Television is OK – Theatre is Better (Karen Andrews)
The virtual hearings debate continues! Karen Andrews from the Advocacy Centre for Tenants Ontario has also got in touch, with comments from a personal perspective on online hearings. These neatly supplement the contribution from Lesli Bisgould and Daniel McCabe and I am posting them with Karen’s permission (her views, not ACTO’s):
A guilty pleasure for me is taking in episodes of the police procedural, The Closer, and then episodes of its sequel, Major Crimes. One story line has crusty, old Lieutenant Provenza being given a USB drive by an obnoxious FBI agent. Provenza asks, “what do I do with it?”. He is told to take it into retirement.
A recent blog – whatever that is – by Professor Paul Daly of the University of Ottawa extolling the benefits and advantages of virtual hearing got me thinking about the old ways that we once did our work – the Abridgement, landlines, books, yellow pads, blue pens, catching up with one another on a break at the courthouse. When Justice Myers cites approvingly from an Australian case that sets out that the best way to consult with colleagues as a case is being heard is by WhatsApp rather than experiencing the proverbial tug on the robe, I do not know what they are talking about. And I do not want to know what they are talking about. WhatsApp – Whatsthat – perhaps something to take into retirement?
My career has been largely spent appearing in administrative tribunals. It is well documented that while the media giants, the professional classes or the energy industry are frequent actors at tribunals and boards, administrative tribunals are foundational for low- income and disenfranchised people where they advocate for the necessities of life – income support, housing, severance pay, human rights. Many of the people for whom these tribunals are established experience language, health, financial, race, class, and educational barriers in their daily lives that put them in front of these tribunals in the first place.
At my first attendance by video conference at the Landlord and Tenant Board I was bounced out of a “room” and could not find my way back. My first appearance at Superior Court over zoom had a kindly fellow in the background helping me change my screen moniker from my daughter’s name (who set me up) to my name and place of employment. I appreciated the help. The experience for me and my client at the Landlord and Tenant Board was markedly different than the experience that was had at Superior Court. Any disadvantages posed by virtual hearings can be “remedied by skillful use of technology” asserts Professor Daly. I don’t think so. To paraphrase Dr. Leonard McCoy, I am a lawyer, not an IT tech.
Just look at the cases cited by the professor – tribunal and court decisions where doctors, lawyers, engineers, teachers, and CEOs appear – not the indigent with their old flip phones and “pay as you go” plans. The current state of affairs where the poorer party gets to dial it in and the richer party gets video access is apparently acceptable. In the bygone era where I worked in person, we could settle, we could negotiate, we could adjourn, we could relate. Now, everything in my world seems to go to a hearing. No wonder there are backlogs.
As for the inability to ascertain if witnesses are being coached through their hearings, changing the affirmation should fix that problem according to Member Wright at the College of Physicians and Surgeons of Ontario. Well, why didn’t I think of that? I was railing about the changes to my Osgoode students when these covid protocols came into place and began to seriously impact on how I did my work. One student remarked: “What she says in true. I work in a shelter and a client had to borrow my phone for his hearing as a fight broke out behind him. He could not hear a thing except that he had been evicted”.
Woody Allen is credited with observing that 80% of success in life is just showing up. I believe that he meant “in person” and not over a screen. A few years ago, I thought about applying for a non-legal job. I looked at my robes and I knew that I was not ready to hang them up for good. You walk into a courtroom, you survey the stage, you pay attention to those that have the lead roles, and you listen and look at what is being said and done all around you and to what is not being said and done all around you. You are watching and listening to all of it in real time as it unfolds. A nimble intellect and not the ability to share your screen is the job requirement.
An advocate has an important role to play. An advocate gestures, points, implores. An advocate speeds it up and an advocate slows it down. Intonation matters. Civility and decorum matter. At one PLE I attended, a Court of Appeal Justice set out that at any hearing, 75% of your advocacy is grounded in your written argument and 25% of your advocacy comes from your oral argument. I was very surprised with that ratio, but oral argument is the chance to change minds, answer questions, clarify the argument and to bring that argument home. I find it much harder to do this over a two-dimensional monitor than to do in the actual presence of the decision-maker and the opposing party.
I can turn on a computer. I use it to check on my football pool results. I do not really use it to socialize, meaningfully communicate, create, think, or read. Cell phone communication reminds me of the beloved walkie talkies that I played with as a kid in the 60’s. They were used for unsophisticated fun and frivolity and not for meaningful adult connection or serious and important work. I think at ten years old, I would have loved to have a cell phone with video capability. As a grown up, I prefer just to show up where there is much value in doing just that and which is being undermined and quickly eroded every single day before I retire.
This content has been updated on July 30, 2024 at 19:59.