Guidelines on Access to Hearings During the COVID-19 Pandemic

INTRODUCTION

The COVID-19 pandemic has fundamentally changed how participants, media and members of the public access Ontario Superior Court of Justice (SCJ) proceedings. The vast majority of the Court’s proceedings now occur remotely. It is now technologically possible to observe most SCJ hearings by calling or logging in from anywhere in the world.

This new reality creates many opportunities for greater access to the Court, consistent with the principle that court proceedings are open to the public. It can be easier for Ontarians to learn about the court process in real time and for people affected by a case to ‘be there’ while it unfolds. Provided they have knowledge that a remote hearing is taking place, it can also be easier for media to attend a hearing and play its critical role of informing the public about the justice system and cases of public interest.

At the same time, the new reality creates challenges in ensuring compliance with restrictions on publication, the security of participants, the integrity of the process and participants’ access to the Court. The move to remote means that the SCJ has to face these challenges more directly and in innovative ways. Our proceedings must remain public, yet we must also prevent misuse of remote access, which can have serious consequences for participants and for the justice system.

The SCJ will not provide unrestricted livestream and dial-in access to all of its hearings. This is logistically unrealistic and would leave the above challenges unaddressed. The other extreme, of no remote access at all, is also not an option. The most appropriate approach is one that accounts for the applicable law, the circumstances of the hearing and the technology available to the Court.

The presiding judicial official is the person responsible for choosing the hearing method and how observers can access the hearing. This document is intended to assist in making decisions surrounding remote hearings.

THE OPEN COURT PRINCIPLE

The open court principle “is a hallmark of a democratic society.”[1] The Ontario Superior Court of Justice is committed to upholding that principle and to, wherever possible, make all hearings, including virtual hearings, accessible to the public, subject only to logistical issues, statutory restrictions and where discretionary limits on public access are justified according to law.[2]

Media play an important role in ensuring the public remains informed about court proceedings. Whenever a party seeks a discretionary restriction on access to a proceeding, the presiding judicial official should generally direct that this party provide notice to the media so that they have an opportunity to challenge the request. Under the Court’s Consolidated Provincial Practice Direction, the Court’s Publication Ban Notification Media Subscriber List is used for this purpose.

OPTIONS FOR REMOTE HEARINGS

A remote SCJ hearing can currently take place through any of the following methods:

  • Teleconference, where only audio of the presiding judicial official, the lawyers/litigants, and any witnesses can be heard. While there may be circumstances where Zoom hearings are unavailable or difficult to implement, SCJ judiciary should bear in mind that teleconferences make it very difficult for parties, media and the public to follow and understand the proceedings.
  • Zoom meeting, where audio and video of all court participants can be heard and observed. Any member of the public or media observing the hearing will also be seen and heard, although the presiding judicial official can direct that observers’ video and audio features be turned off or disabled by the registrar.
  • Zoom webinar, where audio and video of only the judicial officer, lawyers/litigants, witnesses and the registrar can be seen. Members of the public or media who are observing will not appear on screen and cannot be heard.[3]
  • Livestreamed hearing, which will be a Zoom meeting hearing that is broadcast live, typically through a private broadcaster. Only the judicial officer and others that have a speaking role, such as lawyers, self-represented parties and any witnesses, would be seen or heard. Some livestreaming services can restrict broadcast to just the audio portion of the Zoom hearing.

A hearing can be partially remote and partially in person. This is known as a hybrid hearing. This would be dictated by the circumstances of the case, typically with some lawyers/litigants or some witnesses participating remotely. Its availability may also depend upon the existence of courtroom technology that can support hybrid hearings.

The presiding judicial official decides which method to use, in accordance with the open court principle and any other relevant considerations. Before making this decision, the judicial official may wish to convene a case conference with the parties (and, if appropriate, media) in advance to ascertain their views.

Members of the public and media observing a hearing should be made aware of the prohibitions in section 136 of the Courts of Justice Act before the hearing begins.

FACTORS THE PRESIDING JUDICIAL OFFICIAL SHOULD CONSIDER IN CHOOSING A REMOTE HEARING PLATFORM

All decisions regarding hearings must account for the constitutionally enshrined principle that the courts are open to the public. Put another way, the starting point is that hearings are public. Restrictions on public access should be rare and limited, although the pandemic has created novel challenges which may make broad public access difficult.

The presiding judicial official should consider all relevant information in deciding which method of hearing to use. Practical considerations include:

  • the participants’ technological abilities to participate using the method in question;
  • the number of participants;
  • whether the case is expected to attract any interest from others, and if so, the extent of that interest; and
  • whether there is a concern that section 136 of the Courts of Justice Act may not be respected and cannot be enforced. In such cases, the likelihood and nature of possible harm must be considered in light of the applicable law.
  • In any given case, factors other than those listed above may be relevant.

ACCESSING A REMOTE HEARING

As provided in Chief Justice Morawetz’s May 13, 2020 Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media, anyone wishing to hear or observe a SCJ proceeding may contact local courthouse staff before the proceeding for information about how to hear/observe.

On a given day, ontariocourtdates.ca displays the matters that the SCJ is hearing that day and the day afterward. At this time, it is not possible to post Zoom meeting, Zoom webinar, or private broadcast links directly to the ontariocourtdates.ca site. As well, the names of cases in which a publication ban applies are initialized at this time. Technological solutions are being considered to overcome this. The information on ontariocourtdates.ca should still make it possible for members of the public and media to identify the remote hearing they wish to observe and to obtain coordinates from court staff.

Please note that some case information about civil and criminal matters in the SCJ is available through an online portal operated by the Ministry of the Attorney General. It is accessible here.

ACCESSING AN IN-PERSON HEARING

Where a judicial official determines an in-person matter will not be observed remotely, efforts will be made to accommodate the public at a courthouse.

Capacity limits in SCJ courtrooms across Ontario have been put in place in response to the COVID-19 pandemic. SCJ judiciary are expected to abide by these limits, which have been recommended by the Ministry of the Attorney General acting on the advice of public health experts. If expected attendance will exceed a courtroom’s capacity, then alternative means of observing (including remote link or video feed to an overflow room) must be considered.

Space in the courtroom should generally be reserved for media representatives. Where space precludes this, or safety could be jeopardized, a video feed should be sought. Audio-only access to an in-person hearing may make it more difficult for observers to follow the proceedings, because they cannot see who is speaking.

ACCESSING EXHIBITS

SCJ judiciary should ensure prompt access to exhibits. Court Services Division of the Ministry of the Attorney General manages exhibits on behalf of the judiciary.

In the event a party seeks to restrict access to an exhibit, the party should give media notice of the request (the Court’s Publication Ban Notification Media Subscriber List is to be used for the purpose) and the matters should be decided promptly. Timeliness is important in every case, and it ensures that media can promptly provide the public with accurate information about the proceeding. Unnecessary delay can deprive the public of information about the Court because a story may have lost its news value by the time the journalist obtains the exhibit.

Technology limitations may prevent immediate access to exhibits, but every effort should be made to ensure they are available to the media by the close of the hearing.

[1] Vancouver Sun (Re), [2004] 2 SCR 332, at para 23.

[2] In Vancouver Sun (Re), ibid, the Supreme Court of Canada wrote:

While the [Dagenais/Mentuck] test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings. Discretion must be exercised in accordance with the Charter, whether it arises under the common law, as is the case with a publication ban; is authorized by statute…or under rules of court, for example, a confidentiality order. The burden of displacing the general rule of openness lies on the party making the application. [citations omitted]

[3] The break-out room functionality is currently not available when a webinar format is used.