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| Moya Graham |
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| Leah Ostler |
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| Morgan Watkins |
The trial in Carroccia v. Ayow (October 2020) was conducted in person, with three witnesses who testified by video using Zoom. Everyone in attendance wore masks and stayed six feet apart. Counsel conducted examinations and submissions looking through layers of plexiglass. For those two weeks, two worlds collided: elements of the new virtual courtroom and COVID-19 protocols met the usual pre-pandemic trial process. But in every way that matters — behind the protective layers of masks and plexiglass — the trial proceeded smoothly. Co-operation and consideration are always important at trial and were essential under COVID-19 protocols.
We had the opportunity to compare virtual and in-person testimony of important witnesses for both parties in the context of this hybrid trial. The decision to have witnesses testify by video was not made by counsel. It was an imperative for witnesses who could not attend the courthouse due to COVID-19 risks. We made do with these requests. And, while we perceived the jury to be slightly more receptive to witnesses who testified in person, this marginal difference did not seem to impact the outcome. Our takeaway from the experience is that, uncomfortable as it may feel, most witnesses (even important witnesses), can testify by video where practicality or proportionality so require. It also reinforced the importance of the institution of the jury trial, even in these trying times.
Trial against backdrop of Ontario court protocols
Our trial took place during the very short window in which in-person civil jury trials were permitted in Toronto.
On April 20, 2020, the chief justice of the Superior Court of Justice adjourned jury selection and jury trials until September 2020. For civil jury matters, each court region was responsible for rescheduling civil jury trials that had been adjourned. Jury selection for criminal and civil trials was recommenced in Toronto on Sept. 28, 2020.
We selected the jury for our trial on Sept. 29 and the trial began the next day. By Oct. 9, both parties had closed their cases and the jury had been charged.
On Oct. 10, over the long weekend, jury selection in Toronto, Brampton and Ottawa was suspended for 28 days due to increase in COVID-19 cases in those regions. Ongoing civil jury trials were permitted to continue at the discretion of the trial judge.
The jury deliberated and rendered its verdict in our trial on Oct. 13 — the first day following the long weekend.
In a Notice Regarding Jury Trials In-Person Operations released Nov. 10, 2020, Chief Justice Geoffrey Morawetz announced that all new jury proceedings in Toronto and Brampton were suspended until at least Nov. 30, 2020. On Nov. 21, the chief justice released a further Notice advising that only “Green Zone” regions may proceed with in-person jury trials until at least Jan. 4, 2021.
Civil jury trials have not resumed in Toronto.
Overview of the pandemic jury trial process
COVID-19 protocols included:
1. Jury selection took place at the Metro Toronto Convention Centre. Normal protocols for public spaces were followed. One additional juror was selected as an alternate in the event that a juror had to be excused midtrial as a result of COVID or for any other reason.
2. Courtroom setup was assessed by counsel in advance. Counsel stood in different areas to consider if witnesses would be visible and audible through layers of plexiglass installed between the participants. Different configurations were discussed and tested. Ultimately the jurors sat three inside the jury box and three outside, with chairs six feet apart. Counsel sat in the back row of counsel tables to maintain distance from court staff and the judge.
3. Courtroom capacity was limited to 21 people, including the jury and court staff. Only four seats in the body of the court could be occupied by clients or members of the public at a given time. Courthouse screening rules prohibited anyone — from witnesses to judges — from entering the courthouse unless they certified an absence of COVID-19 symptoms.
4. Contact was minimal and cleaning was extensive, with surfaces being cleaned by maintenance staff on breaks and air testing was performed at least once a day. Counsel robed, but did not use the robing rooms. Automatic doors were used by all. Counsel did not use the podium and conducted all examinations while standing in place behind the plexiglass. Counsel also wore masks at all times unless speaking to the court.
5. Documents were distributed by counsel by placing copies on a table in advance to permit a thorough sanitation process by a gloved court staff member. Jurors were permitted to keep their own copies of trial exhibits and to use the same copies during deliberations so as not to pass paper between jurors and court staff.
6. Live witnesses testified as usual at the discretion of the judge. Witnesses could remove their masks provided they remained behind the plexiglass-enclosed witness box.
7. Zoom witnesses appeared on a large screen set up in the middle of the courtroom facing the counsel table and visible to the jury. The trial judge had a separate screen. The equipment was arranged by a third-party vendor paid for by the parties. Counsel prepared their virtual witnesses by providing electronic copies of key documents in advance and were able to e-mail documents on cross-examination to the witness in real time. This required advance preparation. Subject to the usual glitches experienced in any virtual meeting (predominantly user-induced), the virtual testimony went relatively smoothly.
8. Flexibility demonstrated by the court and jurors was tremendous. Conducting a jury trial in the middle of the pandemic required flexibility and co-operation by everyone involved. All participants in this trial stepped up. Our trial judge was mindful and pragmatic, regularly checking in with the jurors and counsel to ensure everyone felt protected by the measures in place, which we did. The judge commended the jurors and court staff for their effort and dedication to making the trial possible throughout, which we echo again here.
Concluding thoughts
These trial counsel humbly submit that it is time to put an end to the debate about the viability of video testimony. Where practicalities and proportionality dictate, testimony by video presents no disadvantages that cannot be overcome by co-operation and preparation. To the extent that there are any marginal benefits to testifying in person, they were not so great as to drive the decision to not use virtual testimony if otherwise necessary or practical. While the mechanism for the testimony (video vs. in person) had some impact on the way in which evidence was given, it did not impact the evidence itself. The content drove the outcome — not the delivery mechanism.
In this trial, a participant expert and two specialized physician experts testified via Zoom. The experts who testified by video were the opposing experts on the same issue, which created a parity between the parties. However, our experience leads us to the view that even if the opposing side’s expert had testified in person, we would have been content to have our expert testify by video.
As an exception, it remains our instinct that it is valuable to have the main parties to an action attend the courthouse and testify in person. For the parties, the cathartic benefit of attending in person seems to be to obtain the full trial experience that is lost by video. Perhaps the overriding of that instinct is the next frontier.
The COVID-19 pandemic also put a spotlight on the debate about the continued use of civil jury trials in Ontario. The additional demands that civil jury trials place on our justice system are amplified in conditions that demand flexibility and innovation to carry out all societal functions. However, as our recent experience confirms, even in the midst of a global pandemic the jury trial remains a sacred institution.
We hope that our experience will add a dimension to this important discussion, which we hope to have in person with colleagues when it is once again safe to do so.
Moya Graham is a partner at McCarthy Tétrault LLP in Toronto. She is a trial lawyer with a practice that focuses on corporate and commercial litigation, professional liability, and infrastructure and construction disputes. Leah Ostler is an associate in the litigation group at McCarthy Tétrault’s Toronto Office. She maintains a general litigation practice, which includes commercial matters, medical malpractice and regulatory advice. Morgan Watkins is an articling student in the litigation group at the firm’s Toronto office. The firm was counsel for the defendant physician, Dr. Ayow.
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