impression of hierarchical power
structure that is built into a conventional courtroom’s architecture and allow
marginalized people to participate in judicial process while remaining in own
communities – cites Wallace article
p. 460 - location of videoconferencing facilities and level of local support in an
aboriginal community require thought in part because of symbolism – e.g. Wallace
asks whether they would be in a police station or a community centre
p. 461 – “By taking witnesses outside the courtroom, video-conferencing technology disrupts the
geography of adjudication and threatens the solemnity associated with, and respect given to, the civil
justice system as it is conventionally understood today. It also, however, carries with it a liberating
potential to shape new court process that are more responsive to and inclusive of the public. We need
to confront the potential transformative power of video-conferencing technology, with respect to both
the justice system and to society more broadly, rather than simply continuing to treat it as a neutral
tool at our disposal.”
p. 461 - Salyzyn concludes that: 1. Expansion of videoconferencing in court system
should be curtailed until videoconferencing is viewed not only in terms of cost and
efficiency and its potential effects referred to in the article (perception, reduction in
solemnity of process, objectification of witness, etc.) have been examined and are
understood 2. Once that stage reached, it is necessary to consider how to
incorporate videoconferencing into the judicial system – involves a reconsideration
of fundamental values
p. 463 - “In taking witnesses outside the courtroom we do much more than simply allow witnesses
to avoid the cost and inconvenience of having to travel to attend court. We need to wake up and
engage with the potential unintended and diffuse consequences of introducing this technology into our
courts. The operative issue, in my view, is not whether the new tools available to us are good or bad
but rather how we should use them, if at all, in light of our values. Although the path forward remains
to be determined, it seems clear that we can no longer afford to be sleepwalking through these
important decisions.”