The Intangible Impacts of Virtual Court

By Gabriel Bichet*

 

Introduction

The impacts of the COVID-19 pandemic on the legal system provide firsthand evidence that the law can evolve with the times. Initially, as a reactive measure to the lockdowns beginning in 2020, virtual legal proceedings have now become an integral part of today’s access to justice. Virtual proceedings generally involve bringing court actors together by video, typically over a Wi-Fi connection. To participate, the legal decision-maker (such as a judge) and the parties to the action attend from their respective physical locations. Additionally, “hybrid hearings” are a further alternative measure to access to justice, combining traditional and virtual elements of a proceeding, where some participants to a given proceeding attend court in person, and others remotely.[1] The increasing use of these alternative methods of attending court since COVID-19 suggests that the custom of being physically present in a courtroom or mediation room has changed.

As a summer intern at an Ottawa law firm, I had the privilege to participate in virtual hearings, where I observed decision-makers attend from unconventional physical locations, such as their private residences. These experiences led me to the following questions: what are the intangible impacts of virtual proceedings on the legal system, if decision-makers can fulfill their judicial functions online, from non-traditional locations? How does the virtual environment impact legal decision-making? Does fair access to justice change as the Canadian justice system becomes increasingly independent from the physical structures that once housed all judicial functions?

Below, I consider the impacts of virtual proceedings through two related concepts: emotions and detachment. While emotions are associated with mood and feelings, detachment is a lack of investment potentially leading to indifference.

The reader should distinguish the first section discussing neutralizing harmful emotions from the section discussing empathetic detachment. This blog will analyze two points: (1) neutralizing harmful emotions is an encouraging facet of virtual proceedings because it puts all parties on an equal plane that helps prevent one party from overpowering the other party, and (2) empathetic detachment presents an issue in virtual proceedings because the courtroom has traditionally depended on proximity between parties to view each party through an up-close humane lens. However, in a remote setting, where the proceeding is dominated by screens and technology instead of the parties standing in real life, the decision-maker may perceive the parties fundamentally differently. The decision-maker in a virtual proceeding bears the dilemma of maintaining the humanity of the courtroom despite the technological and artificial means that enable the proceeding to take place. This constant grappling between two poles provides its own set of challenges.

 

Power Imbalances and Neutralizing Emotions

The law has little place for “moral sentiments,” or emotional consideration for the self-interests of others: for example, contract law ensures productivity and consumption by incentivizing rationalism to act according to the law.[2] However, regardless of how the law is structured, actors within a legal system, considering they are still human beings, are no exception to emotional judgment and their arising effects.[3] Therefore, emotions are automatically part of the system. Understanding this, the law has determined that unregulated emotions can be prejudicial in a court of law. For example, a voir dire is a legal process where the judge balances the probative value of the evidence against its prejudicial effect. If it unduly arouses the jury’s emotions of prejudice, hostility or sympathy, the evidence may be rendered inadmissible.[4]

Yet emotions may influence the courtroom in alternative and intangible ways, such as during witness testimony. In R v F (WJ), [1999] 3 SCR 569, a case involving the sexual assault of a child, the six-year-old complainant could not bring herself to testify before the court.[5] When she reached the stand, physically in front of the decision-maker and the parties (though behind a screen), she “froze”, suddenly refusing to speak about the case, even claiming she had forgotten the crime committed against her.[6] The Supreme Court of Canada recognized that it is traumatic for a child to testify in a courtroom and to relive matters of sexual assault.[7] The modern courtroom, a space with a recognizably heavy atmosphere, must be seen as a safe space for parties to freely communicate their stories, without emotional barriers to complicate how they express their truths. This is particularly true for parties that suffer from a clear power imbalance with the other party due to the context of the matter. In R v F (WJ), a clear consideration for the court was that the witness was a child.

Virtual proceedings can allow court actors to participate from a safe space and therefore limit the influence of emotions, such as intense family law settings involving child welfare and high trauma.[8] The key characteristic of virtual proceedings—that the parties can attend the proceeding from separate physical spaces of their choosing—is what family law virtual hearings often need. Consider a hearing that takes place over a virtual platform such as Zoom: all participants must present themselves in separate, random, and equal amounts of space on the screen;[9] the parties thus maintain equal opportunities of power and influence. Power imbalances are equalized, hindering any party from physically dominating the hearing.[10] In family law cases involving an abuser and a victim, where such power imbalances between parties exist, physically separating the parties to structurally neutralize harmful emotions becomes an important facet of the hearing to cultivate a safer environment.[11] To alleviate stress does not fully encapsulate the needs of the party—virtual proceedings do more than attempt to remedy the anxiety of parties attending court. Of much more importance is protecting the well-being of the parties, which certainly includes alleviating stress.[12] Such protection can change the progress and result of the case.

The vulnerable party is less likely to experience feelings of intimidation and aggression when they are not in the physical presence of the aggressor. The virtual courtroom supports the problem-solving and non-adversarial nature of child welfare proceedings,[13] where all participants are working together for the best outcome for the children and families. Virtual court regulates the presence of each party and therefore neutralizes the emotions of the action so that no one party is dominating the other by a power imbalance. As a result of this separation of space between the parties, virtual proceedings provide parties with safer spaces than in-person court proceedings.

 

Enabling Detachment and the Humanity of the Matter

Yet a virtual courtroom can also allow feelings of indifference to foster a lack of emotional investment that may negatively impact the decision-making process. In a traditional courtroom setting, familiarity between parties is created through the physical proximity that the parties share in the courtroom; but when the proceedings occur virtually, where decision-makers only meet the parties through a screen, the humanity of the case risks being reduced.

Increased physical distance increases social and psychological distance,[14] and thus decision-makers in the courtroom may have more difficulty exercising empathy in a virtual setting than in a physical setting, consciously or unconsciously impacting their decision-making. The fact that all a decision-maker has to do to dismiss a party from a virtual proceeding is click a red button, or “mute” them, is indicative that the matter has the potential to be tainted with a misleading sense of superficiality that strips the parties of their humanity. The decision-maker understands that the value of the proceeding remains the same regardless of its setting, but if physical co-presence is fundamental to the human experience of empathy,[15] how is the decision-maker expected to make an equally fair decision virtually compared to a decision they would make in a physical courtroom? The virtual courtroom risks fraying the human connection between the decision-maker and the parties.

The research on virtual hearings suggests that in remote settings, judges are more likely to set a higher bail compared to in-person hearings; similarly, petitioners in immigration removal virtual proceedings are more likely to be deported.[16] Virtual proceedings thus enhance the risk of creating a “dehumanizing barrier” between the remote decision-maker and the witness.[17] This crystallizes in a variety of ways that could obstruct certain practices fundamental to the way courts operate, including difficulty in assessing credibility,[18] lack of solemnity,[19]and impracticality of language translations.[20] Our decreased ability to recognize and understand non-verbal communication in a virtual setting exacerbates this “dehumanizing barrier.” Proximity between parties in traditional proceedings enabled empathy; now, where proceedings are virtual, the emotional depth of the proceeding is reduced to the dimensions of the screen. Empathy is not absent, but much more difficult to exercise in a virtual setting.

 

Conclusion: An Uncertain Future?

Virtual proceedings are here to stay. The remaining questions are about how to use them to best promote access to justice, considering that they can be an emotional stabilizer or a proponent of indifference. Unfortunately, not enough time has passed for adequate resolutions to present themselves. Considering that the COVID-19 pandemic began approximately four years ago, research has yet to provide substantive, clear answers. Virtual platforms have been alternative methods to access justice before COVID-19. The unprecedented prevalence and necessity for these platforms, because of public measures implemented to limit the spread of COVID-19, changed the Canadian legal system overnight, which in turn calls for more research to be done.[21] Ontario courts have developed policies to address how virtual proceedings are conducted from the perspective of accessibility and cost reduction (which have evolved since the pandemic).[22] Formal research and professional experience from lawyers, judges, and other parties will better inform us of where virtual proceedings are beneficial.

At first glance, virtual proceedings help prevent parties from experiencing participant intimidation. This includes but is not limited to, parties suffering from power imbalances within the action, such as children, victims, and other vulnerable people. The regulations that accompany virtual proceedings provide valuable resources and protections for these witnesses.

The law is an ever-evolving domain, and so are its tools and procedures. If properly utilized, virtual proceedings can provide significant benefits for access to justice in Canada.

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* Gabriel Bichet is a third-year law student at the University of Ottawa Faculty of Law. He is interested in the future of access to justice and currently works at a litigation firm in Ottawa. He sincerely thanks Professor Campagnolo for encouraging him to write this blog post and providing insights through his teachings.

[1] Lindsay Hafford et al, “Hybrid Hearings Improvement Initiative” (2024) at 4, online (pdf): <ncsc.org/__data/assets/pdf_file/0040/98896/HybridHearings_Report_2024.pdf>.

[2] Robin West, “Law’s Sentiments” in Susan A Bandes et al, eds, Research Handbook on Law and Emotion (Cheltenham: Edward Elgar Publishing, 2021) 44 at 45.

[3] Maria Gendron, “The evolving neuroscience of emotion: challenges and opportunities for integration with the law” in Susan A Bandes et al, eds, Research Handbook on Law and Emotion (Cheltenham: Edward Elgar Publishing, 2021) 27 at 27.

[4] R v Seaboyer; R v Gayme, [1991] 2 SCR 577 at 609–11, 1991 CanLII 76 (SCC).

[5] R v F(WJ), 1999 CANLII 667 (SCC) at paras 18, 20.

[6] Ibid at paras 21–24.

[7] Ibid at paras 40, 43.

[8] National Center for State Courts, “Study of Virtual Child Welfare Hearings Facilitating Trauma-Responsive Virtual Hearings for Dependency Cases” (2022) at 3, online (pdf): <ncsc.org/__data/assets/pdf_file/0023/75812/Trauma-Responsive-Virtual-Hearing.pdf>.

[9] Ibid at 4.

[10] Eric Scigliano, “Zoom Court is Changing How Justice is Served” The Atlantic (13 April 2021), online: <theatlantic.com/magazine/archive/2021/05/can-justice-be-served-on-zoom/618392/>.

[11] Ontario Association for Family Mediation, “Policy on Intimate Partner Violence and Power Imbalances” (last revised 11 February 2022), online: <oafm.on.ca/about/standards/policy-on-intimate-partner-violence-and-power-imbalances/>.

[12] Government of Canada, “Virtual Hearings: Operational Considerations – Benefits and Challenges” (last modified 14 February 2023), online: <fja.gc.ca/COVID-19/Virtual-Hearings-Operational-Considerations-Audiences-Virtuelles-Enjeux-Operationnels-eng.html>.

[13] Supra note 8 at 4.

[14] Susan Bandes & Neal Feigenson, “Empathy and Remote Legal Proceedings” (2021) 51:1 Sw L Rev 20 at 21.

[15] Ibid at 23.

[16] Ibid at 37; Amy Salyzyn, “‘Trial by Zoom’: What Virtual Hearings Might Mean for Open Courts, Participant Privacy and the Integrity of Court Proceedings” (17 April 2020), online (blog): <slaw.ca/2020/04/17/trial-by-zoom-what-virtual-hearings-might-mean-for-open-courts-participant-privacy-and-the-integrity-of-court-proceedings>.

[17] Brandon Orct, “The Jury Strikes Back: Enhancing the Viability of the Civil Jury System in a Post-Pandemic Ontario” (2022) 13:1 Western J Leg Studies 1 at 26.

[18] Hudema v Moore, 2020 BCSC 1502 at para 20.

[19] Arconti v Smith, 2020 ONSC 2782 at para 18.

[20] Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2020 ABQB 359 at para 4.

[21] Michelle Bertrand et al, “Dispensing Digital Justice: COVID-19, Courts, and the Potentially Diminishing Role of Jury Trials” (2021) 10:38 Annual Rev Interdisciplinary Justice Research 38 at 39–40.

[22] Ontario Superior Court of Justice, “Guidelines to Determine Mode of Proceeding in Family” (last visited 9 April 2024), online: <ontariocourts.ca/scj/practice/guidelines-mode-of-proceedings/guidelines-family/>.