Criminal Appeals and Electronic Documents
Criminal appeals to the Court of Appeal for Ontario involve a lot of paper:
·
transcripts of lower court proceedings (most
spanning multiple days or weeks of trial),
·
an appeal book,
·
a factum,
·
a book of authorities (sometimes multiple
volumes)
Five
copies of each. The appellant must serve
a copy of each on the Crown, three copies are to be filed with court, and counsel
for the appellant will want to retain a copy.
In
today’s world, it makes sense that some of the printed material would be replaced
by the filing of electronic documents. And file electronic documents appellate
counsel must. In addition to filing all the
requisite paper copies with court, in criminal appeals the appellant is
required to order, serve and file with proof of service a searchable electronic
version of the transcript of the lower court proceedings.
Practice Direction Concerning Criminal
Appeals at the Court of Appeal for Ontario (effective March 1, 2017).
The appellant
should also file an electronic copy of the appeal book and the parties are
requested to file an electronic version of any factum.
While the
filing of electronic documents may/may not assist the panel hearing the appeal,
it adds an additional procedural step for those bringing the appeal without
reducing the amount of printed material.
In my
opinion, the time has come for trial transcripts and the book of authorities to be provided solely
as electronic documents. Technology
allows it; law makes it possible [FN]; and, arguably, even the way in which transcripts
and the book of authorities are used in appeals as quick reference points (at least in the hearing itself),
makes the primacy of the electronic format preferable.
In Girao v. Cunningham, 2017 ONCA 811, the
Court of Appeal for Ontario considered an application seeking leave to file a
digital audio recording of a civil trial in place of filing transcripts:
In due course, as the court embraces modern technology
and electronic data, the time may come when the rules requiring the filing of
paper transcripts are made more flexible. The preparation of transcripts adds
significant cost to many appeals and often accounts for the major portion of
the delay in scheduling them. However, practices and procedures must be
developed to enable parties and the court to use audio recordings efficiently.
It is best that the experimentation needed to develop the needed practices take
place with the consent of all parties in an appeal actively managed by a judge
of the court. In this case, the respondent strenuously asserts transcripts are
essential for the proper hearing of the appeal. We cannot say the respondent’s position
is unreasonable.
The Rules
of Civil Procedure R 61.09(4) allow an appeal judge to vary the rules
regarding the transcript of evidence where it is in the interests of justice to
do so. So conceivably the appeal judge in a civil appeal could allow in an audio recordings under this rule.
For criminal appeals (as well as civil appeals), the appeal court is able to rely
on its common law jurisdiction to control the proceedings conducted before it (a power that is possessed both by courts with inherent jurisdiction and by statutory courts).
Further comments by me on this subject can be found at
Canadian Lawyer Magazine:
In my opinion, the general takeaway from Girao v. Cunningham is that the Court of Appeal for Ontario is open to allowing the greater use of electronic documents within appeals, provided practices with respect to the use of electronic documents develop carefully, and -- where the practice is a marked changed from the norm -- under the vigilant eye of the court so that fairness and the proper hearing of an appeal are assured.
[FN] See Personal Information Protection and
Electronic Documents Act, S.C. 2000, c.5 (PIPEDA).
Comments
Post a Comment