When I was first appointed to the High Court of Justice of Ontario in March, 1988, the era of having a dedicated court reporter assigned to a judge and traveling with that judge throughout Ontario was coming to an end. In 1988, most court reporters created a court record of the viva voce evidence by way of shorthand. If the presiding judge required a portion of the evidence transcribed, the court reporter would create a transcript after court hours from his/her shorthand notes. This system started to disappear in the late 1980’s as a result of the expense involved in having a court reporter assigned to a circuiting judge. At the same time shorthand court reporters started to disappear as a result of the cost and length of time it took to train a certified shorthand reporter. There was always a concern that the accuracy of the transcript depended on the accuracy of the shorthand notes and there was no way to check the accuracy of such notes.
The shorthand reporter was replaced by the steno mask court reporter who would verbally repeat the viva voce evidence into the steno mask and his/her voice recording was recorded on an analog cassette. The steno mask reporting system suffered from the same failings as the shorthand reporting system as the accuracy of the transcript depended on the accuracy of the words spoken by the steno mask reporter. The additional disadvantage to the steno mask system was that the viva voce evidence was being stored on an analog cassette which was subject to being erased, damaged or lost. There have been numerous incidents in Ontario where analog tapes have been erased, damaged or lost, thereby creating an inability to prepare a transcript or review the accuracy of the transcript which was prepared. In addition, analog cassettes have a limited “shelf life” and after a number of years the tapes stretch or break making it very difficult to recover the audio recording.
In the 1980’s and 1990’s, as a result of financial constraints and the disappearance of certified shorthand reporters and/or certified steno machine reporters, courts administration began to install in most courtrooms analog recording machines operated by dedicated monitors who were responsible for:
- testing the recording machine;
- monitoring the recording during the trial;
- changing the cassettes when they were full; and
- numbering and delivering the analog cassettes to the storage area;
During the time that analog recording machines were used to record the vive voce evidence I am unaware of any system employed by courts administration to make a backup copy of the analog cassette and store it off site. In many instances, the court reporter/monitor would take the only copy of the cassettes home to prepare a transcript. The danger of this practice was that cassettes could be lost, damaged or the audio recording erased from the tape. In many courthouses the audio cassettes were not stored in a secure location and were subject to damage from fire and/or water.
At the time courts administration was introducing monitored analog recording systems, trials were becoming longer and more complex. As a result more judges were reserving their decision in order to review his/her notes and the law before issuing their written reasons for judgment. Also as a result of the complexity of the vive voce evidence many judges were requiring a complete or partial transcript of the evidence which had the effect of delaying the release of the reasons for judgment. On occasion it took weeks if not months to obtain the requested transcript.
In many cases, if the trial judge orders a partial or complete transcript of the evidence, the court reporter/monitor outsourced the preparation of the transcript to a typist who was not in the courtroom when the vive voce evidence was given.
As trials became longer and as a result more expensive, access to justice was being impeded as most people could not afford to descend into the arena of trial litigation. If a litigant was not satisfied with the trial decision the cost of and the time to appeal was enormous as the appellant had to pay for a transcript of the vive voce evidence.
In my view, given the cost of and time to prepare a transcript of the vive voce evidence for an appeal, it is imperative that the trial judge not only understand the evidence but have an accurate recollection of the evidence when preparing his/her reasons for judgement. If the Court of Appeal requires a transcript of the evidence before reviewing the decision then the trial judge should also have a transcript of the evidence in order to ensure that his/her recollection of the evidence is accurate and not based on memory and/or his/her note taking ability.
Today, an analog court reporting system operated by a monitor simply does not:
- provide a secure system of maintaining a record of the vive voce evidence;
- provide the trial judges with the tools they need to ensure that they have an accurate record of the vive voce evidence;
- assure litigants that the judge has an accurate recollection of the vive voce evidence adduced at trial; and
- provide a transcript for purposes of appeal in a timely and affordable manner.
Today there is new technology available which can meet the needs of the judiciary and the public as set out above within the courtroom. These needs can be achieved by using electronic technology to create and maintain a digital audio recording of the vive voce evidence and to create a text transcript of the vive voce evidence at trial as it is given.
Digital Audio Recording
Digital audio recording saves the vive voce testimony into a digital file which can be saved on a computer within the courtroom and/or courthouse server. The digital file is typically created in an industry standard format similar to an MP3 file. More sophisticated systems use a database to track each recording and distribute recorded files to multiple locations simultaneously to help ensure the records are safe.
The advantages of a digital audio recording system are:
- the sound quality of the recording is far superior to an analog recording;
- the digital file containing the audio recording of the testimony can be automatically backed up on a server at regular intervals, thereby eliminating the danger of deletion, destruction or being lost;
- during the recording of the vive voce evidence in court, the digital audio file can be annotated by the judge and/or the dedicated court reporter, i.e. time, subject, issue, or key word; and
- the annotations can be searched by time, subject, and/or key word.
Between October 2002 and December 2005 I heard a trial in Ottawa. As a pilot project and in addition to an analog recording system, we used for over 200 days a digital audio recording system developed and supplied by VIQ Solutions Inc. The digital audio system was operated by very competent court reporters who made extensive annotations. At the end of each day I was provided with a CD-ROM containing the vive voce heard on that day along with the annotations made by the court reporter. The digital audio file was delivered to me on a CD-ROM as the digital audio system in the courtroom was not networked to the courthouse server. I would listen to the audio recording at night if I had any question concerning the vive voce evidence. I was able to quickly locate the vive voce evidence I wished to hear by searching the annotations or by the time the evidence was given.
From time to time questions would arise concerning the accuracy of the daily transcript which was prepared by the reporter using a steno machine and an analog recording system and invariably counsel and/or the steno machine reporter would access the digital file as the sound on the digital file was far superior to the sound on the analog cassette. Also from time to time we would ask the court reporter operating the digital audio recording system to play back parts of the vive voce evidence and everyone in the courtroom was astounded at the clarity of the recording notwithstanding there were at least four laptop computers being used while the vive voce evidence was being given. The digital audio system which I used in Ottawa, although a vast improvement over the analog recording system, did not fully address the needs of a trial judge as it was not configured to provide a daily transcript which is a necessity in a long complex trial.
VIQ Solutions Inc. has technology available called AccessPoint, which can better meet the needs of the judiciary and the public. The VIQ Solutions Inc. product produces a digital file of the vive voce evidence which can be automatically sent using a secure Internet protocol to a specified server, which acts as a secure portal through which authorized persons can access the digital audio file. A judge or lawyer would be able to:
- securely access the digital file via the Internet having been authenticated by the server;
- stream the digital file to his/her location and listen to the audio evidence and review attached notes;
- mark that, portion of the evidence he/she wanted transcribed thereby allowing the typist to immediately begin transcribing the selected section of audio; and
- retrieve the completed transcript via the Internet within a prescribed period of time.
In lengthy trials where counsel and/or the judge wish a daily transcript the digital audio recording system can be configured to send the digital audio file in real time to the transcription company where multiple typists would each take a segment of the record to be transcribed into text and returned to the courtroom within minutes.
Real Time Reporting
There is little doubt that most judges would prefer to have real time reporting which would convert the vive voce evidence into text and instantaneously send the text to the judge’s computer where he/she could annotate the text as opposed to having to make notes of the vive voce evidence. As the text is received the judge would have the ability using a litigation support program such as Summation to mark the text by issue and/or credibility etc. and eventually search his or her identification of the evidence. This type of reporting, although expensive, can be achieved by training court reporters to use steno masks in the courtroom into which they could repeat the oral evidence into a voice recognition program on his/her computer.
The accuracy of the text produced by the voice recognition program depends upon the software program recognizing the reporter’s voice and as a result each reporter will be required to use his/her dedicated software voice recognition program. In most cases where a steno mask reporter uses his/her dedicated voice recognition software the accuracy of the real time transcript will be over 96% which is an acceptable level for a real time transcript. Eventually, technology may progress to the point that the voice recognition program could provide text of the evidence as spoken by the witness but at the present time this is not feasible with the existing technology. As the real time transcript is being created the vive voce evidence is being recorded in a digital format. Again if the VIQ Solution Inc. system was in place the digital file could be made available to the judge or counsel via an Internet portal which would allow the judge or counsel to check the accuracy of the real time transcript.
If required the reporter could certify the accuracy of the real time transcript from the digital recording. If this type of court reporting system was employed, the time between the trial decision and a hearing in the Court of Appeal would greatly reduced as the transcript for the Court of Appeal could be available within days as opposed to months. Also the cost of preparing the transcript would be reduced to a small fraction of the present cost of transcribing all of the trial evidence. The difficulty in employing such a system is that steno mask reporters must be trained and although the time to train a steno mask reporter is substantially less than the time required to train a shorthand reporter or a steno machine reporter it would still take approximately one year to train such a reporter.
In my view, the judiciary should strive to have such a court reporting system implemented in trial courts as such a system would ensure that the trial judge had a command of the evidence during trial and had a text transcript of the evidence when preparing his/her reasons for judgment which would reduce factual errors which lead to expensive appeals and in some cases re-trials.
A transcript of the vive voce evidence provided to the judge in a timely manner can greatly assist the judge in reaching his/her decision. Today, using a system such as the digital audio recording system developed by VIQ Solutions Inc., a Word or WordPerfect transcript of the audio evidence can be provided to the judge either in real time or within hours. In addition the use of digital audio recording can eliminate the dangers inherent in the use of analog cassettes in recording the evidence and being used to prepare a transcript. Unfortunately, court reporting in Ontario has not kept pace with the emerging technology which is available in the market place today and which could greatly assist judges in having a command of the vive voce testimony during the trial and when preparing their reasons for judgment.
Although the judiciary is responsible for ensuring a record is made of the vive voce evidence it appears that the judiciary has allowed Courts Administration to determine the type of court reporting that will be used in the trial courtrooms in Ontario. In my view it is time the judiciary insisted that Courts Administration provide a court reporting system which will provide the judiciary with the tools it requires to judge in a complex trial environment and at the same time provide litigants with an affordable and timely transcripts.