WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.W., 2013 ONCA 723

DATE: 20131128

DOCKET: M42651 (C57070)

Tulloch J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

J.W.

Applicant

Paul Calarco, for the appellant

Frank Au, for the respondent

Christopher Charles, Court Reporter

Judie Im, for the Court Services Division

Heard: July 18, 2013

ENDORSEMENT

[1] The applicant, J.W., seeks an order that Christopher Charles, a court reporter, produce transcripts at the rate of $0.55 per page for the purposes of perfecting this appeal. The applicant bases this request on the fact that complete transcripts have already been produced at trial, and at the time of production the rates of $3.20 per page for original transcripts and $0.55 per page for copies were paid to the reporter.

[2] This application involves the interpretation of O. Reg. 587/91, made under the Administration of Justice Act, R.S.O. 1990, c. A.6, which deals with the fees payable to court reporters and court monitors for a simple copy of a transcript of evidence for the purpose of reproduction in an appeal to the Court of Appeal.

[3] At the hearing of the motion, the court reporter appeared in person. The applicant was represented by Mr. Calarco. Counsel for the Ministry of the Attorney General, Court Services Division (“CSD”) also appeared but takes no position on the order requested by the applicant. However, counsel for the Ministry of the Attorney General did provide valuable submissions to assist the court as to the application of the Regulation as well as CSD policies on transcript production fees. Counsel for the Crown Law Office - Criminal supports the position of the Crown Law office - Civil.

The Facts

[4] The facts in this case are not in dispute.

[5] The applicant was convicted on November 29, 2012, of sexual assault, sexual interference and invitation to sexual touching. On May 21, 2013, he was sentenced on these charges to a period of incarceration and on May 23, 2013, he was granted bail pending appeal. He now wishes to appeal his conviction.

[6] The trial proceeded over a four day period. During the course of the trial, transcripts of the evidence were ordered and have been completed. All four days of transcripts were produced by the court reporter and paid for by trial counsel. Counsel for the applicant ordered a new set of transcripts for all four days to be filed on the appeal. Counsel received and paid for the first day of evidence only. With respect to the transcripts for the remaining three days of evidence, the court reporter took the position that counsel for the applicant was required to pay the fee of $3.75 per page, which reflects the price charged for an original copy of transcripts, pursuant to the Ministry of the Attorney General guidelines.

[7] Counsel for the applicant took the position that a rate of $0.55 cents per page applied to the ordered transcripts because originals had already been produced for the trial, and all that was required were copies of those originals. The CSD policy guideline sets out a price of $0.55 per page for subsequent copies of transcripts that have already been produced.

[8] The parties are now at an impasse as the court reporter insists that he is entitled to charge the full rate set out in O. Reg. 587/91, even though the transcripts have already been produced. As mentioned, counsel for the applicant seeks an order that the court reporter produce the transcripts at the copy rate of $0.55 cents per page.

[9] The court reporter takes the position that transcripts produced for appeal are different than transcripts produced during a trial. Therefore, notwithstanding that a complete transcript of the evidence may have already been completed and produced at trial, once a request is made for a set of the same transcripts for an appeal, the process of producing the transcripts starts afresh. The court reporter also submits that the required formats and cover pages are different on appeal.

Analysis

[10] Ontario Regulation 587/91 sets out the fees payable to court reporters and court monitors for the production of transcripts.

[11] Section 3 of O. Reg. 587/91 provides as follows:

3. Court reporters and court monitors shall be paid the following fees in respect of duties performed on and after the day this Regulation comes into force:

1 For a single copy of a transcript of evidence for the purpose of reproduction in an appeal to the Court of Appeal, per page $3.75

2 For copies of transcripts, including transcripts of charge to jury and transcript of oral judgment, but not including a transcript under paragraph 1 or a transcript for use in an appeal book,

i. for the first copy, per page 3.20

ii. for each additional copy per page .55

[12] The CSD policy with respect to fees for transcript production is informed by s. 3 of O. Reg. 587/91 and is set out in s. 6 of the CSD’s Transcripts Manual (the “Manual”). Section 6.2 of the Manual provides as follows:

6.2 Transcript Fees Court reporters are entitled to fees for transcripts as set in O. Reg. 587/91 as amended, Administration of Justice Act. Any variance from these set fees is unlawful.

For Appeal to the Court of Appeal or Divisional Court

All Other In-Court Transcripts

First Copy Ordered

$3.75 per page

$3.20 per page

Additional Copies ordered at the time of the initial order

No Charge for copies

$0.55 per page

Additional Copies ordered at a later date

No Charge for copies

$0.55 per page

[O.Reg. 587/91 as amended, Administration of Justice Act].

[13] However, the above policy applies where no transcripts have been produced in the lower court, and transcripts are being requested for the first time for use in the Court of Appeal or Divisional Court. Where a transcript has already been produced in a lower court, CSD offers the following guideline for transcripts prepared for the Court of Appeal or Divisional Court:

A. If the transcript has not been produced, the reporter is entitled to charge a one-time fee of $3.75 per page (copies provided at no additional cost).

B. If the transcript has already been transcribed for any reason, the reporter is entitled to charge $.55 per page copy (for appeal) for portions previously transcribed and $3.75 per page for any portions not previously transcribed (copes provided in this instance at no additional cost).

C. If the transcript has already been typed but requires substantial changes, the reporter may charge the one-time fee of $3.75 per page for pages where substantial changes are made (copies provided in this instance at no additional costs). Where no changes are required, the reporter charges $.55 per page per copy.

[14] One of the objectives of the justice system is to be accessible to litigants who are before the courts. The most effective way of achieving this goal is for the justice system to allow parties to litigate issues at a reasonable cost. This point was made by Simmons J.A. in R. v. Papadopoulos (2004), 2004 36047 (ON CA), 73 O.R. (3d) 258 (C.A.), at para 21:

In my view, the obvious purpose of rule 8(7) [of the Criminal Appeal Rules] is to dispense with unnecessary duplication of expense in circumstances where the court reporters have already been paid for their work in preparing a certified transcript and where the court reporters will not be required to perform the additional work necessary to prepare the transcript in the format required by the Court of Appeal.

[15] Simmons J.A.’s comments are relevant to the issue at hand. The court must balance the interests of access to justice and the court reporter’s right to fair compensation. The CSD policy with respect to fees for transcript production strikes a fair balance between these competing interests.

[16] In the circumstances, I am satisfied that the application should be granted and an order should be made in accordance with the CSD policy. Therefore, I find that for transcripts prepared for the Court of Appeal, the court reporter is entitled to and shall be paid a fee of $3.75 per original page. However, if the transcript has previously been transcribed and produced at the lower court level for any reason, the reporter is entitled to charge, for an appeal, $0.55 per page per copy for portions previously transcribed, and $3.75 per page for any portions not previously transcribed. If the transcript has already been typed but requires substantial changes, the reporter may charge the one-time fee of $3.75 per page for pages requiring substantial changes.

“M.H. Tulloch J.A.”