By Rachel Poznikoff, Student at the Faculty of Law, University of Alberta
With Covid-19 lockdowns came a necessary shift towards digital methods of pre-trial and trial procedures across Canada, and even as the world has resumed to a new normal, it does not appear as though these digital options are going anywhere. In Alberta, virtual options remain available for various types of hearings, questionings, Chambers applications, appeals, and other court procedures. And it appears as though expansion rather than reduction of these methods will be implemented going forward. This can be seen in the 2023 mandate letter to Alberta’s Minister of Justice where Alberta Premier Danielle Smith states that a specific initiative she expects the Minister to deliver is the implementation of more “remote court applications, digitization, and streamlining [of] family court matters to ensure more affordable and efficient access to the courts”.1
Premier Smith is not alone in recognizing the potential of digital solutions to solve problems of access to justice. Digital methods offer promising solutions to some of the major concerns in this area including access to lawyers and courts in remote areas, easier access to justice for lower income individuals, and higher efficiency of courts. And, while there is no arguing that digitalization can have these desired effects, the rationale for using these methods is based upon a largely untested presumption by the courts that there is an equity between these virtual methods and traditional, in person, court methods. Because we are following the same procedure, there is a presumption that the two formats are going to operate in the same way and come to the same results.
However, if this presumption of equity were to be untrue and there are deficiencies or meaningful differences between the quality or accuracy of digital and traditional methods, then there is a risk that the decisions rendered are also of a meaningfully different quality. This raises an important concern regarding the utility of this method for increasing access to justice. Access to justice is well understood to also mean access to meaningful justice. If the results from virtual trials are of a different quality than in person, then these benefits are meaningless. And, beyond the scope of access to justice, it would raise major concerns regarding fairness and justice more broadly.
The view of Alberta Courts on this concern is that there is no difference between the two. In a 2022 Alberta Court of Appeal Case, Mostafa Altalibi Professional Corporation v Lorne S. Kamelcuk Professional Corporation (“Mostafa”), the appellant raised this issue when they argued that witness credibility assessment is impaired in virtual questioning.2 The Court found that virtual questioning does not impair credibility assessment, and that “there is no significant disadvantage to cross examining by videoconference”.3 The Court went on to speak about the issue of virtual courts more broadly, saying that “videoconferencing is a successful and effective way of conducting legal matters and advancing litigation”.4 Essentially, the view of the Court is that because technology is at such an advanced state, there is “no substance” to concerns such as those voiced in Mostafa.5 However, there is evidence from social science research which may challenge this conclusion made by the Court of Appeal.
For example, a recent study on tele-communication in child interviewing suggests that the accuracy of information provided by children in virtual settings shows significant changes depending on differences in the virtual environment6 It was found that whether the child was looking at a simple or complex background affected their level of accuracy, and that whether the child could see their own face on the screen affected their willingness to disclose something which they were asked to keep secret.7 This study suggests the possibility that things such as questioning for discovery, if done virtually, could potentially provide different quality information and evidence than if it were conducted in person. Of course, this research is preliminary in nature and was conducted with children and so could be limited in scope to this group. However, it still provides evidence that information obtained in a virtual matter may have unique vulnerabilities which could lead to meaningful differences in the quality and substance of the results.
Another study discusses the affect of background cues on impressions and opinion formation in the court context specifically. It explains that contextual information such as people’s personal spaces can influence things such as memory retrieval, impression formation, and credibility.8 This is direct evidence against the Alberta Court of Appeal’s decision in Mostafa which directly rejects this idea. Remote appearances provide a unique case where judges are seeing the person in a personal setting as opposed to a formal, court setting, and so there is a risk that this human tendency will impact judges’ decision making. Further, the author claims that this tendency is especially salient in remote appearances because there is a higher cognitive load associated with remote appearances which increases the use of cognitive shortcuts when forming impressions.9 This suggests that judges who are hearing trials virtually may have an increased chance of forming implicit biases regarding truth assessment and credibility which are unique to the circumstances of having heard the trial in a virtual environment.
This point is further affirmed in a study which looked specifically at the evaluation of witness credibility in the virtual court setting when the witness has poor audio quality. The results showed that not only were witnesses with poor audio quality perceived more negatively, the evidence they provided was also weighed less heavily in the final decision.10 This again highlights how factors relating to the use of a virtual environment can potentially have an undue influence on the decision which has no relation to the merits of the case.
Of course, this research alone is not enough to suggest that using technology and virtual methods to execute pre-trial and trial procedures is in fact meaningfully different from traditional methods. However, these studies do challenge the court’s presumption that any question regarding disadvantages in virtual methods lack any substance. There are indeed unique challenges which have the potential to impact virtual courts proceedings in a way which could lead to less accurate, biased, or otherwise unduly influenced decisions, and this is not something which should be overlooked by the courts.
There are clearly many advantages to using digital methods and removing them entirely would be a step back in terms of access to justice, so this is not meant to suggest that these virtual methods should not be used. However, new innovations come with new challenges, and to address these challenges, the court must be receptive to them. Therefore, the courts should be attuned to this developing research from the social sciences and use this information to inform the best practices possible to reduce the risks associated with using them. This would help to ensure that when they are using these valuable digital methods, they are doing it in a way which not only provides access to the courts, but fair, equitable, and meaningful access justice.
- Premier of Alberta, “Mandate Letter- Minister of Justice” (August, 2023), online: Mandate letter – Justice (alberta.ca) at para ↩︎
- Mostafa Altalibi Professional Corporation v Lorne S. Kamelchuk Professional Corporation, 2022 ABCA 239 (CanLII), ↩︎
- Ibid at para 19. ↩︎
- Ibid at para 26. ↩︎
- Ibid at para 21. ↩︎
- Nikola R Klassen (2023). The Impact of the Physical Environment on Tele-Forensic Interviews. [Unpublished Master’s Thesis]. Simon Fraser University. The impact of the physical environment on tele-forensic interviews (sfu.ca) ↩︎
- Ibid. ↩︎
- Bethany R Muir, Eryn J Newman, & Meredith Rossner, “The Role of Video Background Cues in the Virtual Court: A Psychological Perspective.” (2017) Psychol Crime Law ↩︎
- Ibid at pg 8. ↩︎
- Elena Bild et al., “Sound and Credibility in the Virtual Court: Low Audio Quality Leads to less Favorable Evaluations of Witnesses and Lower Weighting of Evidence” (2021) 45:5 Law & Hum Behav 481 ↩︎
The views expressed in these blogs do not necessarily reflect the views of the Faculty of Law at the University of Manitoba and should not be construed as legal advice or endorsement.