Additional burdens on marginalized individuals in the criminal justice system
Last exam season, University of Toronto law students pleaded with the Faculty to allow students offline access to their electronic notes during exams. Among a list of concerns was the cost of printing hundreds of pages of notes.
What if I told you that for this April’s exams, the only option for printing these materials would cost $7.10 per page? What if you did not have a Professional Student Line of Credit? What if you were surviving on less than $23,000 per year in the city of Toronto, where rent alone can easily exceed that? What if what was at stake was not a “P” versus an “HH” grade on an exam, but your innocence and freedom?
I sat down with Eric Neubauer — a criminal defence lawyer, a volunteer counsel with Downtown Legal Services’ (DLS) appeals program, and one of the Toronto Directors of the Criminal Lawyers’ Association (CLA) — to discuss the new amendment to the Administration of Justice Act, R.S.O. 1990, c. A.6 (“Act”) filed on March 2, 2022. This amendment will raise the cost of court transcripts from $4.30 per page to between $6.30 and $7.10 per page. As future legal practitioners, every student should be concerned about these costs on defendants. They have real implications on the functioning of the criminal justice system, and place some of the most marginalized individuals in our community at risk of great injustice.
Transcripts within the Criminal Justice System
Until recently, Ontario Regulation 94/14 under the Act set the cost of court transcripts at $4.30 per page. I first learned of this cost when I worked at DLS in the Criminal Law Division. At DLS, we represent low-income clients charged with criminal offences from charge through to resolution, and individuals convicted of summary charges who wish to appeal their case. Individuals qualify for DLS services only if they meet the Legal Aid Ontario Financial Eligibility Test. For a one-adult family, the maximum qualifying annual income is $22,720, well below both the cost of living in Toronto and what a minimum wage full-time earner would secure in a year.
Transcripts are mandatory for appeal cases, and an appellant’s “Notice of Appeal” must include proof that the transcripts have been ordered by the appellant. A typical court transcript is 35 pages per hour of court time, amounting to hundreds of dollars at minimum. Given that all our clients live in poverty, this fee is a huge barrier and often stalls or stops proceedings.
The Ontario government filed O. Reg. 145/22 on March 2 under the Act. On April 1, transcript fees will increase to between $6.30 per page for electronic copies and $7.10 per page for hard copy non-rush orders. While transcripts are one of the most important tools in criminal appellate work, they are relied on in other areas of criminal law practice as well. Neubauer noted how in cases where transcripts are not mandatory, defendants still often have little choice but to order them. Preliminary inquiry transcripts, for example, may be essential for proper trial preparation.
Impacts of Increased Transcript Fees
In assessing the impact of this regulation, the government noted that this fee increase will be paid directly to authorized court transcriptionists, not the Ministry of the Attorney General (MAG). Neubauer explained that the CLA acknowledges the importance of fair pay for transcriptionists and other court personnel who have been fighting for raises during a decade of stagnancy: “Doing criminal justice correctly is expensive. [The CLA position was] not to deny increased payments to transcriptionists, but rather make sure that the costs are not being borne by defendants.”
The government noted that the financial impact on parties requiring transcripts is difficult to estimate and “will vary and depend on their individual ordering practices.” They “anticipated that ordering parties will further modify their ordering patterns to gain individual efficiencies and save money where possible.” The lack of depth to this assessment is concerning, particularly because marginalized groups who already face access to justice challenges will bear the brunt of these costs. When I asked Neubauer if he could think of any “individual efficiencies” that could be made in his or other defence counsels’ offices, he replied that as long as the constitutional right to appeal is predicated on the statutory or judicial requirement of filing a certain number of paper transcripts, defence lawyers’ hands are tied. Perhaps one glimmer of hope is that the new regulation makes explicit reference to purely electronic transcripts. Neubauer explained that, if the law and day-to-day practices become accepting of digital filing, defence could avoid the extra costs of printing transcripts. Unfortunately, our system is not there yet.
When I think of this new regulation and its impacts, names of clients whose appeals I assisted with at DLS are what first come to mind. The most recent client was required to order transcripts that cost over $1000 and would have cost nearly an extra $700 under the new regulation. This client could not simply “modify their ordering practices” to cut costs associated with these mandatory transcripts.
What is $700 to a low-income client? Often, it is the difference between paying rent or putting food on the table, or not. These costs leave individuals deciding between survival and their right to an appeal. The result? An unremedied unfair trial at the least, and a continuing wrongful conviction at the worst. The CLA shares similar concerns about appeals being abandoned and safeguards against miscarriages of justice being lost. We cannot lose sight of how a few dollars per page has significant impacts on the proper functioning of the justice system.
As the CLA highlights, these costs are also not feasible for many individuals above the legal aid eligibility cut-off. The cost of transcripts for appeals on more serious matters beyond the scope of DLS’ practice run much higher. For example, the CLA estimates that an average murder appeal will require ordering 2500 pages of transcripts. The regulation change will increase costs in these cases for transcripts alone from $10,750 to $15,750. Under the LAO’s current eligibility criteria (and subject to certain exceptions, such as temporary pandemic measures), a defendant may be ineligible for a legal aid certificate at income as low as $18,795, meaning that in certain cases, transcripts alone could cost as much as 83% of a defendant’s annual income.
Neubauer raised another concern: it is not only clients who are impacted by these heightened fees, but defence counsel as well. “Too often in the criminal justice system, defence lawyers bear the unintended consequences and costs of the system.” For example, defence lawyers need to communicate with their clients. When clients are in custody, lawyers must navigate the cost of in-custody phone calls, often through setting up a toll-free line or paying for individual collect calls. Thus, a system cost – in-custody phone calls – is passed down from the system to defence lawyers. The business of defence is a consideration that cannot be cast aside; only defence practices that are viable can play their intended and vital role within the criminal justice system. As Neubauer stated, “It is simply not the case that if something costs more, we can just charge the client that much more.”
A Call to Awareness
The CLA suggested that either MAG bear the cost of these fee increases on first transcript orders or LAO certificate lawyers be exempt from this increase. I would argue that any exemption should extend beyond LAO certificates and to LAO specialty and law school clinics practicing criminal law. Both the CLA and the Federation of Ontario Law Associations (FOLA) raised particular concerns about financial feasibility for legal aid clients and other low- to middle-income individuals. The CLA highlighted that the 2019 $133 million budget cut to LAO already strained any funding that could be used towards transcript fees. In addition, the general public is feeling financial strain from pandemic–related job and financial losses. The FOLA and CLA recommended a fee waiver program to address these concerns.
The new regulation will be in force soon. None of these stakeholder recommendations were adopted. When asked if he foresees the legislation being amended to require MAG to shoulder these increases, Neubauer said that he is not optimistic: “[W]ith the passing of the legislation, what can be expected is that defendants will have to bear the costs of those increases.”
I feel disheartened. A system where a “right” to appeal means a right for only the wealthy and privileged is not one that I want to stay silent about. Moreover, a system that is slowly eroding at the ability of defence counsel to stay in practice is frightening to say the least. I invite you to join this conversation. Transcripts are not just paper, they are paths to justice.
