A Salyzyn: Opinion: Technology on Trial

Opinion: Technology on Trial

Written by Amy Salyzyn for Precedent Magazine

Thursday, 31 May 2012

Walk into any civil courtroom in this province and you will likely find a space that looks as it would have 50, if not 100, years ago. The usual suspects will be there: a raised judge’s bench, a witness box, a few counsel tables, some seating at the back for the public and maybe a royal coat of arms for good measure. What you won’t see is much technology — save perhaps for the requisite BlackBerrys in the hands of lawyers and a laptop or two.

here is mounting public frustration at the slow crawl to modern, tech-savvy courtrooms in Ontario. Access to justice is a growing concern in the province, so why not use all available technological strategies to make our court processes quicker, cheaper and more flexible?

Because the equation of access to justice and courtroom technologies isn’t as straightforward as it might first appear. There are real risks here: implementing something like video conferencing technology in Ontario courts without careful consideration of its potential impact could compromise justice.

At first glance, video conferencing seems an obvious boon for access to justice: witnesses can testify and lawyers can give oral submissions and avoid the costs and delays associated with travelling to court. Moreover, attending court can be an uncomfortable, if not traumatic, experience for many witnesses, so testifying remotely from more familiar settings can make the judicial system less intimidating and more accessible. Removing people from the courtroom, however, could have unintended effects. Court buildings are intricately connected to court processes. Courthouses have long been consciously designed to imbue judicial proceedings with a sense of solemnity. Look at the Supreme Court of Canada building, guarded by the towering figures of “Truth” and “Justice.” But even in courtrooms in the most banal of locations — such as strip malls and commercial office buildings — the presence of things like uniformed court security or a royal coat of arms generate a sense of gravitas about the judicial work underway.

In opening up the possibility of multiple, simultaneous and interactive sites of adjudication, video conferencing can change the atmosphere of court. There is a risk that court processes will cease to be experienced as weighty events. As former U.S. District Court judge Nancy Gertner wrote in her analysis of video conferencing technology: “In the final analysis, should trials have the look and feel of the television evening news?”

Access to justice must take into account the quality of justice. If introducing video conferencing technology leads us to treat what happens in courtrooms with less respect, the associated cost and time savings may not be worth it. And groups already marginalized in the justice system — such as members of remote communities — are often seen as the ideal users of courtroom technology.

Video conferencing does not inevitably diminish the quality of court processes any more than it inevitably improves it. How we use technology is the determining factor. If we bring in technologies, we need creative strategies to deal with possible effects. One modest but interesting idea implemented in English courts has been to ask that a royal coat of arms be placed above the judge’s seat during video conference testimony.

Unless and until we begin to have a more robust conversation in Ontario about both the promises and risks posed by courtroom technology, enthusiasm for fast-tracking our courts into high-tech arenas is misplaced. Right now, the possibility of what one theorist calls “technological somnambulism” poses more of a risk than technological anachronism. The civil justice system is too important for sleepwalking. We need to fully understand and confront what we risk losing, as well as what we stand to gain, before we decide if and how we use technology in our courts.

Amy Salyzyn is an Ontario lawyer and a J.S.D. candidate at Yale Law School.

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