Should Courts Allow Counsel to Record and Transcribe in-Court Testimony on Their Phones?

In July, I was counsel in a voir dire in BC Supreme Court, where four police officers testified over three days. While the officers gave evidence, I took over 30-pages of handwritten notes. I could capture verbatim maybe 30 percent of what was said. The rest of the time — when answers went on for too long or counsel and the witness talked over one another — I got only the gist of it. Yet, precision was key.

At one point, we stood down for over an hour for the court clerk to go through the recording to find a certain exchange that no one could clearly recall.

At another point, counsel disagreed about what a witness had said in chief. Did he refer to a critical meeting that took place on the morning in question or intimate that there was another meeting before that?

It was maddening not to have a transcript at hand. Yet, in hindsight, there was a solution sitting right there in front of us.

Several iPhone and Android apps can now generate a complete transcription of an audio recording — with speaker attribution — using AI. Doctors in Quebec are beginning to use these apps to record consultations with patients, and I’ve explored the possibility of lawyers using them to record meetings with clients.

I hadn’t thought about using AI in the courtroom until was too late. But if I did think to ask the court for permission to make and transcribe a recording, I would have run into a hurdle.

In British Columbia, as in many provinces, audio recording by anyone other than the court clerk is restricted.

Rules vary and in some cases AI transcriptions appear to be prohibited altogether. But why should counsel not be allowed to use such a powerful and convenient set of tools?

Delving into this further has uncovered one good reason why — but there may be a better solution.

What court directives say about recording

Ontario is quite strict about this. The Courts of Justice Act prohibits anyone from making an audio recording except in certain cases. One of them is where a lawyer records a hearing “in the manner that has been approved by the judge, for the sole purpose of supplementing or replacing handwritten notes”.

But an Ontario Superior Court directive states that while counsel can make an audio recording, it “must not be transcribed”.

British Columbia’s Policy on the use of electronic devices in courtrooms permits “accredited media” to “audio record a proceeding for the sole purpose of verifying their notes” — so long as they destroy the recording “once verification… is complete.”

The policy is silent, however, on whether counsel can make an audio recording, and it says nothing about transcription.

Alberta courts have issued a general requirement to obtain the court’s permission “before anyone can use … electronic recording devices of any kind, including cell phones, in courthouses.”

Concerns go beyond privacy

If counsel asked to record and transcribe witness testimony using a phone, it would be hard to predict what a judge would say.

Courts would likely be concerned about what might happen to any recording made or data used to create an AI transcription. And counsel might try to reassure the court on this point. (“My phone can do this offline…”)

But judges may be concerned about more than just privacy or security.

We saw this when the CBC challenged a court directive in Quebec prohibiting media from broadcasting portions of the court’s audio recordings of its proceedings. The Supreme Court of Canada held that this infringed the freedom of expression, but it was a reasonable limit on that right.

We need to restrict access to audio recordings, Justice Deschamps held, to protect the “serenity” of court hearings. The ban is really about trying to “reduce, as much as possible, the nervousness and anxiety that people naturally feel when called to testify in court.”

Why assurances may not be enough

The police in my case may not have cared whether counsel recorded their evidence. They may have accepted my assurance that I would delete any recordings at the end of the hearing.

But in a sensitive matter — a complainant testifying in a sexual assault case, a police informant in a murder case — a judge may not be inclined to add to the stress involved just to make counsel’s job easier.

It’s not that a judge would distrust what use counsel might make of a recording. It’s that when relying on a commercial provider of data storage or AI, no one can be certain about what might happen to a file or to the data used to make an AI transcription.

Courts might be concerned less about the data and more about the anxiety witnesses might feel in relation to it, and how this would affect their evidence.

For this reason, any assurance counsel might seek to provide — “But, no your Honour, Apple uses Private Cloud Compute!” — would miss the point.

One obvious solution to all of this would be for courts to produce a real-time AI transcription of the court’s own digital recording.

Courts could provide this through an app like Teams, using an AI model kept off-line and overseen internally.

It seems so obvious a solution as to be inevitable. At some point.