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June 16, 2021 Video Conference

June 16, 2021

Wednesday, June 16, 2021, 12:30 p.m.
Video Conference, Supreme Court of Canada

Present

  • David Power (Chair)
  • Barbara Kincaid (Secretary)
  • Renée Thériault
  • Renée Maria Tremblay
  • Jeff Beedell
  • Moira Dillon
  • Nadia Effendi
  • Gordon Greenwood
  • Sylvie Labbé
  • François Lacasse
  • Geoffrey Langen
  • Marie-France Major
  • Christopher Rupar
  • Marion Sandilands
  • Dahlia Shuhaibar
  • Margaret Truesdale
  • Corey Villeneuve

1. Agenda

The agenda was approved.

2. Approval of the Minutes of the meeting of March 10, 2021

The minutes were approved.

3. Follow-up from CBA Liaison Meeting

Barbara Kincaid shared the topics of discussion at the recent CBA Liaison meeting on June 9, 2021:

  1. Interventions: Justice Côté advised that the Court has completed its review of the intervention process: the current process will remain unchanged with five minutes oral argument allotted to interveners, with the exception that presumptively, interveners as-of-right (AGs, interveners given full party status in the court of appeal or administrative boards or tribunals) would be allotted 10 minutes for oral argument. The presiding judge will continue to extend the time when necessary. Justice Côté also advised that the Court would like to proceed with a webinar on interventions and CBA Liaison Committee members agreed on November 17, 2021 as a possible date for that webinar. The webinar will be bilingual, approximately one hour in length and in video format. It will be accredited for continuing legal education purposes. The CBA will provide further details as to the proposed format for the webinar, as well as the speakers, at a later date. The Court intends to issue a Notice to the Profession on interventions, which had been the subject of this Committee’s earlier review, to coincide with that webinar.

    Mr. Rupar, who is also a member of the CBA Liaison Committee, shared the concern that he had raised at that meeting about the increasing number of interventions. As he explained, because the main parties must respond to all of those interventions in both their written and oral submissions, for parties with limited means, the cost of doing so can be burdensome. Justice Côté had indicated, in response, that this concern would be duly noted.

  2. Rules amendments: Barbara Kincaid had asked the CBA Liaison Committee members for comments or questions about the new Rules amendments, which came into force on January 27, 2021. There were none.

  3. Robing requirements: Justice Côté advised the CBA of the Court’s decision that its present Rule and practice relating to robing will remain unchanged, as they already allow counsel to adapt their Court attire if need be. Counsel can contact the Registry if they require further assistance in this regard or have any questions.

  4. Discussion on counsel credits in judgments: Justice Côté explained that this issue was referred to the Court’s Rules and Court Operations Committee by the Chief Justice, following recent letters that he received from the Criminal Lawyers’ Association and The Advocates’ Society, as well as other letters received by the Registry. The letters relate to the Court’s current practice of limiting counsel who appear at appeal hearings to the number set out in Rule 70, and are asking the Court to revise its policy regarding the record of appearances of counsel in the published reasons for judgment. Generally, the letters suggested that the Court’s current practice could negatively impact female, racialized or young lawyers who are not appearing as either first or second chair. One letter also suggested that the proposed changes apply retroactively.

    The CBA reiterated these concerns at the Liaison meeting.

    Barbara Kincaid explained that the Court understood the concerns and explained that the purpose of the list appearing in the reasons for judgment is to provide a record of counsel who officially appeared before the Court at the hearing, and not to list everyone who contributed to the file for each party. She further explained that the Registrar or Deputy Registrar have the discretion to limit the number of counsel who appear before the Court to ensure the proper conduct of the hearings, and that they have done so regularly, including during the current COVID-19 pandemic due to the attendant challenges of incorporating new technology into the Court’s existing audiovisual system, which supports simultaneous translation and livestreaming.

    A discussion ensued as to whether the Court should amend its practice and related Rule, as to either the number of counsel who appear on appeal hearings or the recording of appearances of counsel in the published reasons for judgment. The Court noted there is a role for law firms in determining who will be appearing at hearings. The CBA will propose an amendment to the relevant Rule for the Court’s consideration.

  5. Preferred pronouns: The CBA explained that other courts within Canada have adopted practice directions on preferred pronouns, or are considering doing so, for reasons of inclusivity and to avoid having to address this issue during hearings because it distracts from client matters. The CBA undertook to provide the Committee with further submissions on this issue, including translation considerations for any such preferred pronouns.

  6. Round table discussion on initiatives in response to COVID-19: Renée Thériault expressed thanks on behalf of the Chief Justice for the CBA’s assistance on access to justice issues. She also explained that despite the pandemic, the Court has continued its work on case-related matters and has been conducting hearings by videoconference.

    Renée, who is also a CBA Liaison Committee member, shared what she had previously explained at that meeting about the Chief Justice continuing his work on the Action Committee on Court Operations in Response to COVID-19 together with Justice Minister Lametti. As she explained, the Action Committee has been working throughout the past year to develop court-specific health and safety guidelines that can be adapted to the needs of individual communities and courts, in particular when conducting juror trials. She further explained that this work revealed pre-existing challenges within the justice system, which the Committee is also now addressing. She also announced that the Action Committee will continue its important work beyond the end of the pandemic. She invited the CBA to consult the Action Committee’s upcoming report on its work of the last year, as well as the other materials it has produced, all of which are available on the Federal Judicial Affairs website.

    Also, Renée explained that following on its successful visit to Winnipeg in 2019, the Court has decided to sit in Quebec City in September 2022. In addition to the hearings there, the Court and its members will be engaged in a number of outreach activities with different communities, including visits by individual judges to local high schools.

    The CBA, in turn, invited the Court to consult the CBA’s Task Force on Justice Issues Arising from COVID-19, which recently released its report, including many recommendations on the delivery of legal services during the pandemic.

  7. Appeal hearings: At the meeting, Barbara Kincaid also explained that whether live, entirely virtual or hybrid, all hearings will continue to be livestreamed on the Court’s website, even if a publication ban is in effect, to ensure public access to the hearings in keeping with the open court principle. However, in the event that information subject to restriction is revealed during the course of oral argument, the hearing will not be archived on the website.

  8. Leave applications: The CBA noted a delay in opening files in the Registry, which they acknowledged as likely attributable to COVID-19. Barbara Kincaid responded that the Registry appreciates counsel’s patience in this regard. Also, should parties be filing urgent materials or should they have any concerns related to their filings, Barbara asked that they contact her or Julie Laverty directly by email.

    The CBA also observed, in closing, that fewer leave applications were granted in the last year.

4. Varia

A question arose about the payment of fees. Barbara Kincaid explained that they have been payable since early January 2021. She indicated that parties can make payment by cheque or calling the Registry, and she assured members that the Court will not delay a file because of a missing fee.

A further question arose about filing paper copies. Barbara explained that under the new Rules, parties can now file their leave application materials electronically. They are still required to file an original and two copies of those materials, which they are welcome to do at any time.

Finally, François Lacasse explained the extent to which he and other agents have been coordinating for the purposes of interventions filed by AGs in criminal matters, so as to avoid repetition in their submissions.

5. Next Meeting

The next meeting will be held on Wednesday, October 20, 2021, at 12:30 p.m.