NSRLP’s New Research Report on Access to Court Transcripts

One of the topics that comes up frequently in the NSRLP office at Windsor Law – in my supervision sessions with our research assistants, at our weekly team meetings, during strategy sessions with the NSRLP Advisory Board, and in day-to-day planning with NSRLP staff – is that the influx of self-represented litigants has changed everything in the legal system.

Not just some things – literally everything. For example:

• The SRL phenomenon has changed how we evaluate the accessibility and user-friendliness of legal procedures – because these processes are being navigated by individuals without legal training, who are not part of a professional “club” in which they can ask others for help.
• The number of personal litigants who are not lawyers – without downtown offices, and often with other jobs – has changed the way we think about the physical accessibility of the courts, as a matter of both geography and opening hours.
• SRLs have changed the role of the judiciary, who are now working on a daily basis with litigants who need their assistance in order to understand the proceedings (as Pintea v Johns established).
• When counsel faces an SRL on the other side, she or he is inevitably required to work differently than when dealing with another lawyer – including how they communicate with the opposite party, how they work to promote settlement, and how they manage their own clients’ expectations.

In fact, I challenge you to think of anything about the way we do business in the courts that is unchanged.

Court Transcripts are Essential for SRLs

Today I want to draw to your attention the latest research undertaken by NSRLP reflecting the fact that there is no longer any such thing as “business as usual” in our courts. Today we publish our new Research Report, “Is Access to Court Transcripts an Access to Justice Issue?”

For SRLs, access to a written (or audio) transcript of their hearing is frequently critical to their effective participation in the justice system. We hear regularly from SRLs who feel that without a transcript, it is simply impossible for them to know what to do next, or how to weigh their options – whether to settle, to appeal, or to prepare for another step in the legal process.

The reasons for this are surely obvious. SRLs consistently tell us that they find hearings (including case management and settlement conferences) the most intimidating and difficult part of the legal process. They are often operating in a state of high anxiety, typically with little sleep the night before. Without legal training and experience, they understandably, no matter how well-educated or how well-prepared they may be, find it extraordinarily difficult to pinpoint what is most important in what the judge or master has said during the hearing. They often hear terms or expressions that they do not readily understand. And unless they have obtained permission to bring a McKenzie Friend (support person) with them, they do not have help in recalling what they heard, either from memory or from detailed notes.

Our Transcripts Research

For these reasons, we have wanted for several years to find the resources (my time and the time of research assistants) to undertake a review of practices across the country for accessing court transcripts. This January, NSRLP research assistants Becky Robinet and Kaila Scarrow began, under my supervision, a systematic province-by-province review.

We found that:

• The process (and cost) of obtaining a transcript varies widely across the country.
• Some processes are relatively simple, others extremely hard to figure out (Becky and Kaila spent four months just gathering the relevant information for each province and territory).
• Transcripts are always costly; some are very costly. And they are not generally included in fee waiver schemes for indigent litigants.
• Some court hearings in some courts do not offer transcripts.
• Some appeal processes require the litigant to obtain a transcript of the lower court decision.

These challenges have a further, unfortunate, but understandable consequence. When they face difficulty accessing their hearing transcripts, some SRLs begin to wonder if there are nefarious reasons behind why this is being made so hard for them, and may come to believe that transcripts are being deliberately withheld. In short, this is yet one more way in which the justice system is unintentionally creating mistrust and reducing public confidence.

The nuts and bolts details of our research findings – which we shall also release as an SRL Primer in the Fall – will not stay current for long. These processes are subject to change (and hopefully, improvement). We hope to continue to update this information with input from lawyers, judges and SRLs.

What we hope will be taken note of in our new Research Report is that an uneven system filled with procedural rabbit holes is not serving the public, nor is it burnishing the reputation of the Canadian justice system.

You can read the Report here.