Present
Supreme Court of Canada (SCC)
- Mr. Justice Binnie (Chair)
- Mr. Justice Fish
- Madame la juge Abella
- Me Anne Roland
- Ms. Louise Meagher (Secretary)
- Ms. Nancy Brooks
- Ms. Barbara Kincaid
Canadian Bar Association (CBA)
- Mr. J. Thomson Irvine (Chair)
- Mr. William Louis Ryan, Q.C. (Vice-Chair)
- Mr. Gregory James Fitch, Q.C.
- Ms. Sandra D. Phillips
- Ms. Tamra L. Thomson
- Me Yves Tourangeau
- Mr. Robert Frater (Justice)
1. Approval of the Agenda
The agenda was approved.
2. Approval of the Minutes of May 8, 2006 and business arising from the minutes
The minutes were approved with the following comments related to last year’s items:
- item 3a) (computation of time during the year-end recess): Justice Binnie recognized the Committee’s success in convincing the Court to accede to the Bar’s request for a rule amendment providing for a year-end suspension in the computation of time, pronouncing it an enduring contribution to the annals of the Committee and a tangible demonstration of the Court’s open-mindedness to concerns of the Bar.
- item 3b) (timing to file books of authorities): Justice Binnie advised the Bar that the Court is not prepared to amend the Rules to extend the deadline for the filing of the book of authorities.
- item 4 (time lines for intervention): Mr. Frater admitted that he did not have a more compelling case this year than last for the return to the old rule setting out the time lines for motions to intervene on appeal and conceded that the Committee’s credibility could suffer should it reverse track on hard-won concessions. Ms. Kincaid advised that 2006 had been a particularly difficult year with respect to hearing scheduling and that things seemed to be settling down. The consensus is to leave the current rule as is.
3. Self-represented Litigants
a) Statistics
Ms. Kincaid informed Committee members that the Court is dealing with a substantial number of self-represented litigants – in 2006, they filed 23% of the total number of leave applications filed. However, very few make it to the appeal stage. Justice Fish remarked that the percentage increase was modest and that there was a shift in percentages from family to criminal law cases. Me Tourangeau advised that, in Quebec, percentages had for ten years remained around 20% but that there seemed to be an increase lately. It was noted that in the Leskun case, the Court appointed an amicus to assist it even though Mrs. Leskun continued to represent herself. Mr. Frater noted the difficulty for the Attorney General in that case stemming from the fact that, though it was not a party, it paid for the amicus. He suggested that in future it might be more appropriate for the CBA to provide a pro bono amicus. Ms. Thomson offered to put out informal feelers for pro bono lawyers to help. Mr. Ryan suggested that the regions could draw up lists of lawyers with expertise in particular areas. Justice Binnie commented that out of pocket expenses would be less for Ottawa lawyers. He also said that it was not a major problem for the Court as compared with the trial courts.
b) Self-Represented Portal
Me Roland presented the Court’s new web portal for self-represented litigants, praising the work done by Nadia Loreti, the Director of the Registry. Mr. Ryan congratulated the Court, noting that the portal was comprehensive and easy to navigate.
c) CJC Guidelines
Justice Binnie remarked that the Canadian Judicial Council had been grappling with the problem of increasing numbers of self-represented litigants and had recently released its Statement of Principles on Self-represented Litigants and Accused Persons. Ms. Phillips advised that the CBA had the opportunity to comment on drafts of the Statement and was in general agreement with it. Justice Binnie noted that many judges are uncomfortable stepping out of their judicial role to assist a self-represented litigant who is in difficulty. Ms. Brooks remarked that the CJC’s “Bench Book” could be of assistance to judges.
4. Consent Orders
Mr. Irvine inquired whether the Court would be open to making consent orders to relieve counsel from the time and expense of preparing motions. He added that such a procedure would be particularly helpful in applications under s. 694.1 of the Criminal Code. Mr. Fitch added that consent orders could be appropriate in specified circumstances largely administrative in nature. Justice Binnie agreed but advised that in some circumstances the consent orders could be detrimental to Court operations, for example in situations where parties would agree to an adjournment. Mr. Irvine specified that the idea is not to deprive the Court of any exercise of discretion but to reduce the paperwork for both counsel and the Court. Justice Abella asked what the guidelines would be for knowing when a consent order is appropriate. Justice Binnie suggested that the Registrar could issue a practice directive stating that if the AG moves for appointment of counsel under s. 694.1 a letter would suffice. Mr. Frater said that the practice should not be confined to s. 694.1. Ms. Kincaid expressed the opinion that a s. 694.1 motion is not much more complicated to produce than a letter, and that in any event it is not that often that legal aid is refused in a case before the Court. Mr. Irvine responded that legal aid certificates are refused at the leave stage. Justice Binnie said the Court would draft and circulate to the Bar a Notice to the Profession to allow for the possibility of consent orders in s. 694.1 cases but that the Bar would have to draft a concrete proposal to cover other circumstances.
5. Applications for Leave
Me Tourangeau referred to a recent Lawyers Weekly article and asked if fewer leaves were being granted because the threshold is higher. Justice Binnie said that it would be a truer reflection of the Court’s work to take a rolling average when looking at statistics on leaves granted, rather than an arbitrary chunk in time. Justice Abella noted that the same statistical phenomenon has occurred in the United States. She confirmed that all nine judges agree that the test of public importance has not changed and that the Court would not squander resources on undeserving leaves in order to “keep numbers up” to satisfy some journalists’ idea of a “norm”. She also noted that some appeals, for example Charkaoui, are huge. Ms. Brooks advised that the Fall hearing schedule is full. Justice Binnie assured the members of the Bar that the Court is positively looking for good cases as opposed to trying to dismiss them, but it is often presented with a good issue and bad facts or an issue that was not canvassed in the courts below. Me Tourangeau wondered if the lower number of leaves granted could be attributed to the fact that the Court more often agrees with the court of appeal. Justice Binnie said that conclusion should not be drawn. The Court as often grants leave when judges think they agree with the decision as when they don’t. The key is the public importance of the issue. Justice Fish reiterated that the threshold has not changed. Mr. Frater suggested that the rules could be amended to require counsel to give an overview in their application of what the issue of national importance is. Justice Binnie agreed the focus should be on this rather than on where the court of appeal was deficient. Justice Binnie added that perhaps counsel do not have a good idea of how the test is applied. Ms. Kincaid suggested that counsel read Justice Sopinka’s 1997 speech on the topic, which is reproduced in Crane and Brown’s Supreme Court of Canada Practice. The Registrar suggested that Ms. Brooks could refer journalists to the speech.
6. Posting Factums on Line
Justice Binnie advised that, following expressions of support in the CBA’s survey report on the issue and the publication of the CJC’s Model Policy for Access to Court Records in Canada, the Court had developed a draft policy regarding access to SCC court records. Ms. Kincaid presented her memorandum on the topic and asked the Bar for comments on the draft policy. She is recommending e-access on the Court’s own website to appeal factums and to all judgments on the day they are released. Justice Abella asked whether it would be a problem getting self-represented litigants to comply with s. 2.2, which requires parties to limit the inclusion of personal identifiers in their pleadings and in certain circumstances to provide a redacted version. Ms. Kincaid responded that it should not be a problem, because at this stage we are only targeting the posting of appeal and not leave documents. Also, where there is any indication in the Form 25 filed by the parties of the existence of information on the file that should be kept confidential, nothing would be posted until counsel had been consulted. Justice Abella suggested that s. 5 be reworded to clarify what is presumptively available and what is restricted, in order to remove any perception that the Court is defensive in denying access. Mr. Irvine advised that the Bar would appreciate some direction from the Court regarding when redaction would be required. Ms. Brooks asked if factums to be posted would have to be translated. Ms. Kincaid replied no, that the Court’s obligation is only to provide what it produces in both languages. Me Roland queried whether it was not a Department of Justice project to translate all pleadings in major constitutional cases. Mr. Frater acknowledged that it was on the Department’s list of things to do. Mr. Ryan asked whether s. 6.2 referred to the intentional destruction of records. Ms. Kincaid answered yes and that in any event, no records would ever completely disappear. Ms. Brooks asked if it would be possible for the Court to post on its own site all of its judgments, including those rendered prior to 1983. Ms. Kincaid responded that though electronic copies of judgments going back to 1875 are available to Court staff, the publishers who produced them have not given permission for public access. She added that it could be difficult to post older decisions, which were rendered in one language only. One option could be to select the most important cases and post them. Justice Binnie noted that Library and Archives Canada posts a vast array of documentation in one language. Me Roland advised a considered approach, given our obligation to serve the whole country and the enormous costs of conversion projects. Justice Binnie asked the Registrar for a report on problems and potential solutions on the posting of judgments for the 2008 meeting of the Committee. Ms. Kincaid suggested that since Ms. Brooks had so forcefully requested the service, perhaps she could work on the project pro bono! To conclude, Justice Binnie urged the Bar to send in any comments on the draft policy. Ms. Kincaid noted that, pursuant to s. 8, the policy is meant to be a living document. “A living tree!” quipped Justice Binnie. The Court is aiming to iron out the details for posting by the Spring of 2008.
7. Supreme Court Advocacy Institute
Justice Binnie noted the recent launch of the Supreme Court Advocacy Institute, a lawyerly organization of mutual assistance, dedicated to raising the level of advocacy and providing a resource to those counsel who have less experience before the Court. These efforts are much appreciated by members of the court.
8. E-Filing Update
Me Roland asked if the Bar had any questions respecting the Court’s plans to phase in electronic filing. Mr. Ryan responded that there were concerns that the requirement to e-file, and in particular to provide OCR versions, would be a burden for some counsel, in particular in areas of the country where there is less technical assistance available to law firms. He asked if the Court could explain why it wants electronic documents (i.e., for its use or for archival purposes?) and if there would be an opportunity to discuss e-filing again next year when the Bar will have collected more feedback from practising counsel. Justice Binnie confirmed the issue would be on the agenda next year. He added that if cost is really an issue for the Bar, it would be helpful to have some evidence (even if only anecdotal) to this effect. Mr. Ryan asked if the aim is to eliminate paper. Me Roland responded that there will always be paper but that there are real advantages to having a digital case file. She noted, with respect to the cost issue, that currently, even when printers are producing paper copies of court pleadings for filing, they are nearly always also producing a digital version. As well, with the advent of e-filing, a reduced number of paper copies will be required. Mr. Ryan expressed concern with respect to maintaining the archival quality of what is on CD-ROM, compared to paper. Ms. Kincaid advised that the court is extremely careful about preserving information, and that it is easier to microfilm from the digital file than the paper one. Mr. Frater asked if the Court would consider allowing a delay for the production of the electronic copy of documents. The Registrar noted this request and will respond at the next meeting.
9. Accommodation Update
East Entrance: Justice Binnie advised that the original contractor had abandoned the project and that a new contractor would be hired.
Courtroom: Ms. Meagher circulated conceptual drawings showing the designs for the new courtroom. Members were particularly interested in the new lectern, wondering with some trepidation whether a trap door for the Court’s use or a panic button for counsel’s was being contemplated. All look forward to the renovated courtroom.
Barristers’ Lounge: Justice Binnie brought the Bar’s attention to Ms. Loreti’s memo, which sets out the rooms available to counsel on the day of their hearing at the Court. Mr. Irvine suggested that the memo could be provided in the information package that is sent to counsel to assist them in preparing for their appearance. He also acknowledged that Registry staff go out of their way to assist counsel and thanked them for it.
10. Registry Survey
Me Roland presented the Executive Summary of a recent online client satisfaction survey of Registry operations. The results of the survey were extremely positive.
11. Other Issues
Me Tourangeau noted that the Committee must be in a transition year, not having raised any new suggestions for changes to the rules!
12. End of Meeting
Justice Binnie thanked all participants for their participation and expressed the hope that the Court is viewed as being responsive to the concerns of the Bar.
The meeting adjourned at 18:55 and was followed by dinner in the Judges’ Dining Room.