The inside story of how courts and the people who report on them scrambled to adapt to a virtual world.
As a courtroom sketch artist, Pam Davies has spent decades observing the discharge of justice from unforgiving wooden pews. In Canada, where filming trials is usually not allowed, her drawings have served as the public’s visual reference for high-profile criminal cases. For example, Davies was present during the 2019 sentencing of convicted serial killer Bruce McArthur, where she was given special permission to sketch the judge-only proceeding up close—from the jury box, rather than the viewing area. “There are three things that I always want to do in a court drawing: get a good likeness of everyone, tell a story, make it interesting,” she says.
On March 12, 2020, Davies was seated in a courtroom at the Superior Court of Justice in Ontario (SCJ) at 361 University Avenue in Toronto, rendering the moment a witness testified against defendant Kalen Schlatter in the ongoing case of the strangling death of 22-year-old Tess Richey. Davies was one of only a handful of people seated in the viewing gallery— occupancy was restricted due to new guidelines aimed at stemming the spread of COVID-19. The testimony took place the same day the SCJ announced suspension of upcoming trials.
Afterward, Davies went to the sixth floor of the courthouse, as she always did, to sit with her paints and add colour to the day’s drawings. On her way there, she passed a judge in the hallway with whom she has what she describes as a “nodding hello” kind of relationship. On this day, however, he stopped to chat. “He said, after this period of time that we’re closed, what’s going to happen after that?”
As it turned out, Zoom happened. More than a year later, in Quebec and Ontario, virtual trials are still the norm. And so reporters who have spent their careers learning how to navigate a Kafkaesque judicial system have been faced with a different sort of trial as they adapt their methods to cover remote justice.
Betsy Powell has spent 13 years on and off covering the courts for the Toronto Star, and she says that before COVID-19, on days where she was without a designated assignment, she could hop from courtroom to courtroom in search of stories. The court docket listed all the cases being heard on any given day and the name of the defendants and charges for each case were listed on the courtroom doors. Powell and her fellow reporters used these two sources as their source of scoops. These days, the Superior Court of Justice still posts a docket online, but it does not include the charges for each trial.
Given the gaps in online information, some reporters have come to rely more heavily on personal relationships with lawyers to keep them informed, says Powell. This dependence may leave journalists vulnerable to lawyers who would rather keep their cases out of the public eye. “In some instances, a lawyer is quite happy if the media doesn’t find out about a plea in particular,” says Powell.
Defence lawyer John Struthers says he thinks lawyers wouldn’t intentionally hide a hearing from the press. The president of the Criminal Lawyers’ Association does concede, though, that in certain situations it may be advantageous to try a case without media attention. “If you’ve got a doctor charged with a single count of sexual assault, and you expect to be acquitted, and he perhaps doesn’t want the process out there, it’s not a bad thing that that doesn’t end up on the front page.” Struthers adds that concealing a trial, especially a high-profile one, is nearly impossible if reporters are doing their job. “It’s very difficult to hide a very serious case,” he says.
Yet even a seasoned court reporter like Powell says that she has relied on insider information to find out about hearings, including high-profile cases. In October 2020, she covered the sentencing of T’Quan Robertson. Robertson was convicted on one count of attempted murder and two counts of aggravated assault for his role in a daylight shooting at a crowded Scarborough playground in 2018. The attack left two young girls with non-fatal gunshot wounds. The hearing was a hybrid in-person and virtual affair, meaning most of the trial’s participants were physically present, while some observers, Powell included, watched the proceedings through Zoom. Powell was alerted about the sentencing by a Crown lawyer who wasn’t working on the case. “Were it not for a prosecutor who said, ‘You might want to check this out,’ I wouldn’t have known,” she says.
To access Zoom hearings, journalists are required to contact the court via email to request a link to the proceedings. Depending on how quickly they reply, this can result in admission delays. As Alyshah Hasham, who also covers the courts for the Star, explains, “You have to sort of email the court and hope for the best.” According to her, this is especially problematic when it comes to hearings that journalists may have only been alerted to at the last minute. “Whereas normally you’d just show up in court, you can’t do that, you have to wait.”
I wanted to try to gain last-minute access to a hearing to see how the court would handle the request. I selected the trial of Bill Allison and Kamar Cunningham, who stood accused of participating in a plot to smuggle firearms across the United States border into Canada. In October 2020, about five minutes ahead of the trial’s start time, I emailed a request for a Zoom link to the SCJ’s criminal trial office. It was nearly an hour and a quarter into the proceedings before I received the link, along with a note from the trial coordinator telling me that in the future I should file my requests further ahead of the hearing’s commencement.
Giving ample notice has become more difficult during COVID-19, as reporters try to keep track of all the cases that have been rescheduled due to the pandemic. Upcoming court appearances are now searchable online in Ontario, but it remains a challenge for newsrooms to stay on top of all the new dates. Liam Casey, a general assignment reporter for the Canadian Press, says that at any given time, he and his team are tracking upcoming court dates for several trials. “Then one day in March, all those dates are just off the books; our calendar just got shot to hell.” The confusion has caused Casey and his team to miss scheduled court appearances, including cases they had been previously following.
The last time Casey was caught flat-footed was November 2020, when Domenic Cugliari stood before the discipline committee of Professional Engineers Ontario and admitted to professional misconduct in a notorious Toronto accident. In June of 2012, the stage collapsed in Downsview Park before a Radiohead concert. The incident claimed the life of technician Scott Johnson, who was on stage tuning a drum kit when the structure failed. Despite Cugliari’s hearing being broadcast live on YouTube, it flew under the radar of news outlets. “Nobody caught it,” says Casey. “My colleague at work saw that Radiohead had put out a statement and that was the first inkling that anyone had that this had even happened.”
Reporters have generally been able to gain access to Zoom hearings when needed. However, when access requires emailing the court beforehand and relying on staff to fulfill the request in a timely fashion, it raises the question of whether the courts can really be considered “open.”
On November 10, 2020, the SCJ began its most high-profile case since the start of the pandemic. Alek Minassian, 28, faced 10 counts of first-degree murder and 16 counts of attempted murder after he intentionally drove a rented van into pedestrians on Toronto’s busy Yonge Street in 2018. During the judge-alone trial, defence lawyers argued that his state of mind left Minassian unable to recognize the immorality of what he was doing. This was perhaps a tall order for defence lawyer Boris Bytensky for several reasons—not least of which because he needed to argue the entire case in front of a camera in his office.
Links to a webinar broadcast of the Minassian trial were not made publicly available. Reporters who wanted to watch the proceedings were required to email the trial coordinator at the SCJ to request access. In response, they received a link to an application form to be submitted to the presiding judge for approval. The description on the registration page also outlined certain guidelines for those viewing the trial virtually, including a prohibition on filming or recording the hearings and a ban on sharing the access link. It also said that those whose requests were rejected could watch the proceedings from a viewing gallery downtown at 315 Front Street West.
During the trial, Minassian could be seen sitting in a small white and green room at the South Toronto Detention Centre. Sometimes he shifted in his seat, but mostly he remained still. If his expression betrayed any emotional response to the proceedings, it was not easily detectable in the low-resolution camera feed.
Molly Hayes, a crime and justice reporter at The Globe and Mail, recalls one moment during the trial that illustrated just how strange remote justice can be. “At one point the judge asked if everyone else was hearing a noise that she was hearing—I think she described it as a jingling,” says Hayes. “And then she said, ‘Oh, never mind, I just realized my cat was walking by.’” Hayes also noted the unique vantage point afforded by the cameras. “We’re so used to seeing the back of people’s heads…there is something sort of jarring about seeing their faces so close up the entire time.”
The Star’s Hasham says, “You’re able to see everybody’s face, including the accused’s, which is not something you’re as easily able to do in [physical] court.” Casey agrees, saying that Zoom provided him with the opportunity to home in on Minassian, to scrutinize him more closely during the trial. This allowed him to observe certain mannerisms that were not previously apparent. “He has some tics, [he] kind of moves his arm a bit, sometimes moves his mouth.”
For Hayes and others, the Minassian trial created another challenge for reporters in the age of COVID-19: getting access to court materials, such as exhibits or agreed-upon statements of fact.
Close to the beginning of the trial, Hayes received an email from the Ministry of the Attorney General noting some of the exhibits were too big to be shared via email, and that reporters would need to come to the courthouse in downtown Toronto to pick them up. This was close to 3 p.m., and Hayes, who lives outside the city, would have had no chance of obtaining the materials and filing her story by deadline. When she emailed the ministry about her concern, she was told that Alyshah Hasham at the Star had the documents and that Hayes should ask her about circulating them. Coincidentally, Hayes had already talked to Hasham about the documents earlier that day. “Alyshah did send them around to us, which is amazing, but it’s also not her job,” says Hayes. “It’s crazy to me that we’re at the mercy of a competitor to share this with us.” Casey echoed Hayes’s frustrations about document access. “We’re getting exhibits a day or two later, which is, in many cases, useless,” he says.
Expedient access to materials has long been a point of contention between news outlets and Canadian judiciaries, and in some instances the pandemic may further complicate the situation.
Iain MacKinnon, of Linden & Associates, is the president of the Canadian Media Lawyers Association and has spent much of his career advocating on behalf of news organizations. He foresaw media access becoming an issue when judiciaries began to wind down proceedings back in March. Last April, MacKinnon circulated a letter to the chief justices of courts across Canada that called on them to “take into account and address the important role and interests of the news media.” Included in his list of issues that required specific attention were “timely access to the dockets to know what proceedings are happening, and by what means they can be accessed” and “access to the court record, including any exhibits, and any other materials that have been filed with the court.” MacKinnon says the responses he received were uniformly positive, but that over the last six months he has heard stories from journalists across the country who are struggling to get documents or admittance to the trials themselves. “[The courts] say they understand and will provide open-court access to journalists, but the reality is it’s not happening,” he says.
While she recognizes things have improved in the last couple of months, Hasham says that it’s not always been easy for journalists to get hold of the documentation they need to adequately report on a case, despite being legally entitled to it. “These are things that we’re presumptively allowed to get, but you have to have the judge sign off on that request,” she says. “The process of getting that to happen, and then getting it in front of the right person to make you a photocopy, is extremely frustrating.”
On September 24, 2020, Hasham tuned in to watch the plea hearing in the trial of Menhaz Zaman, a 24-year-old Markham man accused of murdering four of his close relatives inside their family home. She was watching the trial via Zoom when she tried to request a copy of the agreed-upon statement of facts. “Normally what would happen is, at a break or at the end of court I would go up and I would talk to the clerk or the registrar and say [I’d] like a copy of this,” she recalled. “But you’re in Zoom court. There’s no way to ask.” Hasham says she attempted to ask for the documents by speaking up during the Zoom call. “I was told that I wasn’t allowed to do that, even though, again, I’m asking for something I’m entitled to.”
When they can get access, journalists are typically able to glean enough information from remote hearings to file their daily stories, though some lament the loss of certain aspects of the courtroom that cameras may not capture.
Olivia Stefanovich is a national reporter at CBC’s Parliamentary bureau in Ottawa. She says that she misses out on a lot of details and nuance that may not translate through Zoom. “It’s like you have a painting…and you erase all the colour, and you’re just left with the brush strokes and the bare sketch,” she says. “It’s always strange, not being there for the actual decision, because you don’t get a sense of what the reaction is in the courthouse.”
Ian Mulgrew, a reporter for the Vancouver Sun, is unequivocal that Zoom hearings are a poor substitute for the real thing. “You can be sitting around listening to it or watching it in your buff,” he says. “There’s no gravitas at all. You could be sitting there with your buddies smoking reefers and drinking, for Christ’s sake.” Mulgrew agrees that remote hearings make it impossible for him to get the level of access that he wants while working on a story. “I want to see how they interact, and I want to feel the emotion and the electricity of the courtroom,” he says.
Liam Casey says that in the absence of the colour that is usually provided by the drama of the physical courtroom, he is forced to concentrate entirely on the trial itself, rather than including details about the reaction in the viewing area. “It’s a lot more focused on what they’re saying.”
Court reporters have also had to contend with a problem that has become infuriatingly commonplace in the COVID-19 era: technological issues. In November 2020, Willow Fiddler, a national news reporter for the Globe, covered the trial of Brayden Bushby in Thunder Bay, Ontario. Bushby was standing trial for manslaughter after throwing a trailer hitch through the window of a moving car that struck Barbara Kentner, a woman from Wabigoon Lake Ojibway Nation, in the abdomen. The trial had to proceed with two complicating factors: COVID-19 and a fire that rendered the regular courthouse unusable. Consequently, the case was held at Thunder Bay’s old courthouse, which has been converted into a hotel.
Journalists watched a video feed of the trial from a different room on the same premises, and on a few occasions Fiddler said the trial was delayed because of issues with the login credentials for the Zoom session. “It was the hotel manager who had provided that service, and so he had that [login] information and there was a couple of times he wasn’t around,” she says.
Austin Delaney, a video journalist for CTV News in Toronto, has also run into technical glitches. He was dispatched on November 2, 2020, to cover the Zaman murder trial sentencing hearing. Delaney was in a satellite truck outside the Newmarket courthouse watching the trial on Zoom. He planned to report on the sentencing from in front of the courthouse until they got word that the hearing could not proceed as planned: “We couldn’t hear the judge.”
In spite of these issues, many journalists point out the myriad advantages of being able to cover hearings remotely.
CBC’s Stefanovich says that even after the pandemic abates, she would like to see remote hearings continue to some extent. “Being a journalist who covers all three platforms, TV, online, and radio, we have so many deadlines,” she says. “It is good to have that option to cover a court piece remotely.”
For Casey, being able to cover the courts remotely has made it easier for him to juggle his duties as a journalist and a parent. When his then two-year-old son was forced to stay home due to a COVID-19 outbreak at his daycare, Casey was able to babysit him and watch the Minassian trial simultaneously. “I wouldn’t be able to do that without Zoom,” he says.
Fiddler experienced another benefit while watching the Bushby trial from the media viewing room. “I was able to sit there at the desk and have my laptop and type away,” she says. “I don’t know if I would have been able to do that if I was in the actual courtroom.”
In the case of Jim Rankin, a crime, courts, and justice reporter with the Star, the fact that courts are finally allowing trial documents to be distributed by email is a positive development and a change many journalists have been advocating for years. During the pandemic, Rankin emailed the clerk’s office requesting a factum and decision from an appeal in a murder conviction that he was following. “And I had it, boom, just emailed back to me. I’d like to see that be the new normal going forward,” he says.
When Justice Molloy granted a select group of journalists access to the Minassian trial Zoom meeting that was sealed from public view, one member of the media was accidentally left off the list: Pam Davies, the courtroom sketch artist. So, just for the day, she ended up in a mostly vacant viewing gallery at 315 Front Street West in downtown Toronto, the only place she would be able to see the trial in order to draw it.
The viewing gallery is a room where the trial was played on two large screens. To get into the room, Davies had to jump through the same hoops as she would have to get into a real courtroom, without any of the drama or excitement of an in-person trial as a payoff. “They’ve just taken all the trappings of what it takes to get into a courtroom and transferred them to these massive rooms,” she says.
Davies says she’s given up on trying to recreate typical courtroom sketches from Zoom trials. “Whenever I’m drawing somebody who is the focus of the day, I will really take the time to do a little vignette portrait,” she says. “It’s definitely not a court drawing, but it’s given it some kind of value in making it as nice of a drawing as possible.”
For Davies, the decades spent observing trials have given her a special appreciation for the drama and pageantry of the courtroom. More than anything, Zoom hearings early in the pandemic served as a reminder of what she has lost during the ongoing pandemic. “It’s just a bunch of boxes,” she says resignedly.
“Whenever I’m drawing somebody who is the focus of the day, I will really take the time to do a little vignette portrait,” says court artist Pam Davies. Some samples of her virtual work throughout the pandemic, clockwise from top left: Alek Minassian at his trial for the Yonge Street van attack; day one of the Minassian trial with public viewing at the Metro Toronto Convention Centre; John Reszetnik, the man who pushed a stranger in front of a subway train (at top, from left: defence lawyer Elizabeth Gaudet, Justice John McMahon, crown attorneys Sean Doyle and Emma Haydon); parole hearing for Marco Muzzo, the man who killed four members of a family when driving while drunk
A Win for Judicial Transparency
Some courts have been better than others in preserving media access during the COVID-19 pandemic, and some have been downright abysmal. Among the worst offenders: the Parole Board of Canada. In 2016, Marco Muzzo pleaded guilty to four counts of impaired driving causing death after drunkenly crashing his car into another vehicle and killing three young children and their grandfather. In April 2020, after serving four years in prison, Muzzo came before the parole board, which would decide whether he was eligible for release. His was a high-profile case, and according to media lawyer Iain MacKinnon, of Linden & Associates, no journalists were granted access to listen in on the hearing. In late October 2020, MacKinnon said that the media “has not been able to attend a single parole board hearing since everything went virtual.” The parole board is a federal tribunal, meaning that its decision to exclude journalists applied across the country. MacKinnon sent several letters to the Parole Board of Canada expressing his concern about the lack of access to hearings. In a response dated July 30, 2020, more than five months since the imposition of COVID-19 restrictions, Harold Massey, the board’s regional director general, said that it had “not yet found a solution that is adequate from both the operational and security perspectives to conduct remote hearings while also permitting media attendance.” Jim Rankin, a staff reporter on the Star’s crime, courts, and justice team, was among the journalists who were denied access to Muzzo’s hearing. “The victims were allowed in on the call, but the victims in this case didn’t feel comfortable becoming reporters and letting us know what was going on,” he says. “It left us kind of blind in terms of what was going on.” On October 26, 2020, Rosie DiManno, a columnist at the Star, was denied virtual access to the parole hearing of Marcia Dooley, who was convicted of murdering her stepson, Randall, in 2002. In response, the Star filed a legal application, seeking an urgent judicial review of the parole board’s decision. The application cited the fact that “for the bulk of the pandemic time period, victims’ families have been permitted to remotely attend parole board hearings as observers.” The Star further stated that “there is a strong public interest in ensuring public scrutiny of Parole Board hearings,” and that “there is no justifiable basis to preclude media representatives from remotely attending hearings.” In response to the application, the board reversed its policy in a win for Canadian judicial transparency. “Going forward, journalists will be accommodated and be able to listen in on the hearings,” says Rankin. After the parole board capitulated, the paper withdrew its application. In a letter to the Department of Justice outlining the reasons for the withdrawal, the Star’s in-house counsel, Emma Carver, said, “The decision with respect to Ms. DiManno is one of a general policy approach going forward, not limited to Ms. DiManno’s case.”