Videoconferencing and Its Challenges to Criminal Justice

Ayodele Akenroye of the Centre for Criminology and Socio-legal Studies at the University of Toronto published a very thoughtful piece last week on Slaw.ca about Videoconferencing Technologies and How It Challenges the Fundamental Tenets of Our Criminal Justice System in Canada.

Akenroye, who is also a Tribunal Member with the Immigration Division of the Immigration and Refugee Board of Canada, analyzes many of the positive aspects brought about by the accelerated adoption of videoconferencing for court hearings during the COVID-19 pandemic.

But there are also some less positive consequences, not only in terms of unequal Internet access and lack of privacy for many people. 

There are also potential negative consequences for the administration of justice and for the procedural rights of the accused:

"Reducing our judges to a computer interface showing just their heads and shoulders weakens their legitimacy, depersonalizes the entire judicial process and drastically minimizes effective judicial engagement which is one of the hallmarks of therapeutic justice frequently deployed by our judges in Gladue, mental health and drug treatment courts all over Canada (...)"

"Also, the all familiar long-standing court rituals ... standing up when the judge enters, and bowing to the court on departure, all have performative effects of casting the judge as legitimate, an independent authority and the custodian of our community values. It also sets the stage for the acceptable civil modes of address as well as respectful and polite behaviour expected from all the courtroom participants. Virtual hearing tends to remove some of these perceptual cues which normally trigger the performance of this long-standing symbolic and performative rituals."

"While critics could argue that these rituals should be done away as being relics of the past, some judges would not easily agree with dispensing with them. Judges reported that some litigants were unruly while remotely participating in court proceedings, emboldened by the fact that they are not in the same room as the judge and are on their own territory, as such they don’t have to be told what to do or how to act in their own environment (...)"

"Beyond the above, there is a growing body of evidence that suggests that virtual hearing could result in constitutional violations and worse outcomes for accused persons. Several studies have shown that cases where hearings are conducted remotely via videolink or through the use of videoconferencing technologies are less beneficial to the accused persons, as the accused persons are less likely to seek legal advice and representation largely because they do not understand the significance of the process."

An interesting corrective to overenthusiastic portrayals of a totally virtual, seamless, barrier-free justice system.