K.M. v. Marson et al.
[Indexed as: M. (K.) v. Marson]
Ontario Reports Ontario Superior Court of Justice, MacLeod-Beliveau J. May 15, 2017 138 O.R. (3d) 709 | 2017 ONSC 2972
Case Summary
Civil procedure — Trial — Counsel for plaintiff not permitted to refer to audio recordings generated by court reporting system in closing submissions at trial and to provide copies of recordings to opposing [page710] counsel and trial judge — Transcripts certified by authorized transcriptionist required.
In order to be able to meet the time constraints he was facing for the delivery of his written argument to opposing counsel and to comply with the trial judge's directive that the closing submissions of counsel be detailed as to references to the evidence in support of their respective positions, counsel for the plaintiff brought a motion for an order permitting him to refer in his closing argument and submissions at trial to the audio transcription files generated by the court reporting system and to provide copies of the audio transcription files to opposing counsel and the trial judge.
Held, the motion should be dismissed.
If the order sought were granted, there would be significant difficulties with deciphering what was being said by witnesses; all parties and the trial judge would be required to engage in an extensive review of the recordings that would be time-consuming and costly, and the lack of a transcript would be problematic if the matter were appealed. Counsel's request was inefficient and unworkable. Transcripts certified by an authorized transcriptionist were required.
Statutes referred to
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 136 [as am.], (4) Evidence Act, R.S.O. 1990, c. E.23
Rules and regulations referred to
Certification of Recordings and Transcripts, O. Reg. 158/03, ss. 3 [as am.], 4 [as am.]
MOTION for an order permitting counsel for the plaintiff to refer in closing argument and submissions to audio transcription files.
Robert J. Reynolds, for plaintiff. S. Wayne Morris, for defendant Hastings and Prince Edward District School Board.
[1] MACLEOD-BELIVEAU J.: — The plaintiff brings this motion seeking an order permitting plaintiff's counsel to refer in his closing argument and submissions at trial to the audio transcription files and the related summaries generated by the court reporting system in regard to the evidence given at trial, and to provide copies of the audio transcription files and summaries to defendant's counsel and to me, the trial judge, rather than referring to a certified transcript of the evidence.
The Issue
[2] The issue is whether or not the court should grant the request, after full consideration of O. Reg. 158/03 under the Evidence Act, R.S.O. 1990, c. E.23, s. 136 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the Superior Court of Justice policy on [page711] the release of digital recordings, and the signed undertaking of counsel to the court for access to digital court recordings, which governs permitted and prohibited uses of such recordings.
Result
[3] The motion is dismissed. Transcripts certified by an authorized transcriptionist for Ontario are required for this purpose. Costs are reserved to be determined after the trial.
Position of the Parties
[4] The position of the plaintiff is that the trial judge has jurisdiction to control the trial process and that the order should be granted. Counsel for the plaintiff was required to execute an undertaking in order to secure the audio transcription files and related summaries generated by the court reporter during the evidence given at trial. Counsel for the plaintiff reviewed the transcription files in the preparation of his closing argument, which was required to be in writing, but delivered orally, with detailed references to the evidence upon which the plaintiff relies. His draft written argument is footnoted to relevant passages in the evidence, so as to allow defendant's counsel and myself, as the trial judge, to check the argument and evidentiary references of the plaintiff against the evidence heard at trial on the CD audio recording.
[5] The defendant's position is that the order should not be granted and defendant's counsel refused to consent to the order sought. The concerns of the defendant were that the recordings had not been transcribed by an authorized transcriptionist for Ontario; that there will be problems with deciphering what is being said by the witness; all parties and the trial judge will be required to engage in an extensive review of the recordings, either before, during or after the submissions given in court that is both time consuming and costly; and the lack of a transcript will be problematic at the Court of Appeal, if this matter is appealed. Further, it is the defendant's position that this is why we have certified court reporters and that transcripts are required to be certified by the court reporter as to what was actually said by the witness, to be relied upon in court.
Analysis
[6] Section 136 of the Courts of Justice Act contains a general prohibition from making an audio recording at a court hearing. Contravention of this section is an offence as set out in s. 136(4) and is punishable by a fine of not more than $25,000 or to imprisonment for a term of not more than six months, or to both. [page712] Certain exceptions apply if authorized by a judge, including a recording by counsel for the sole purpose of supplementing or replacing their handwritten notes. Counsel rarely request permission under s. 136 of the Courts of Justice Act to make their own recording, as digital recordings are now available to them for this purpose for a fee from the court office upon the signing of an undertaking as to their permitted use.
[7] The court reporting system in operation at the Belleville courthouse, and in other courthouses throughout Ontario, includes the capacity to generate a daily audio transcription of the evidence, accompanied by PDF files made by the typing of notes during the evidence by the court reporter which summarize the evidence, and contain time bullets that are linked to the audio files, allowing the reader to find specific witnesses and passages in the evidence. The physical form of this information is a CD of the daily audio recording which has imbedded in it, the court reporter's daily summary of the evidence.
[8] The integrity of the court record is a serious matter to ensure public confidence in the administration of justice and must be protected by the court. The court is required, however, to balance the integrity of the court record with access to justice in a time when digital technology is available to access court proceedings and audio recordings by interested persons.
[9] The combined objective is accomplished by regulations, a policy statement of the Superior Court of Justice, the completion and signing of an "Undertaking to the Court for Access to Digital Court Recordings", and the payment of the prescribed fee.
[10] Certification of recordings and transcripts is provided for in O. Reg. 158/03 under the Evidence Act as follows:
Evidence Act
ONTARIO REGULATION 158/03
Certification of Recordings and Transcripts
Application
- This Regulation applies to proceedings in the Court of Appeal, the Superior Court of Justice and the Ontario Court of Justice.
Definition
- In this Regulation, "approved device" means a device for recording sound of a type approved by the Attorney General, as mentioned in subsection 5 (1) of the Act. [page713]
Certification of recordings
3(1) A recording made under subsection 5(1) of the Act by means of an approved device shall be certified in Form 1 by a person who, (a) is authorized to record evidence and proceedings under subsection 5(1) of the Act; and (b) is in charge of the approved device while the recording is being made.
(2) The certificate in Form 1 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the recording is a recording of evidence and proceedings in the proceeding.
Certification of transcripts
4(1) A transcript made under subsection 5(2) of the Act from a recording made under subsection 5(1) of the Act by means of an approved device shall be certified in Form 2 by the person who transcribes the recording.
(2) The person who transcribes the recording and certifies the transcript shall be a person who is trained and qualified to transcribe recordings and is a member of a class of persons who are authorized to do so by the Attorney General, but need not be the same person who is in charge of the approved device while the recording is being made.
(3) The certificate in Form 2 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate in Form 2.
(4) The certificate in Form 2 has the status referred to in subsection (3), with respect to admissibility and proof, without being accompanied by a certificate in Form 1 relating to the certified recording that is identified in the certificate in Form 2.
(5) When a certificate in Form 2 is completed, nothing further is required to certify the transcript.
Forms
- In this Regulation, when a form is referred to by number, the reference is to the form with that number that is described in the Table of Forms at the end of this Regulation and is available on the Internet through www.ontariocourtforms.on.ca.
[11] Section 3 of O. Reg. 158/03 provides for the certification of the recording in Form 1 which is admissible in evidence and is proof that the recording is a recording of the evidence and proceedings in the proceeding.
[12] The Superior Court of Justice has established a policy on the release of digital court recordings to interested persons as follows: [page714]
SUPERIOR COURT OF JUSTICE POLICY ON THE RELEASE OF DIGITAL COURT RECORDINGS
Members of the public, counsel, litigants, accused or the media may obtain copies of digital court recordings (hereinafter referred to as "digital recordings") made from Digital Recording Devices (DRDs) of matters heard in open court, in accordance with the requirements of this policy. The copies of digital court recordings will include annotations.
The release of digital recordings will be at the Court's discretion and the use of all digital recordings will be subject to any court order and any common law or statutory restriction on publication applicable to the particular proceeding.
Unless the policy provides otherwise, all persons must execute an undertaking with the Court to access the digital recordings. The undertaking prescribes the way in which the digital recording is to be used and the terms and conditions under which the digital recording is being provided. All digital recordings are subject to the prohibition set out in section 136 of the Courts of Justice Act, which prohibits the broadcast, reproduction and dissemination of audio recordings. Any person who contravenes s. 136 is guilty of an offence and subject to a penalty, in accordance with s. 136(4) of the Courts of Justice Act.
This policy applies to the Superior Court of Justice in Ontario, but does not apply to the Small Claims Court.
Definitions:
- For the purposes of this policy, "judge" means: all judges, traditional masters, and case management masters of the Superior Court of Justice.
Restrictions on Access to Digital Recordings from DRDs:
All copies or access to digital recordings are subject to any express order the presiding judge may make. The presiding judge may expand or restrict access to the digital recordings in any particular proceeding before him or her.
Unless a judge of the Superior Court of Justice orders otherwise, no digital recordings are available to anyone in the following proceedings: a) in camera proceedings or any portion of a proceeding that is heard in camera; b) private or closed hearings (e.g. pursuant to ss. 45 or 151 of the Child and Family Service Act); c) proceedings subject to a statutory, common law or court ordered restriction on the provision of transcripts or digital recordings of the proceeding (e.g., pre-trial conferences held in court with self-represented accused, pursuant to rule 28.05(4) of the [page715] Criminal Proceedings Rules of the Superior Court of Justice (Ontario), proceedings under the Youth Criminal Justice Act); and, d) case, settlement and trial management conferences pursuant to rule 17 of the Family Law Rules.
Access to Digital Recordings from DRDs:
Counsel of Record A counsel of record in a proceeding may obtain the digital recordings of that proceeding upon completion of the "Undertaking of Counsel/Licensed Paralegal of Record" and payment of the prescribed fee. Persons attending on behalf of counsel of record may obtain the digital recording if he or she: (i) provides a signed undertaking from counsel of record; (ii) signs the authorization included in the "Undertaking of Counsel/ Licensed Paralegal of Record"; and (iii) pays the prescribed fee.
Litigant or Accused A litigant or accused in a proceeding may obtain the digital recordings of that proceeding upon completion of the "Undertaking to the Court for Access to Digital Court Recordings" and payment of the prescribed fee.
The Media a) Members of the media identified on the "Joint Courts' List of Designated Media for Access to Digital Court Recordings" accessible on the Superior Court of Justice website (http://www.ontariocourts.ca/en/media-list.htm) may obtain the digital recordings upon completion of the "Undertaking to the Court for Access to Digital Court Recordings" and payment of the prescribed fee. b) Members of the media who are not identified on the "Joint Courts' List of Designated Media for Access to Digital Court Recordings" may make an application for an order in accordance with this policy authorizing him or her to obtain access to the digital recordings of the proceeding. The applicant may obtain the digital recordings if he or she: (i) obtains a court order authorizing access, (ii) completes "Undertaking to the Court for Access to Digital Court Recordings", and (iii) pays the prescribed fee.
Members of the Public Members of the public may make an application for an order in accordance with this policy authorizing him or her to obtain access to the digital recordings of the proceeding. The applicant may obtain the digital recording if he or she: (i) obtains a court order authorizing access, (ii) completes the "Undertaking to the Court for Access to Digital Court Recordings", and (iii) pays the prescribed fee.
The Presiding Judge, Regional Senior Judge (RSJ) or Local Administrative Judge (LAJ) a) Copies or access to digital recordings shall be provided, upon request, to the presiding judge for the proceeding in which the digital recording was prepared. [page716] b) Copies or access to digital recordings shall be provided, upon request, to the RSJ or LAJ (or his or her designate), for administrative purposes, in the absence of the presiding judge. The presiding judge will be notified that access or copies of the digital recording were made available to the RSJ or LAJ (or his or her designate). c) Where a judge wishes to access a digital recording from a proceeding in which another judge presided, the judge shall obtain the consent of the presiding judge to access the digital recording, subject to paragraph (d). d) Where a judge determines that he or she can deal more effectively and efficiently with a case by accessing a digital recording from a previous proceeding before another judge, in the same case or a related case, the judge can access the digital recording by obtaining permission from the presiding judge, the RSJ, the LAJ, or his or her designate, unless it is in the interests of justice to dispense with such permission. In that event, access to the digital recording shall be provided to the judge upon request. After access is provided, the judge who has obtained access shall notify the judge who presided at the earlier proceeding, if that judge was not notified when the issues arose.
Court Services Division Staff and Transcriptionists Copies or access to digital recordings shall be provided upon request at no charge to the following: a) Court Services Division Staff who require access in the course of their employment responsibilities; and, b) Transcriptionists who are authorized by Regulation 158/03 under the Evidence Act and require access to transcribe court proceedings.
Named Administrative Bodies or Organizations Representatives of the bodies or organizations authorized pursuant to a Memorandum of Understanding with the Ministry of Attorney General to have access to digital audio recordings may obtain digital court recordings of court proceedings related directly to the matters under consideration by these bodies or organizations, upon completion of the "Undertaking to the Court for Access to Digital Court Recordings".
Hearing of the Application:
Applications regarding access to the digital recording for any ongoing proceeding will be heard by the judge who is seized of the proceeding. Applications shall be brought in accordance with the procedural rules that govern the court proceeding. Applications regarding access to the digital recording for any other type of proceeding or for a proceeding that has concluded will be heard by the judge who presided at the hearing. Where the judge who presided at the hearing is not available to hear the application or where no particular judge is associated with the proceeding, the RSJ, LAJ (or his or her delegate) may hear the application. Applicants [page717] should be aware that, especially for proceedings that have concluded or proceedings adjourned for a lengthy period of time, it may not always be possible to schedule an application before the appropriate judge on short notice because a judge may have many ongoing obligations in other proceedings.
[13] The policy requires counsel of record to sign an undertaking in the prescribed form. The undertaking executed by plaintiff's counsel contains a condition which, read literally, prohibits plaintiff's counsel from disclosure of these materials to defendant's counsel and even to the trial judge. It is not disputed that these digital audio recordings are independently available to defendant's counsel, upon signing the undertaking, and to the trial judge if requested.
[14] The form of the undertaking to be signed by counsel of record is as follows:
Superior Court of Justice/Ontario Court of Justice
Undertaking of Counsel/Licensed Paralegal of Record to the Court for Access to Digital Court Recordings
I,_______________________(please print legibly), acknowledge that: a. The digital recording is being provided to me for the purpose of: i. preparation in connection with the legal proceedings with respect to this case; and/or, ii. replacing or supplementing notes of the legal proceedings with respect to this case. b. Any other use of the digital recording is prohibited without an order from the presiding judicial officer or a judicial officer of the Court.
I understand and agree that the digital recording to be provided pursuant to this request will be provided subject to the following terms and conditions: a. I am legal counsel/licensed paralegal of record and I am a member in good standing of the Law Society of Upper Canada. b. I have read and understand s.136 of the Courts of Justice Act, R.S.O. 1990, c.C.43, including that every person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than six months, or to both. c. Subject to section (f) below, I will not publish, broadcast, reproduce or otherwise disseminate the digital recording, including any annotation in the audio file, in any way. d. I will not copy, save, upload or download the digital recording, except: i. onto one or more computers under my direction and control, for my own use in this case; or [page718] ii. for the purpose of sharing an electronic copy of the file in accordance with section (f) below. e. Subject to section (f) below, I will not authorize, assist or permit anyone to publish, broadcast, reproduce or otherwise disseminate the digital recording, including any annotation in the audio file, in any way. f. I acknowledge that I may share an electronic copy of the digital recording with only those individuals enumerated below in (i) or (ii), and further that where such individuals are accessing the digital recording, it will be only for the purposes listed in section 1(a) and that I will ensure that those individuals are aware of, and comply with, all of the conditions set out within this undertaking: i. other lawyers, articling students or administrative support persons who are assisting me in this matter; ii. an expert witness whom I have retained to assist me in this matter. g. I acknowledge that I may allow my client to listen to the digital recording in my presence or in the presence of someone from my firm, but my client will not be provided with the digital recording or a copy of the digital recording. h. If a witness exclusion order has been made in the proceeding, I will not disclose the contents of the digital recording to any prospective witness who has not given evidence. i. I acknowledge that any notes, transcription or similar document that I produce (or direct to be produced) using the digital recording is not a court transcript or a court record, and I will not purport that it is a court transcript or a court record. j. When the digital recording is not being used for the purpose permitted by the undertaking, I will keep the digital recording in a secure place where it cannot be accessed by persons other than those persons listed in section (f) above. k. I will safeguard the digital recording in accordance with my professional obligations regarding client files.
[15] The use of the audio recording, as requested by plaintiff's counsel in this case, is a prohibited use without an order from myself as the presiding trial judge. The request to allow this prohibited use of the audio recordings is denied.
[16] To grant the order sought and to allow this otherwise prohibited use would create significant difficulties with deciphering what is being said by the witness. It would put the court in the role of determining what was said and potentially hearing argument on what was said, if there was a disagreement between counsel. [page719]
[17] It would require the parties, counsel and myself as the trial judge, to engage in an extensive review of the recordings, either before, during or after the trial submissions given in court, that would be both time consuming and costly to the parties, in order to verify and determine that references made by plaintiff's counsel to the audio recorded evidence were accurate.
[18] While a certification of recordings in Form 1 as provided for in s. 3 of O. Reg. 158/03 pursuant to the Evidence Act may have some legitimate use, it does not equal or replace a certification of transcripts of the evidence in Form 2 as provided for in s. 4 of O. Reg. 158/03, certifying what was actually said in the proceedings.
[19] The court has experienced, dedicated, professional and highly trained court reporters whose expertise is to prepare a written record of what was said in a proceeding. The cost of obtaining certified transcripts pales in comparison to the increased costs and trial time required to pursue and/or agree upon what was said by a witness during a proceeding, by counsel and the trial judge in open court. Simply put, plaintiff's counsel's request is unworkable, inefficient, and time consuming when court resources are at a premium.
[20] The evidentiary portion of the trial in this matter involved the hearing of very intensive evidence over a ten-day period between March 20, 2017 and March 31, 2017. Originally, submissions were to begin the week of April 3, 2017. At the conclusion of the evidence, it was agreed by counsel and at the invitation of the court, that more time was necessary to allow counsel to properly prepare their closing arguments which had been directed to be in writing, delivered orally, with detailed references to the evidence in support of their positions.
[21] The trial was adjourned to May 8, 2017 for this purpose, with counsel to set their own timetable within that period for the exchange of their written submissions. Plaintiff's counsel delivered his closing argument to defendant's counsel on April 18, 2017, omitting references to the audio recordings and the summaries of the evidence imbedded in those recordings made by the court reporter. As there was no agreement between counsel about using the references to the audio recordings and summaries, this motion was brought returnable May 1, 2017 before me to determine the issue.
[22] I find the plaintiff's objective in seeking this relief was twofold: first, to meet the time constraints he was facing for the delivery of his written argument to defendant's counsel; and second, to comply with my directive that the closing submissions of [page720] counsel be detailed as to references to the evidence in support of their respective positions.
[23] Plaintiff's counsel's submissions were due before any certified transcripts could be reasonably obtained, even if they had been ordered and expedited. Defendant's counsel ordered transcripts of his two expert witnesses Professor Charette and Dr. Silver, for the benefit of his written submissions shortly after the evidence ended on March 31, 2017.
[24] As I advised counsel at the hearing of this motion, I ordered transcripts of the entirety of the evidence shortly thereafter, for use by me ultimately in preparing my reasons for decision, due to the complex nature of the evidence. At the time of the hearing of the motion, all the evidence had been transcribed except for the two expert witnesses of the plaintiff, Professor Carr and Dr. Singh, which would be completed by May 31, 2017.
[25] At the hearing of the motion, both counsel advised, upon learning for the first time that transcripts were being prepared for the entirely of the trial, that they would be ordering copies of the entire trial transcripts. As a result, counsel and the court agreed to adjourn the final submissions in this case to Tuesday September 5, 2017 at 10:00 a.m.
[26] Counsel are to exchange their written submissions and reply and to file them with the court, as and when they are exchanged between themselves, and no later than July 31, 2017.
Conclusion
[27] The motion is dismissed. The trial is adjourned to Tuesday, September 5, 2017 at 10:00 a.m. for continuation and closing submissions as directed.
Costs
[28] Counsel have agreed that costs of this motion are reserved to me to be determined in conjunction with costs of the action at the conclusion of the case.
Motion dismissed.