Poverty shouldn’t be a barrier to an appeal

Maude Woods (2L)

When I came to law school, so long ago, I had some ideas about how the law worked. Turns out, I was wrong about a lot of things. Some of these ideas were informed by such reliable sources as “assumptions” and “television.” Considering their dubious origins, their upending was no surprise. For example, I quickly learned: on Law & Order, they have felonies and misdemeanours; in Canada, we have indictable and summary offences.

Some things, however, I have struggled to wrap my head around. I came to law school with the general idea that Canadians had the right to an appeal. As it turns out, that right is not easily exercised. Working in the Criminal Division at Downtown Legal Services (DLS) this summer, I encountered the very real barriers that people face in attempting to appeal a summary conviction from the Ontario Superior Court of Justice.

Section 821(3) of the Criminal Code requires that the appellant provide copies of the transcript of trial proceedings to the appeal court and to the respondent (the Crown) for use on appeal. The appellant also needs one, so that’s three copies total. So far, so good.

The complication is that prospective appellants must pay for these transcripts. Ontario Regulation 94/14 sets out the fees for court transcripts: $4.30 per page for the first certified copy, and $0.55 per page for additional certified copies. Total: $4.85 per page. If you’re thinking that $4.85 isn’t much, consider that the proceedings may have lasted several days. Prospective appellants can find themselves having to pay hundreds, or even thousands, just to have the opportunity to have their appeal heard. These fees cannot be waived, and it appears that judges do not have discretion to intervene on this requirement.

Of course, this cost is not just an arbitrary fee. There are costs associated with appeals. At the very least, the court transcriptionists need to be paid to type out the transcript. The cost may also serve a function in deterring prospective appellants from bringing frivolous appeals, thus conserving judicial resources.

As it stands, however, this requirement disproportionately affects prospective appellants experiencing poverty, including the majority of DLS clients. Unless you are a U of T student, DLS uses Legal Aid Ontario’s financial eligibility criteria. For a single person, that’s an annual income lower than $20,225. A person in that situation cannot afford to pay hundreds or thousands of dollars for their transcripts.

For appellants who are granted a Legal Aid certificate (usually because they are in custody) transcript costs will be covered. But what about the overwhelming number of persons who don’t qualify for Legal Aid? This includes the vast majority of people convicted of a summary or hybrid offence. At best, the requirement that appellants pay for transcripts forces low-income appellants to delay their appeals and scrape together money from wherever they can, often at the expense of basic necessities. At worst, the requirement deters prospective appellants from bringing an appeal in the first place. Appellants who file a Notice of Appeal and order their transcripts, but are not able to pay up front, have to explain to an increasingly impatient court why their transcripts are still outstanding, and, in some cases, run the risk of having their appeal marked abandoned.

Requirements like this have been challenged in other jurisdictions. In 2014, Caroline Allart, a disabled woman living on a pension, challenged the Supreme Court of British Columbia’s rule requiring an appellant to provide a transcript of a Provincial Court proceeding under appeal. Allart argued that the cost of transcripts was analogous to government-imposed court fees, so the judiciary should be able to waive the fees when the cost creates an unconstitutional barrier to justice.

The Supreme Court acknowledged that the case raised “complicated and serious questions about the adequacy of the government’s actions to ensure access to justice for all persons regardless of their economic status,” but ultimately found that Allart raised insufficient evidence to support a constitutional challenge. While the court acknowledged that the need for a relief mechanism for transcript fees was compelling, Ms. Allart had not exhausted every avenue for covering the cost. Similarly, the British Columbia Court of Appeal held that Ms. Allart had not presented enough evidence to establish that the cost of transcripts was a true barrier to justice.

The situation in Ontario is similar to that in BC, and many of the arguments that Allart made in her case ring all too true in the context of the appeals I saw at DLS. It is also worth noting that Ms. Allart’s case was a civil one; the issues raised are more troubling in a criminal appeal, where the cost of not appealing a decision may be a wrongful conviction and the stigma of a criminal record.

What all of this amounts to is yet another access to justice problem, one that flies under the radar of the public. The requirement that appellants provide transcripts effectively prevents many low-income individuals who wish to appeal a decision from doing so. In too many cases, you may have a right to an appeal, but only if you can pay for it.