Ever since the establishment of the NSRLP five years (yes, five years!) ago, we hear regularly from SRLs on a topic that causes them significant stress. And that topic is:
Hearings Transcripts
The reasons for their stress are self-evident. A lot of talking, arguing, asserting, and declaring goes on during a hearing. The self-represented person is anxious, and probably tired from staying up late the night before to prepare (after a day of work). There is often no explanation of what legal terms or language, or references to future legal processes, actually mean. SRLs tell us that they often leave a hearing unclear on what has just transpired, and what it means for them and for their case.
While the subsequent judicial decision may resolve some of these questions, others will remain unanswered. A hearings transcript (usually created from a recording) allows litigants to review the sequence of arguments and the presentation of evidence, and as such is a vital tool. The deeper context and content of what was said in court is important for clarity (as well as for evaluating possible grounds for appeal). Furthermore, most appeal courts require litigants to obtain a transcript before filing an appeal.
Reviewing the entire record of the proceedings in a transcript allows the SRL to take stock, and prepare for next steps (and perhaps move toward a settlement).
Finally, access to a transcript allows for “misremembered” details to be revisited. (Please note that the NSRLP does not vouch for the accuracy of transcripts, but assumes them to be correct.)
Access to these prized transcripts is expensive. They are sometimes difficult to obtain. And, as the procedure to secure a transcript varies from province to province and court to court, this presents an SRL with yet one more procedural puzzle to navigate.
Our Research Project
Given all of this, we thought it was high time that the NSRLP look take a closer look at the processes for obtaining transcripts across the country. Our methodology is simple.
In January 2018, Research Assistants Kaila Scarrow (1L) and Becky Robinet (3L) divided up the Canadian provinces and territories between them, and set about trying to answer the following questions:
- Can I get a transcript of my hearing?
- What is the procedure to get a transcript?
- How much does it cost?
Kaila and Becky were asked to follow each lead – that is, to work through the procedure to apply for a hearings transcript in each of their assigned provinces/territories and courts. If they had questions or were unclear about procedure, they were to contact the court staff and/or use any email or phone number provided for contact. Both RAs kept track of the time they spent finding answers to the three questions in every jurisdiction. Just as in Kyla Fair’s research project (filing for divorce in Alberta, Ontario and B.C.), conducted under the auspices of the original 2013 SRL Study, we wanted to see just how difficult or simple this procedure was for someone who did not practice law.
First Impressions
I checked in with Kaila and Becky in February. I was in sunny Sydney, Australia, and they were beavering away in snowy Ontario. I had been following their progress through a shared cloud folder where they placed their answers to the three questions, province by province. They had begun with Alberta, Newfoundland, Ontario, and Nova Scotia.
As we discussed their progress, we recognized that we were already seeing significant differences between the provinces when it came to ease of access to transcripts. Some were straightforward, and the answers to the questions were gathered relatively quickly. Others were a rabbit warren of false starts and tunnels to nowhere… for example…
Answering the 3 Questions: Not Always So Simple
In an email to me earlier in February, Becky had written:
“Alberta. Was. So. Difficult. It took me 3 days! It was very confusing and difficult. In comparison, Newfoundland took me about 10 minutes.”
We resorted to asking Rob Harvie, our Board Chair, and a lawyer in Alberta, to try to access a transcript at the Alberta Queen’s Bench. Maybe as an experienced lawyer he knew something we didn’t about how to do this?
He encountered the same problem. From Rob’s enquiry email to the court:
“Can you please advise what is intended by ‘Attach any supporting documents required by the court’ in the transcript ordering process? There is no explanation for this – and even as a lawyer, I have no idea what this might intend – I’m assuming (but perhaps incorrectly) that it has something to do with the initial direction on your site that states:
‘When you order a transcript, you’ll need the following information:
Commencing documents (in PDF format):
Statement of Claim
Notice of Motion
Indictment or Information’
But there is no direction of how or why we would send copies of the statement of claim or motion – and in my experience, when I order a transcript in the past, it has never been subject to some direction or requirement of the sitting justice.
Some clarification would be of assistance – and if I as a 30-year lawyer am slightly mystified, I cannot imagine what a self-represented litigant would make of these instructions. [My italics.]
Thank you,
Robert G. Harvie, Q.C.” (email of February 7 2018)
The response was an auto-reply email advising the recipient to go to the website to order transcripts – and when Rob called the number provided to ask for further explanation, no person answered: he got a recording saying, “the mailbox is full.” (The court did in time respond to Rob via email, clarifying his question, and apologizing for the frustration of the process.)
Costs
We also immediately saw big differences in costs and the ways in which those costs were passed on to litigants. For example, some courts provide an audio recording and the litigant must do their own transcribing – other courts provide a written transcript at a cost per-word or page. This amount varies widely depending on the province.
Perhaps most troubling to us at the NSRLP are the courts where there is no procedure at all to obtain a transcript – at any price. For example, SRL Derek Thompson received a letter from the Alberta Court of Appeal denying his request for a transcript because, “(A)part from exceptional circumstances, recordings are for the Court’s use only.” (Correspondence of March 14 2018.)
This issue has been previously noted and commented upon by a local Alberta reporter: see Paula Simons, “Court of No Record” in the Edmonton Journal.
Passing this Information on to the Public
We plan two outputs from our transcripts project. The first will be a Research Report focusing on the many differences we found among the provinces and territories, and especially those which present obvious barriers to Access to Justice. This Research Report will also present some models of “best practice” and some alternative approaches to providing transcripts to litigants.
We shall also write a document for SRLs – “A Guide to Obtaining a Court Transcript” – which will be posted on the NSRLP website under “SRL Resources”. This primer will share all the relevant information that Kaila and Becky uncovered about how to currently go about obtaining a transcript (in as many courts and provinces as they could get information for). With the help of both lawyers and SRLs who follow NSRLP, we hope to continuously update this document.
We hope that both the Research Report and the SRL Guide will be ready to be published this Spring. If you have a story or an issue regarding transcripts, we are still eager to hear from you. You can reach us at
re******************@gm***.com
.
Absolutely wonderful piece & Great starting point . Transcripts have to become available & affordable to every one . In this day & age why will the courts not just send us this transcript electronically for free & we can print off the pages need our self’s . Transcript management in Edmonton, Alberta already will send you an electronic copy by email to you but only after you pay for the very high price for the paper copy first ?? The solution is there why do they not do this as a standard across Canada ? As the high price for transcript are a deterrent & or a way to stop the average or below average person from appeal the judges decision . I apprehend it is a protection system for the judges so their bad decision do not escalate & or become public knowledge.
I would like to thank you all for the great work you are all doing. It is making a positive difference .
A very good investigation by NSRLP and free program evaluation for the courts. The courts should make use of this free program evaluation to improve their system.
I have no issues regarding transcripts to share with. Even before getting to the issues of transcript, I am faced with the issue that Human Rights Tribunal of Ontario does not even record the proceedings. We have to confess that, unlike mainstream respondents, mainstream adjudicators do not oppress or discriminate. However, I understood that some other Tribunals record the proceedings and include the transcripts in the record of proceedings.
there is a great great need for the judicial systems across Canada to be fully transparent, fair, polite, and fully accessible. Fees imposed for transcripts, etc are all just another way to keep people out. I recently requested a copy of the file transfer request that had to have been filed for my file to have been sent to another district, and I was not notified. Court services snapped that it was internal paperwork only. The lack of transparency is just a daily part of hiding what is really happening in the judicial system. I have been told that I would be required to pay approx. 5 dollars a page for transcripts, and it would take so long, that any appeal I would want to file, would be time past. I think that is how the courts manage to rid themselves of the self represented. hide material, claim you can have it, but it will take months and cost a fortune. these tactics just go on and on. Until these really dishonest and non transparent methods of behavior come to an end, we the public really do not have any actual access to the courts. Even if we can walk in the door.
I was going to comment about the impossibility at Alberta Court of Appeal. They once told me they are not a court of record and tried to refuse my application for the transcript. So I became (well terrorisitc) and they know that I will make a stink so they said they had to get the judge’s permission. Eventually one of them released it to Transcript services with the order and instruction to Transcript management demand that I make a deposit (that was more than the cost of the transcript). You should know in Alberta Transcript Management is a private business so how did the court come to be instructing a private business on how to do their business?
It should be noted that Transcript Management (Alberta) always asks for a “deposit” and usually has to give a refund. So they hold up our money and pay us no interest and I will not even begin to talk about how the judge has to approve the transcript before it is released to us and they often change what was said yet the Transcript service person signs that the transcript is verbatim WHEN IT IS NOT.
I also saw one transcript with a huge redaction except no one signs it as redacted. It was just blank
In my experience, but at a very high cost of charging per character i.e. commas and punctuations etc.there doesn’t seem to be a problem ordering and receiving “hearing transcripts” at Alberta Court of Queens Bench. The Alberta Court of Appeal of Alberta is a different story, they plain and simple do not allow “hearing transcripts” to be obtained by self-represented litigants, I have the letters of denials to prove it.
It’s as though they are hiding meritorious arguments and want to hinder you from advancing to the next level, which is usually The Supreme Court of Canada. In my personal observation, The Court of Appeal of Alberta has a common thread showing a culture of a gigantic monolith of tribalism working against Self-Represented Litigants, whom they would prefer to be extinct from the legal system altogether. The facts speak for themselves by the failure rate of self-represented litigants in Alberta Courts. Like Derek T. I too commend the efforts for your team bringing focus to the extreme “public importance” to this area. It is high time that the availability of all hearing transcripts ought to be a “right” under The Charter of Rights and Freedoms in every jurisdiction in Canada, especially at all the Federally Appointed Court Levels.
We need a organization that can speak up for us to allow the transcripts at a reasonable fee.
How can we discuss our case with others for disscusing and information?
Any clinic’s or others that can help to prepare documents?
Just to clarify my previous comment “tribalism” is not a derogatory term. It is how the human mind thinks in situations of “group conflict” and creates an “us and them” contest. The “power group” always comes out on top in 95% of these conflicts regardless of the facts and truths. Reading and listening to your team, and many self-represented litigants, and including my own experiences. This seems to be what is happening more often than not in Alberta.
This is causing serious inequalities and a failure of “access to justice”. However, I do see improvements in other jurisdictions, it’s just not a reality in Alberta (yet).
When I prevailed in my first foray into court – a judicial review in which I faced counsel for three politically powerful entities – it didn’t occur to me to try to obtain a transcript of the recording I presumed was being made during the hearing. Had I known then what I know now, the transcript might have been of considerable use to me in dealing with the appeal that I hadn’t foreseen.
.
I went into that appeal with a sense that the outcome was already decided (it enabled the tribunal I had successfully challenged to cancel an imminent hearing on the merits of the original case). When I asked the Court of Appeal registry how I could obtain a transcript I was told that hearing had not been recorded. I don’t know to this day if that was true or not. There were so many other issues with which I was wrestling.
.
Much later I did make the effort to get a transcript of a hearing in the provincial court whose outcome I was trying to challenge in the supreme court. I don’t recall all the details of what I went through but I do recall it was a challenge and expensive.
.
I have what might be a useful suggestion. Very early in my train of litigation I identified a very specific language issue in the use of the term “prima facie case” in the statute provision whose application I challenged (initially successfully) in court.
.
The language issues developed to the point where it occurred to me that the set of disciplines known as linguistics might include some useful tools. I have no training in linguistics but the reading I’ve done suggests to me that “critical discourse analysis” might be a tool that could be usefully applied to analyzing transcripts and other texts to find biases and hidden agendas. I’m fairly confident for example that the attitude of at least some of the judges I faced would be evident in the transcripts.
COSTS OBSTRUCT THE RIGHT TO APPEAL
The right to Appeal is indivisible from the right to a fair trial. Assuming SRL’s can navigate the legally complex maze of Appealing, transcripts can cost thousands of dollars. Left unchallenged, bad decisions, set bad precedence which puts the fair administration of justice in disrepute.
SCC RULES COSTS THAT BLOCK A2J ARE UNCONSTITUTIONAL
Contrary to UN mandates, the system has failed to make many facts known and accessible to the public.
The transcript office’s claim that because they farm the task of transcribing out, they are not subject to SCC decisions regarding lowering/waving fees, must be challenged.
If the defense already paid the transcription fee, you will only be charged the $1.00 per page copy fee. By law, copy fees must be reasonable and are typically capped.
UNOBTRUSIVELY RECORD YOUR OWN PROCEEDINGS
In keeping with Rule 1.2 (1), some provinces allow SRL to unobtrusively record their own proceedings to save the time and costs of ordering transcripts.
APPLICATION TO LISTEN TO AUDIO RECORDING TO “AUGMENT YOUR NOTES”
No information about the existence of Audio transcripts is posted on the Alberta Courts web site.
Counsel for the transcription office stated that if people want to apply, they can request a copy of the form. Because no information exists and the form is not even listed with the other FORMS, this information is hidden from the public. One cannot benefit from something they have no knowledge of. Assuming permission is granted, keeping in mind that Policy that does not uphold the law, is of no force or effect, a policy may be in place requiring SRL’s to be chaperoned by a clerk while listening.
CLERKS CASE NOTES AS PER RULES OF COURT
Most types of hearings require clerks to generate Notes. SRL should always secure copies of the clerk’s notes before leaving the court house. As per the Rules of Court, when Orders are in dispute (and one cannot afford or wait for official transcripts) CCN should be assistive.
30. The case management judge shall ensure that a party, the clerk or some other person is directed to prepare:
a. minutes of the discussion and decisions made at a case management meetings,
b. a formal order setting out the decisions or directions made at a case management conference, or
c. both, and to cause such record to be circulated to all parties for comment as to its accuracy.
Contrary to the certification of accuracy attached, CCN are more accurately described as cherry-picked, short-hand minutes, than an accurate account of what occurred. If CCN are not an accurate representation of what occurred, it logically follows that they can not be used to dispute the ‘accuracy’ of the Order.
With all due respect to the work being done to move the system into step with the Rule of Law, until all courts allow the public to video record their own public proceedings, in their own public courts, there will be no access to justice which is about outcome.