New Ontario Rule on Recording Proceedings is Important Opportunity for Self Represented Litigants

Posted on July 12, 2018 at 2:33 pm and is filed under Uncategorized

By Elizabeth Roberts

Recently, I stood before a Justice in Ontario Superior Court as a self-represented litigant and obtained permission to record a proceeding on my personal recording device, aka… my cell phone.

Had I not learned through the SRL information grapevine that requesting permission to record was an option, I likely would never have discovered this new rule in the legal labyrinth, nor figured out a way to apply for permission to record. These things are just not spelled out for the average person.

Information sharing is vital to an SRL’s access to the justice system. Of course, it is also important for each of us to fact-check the information shared and how it applies to our matter. Since my proceeding, while in a discussion about the trials and tribulations of obtaining court transcripts, I stumbled across the following updated Practice Direction, which no longer requires permission of the presiding judge to record in court, providing the rule is followed.

To my delight, as of June 15th, 2018:

Para 98.  “Unless the presiding judge orders otherwise, the use of electronic devices in silent mode and in discreet unobtrusive manner is permitted in the courtroom by… self-represented parties” (The same Practice Direction permits counsel and journalists to also make recordings).

There are some restrictions. These include caveats that the electronic device “cannot interfere with courtroom decorum”, “…cannot interfere with the court recording equipment or other technology in the courtroom”, “…cannot be used to send publicly accessible live communications”, and “…cannot be used to take photographs or videos unless the judge has granted permission to do so.”

What does this mean for SRLs? Fairness, reassurance, and confidence.

What does this mean for the justice system?  Clarity, accountability, transparency, accuracy, and (especially in light of the cost of obtaining transcripts, highlighted in NSRLP’s recent Transcripts Report) cost-reduction.

Permitting the recording of proceedings makes sense and is a win-win for everyone.

Elizabeth Roberts is an SRL who works on raising awareness of the obstacles faced by SRLs.


One comment

  1. Robert Melanson at 2:46 pm

    I also found this updated directive but feel a need to be cautious about the intentionally vague wording in line 2. “…but the presiding judicial officer must be advised before the recording is commenced.”

    “Audio recording of proceedings is permitted by counsel, paralegals licensed by the Law Society of Ontario, court staff, members of the media, and litigants for note-taking purposes only but the presiding judicial officer must be advised before the recording is commenced. Members of the public are also permitted to make audio recordings for note-taking purposes only if the express permission of the presiding judicial officer is first obtained. These audio recordings cannot be transmitted.”

    The significance and risk here is that the presiding judicial officer always has the discretion to order restrictions on the use of electronic devices in his or her courtroom. While there are criteria for this, as is always the case in rights violations, legal arguments would have to take place after the fact and could result in missed recordings. Failing to obey the presiding judicial officer could carry the risk of further potentially expensive abuses, so while it is legal to record, one needs to be aware of the risks and be prepared to take a stand for their rights. Not everyone is in a safe position to do this.

    The analogy I’ve always used in dealing with the police or court officials is “you might have right of way at a traffic light but a car that runs a red light will still kill you” Dead men don’t have rights. Much like the red light, the law won’t make you bulletproof. I applaud anyone with the courage to take a stand but would urge them to be prepared and never take their safety for granted.

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