Criminal Appeals and Electronic Documents

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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.

I take from this that the Court of Appeal for Ontario is generally 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).
By |October 24th, 2017|Categories: Stuart O'Connell Criminal Blog|Comments Off on Criminal Appeals and Electronic Documents

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Stuart O'Connell
Stuart is Lead Counsel at O’Connell Law Group - and works in association with the Firm.
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