DATE: 20041019
DOCKET:C42009;
C42131; C42127;
C42415; C42406

COURT OF APPEAL FOR ONTARIO

RE:	HER MAJESTY THE QUEEN (Respondent) – and – STEPHEN PAPADOPOULOS, (Appellant), and
	HER MAJESTY THE QUEEN (Respondent) – and –  EDIN HODZIC (Appellant), and
	HER MAJESTY THE QUEEN (Respondent) – and –  FADO MUJKU (Appellant), and
	HER MAJESTY THE QUEEN (Respondent) – and – SAM NOP (Appellant), and
	HER MAJESTY THE QUEEN (Respondent) – and – VUTHY CHAK
BEFORE:	SIMMONS J.A. In Chambers
COUNSEL:	Heather McArthur For the appellant Papadopoulos and as agent for Michael Moore for the appellant Nop
	Anthony Bryant For the appellant Hodzig
	Nadir Sachak For the appellant Chak and as agent for Glenn Orr for the appellant Mujku
	Renee Pomerance For the Crown Law Office (Criminal)
	Connie Vernon For the Crown Law Office (Civil)
	Jenny Griffiths For Legal Aid Ontario Daniel Moore for Ms. Cumber and Ms. Gibbons
HEARD:	October 15, 2004

ENDORSEMENT

[1]         The appellants request an order requiring that six court reporters complete the following steps: i) produce any transcripts relating to these appeals that the affected reporter was involved in preparing on diskette in electronic format; ii) invoice counsel at the rate of one dollar per diskette; and iii) make their diskette(s) available on or before October 22, 2004.

[2]         The transcripts in issue relate to proceedings at a preliminary inquiry and were initially prepared in relation to a motion to quash a committal order heard in the Superior Court.

[3]         For the reasons that follow, I would grant the requested order.

Background

[4]         The appellants appeal from an order of Durno J. dated June 21, 2004 dismissing the appellants’ applications to quash an order committing them for trial on charges of first-degree murder in connection with the death of a Burlington high school student who was killed on May 19, 2001.

[5]         Following an 84-day preliminary inquiry, Forsyth J. ordered that the appellants stand trial for first-degree murder on November 3, 2002. Transcripts of all proceedings at the preliminary inquiry were prepared for each of the 84 days of hearing.

[6]         All of the appellants have been incarcerated since their arrests on October 9, 2001.

[7]         On September 15, 2004, the appellant Papadopoulos brought a motion before me requesting directions concerning the conduct and timing of the appeals from the order of Durno J. In particular, counsel requested directions concerning whether a complete transcript of the preliminary inquiry should be filed, and, if so, how many copies. In oral submissions on the motion, counsel for the appellant Papadopoulos advised that, at the time the transcripts of the preliminary inquiry were prepared, some court reporters provided diskettes containing their portion of the transcript in electronic format. Counsel for the appellant Papadopoulos submitted that it would be helpful, for the purposes of both the appeal and the subsequent trial, to have all transcripts of the preliminary inquiry produced in electronic format.

[8]         At the conclusion of the hearing on September 15, 2004, I ordered that the appeals from the order of Durno J. that had been filed as of that date be consolidated, that the hearing of those appeals be expedited, and that the consolidated appeals could be perfected collectively by filing a single set of transcripts. In addition, I reserved my decision concerning whether further copies of the transcript should be filed, adjourned the matter to September 24, 2004, and directed that all affected court reporters be given notice that the issues before the court would include production of electronic transcripts. The relevant portions of my endorsement are set out below:

Order to go as follows:

…

4. That the appeals referred to in paragraph 1 are to be case managed by me; that they may be perfected collectively by the filing of a single set of transcripts with the questions of what further copies of the transcript, how they are produced and whether an electronic version is to be produced reserved to a later date;

5. Adjourning this application to September 24, 2004, 9:30 a.m. before me subject to the following directions:

…

ii) Ms. Pomerance shall serve the Manager of Court Operations for Milton with a copy this endorsement and the Manager or her representative shall notify all affected court reporters that the issues before the court will include permitting counsel to reproduce copies of the transcript for the court provided they pay the necessary fees and production of an electronic version of the transcript.

[9]         On September 24, 2004, in addition to other directions, I ordered that the court reporters who had not supplied transcripts in electronic format be advised that this court requested that they either supply their transcripts in electronic format or attend on October 15, 2004 to explain their concerns. The relevant portions of my endorsement are set out below:

…Order to go as follows:

…

8. That the Manager of Court Operations in Milton or her designate notify the court reporters who have not supplied a transcript in electronic format that this court requests that they deliver a copy of any transcript they were responsible for preparing in relation to this matter to the Appeal Crown assigned to this matter, namely Ms. R. Pomerance, in electronic format as soon as possible along with a statement of what program was used to prepare the transcript e.g.. Word, WordPerfect, etc.,; and

9. That the Manager of Court Operations notify the court reporters who have not supplied a transcript in electronic format, that if they choose not to comply with this court's request as set out in paragraph 8, this court requests their presence or the presence of their designate to explain their concerns, at the Court of Appeal, Osgoode Hall, 130 Queen Street West, Toronto on October 15, 2004 at 9:30 a.m. along with the Manager of Court Operations or her designate.

[10]          On October 15, 2004, counsel for the appellants advised that no further electronic transcripts had been provided and that all of the court reporters who had not provided electronic transcripts were adopting the position of the two court reporters represented by counsel on October 15, 2004, namely, that they were entitled to be paid for an “appeal copy of the transcript” at the rate of $3.75 per page.

[11]          The appellants submitted that at least seven copies of the transcript had been ordered prior to this appeal and that the court reporters were paid for those copies at the following rates: $3.20 per page for the original copy and $.55 per page for each additional copy. The appellants contended that s. 3 of O.Reg. 587/91 under the Administration of Justice Act, R.S.O. 1990, c. A.6, which sets out the tariff of fees for court reporters and court monitors, does not require payment for a copy of the transcript at the rate of $3.75 per page (“an appeal copy of the transcript”) where the parties have already paid for an original copy of the transcript.

[12]          Section 3 of O.Reg. 587/91 under the Administration of Justice Act provides as follows:

3. Court reporters and court monitors shall be paid the following fees in respective duties performed on and after the date is Regulation comes into force:

1. For a single copy of a transcript of evidence for the purpose of reproduction in an appeal to the Court of Appeal, per page                                                   $3.75

2. For copies of transcripts, including transcript of charge to jury and transcript of oral judgment, but not including a transcript under paragraph 1 or transcript for use in an appeal book,

  i. for the first copy, per page                               $3.20

  ii. for each additional copy, per page                    $.55

[13]          The appellants also relied on s. 6.2.3 of the Court Reporters Manual prepared by the Ministry of the Attorney General, which provides as follows:

6.2.3 Fees for Transcript Copies on Diskette

If the ordering party requests a copy of the transcript on diskette, a hardcopy of the transcript must also be provided. You may invoice the ordering party for the hardcopy at the applicable per page rate. For the copy on diskette, if the ordering party did not provide a blank diskette, you may only charge a fee equal to the cost of the diskette.

As mentioned in Section 1, real-time court reporters can use a process known as Computer Aided Transcription to instantaneously produce a digital rough draft of a transcript. In these cases, if the court requests a diskette copy of this rough draft transcript, there is no requirement to provide a hardcopy. You are not allowed to charge a fee for the digital copy. If the court did not provide a blank diskette, you may charge a fee equal to the cost of the diskette.

[14]          Counsel for the two court reporters who were represented on October 15, 2004 made three submissions in opposition to the appellants’ request. First, counsel submitted that rule 8 (7) of the Ontario Court of Appeal Criminal Appeal Rules, SI/93-169 (the “Criminal Appeal Rules”), and s. 3 of O.Reg. 587/91, make it clear that in the circumstances of this case, the appellants are required to pay for an appeal copy of the transcript of the preliminary inquiry. In particular, counsel pointed out that the appellants have not filed the undertaking in Form C that is required by rule 8(7) of the Criminal Appeal Rules.

[15]          Rule 8(7) of the Criminal Appeal Rules provides as follows:

8(7) On an appeal from the decision of a judge of the Ontario Court (General Division) not sitting as a trial judge where no transcript is required other than that filed in the Ontario Court (General Division), the appellant shall at the time the notice of appeal is filed with the Registrar file an undertaking in Form C that any transcript required for the hearing of the appeal will be filed within 30 days after the filing of the notice of appeal.

[16]          Second, counsel for the two court reporters pointed out that there is no requirement that court reporters own or use computer equipment capable of producing electronic transcripts. Counsel did however acknowledge that there is no suggestion that any of the reporters involved in this matter do not have such equipment.

[17]          Third, counsel for the two court reporters pointed out that many court reporters are not employees of the Ministry of the Attorney General and therefore are not bound by the Ministry's Court Reporters Manual.

Analysis

[18]          The main issue for determination is whether, on an appeal to the Court of Appeal from a decision of a Superior Court judge concerning a motion to quash a committal order, the appellants are required to order and pay for an appeal copy of the transcript of the preliminary inquiry in addition to the copies obtained for use in the Superior Court. I conclude that the appellants are not required to order and pay for an appeal copy of the transcript of the preliminary inquiry in these circumstances.

[19]          Rule 8(7) of the Criminal Appeal Rules applies to an appeal to the Court of Appeal from a decision of a Superior Court judge not sitting as a trial judge “where no transcript is required other than that filed in the [Superior Court]”. It sets out an exception to the usual requirement, when a notice of appeal is filed, for filing a certificate of the court reporter confirming that copies of the transcripts necessary for hearing the appeal have been ordered. Instead, rule 8(7) requires that the appellant file an undertaking in Form C that the necessary transcripts will be filed by a date to be specified, which must be within thirty days after filing the notice of appeal.

[20]          The combined effect of rule 8(7) and Form C is to remove responsibility for filing the necessary transcripts from the court reporter and to place that responsibility in the hands of the appellant. Accordingly, rather than requiring an appellant to confirm that he has ordered fresh copies of the transcript, rule 8(7) allows the appellant to file copies of the transcript prepared for the hearing in the Superior Court. [1]

[21]          In my view, the obvious purpose of rule 8(7) is to dispense with unnecessary duplication of expense in circumstances where the court reporters have already been paid for their work in preparing a certified transcript and where the court reporters will not be required to perform the additional work necessary to prepare the transcript in the format required by the Court of Appeal.

[22]          The second issue that requires determination is whether the court reporters involved in this matter should be required to produce their transcripts on diskette in electronic format in exchange for a nominal payment. I conclude, for three reasons, that it is in the interests of justice that such an order be made.

[23]          First, I accept appellants’ counsel’s submission that it will facilitate the production of transcripts and excerpt books for the purposes of this appeal, as well as the hearing and determination of the appeal, if electronic versions of the transcripts are prepared and filed. The preliminary hearing forming the subject matter of this appeal extended over a period of 84 days. In my view, having an electronic version of the transcript will ease the burden on both counsel and the court in coping with this volume of material.

[24]          Second, although there is currently no rule or regulation requiring the production of transcripts in electronic format, the rules recognize that electronic transcripts are often produced. [2] As already noted, there was no suggestion at the hearing convened on October 15, 2004 that any of the reporters involved in this matter do not have the equipment necessary to produce an electronic transcript. Moreover, some of the reporters involved in this matter did produce their transcripts in electronic format when the transcripts were originally prepared. In the absence of submissions to the contrary, I conclude that it will not impose an undue burden to require those court reporters who did not produce an electronic version of their transcripts in the first instance to produce an electronic version of their transcripts now.

[25]          Third, while the Court Reporters Manual prepared by the Ministry of the Attorney General may not be binding on all court reporters, it does provide a useful guideline concerning reasonable expectations for payment for diskettes containing an electronic version of a transcript. As already noted, in these circumstances, the court reporters have already been paid for their work in preparing a certified transcript in accordance with the requirements of the Criminal Appeal Rules and s. 3 of O.Reg. 587/91.

Disposition

[26]          Based on the foregoing reasons, it is ordered that the court reporters who have not already produced an electronic version of their transcripts of the preliminary inquiry in this matter (as listed on Schedule A) complete the following steps: i) produce any transcripts relating to these appeals that the affected reporter was involved in preparing on diskette in electronic format; ii) provide a statement of what program was used to produce the electronic transcript; iii) invoice counsel at the rate of one dollar per diskette; and iv) make their diskette(s) available on or before October 22, 2004.

[27]          If desired, the affected reporters may produce a single copy of the necessary diskette(s) and provide them to Mr. Bryant, who will be responsible for reproducing additional copies for other counsel and for filing one copy of all diskettes with the court.

                                                                                                “Janet Simmons J.A.”
Schedule A

Ms. Gibbins

Ms. Cumber

Ms. Marinier

Ms. LeClair

Ms. Morris-Lewis

Ms. Gallone