In the summer of 2023 NSRLP was invited by the Office of the Chief Justice of the Ontario Superior Court of Justice to share thoughts on an inquiry into public access to hearings held virtually.
Below is the official NSRLP response, dated September 29, 2023.
Office of the Chief Justice
Ontario Superior Court of Justice
Re: Public Access to Virtual Hearings
Thank you for inviting input from the National Self-Represented Litigants Project (NSRLP) regarding public access to virtual proceedings. Based on our day-to-day work on issues of self-representation and supplemented by certain of the preliminary findings in respect of our recent virtual hearing research project (we are in the process of analyzing the data), we have identified several considerations that may be relevant to your inquiry.
Support for public hearings
Opening virtual hearings are consistent with the open court principle that courts ought to be accessible and open to the public, as well as representatives of the media. While self-represented litigants (SRLs) have expressed some concerns regarding the operation of open virtual courts, the principle of open courts is an important means of ensuring transparency in the justice system. Where unfamiliarity with the processes and procedures of court can breed mistrust in the system, openness can reassure those unfamiliar with court processes that there is accountability. One SRL has expressed to us the belief that the outcome of their legal issue would have been different had there been public exposure. This sentiment speaks to the value of open courts instilling public confidence in the administration of justice, and the perceived mistrust that may develop in a closed system, particularly where individuals are representing themselves and unfamiliar with court procedures.
From a practical perspective, SRLs are often advised to attend a different court proceeding to observe the organization of the process before they attend their own hearing. Thus, ensuring open access to courts allows SRLs to follow this advice and, in theory, better prepare for their own court hearings.
Overall, the principle that underscores the importance of open courts is as significant in virtual hearings as it is in traditional in-person courts. However, we believe that there are some challenges respecting the ‘openness’ of virtual settings that need to be reconciled to ensure a balance between the open and transparent administration of justice, and the dignity, peace of mind, and capability of SRLs participating in those hearings.
Concerns about public hearings
For those SRLs who have previously participated in virtual hearings and responded to our virtual hearings research project, there were some concerns about unknown parties listening in on proceedings. In an in-person court setting, the ‘openness’ of court means that those in the courtroom are readily identifiable. However, in a virtual setting, there was a concern expressed that individuals could be ‘off-camera’ and therefore anonymously watching the proceedings; this was particularly disconcerting in the context of opposing witnesses and in the family law setting. For parties that already feel intimidated by court processes, worrying about the presence of unknown parties listening in can add to the individual’s anxiety, and in turn impact their ability to participate. Another dimension of this issue is the concern that passive participants may turn their cameras and/or microphones on, and distract from, or otherwise disrupt, the proceedings. While this is distracting to all hearing participants, SRLs may particularly struggle to regain control over their presentation due to a lack of experience in court proceedings.
There were also some concerns expressed about the fact that SRLs, unlike lawyers, are unlikely to have adequate technological support to ensure that a hearing runs as smoothly as possible. For example, one of the consequences for individuals navigating both their own case and virtual hearing technology is that conversations meant to be muted may result in privileged or private information accidentally being disclosed to the hearing participants and in open court, the larger public.
Additionally, while lawyers and their clients may have appropriate professional settings from which to participate virtually, it may be that SRLs are participating from their homes, workplaces, or even their cars. That these settings are private and potentially identifiable is problematic in the case of public access. Finally, while this is not likely an issue limited to SRLs, there are also concerns about attendees potentially recording proceedings and making these recordings more broadly public.
Moving Forward
In addition to the recognized exceptions to the rule of open court, we believe the following practices could assist in bringing about a more effective balancing of individual privacy rights, effective hearings, and public access to courts:
- If opening up virtual hearings to the public, we suggest setting up a system whereby members of the general public, while able to observe the proceeding, do not have the capability to participate by unmuting or appearing on screen, in order to minimize distraction and possibly disruption;
- To mimic the in-person security process, members of the public, while not appearing on camera, should not be able to join anonymously, and ought to be required to provide their full name, to be displayed as a non-active participant in the virtual meeting space, so that everyone involved knows who is observing the hearing;
- Technological support ought to be provided in cases where SRLs are attempting to navigate virtual proceedings and are facing difficulties that might expose them to unwanted publicity, such as in cases where they unwittingly unmute themselves during private conversations and those private conversations are made public;
- Self-represented litigants ought to be instructed on how to ‘blur’ their backgrounds where appropriate, in order to further alleviate security concerns; and
- Participants should also not have the capability to record hearings to their own devices.
If implemented with caution and thoughtfulness, and after appropriate consultation with all stakeholders, including self-represented litigants, we believe that virtual hearings may be opened up to the public in alignment with the open court principle, and to the furtherance of access to justice for all.
Thank you for your consideration.
Sincerely,
Jennifer Leitch, JD, LLM, PhD
Executive Director, The National Self-Represented Litigants Project