Wednesday, June 5, 2019, 5:00 p.m.
Room 95, Supreme Court of Canada
Present
Supreme Court of Canada (SCC)
- Justice Gascon (Chair)
- Justice Moldaver
- Justice Rowe
- Me Roger Bilodeau, Q.C.
- Me Renée Thériault
- Me Barbara Kincaid
- Me Renée Maria Tremblay
Canadian Bar Association (CBA)
- Me Rekha N. Malaviya (Chair)
- Me Vikki Andrighetti
- Me Michael G. Bates
- Me Colleen J. Bauman
- Me Christopher M. Rupar
- Me D. Lynne Watt
- Me Tamra L. Thomson (Staff Liaison)
1. Approval of the Agenda
The agenda was approved.
2. Approval of the June 5, 2018 meeting minutes
The minutes were approved.
3. Follow-up on Matters Arising from Minutes
a. Interventions
i. Practice directive
Mr. Rupar addressed this item on behalf of the Canadian Bar Association, noting that there was agreement that it was a good idea to issue the practice directive. A general discussion of the wording of the directive ensued. There was a consensus that the directive would be clearer with the removal of the first sentence of item 4 (“Interveners should avoid argument the parties could have made themselves.”), and the amendment of the second sentence to read: “Interveners must not challenge findings of fact, introduce new issues, or try to expand the case.” As to the logistics, the practice directive would be issued in the form of a Notice to the Profession under Rule 94, and the timing would dovetail with the webinar. The proposed practice directive will be presented for discussion at an upcoming meeting of the Court, and will be issued if approved.
ii. Webinar – The Art of Intervention Before the SCC
The CBA indicated it was prepared to host a webinar on the topic of interventions. The preferred format would be something akin to a “fireside chat” between a senior member of the Bar and one of the Justices. The webinar would be bilingual. It remains to be determined if the webinar would be conducted live, with the ability to re-play the presentation, or pre-taped. Ms. Thomson noted that the CBA would ensure that the webinar is accredited for continuing professional development by the various law societies, which would mean there would have to be a mechanism to allow for questions to be posed by viewers. The details will be worked on, with the goal of having the webinar in mid-October.
iii. Time for oral arguments by interveners: extension of time when judges ask questions
Mr. Rupar presented this item on behalf of the Bar. He noted that the five minutes allotted to interveners for oral argument is tight, and especially so with questions from the Bench. The flexibility shown by the presiding judge in extending the time is much appreciated. In some cases, the Bar suggested, it might be appropriate for the presiding judge to extend the time by a fixed number of minutes.
b. Evolving role of Agents
Lynne Watt addressed this issue on behalf of the Bar. The report circulated by the Court in advance of the meeting accurately reflected the views of the Bar. Ms. Watt read one counsel’s response to the CBA survey about the importance of agents in preparing for Supreme Court proceedings. There were some concerns about making the rule regarding agents permissive at all stages of proceedings. One related to the additional workload on the SCC Registry if counsel inexperienced with this Court’s proceedings decided not to have an agent on an appeal. Barbara Kincaid reported that these factors are being taken into account as the SCC designs the e-filing portal and related internal workflow processes. The other concern, raised by Michael Bates, relates to appeals funded through legal aid. If it was not mandatory to have an agent, it might not be possible to have funding for agent’s fees. Rekha Malaviya echoed this concern for government lawyers. The concern will be noted for when the Court amends the rule.
c. Rules Amendments that came into force in January 2019
There was only positive feedback on the Rules amendments. The provision for electronic service of all documents and for providing hyperlinks in books of authority were particularly appreciated.
d. Accessibility (hearing impaired)
This item was addressed by Vikki Andrighetti. The Bar noted that the Court provides induction loop receivers for counsel who use hearing aids and provides information on the availability of accommodation on its website. The Court undertook to ensure that this information was also included in the scheduling letter. The provision of real-time captioning would be ideal, and the Court noted that this is part of planned improvements.
4. New Matters
a. Possible development of a Supreme Court of Canada style guide as a supplement to the Guidelines for Preparing Documents to be Filed with the Supreme Court of Canada (Print and Electronic)
Rekha Malaviya noted that the Ontario Court of Appeal provides counsel with a style guide to follow when preparing their materials for filing, and asked whether the SCC would do the same. The Court responded that it was not considered necessary. As long as the Court is able to find the sources cited by the parties (which is easy with hyperlinks), it does not matter what citation style is used by counsel.
5. Varia
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Renée Thériault, Executive Legal Officer, expressed thanks on behalf of the Chief Justice for the collaboration of the Canadian Bar Association in moving forward on access to justice issues. She mentioned initiatives that are aimed at improving public understanding of the work of the Court: the 2018 Year in Review, the cases-in-brief issued with appeal judgments, and the planned sittings and outreach activities to be held in Winnipeg in September 2019. She explained that two appeals have been scheduled to be heard in Winnipeg. Both appeals originated in the western provinces. One case is civil and the other is criminal. In both cases, the Court expects to hear submissions in both English and French. The Chief Justice is grateful for the support of his colleagues in this initiative, and notes with appreciation that the Canadian Bar Association was the first to provide a letter of support. In addition to the hearings, 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.
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Colleen Bauman raised a question regarding the practice of reporting decisions from the Bench, and the listing of counsel names. Barbara Kincaid confirmed that counsel are listed in those judgments when they are published in the Supreme Court Reports. Pending publication, only the formal judgment, which does not list counsel, is available. She undertook to look into this further to see where the practice can be adjusted.
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Tamra Thomson reported on a new CBA initiative to improve public understanding of the importance of judicial independence. The CBA has posted on its website videos and related resources on judicial independence, which can be found at these links:
6. End of Meeting
Rekha Malaviya expressed thanks on behalf of the Canadian Bar Association to the Court for providing this forum for discussion. Justice Gascon thanked the members of the Committee for their attendance and comments.
The meeting was adjourned at 18:15 and was followed by dinner in the Judges’ Dining Room.