Canada: Technology And The Law: Ontario Court Of Appeal Confirms Parties Cannot Record Proceedings Without Court Order

Last Updated: May 3 2019
Article by Cynthia Spry

It's fascinating to see the changes technology is making in the law. We did a three-week trial in December that was completely electronic. It was liberating. There was no schlepping of fifteen bankers' boxes of documents to court on the first day, no agonizing over which binders we needed to lug back to the office for that evening's cross-examination preparation, and no need to cover everything in colour-coded stickies to be able to find that crucial document at a moment's notice. It also saved a considerable amount of court time, because we could all navigate between the documents so much more quickly.

But we did have one technological issue: the transcription of one of the cross-examinations was so garbled that we had to order the audio and transcribe it ourselves. The undertaking we were required to give to get the audio recording was so strict that we were not even permitted to share it with opposing counsel, and they had to take our corrections on faith, or sign their own undertaking in order to receive it.

There can be lots of issues with ordering transcripts – if you don't have real-time transcription there can be long delays, transcripts are expensive, and sometimes (luckily not very often) they're quite wrong.

As the efficacy of speech-to-text software increases, it's not surprising that the Ontario Court of Appeal was recently asked to consider the question of whether the parties to a proceeding are entitled to obtain and disseminate recordings of proceedings in the Court on their own terms.

The short answer? Absolutely not.

In Michail v. Ontario English Catholic Teachers' Association, 2019 ONCA 319, a former employee of the London District Catholic School Board was involved in a protracted dispute with her former employer. After Ms. Michail's appeal was quashed on jurisdictional grounds, she brought a motion seeking, among other things, orders:

  1. dispensing with the requirement that she sign a standard undertaking in order to obtain the release of audio recordings of certain hearings;
  1. permitting her to transcribe the proceedings; and
  1. permitting her to challenge the constitutional validity and applicability of s. 136 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

The motion judge's decision: Justice Brown dismissed Ms. Michail's motion, finding he did not have jurisdiction to grant the relief sought, because there was no longer a live appeal. Ms. Michail brought a motion to review.

Arguments on motion to review: At the hearing of the motion to review, Ms. Michail argued that the constitutional principle that the courts be open to the public requires the Court to permit video recording of its proceedings and dissemination of those records, subject to certain exceptions, without any justification for the recording at all. Alternatively, she argued that video recording is required to keep judges and lawyers accountable to the public, and for public education.

The decision of the Court of Appeal: The Court of Appeal agreed with Ms. Michail that the motion judge had erred, in that he did have jurisdiction to make certain of the orders sought, but dismissed the motion for review on its merits (or lack thereof).

Video recordings of proceedings in courts in Ontario are governed by section 136(1) of the Courts of Justice Act. This section establishes a general prohibition against video recordings, subject to exceptions provided in section 136(3), including that the video recording is made with the authorization of the judge.

A judge has statutory jurisdiction to authorize a video recording in three circumstances:

(a) where required for the presentation of evidence or the making of a record or for any other purpose of the court hearing;

(b) in connection with any investitive, naturalization, ceremonial or other similar proceeding; or

(c) with the consent of the parties and witnesses, for such educational or instructional purposes as the judge approves.

Ms. Michail's principal submission was that she had a constitutional right to video record and disseminate the proceedings. The Court understood Ms. Michail's submissions to be not a constitutional challenge to section 136, but rather that all statutory grants of discretion must be exercised in accordance with the principles underlying the constitution, and that the open courts principle requires that video recording, streaming and archiving be permitted.

The Court disagreed. It held that the open courts principle is only one constitutional principle among many, and is not automatically dispositive. Judges have a wide discretion to authorize a video recording, but there must be some reason for it that relates to the circumstances of the case.

The Court also noted that it makes digital audio recordings of its proceedings for internal use that are not governed by section 136 (as this section relates to records by third parties). The Court makes these recordings pursuant to its inherent power to govern its own process. Pursuant to s. 17 of the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, these recordings are made available on request, for personal use only, on the condition that the person requesting the recording signs an undertaking agreeing to respect the limits on the permitted uses of the recording.

The Court held that the motion for an order dispensing with the requirement that the digital audio not be disseminated was properly before the motion judge, but Ms. Michail provided no reason that would justify releasing her from the obligation not to disseminate.

With respect to the proposed challenge to the constitutional validity of section 136 of the Courts of Justice Act, however, the Court held that the motion judge had no jurisdiction to grant this request. A constitutional challenge to a statute cannot be brought in the absence of a valid appeal.

The Takeaway: While Ms. Michail's arguments were not well framed, one does wonder if the time will come, sooner rather than later, when the legislature will be asked to reconsider the general prohibition against recording proceedings set out in section 136(1).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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