10 May 2010

(Disponible uniquement en anglais)

Present

Supreme Court of Canada (SCC)

• Mr. Justice Binnie (Chair)
• Mme Justice Charron
• Mr. Justice Cromwell
• Me Roger Bilodeau, Q.C.
• Ms. Louise Meagher (Secretary)
• Ms. Jill Copeland
• Ms. Barbara Kincaid
• Me Nadia Loreti

Canadian Bar Association (CBA)

• Me Yves Tourangeau (Chair)
• Mr. Gregory James Fitch, Q.C. (Vice-Chair)
• Ms. Inez J. Cardinal, Q.C.
• Mr. John D. Stefaniuk
• Mr. Robert Frater
• Ms. Tamra L. Thomson

1. Approval of the Agenda

The agenda was approved.

2. Approval of the Minutes of May 11, 2009

The minutes were approved.

3. Posting of Appeal Factums and Webcasting of Hearings

Ms. Kincaid informed the Committee that the Court’s initiatives to post appeal factums and to webcast hearings is going well. No concerns have been expressed by counsel about any difficulty with redacting their factums and there have been many positive comments made about the webcasts. The only problem has been that in a couple of cases, the Court was not made aware of publication bans or changes to publication bans. This can obviously make a difference to what is posted or webcast and when. Justice Binnie reminded the members of the Bar that they have a duty to inform the Court about publication bans in their cases.

4. Rules Amendment Project

Ms. Kincaid introduced the item. She advised Committee members that, though the initial impetus for the project had been to update the Rules to take into account digital case files, since the Court has not completed the roll-out of its electronic document management system, the project had turned into one more of a housekeeping nature. She noted that the only proposed change likely to be contentious is the change to Rule 42(5), which would limit Attorneys General who are automatic interveners on constitutional questions pursuant to Rule 61(4) to filing factums of 10 pages or less and the change to Rule 71(5)(c), which would remove their automatic right to oral argument of 15 minutes each.

4.1 Attorneys General that Intervene Pursuant to Constitutional Questions

Mr. Fitch advised Committee members that the amendments highlighted by Ms. Kincaid were indeed of extreme concern because the changes would deprive the Attorneys General of the opportunity to defend their own legislation and are not reflective of the important dialogue between the legislature and the Courts. He indicated that the proposed amendments would result in too drastic a change to a long-standing practice and said that it would help if the Court could explain the reason for the change.

Justice Binnie responded that the Court is seeking to control its procedure by tailoring on a case by case basis how many pages should be filed and how many minutes should be allocated for oral argument in cases involving constitutional questions. He indicated that the members of the Court supported the proposed amendment, allowing that, on motion, they might agree to more pages and time. He referred to the imbalance that occurs in criminal cases when a sole accused party faces numerous Attorneys General. Justice Charron added that more often than not the factums of the AGs are quite repetitious.

Mr. Fitch responded that the AGs are alive to the problem of repetition and have been making serious efforts to resolve it, for example by implementing a protocol whereby the heads of prosecution services would meet to identify who will speak to each issue in a case and advise the Court of their plan at the outset of the hearing. He argued that Attorneys General should not be treated like other interveners in cases where their legislation is under attack because they have a much greater stake than others in the outcome. He said that proceeding on a case by case basis as suggested by Justice Binnie would only lead to a multitude of motions. He stressed that the AGs are VERY concerned.

Me Tourangeau asked if the Court’s concern is more with the page or time limit, suggesting that preserving the 40 page allowance would not affect the running of the hearing. Justice Binnie responded that the 40 pages is of concern because it can add unnecessarily to judges’ preparation time. He noted that 40 pages leads to rambling and that reducing the page limit would result in better focus on the issues at stake. He added that the recent move to reduce interveners’ factums to 10 pages has resulted in better focus and flow in the arguments. Me Tourangeau said that the members of the Bar would prefer a default allowance of 40 pages and 15 minutes, which the Court could tailor if necessary. Justice Charron asked if, under this proposal, the Court would be directing counsel to rewrite their factums after they had been filed and reviewed by the judges.

Mr. Frater agreed with Ms. Copeland’s observation that since all the factums come in at the same time the AGs cannot know what others will write, and added that he does know that 10 pages is not enough to defend legislation and therefore motions for more pages or to be added as a party would be brought in every case. Me Tourangeau added that dealing with motions takes time for the judges. Justice Binnie responded that motions go to one judge, not all nine.

Justice Binnie emphasized that the Court is not seeking to devalue the contribution of AGs but rather to manage its own process by tailoring. He indicated that there could be some room for movement. Justice Charron agreed that sometimes 10 pages is too little, but sometimes it is too much. Mr. Stefaniuk wondered if an option would be to allow 40 pages and 15 minutes to the lead AG, with lesser allowances for the other AGs. Me Tourangeau offered that AGs could try to meet prior to the hearing to coordinate presentations and reduce the total time required, being of the opinion that tailoring by means of the proposed default allowance is too drastic. Justice Binnie repeated that tailoring and focus are required. There is no need to review the Oakes test in every case!

Mr. Frater said that he does not think the AGs are abusing their 40 pages. Tailoring is already occurring when the Court reduces oral argument to 10 minutes. To limit it further and to reduce the number of pages allowed to 10 is not only controlling counsel, but really limiting the will of the provinces.

Mr. Fitch returned to the argument that the AGs who are the enacting bodies of legislation in issue have fundamental rights higher than other interveners, given the unique role they play. Justice Cromwell commented that to differentiate between Attorneys General, especially in division of powers cases, would only open a whole new can of worms. Mr. Fitch conceded that Justice Cromwell made a good point and that the preferred solution may not be to draw distinctions between AGs. All AGs are special!

Mr. Stefaniuk reported that counsel for the AG of Ontario had noted that often, when it is not their legislation that is at stake, they will voluntarily reduce the length of their factum to 20 pages. Justice Binnie quipped that this statement is more aspirational than descriptive!

Me Tourangeau suggested that the Court not proceed now, but monitor the situation. The AGs get the message.

Justice Binnie responded that the Court also gets the message – that is what the Committee is all about! He indicated that the Court would reflect on the matter and added that it also had the view of the Court Ottawa Agents Practice and Procedures Committee (COAPP) on the topic. He repeated that the Court’s intended message is that the hearing should fit the occasion, not that the Attorneys General are not appreciated. A solution causing less anxiety would be sought.

4.2 Condensed Books

Ms. Loreti explained that consideration was given to absolving interveners from filing condensed books but that after consultation, it was decided to leave the requirement in the Rules. However, interveners may choose to explain to the Court at the outset of their oral presentation that they have not filed a condensed book in cases where they are not referring to any documentation that is not already included in their factums. Justice Binnie said that the members of the Court really like condensed books; Justice Cromwell added that the emphasis is on “condensed.” Mr. Fitch asked if counsel were including too much in the condensed book – the concern being that the Court is using the book as a reference tool post-hearing. Justice Charron responded that the judges refer to other materials in the deliberation and writing process, in her case to on-line judgments in particular. Justice Cromwell added that, in general, over-the-top condensed books have not been a problem. Justice Binnie said that it is better to file too much in a condensed book rather than nothing at all, noting that judges may use the books to highlight passages during oral argument, observing that this can be particularly useful for judges who do not use computers on the bench. However, he did caution against counsel recasting the case by including in the condensed book an outline of the argument that bears no relationship to the factum filed.

4.3 Number of Copies to be Served

Ms. Loreti drew Committee members’ attention to Rules 35, 36 and 37, which require service as follows:

Principal parties must serve

Interveners must serve

unless the party being served agrees that the electronic version is sufficient. She noted that this is a change from the most recent version of the Filing Guidelines, which require that only one paper copy of the factum be served.

4.4 Motions for Re-Hearing on Costs

Justice Binnie explained that, in cases where there is agreement amongst the parties that a revision to the costs order in an appeal judgment is required, Rule 81 (slip rule), rather than Rule 76 (re-hearing of appeal) should be used. Motions under Rule 81 can be dealt with by the Registrar. If the parties do not agree, motions may be made under Rule 47 to a single judge, who will decide if the matter needs to be referred to the judges who heard the appeal. Ms. Kincaid added that, unless the parties are specific with respect to the order sought on costs, it can be very difficult for the Court to sort out the costs order, especially in cases where it is restoring the trial court order. Justice Binnie urged parties to be specific on the costs issues in their pleadings.

4.5 Modified Guidelines for Electronic Filing

Ms. Kincaid advised that work on the Modified Guidelines is not finished but that when it is the draft will be sent to Ms. Thomson and to COAPP members for comment. Once the Guidelines are finalized, they will be posted on the Court’s web site and included in the information package sent to all parties when their appeal is scheduled. She reminded counsel that they should consult the Guidelines as well as the Rules for the most up to date requirements for filing both in electronic and paper formats. Mr. Frater asked if the Registrar would have the discretion to reject non-compliant documents, as is happening more frequently of late in the Federal Court of Appeal.

5. Status of Attorney General to file a Leave Application in a Matter where the Constitutionality of its Legislation is Under Attack

Ms. Kincaid drew the Committee’s attention to the order issued by Justice Binnie in Procureur général du Québec c. Ministère des ressources humaines et développement social Canada et autres (33511):

"The motion of the Attorney General of Quebec is granted even though it is not strictly necessary. Where a case concerns the constitutional validity of legislation, an attorney general who is responsible for defending the legislation and who intervened as a party in a court of appeal is presumed to have a sufficient interest to file an application for leave to appeal that court’s decision."

Mr. Fitch drew the Court’s attention to the fact that there it had recognized the unique role of Attorneys General! To which Justice Cromwell responded that the AGs had nothing to worry about then! And Ms. Kincaid added The Court Giveth and the Court Taketh Away!

6. Cost Awards on Applications for Leave to Appeal

Justice Binnie declared this item his favourite year after year, warning the members of the Bar that, given the three strikes and you are out rule, this should be the last time it appears on the agenda. He referred to the Notice to the Profession of December 2009 where “Counsel are advised that it is now the Court’s general practice to award costs ‘in the cause,’ rather than ‘in any event of the cause’, in those applications for leave to appeal where leave to appeal is granted.”

7. Guidelines on Applications for Leave to Appeal

Mr. Fitch presented the Supreme Court Advocacy Institute’s Guidelines: Applications for Leave to Appeal. He indicated that the Guidelines had been prepared in response to the suggestion made by Justice Cromwell at last year’s meeting that the Institute might be of assistance in sensitizing counsel to the test to be met in an Application for Leave to Appeal. Mr. Fitch asked for feedback. Ms. Kincaid responded that there could be more precision concerning criminal appeals. Justice Binnie added that information on what not to do could be useful.

8. Media

8.1 Update on Media Issues

Ms. Copeland informed Committee members that, as a pilot project, separate French and English media lock-ups had been held in two recent cases (Chief Ted Moses and National Post). This had been tried at the request of the media, some members of which are now considering whether the separate lock-ups are a good idea. There is concern that one lock-up may produce a great question and answer which would not be heard in the other lock-up. The Press Gallery will try to develop a consensus on whether the pilot should become practice or not and inform the Court accordingly.

Ms. Copeland informed the Committee that the Court has recently developed Guidelines for dealing with requests to use video clips of Court proceedings in productions other than traditional news stories. The Guidelines became necessary with increased requests from people other than mainstream media representatives. Since these new requesters are usually unknown to the Court there was a concern that they might not always use the clips in a fair and appropriate manner. The Guidelines try to ensure that they do just that by asking them to send in specifics of what clips they want to use and in what context. These are reviewed by court staff and if the use is deemed appropriate, the person making the request is asked to sign an undertaking agreeing to use the clips only for the specified purpose.

Justice Binnie recalled a radio dramatization of the Harvard Mouse case which had been aired to excellent effect a few years ago on CBC Radio. He then asked if the Attorneys General had a specific position on the Guidelines, to which Mr. Fitch responded: “Strangely, no!”

8.2 Proposed Procedure on Media Requests for Lock-Ups

Ms. Copeland presented her memo outlining some of the issues that the bar may wish to consider in developing a position on whether the Court should revise the requirement in the Procedure for Lock-ups that the parties consent to the lock-up. Attached to her memo is the submission from the Canadian Parliamentary Press Gallery’s (CPPG) asking the Court to remove the requirement. She indicated that their request came after the media became concerned that a trend to deny lock-ups was developing. Four requests for a lock-up were denied in a row at the end of 2008–2009 (BCE, Wick, Walmart, Kapp), although there have only been objections by the parties to a lock-up in five out of 32 cases.

The main argument for doing away with the requirement for parties’ consent is that the media should have the benefit of the lock-up in order to better report the decision. If the case is important enough to warrant a lock-up, the parties should not be allowed to veto the holding of a lock-up.

On the other hand, it is argued that, as a matter of principle, no one should be able to see the decision before the parties. As well, it is unfair to the parties and counsel if they cannot afford to attend a lock-up and they are immediately confronted by the media with questions upon the release of the judgment and before they have had the opportunity to review it.

Ms. Copeland advised the Committee that feedback from COAPP to the CPPG proposal had been generally negative and asked the members of the bar if they had any feedback.

Mr. Stefaniuk said that the bar understood both sides of the argument and in addition suggested that parties may withhold their consent in situations where counsel may not have an opportunity to brief their clients before reporters call – this difficulty presents itself especially for West coast clients, because of the time zone they are in.

Me Tourangeau asked if the media’s main concern is accuracy or timeliness in reporting. Ms. Copeland answered that both are equally important. Lock-ups ensure both concerns have a good chance of being met. Mr. Stefaniuk asked if there was a common reason for parties’ objections to lock-ups. Ms. Copeland responded no, adding that in the BCE case, a party had requested that a lock-up be held in Montreal, which was refused. Mr. Fitch commented that lock-ups in remote locations would help to solve the problem of crown counsel not being able to provide timely explanations for judgments to third parties, such as victims in criminal cases. He added that parties would not withhold consent arbitrarily, for instance in order to control the message, but because of legitimate third party interests. Ms. Copeland noted that none of the four cases in which consent was refused was a criminal case and added that there have been no suggestions from the Court that parties are inappropriately withholding consent.

Justice Binnie offered that the current lock-up procedure is working well.

Mr. Stefaniuk concluded by saying that there is no consensus in the bar on the question of whether to remove the requirement for parties’ consent.

9. Other Issues

Me Tourangeau advised that the members of the Bar would write a letter to the Registrar with details of a few other issues they would like to address, such as accessibility for the visually impaired and tariff matters. He also brought regrets from Ms. King, who was unable to attend the meeting due to health problems.

Ms. Loreti suggested that recommendations for changes to the Rules or Filing Guidelines should be sent in as soon as possible given that the rules amendment project is well advanced. Mr. Fitch mentioned that one of the accessibility problems he is aware of relates to scanned PDF documents. Ms. Kincaid noted that Court staff has been working with Mr. Lepofsky on that issue and will probably propose that factums should also be provided in Word format.

10. End of Meeting

Justice Binnie thanked the members of the Bar for their work on the Committee, in particular their efforts on behalf of the Bar to bring concerns to the Court’s attention. He recognized that the concerns of the Bar are serious and will be taken into account when the full Court considers amendments to rules, policies and procedures. He noted that the judges on the Committee put up a good fight but nothing is cast in stone!

Justice Binnie then informed the Committee that Ms. Copeland would soon be leaving the Court to return to private practice. He thanked her for her contributions to the work of the Committee, in particular her work with the media.

Me Tourangeau thanked the Court for its feedback.

The meeting adjourned at 18:15 and was followed by dinner in the Judges’ Dining Room.