Bill 59 - Recording of Evidence Act

BILL 59

Recording of Evidence Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

PART 1

INTERPRETATION

Definitions

1 The following definitions apply in this Act.

“audio recording apparatus” means any device, machine or system, of a type prescribed by regulation, used for the making of a recording of speech or other sounds. (appareil d’enregistrement sonore)

“court”, except in Part 3, means the Court of Appeal, The Court of Queen’s Bench of New Brunswick, The Probate Court of New Brunswick, the Provincial Court, a coroner or any other person or tribunal authorized under any Act or otherwise to hear witnesses, to take evidence, to make any order, decree, finding, decision or report or to exercise any judicial or quasi-judicial function. (tribunal)

“evidence” includes the opinion, decision and judgment of a judge, the opening and closing address of counsel in the trial of criminal offences, the oral instructions given to the jury by the presiding judge and all other matters done or said by or before any court. (preuve)

“judge” includes the person lawfully presiding in a court. (juge)

“Minister” means the Minister of Justice and Consumer Affairs. (ministre)

“recording” means a recording made in accordance with section 2. (enregistrement)

“stenographer” means a person appointed as a stenographer under section 15. (sténographe)

“video recording apparatus” means any device, machine or system, of a type prescribed by regulation, used for the making of a recording of speech or other sounds and of images. (appareil d’enregistrement vidéo)

PART 2

CERTIFICATION OF RECORDINGS AND
PREPARATION OF TRANSCRIPTS

Recording of evidence

2(1) Despite any other Act, the evidence given in any proceeding before a court or any part of that evidence may be recorded by audio recording apparatus or, on order of the judge, by video recording apparatus.

2(2) A stenographer or person authorized by the Minister shall be in charge of the audio recording apparatus or video recording apparatus during the proceeding.

Certification of recording

3(1) A recording shall be certified, by the person in charge of the audio recording apparatus or video recording apparatus during the proceeding, as being the recording made of the evidence or part of the evidence, as the case may be, in the proceeding.

3(2) A certificate made under this section is, without proof of the appointment, authority or signature of the person in charge of the audio recording apparatus or video recording apparatus, proof, in the absence of evidence to the contrary, that the recording is the recording of the evidence or part of the evidence, as the case may be, in the proceeding.

Reproduction of recording

4(1) The contents of a recording certified in accordance with section 3 may be reproduced by a device, machine or system of a type prescribed by regulation.

4(2) A stenographer shall be in charge of the device, machine or system by which the reproduction is made.

4(3) The contents of a reproduction that is certified by the stenographer in charge of the device, machine or system as a true and accurate reproduction of the recording have, without proof of the appointment, authority or signature of the stenographer, the same effect as the original evidence.

Preparation of transcript

5(1) A stenographer may prepare a transcript of the whole or part of

(a) a recording certified in accordance with section 3, or

(b) a reproduction of a recording certified in accordance with section 4.

5(2) A stenographer who prepares a transcript under subsection (1) shall attach to the transcript his or her affidavit stating that it is a true and accurate transcription of the recording or part of it or of the reproduction of the recording or part of it, as the case may be, and the transcript shall then have the same effect as the original evidence.

5(3) If a transcript is prepared by a stenographer employed within the Civil Service, an electronic copy of the transcript may be ordered only by a person who has ordered a paper copy of it.

5(4) The fee prescribed by regulation is payable for a transcript prepared by a stenographer employed within the Civil Service or for a paper or electronic copy of it.

Translation of transcript

6(1) In this section, “Official Translator” means a person appointed as an Official Translator under section 44 of the Official Languages Act.

6(2) Subject to subsection (4), if a transcript is prepared in accordance with section 5 in one official language and the affidavit required under subsection 5(2) is attached to the transcript, a translation of the transcript or portion of the transcript into the other official language by an Official Translator that is certified as a true and accurate translation by the Official Translator may be adduced in evidence or otherwise used in a proceeding, and when so adduced or used is equally authentic and of equal weight in evidence as the text of the transcript or portion of the transcript of which it is a translation.

6(3) A certificate signed by an Official Translator, or purporting to be so signed, stating that the translation of the transcript or portion of the transcript is true and accurate is proof of the statements contained in the certificate without proof of the appointment, authority or signature of the Official Translator.

6(4) A party to a proceeding who objects to the translation of a word or words in a transcript shall notify the judge of his or her objection at the first available opportunity and the judge shall make a ruling on the objection.

PART 3

RECORDINGS OF COURT PROCEEDINGS

Definition of “court”

7 In this Part, “court” means the Court of Appeal, The Court of Queen’s Bench of New Brunswick, The Probate Court of New Brunswick and the Provincial Court.

Application of Part

8 This Part applies to any recording of the evidence or part of the evidence in a proceeding before a court.

Recordings property of Crown in right of the Province

9 All recordings are the property of the Crown in right of the Province.

Filing and transfer of recordings

10(1) A recording shall be filed with any officer designated for the purpose by the Minister, or in the absence of any designation, with any officer having custody of recordings made in the court.

10(2) Subject to section 11, no recording shall be removed from the custody of the officer having custody of it except as directed by the Minister under subsection (3), as required by an Act or the Rules of Court, or in accordance with an order made by a judge of the court in which the recording was made.

10(3) Subject to an order of a judge made under subsection (2), the Minister may direct that any recording be transferred from the custody of the officer having custody of the recording under subsection (1) to the custody of any other officer.

Destruction of recordings

11(1) The Minister shall prepare and publish a retention schedule for recordings.

11(2) Subject to an order under subsection 12(2) and despite the Archives Act, the officer having custody of a recording or any person under his or her direction may erase the recording or otherwise destroy it on the expiry of the retention period for that recording as set out in the retention schedule.

Application re preservation of recording

12(1) If an officer referred to in section 10 continues to have custody of a recording, any interested person may without notice to any other person apply for an order providing for the preservation of the recording for a specified period

(a) in the case of a recording made before the Court of Appeal, to the Registrar of the Court of Appeal, or

(b) in the case of any other recording, to a judge of the court in which the recording was made.

12(2) The Registrar of the Court of Appeal or a judge hearing an application under this section may make any order he or she considers appropriate in the circumstances.

Copies of recordings

13(1) Subject to subsection (2), no reproduction or other copy of a recording shall be provided by the officer having custody of the recording to any person except in accordance with an order made under section 14, or as required by an Act or the Rules of Court.

13(2) A reproduction of a recording certified in accordance with section 4 may, on the direction of the Minister, be provided to a stenographer for the purposes of section 5.

Application re copy of recording

14(1) Any person may apply to a judge of the court in which a recording was made for an order permitting the provision of a copy of the recording to the person if an officer referred to in section 10 continues to have custody of the recording.

14(2) The judge hearing the application may make the order if the judge is satisfied that

(a) provision of the copy of the recording to the applicant is not prohibited under any Act of the Legislature or of the Parliament of Canada or under an order made under any such Act, and

(b) provision of the copy of the recording to the applicant would not be prejudicial to the interests of justice.

14(3) An order shall be in writing and may include any terms or conditions that the judge considers appropriate, including, without limitation, a term or condition prohibiting the broadcasting of the copy of the recording.

14(4) If an order is made under subsection (2), the officer having custody of the recording to which the order relates shall, as soon as practicable after the applicant pays the fee prescribed by regulation, provide the applicant with a copy of the recording.

14(5) For the purposes of enforcing an order made by a judge of the Provincial Court under this section,

(a) a judge of the Provincial Court has the same powers for the punishment of contempt of court as are possessed by The Court of Queen’s Bench of New Brunswick, and

(b) any order or other process issued by a judge of the Provincial Court in the exercise of the powers conferred under paragraph (a) has the same force and effect as though issued out of The Court of Queen’s Bench of New Brunswick.

14(6) The Rules of Court relating to contempt of court apply with the necessary modifications for the purposes of subsection (5).

PART 4

GENERAL

Appointment of stenographers

15(1) The Minister may appoint as a stenographer any person who successfully completes the written and practical examination administered by the Minister.

15(2) A person applying to take an examination shall pay the fee prescribed by regulation.

Administration of Act

16 The Minister is responsible for the administration of this Act and may designate persons to act on behalf of the Minister.

Agreements

17 The Minister may enter into agreements for the purposes of section 2 or 5 or for any other purpose related to this Act with a stenographer who is not employed within the Civil Service.

Scope of authorization or designation

18 An authorization under subsection 2(2) or a designation under subsection 10(1) may be in general or specific terms.

Regulations

19 The Lieutenant-Governor in Council may make regulations

(a) prescribing types of devices, machines or systems for the purposes of the definition “audio recording apparatus” or “video recording apparatus” in section 1 or for the purposes of subsection 4(1);

(b) prescribing, for the purposes of subsection 5(4), fees for transcripts and paper or electronic copies of transcripts;

(d) prescribing examination fees for the purposes of subsection 15(2);

(e) exempting any person or any class of persons from any fee prescribed under paragraph (b), (c) or (d);

(f) respecting any matter that the Lieutenant-Governor in Council considers necessary or advisable to carry out the purposes of this Act.

Transitional provisions

20(1) A Court Reporter who was appointed under the Court Reporters Act before the commencement of this section and whose appointment was subsisting immediately before the commencement of this section shall be deemed to have been appointed as a stenographer under section 15.

20(2) A stenographer who was appointed under the Recording of Evidence by Sound Recording Machine Act before the commencement of this section and whose appointment was subsisting immediately before the commencement of this section shall be deemed to have been appointed as a stenographer under section 15.

PART 5

CONSEQUENTIAL AMENDMENTS, REPEAL AND COMMENCEMENT

Amendments to Coroners Act

21 Section 24 of the Coroners Act, chapter C-23 of the Revised Statutes, 1973, is repealed and the following is substituted:

Taking of evidence

24(1) The evidence given at an inquest held by a coroner shall be recorded in accordance with the Recording of Evidence Act.

24(2) The stenographer or any other person in charge of recording the evidence shall before acting make oath or solemn affirmation that he or she will truly and faithfully record the evidence given at the inquest.

24(3) It is not necessary to transcribe the evidence unless the Chief Coroner orders it to be done or unless any other person orders a copy of the transcript.

24(4) Except where otherwise required by the Criminal Code (Canada), the coroner shall, as soon as possible after the holding of an inquest, file with the Chief Coroner

(a) the inquisition,

(b) a transcript of the evidence if the evidence has been transcribed, and

Amendments to Evidence Act

22 Section 26 of the Evidence Act, chapter E-11 of the Revised Statutes, 1973, is amended

(a) by adding before subsection (1) the following:

26(0.1) This section applies to evidence or proceedings before a board, commission, tribunal, body or commissioner.

(b) in subsection (1) by striking out “the evidence or proceedings” and substituting “evidence or proceedings”;

(d) by repealing subsection (4) and substituting the following:

26(4) Subject to subsection (4.1), any application for an order under subsection (3) is to be made to the board, commission, tribunal, body or commissioner before which or whom the evidence was given or the proceedings were held.

(e) by adding after subsection (4) the following:

26(4.1) In the case of any record of evidence or proceedings before any board, commission, tribunal, body or commissioner that or who has ceased to have authority to act in the matter in respect of which the evidence was given or the proceedings were held, an application for an order under subsection (3) is to be made to the Minister of Justice and Consumer Affairs.

(f) in subsection (5) by striking out “subsection (4)” and substituting “subsection (4) or (4.1)”.

Amendment to Provincial Offences Procedure Act

23 Section 33 of the Provincial Offences Procedure Act, chapter P-22.1 of the Acts of New Brunswick, 1987, is amended by striking out “Court Reporters Act or the Recording of Evidence by Sound Recording Machine Act” and substituting “Recording of Evidence Act”.

Repeal of Court Reporters Act and regulation

24(1) The Court Reporters Act, chapter C-30.1 of the Revised Statutes, 1973, is repealed.

24(2) New Brunswick Regulation 83-159 under the Court Reporters Act is repealed.

Repeal of Recording of Evidence by Sound Recording Machine Act

25 The Recording of Evidence by Sound Recording Machine Act, chapter R-5 of the Revised Statutes, 1973, is repealed.

Commencement

26 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.

Chapter Outline Update

Strike out the entries for subsections 26(1), (2), 26(3), (4), (5) and 26(6) and substitute the following:

Destruction and preservation of records26