Tuesday, May 17, 2016, 4:30 p.m.
Room 95, Supreme Court of Canada
Present
Supreme Court of Canada (SCC)
- Justice Abella (Chair)
- Justice Moldaver
- Justice Wagner
- Mr. Gib van Ert
- Mr. David Power
- Ms. Barbara Kincaid
- Ms. Nadia Loreti
- Ms. Renée Maria Tremblay
Canadian Bar Association (CBA)
- Mr. Graeme G. Mitchell, Q.C. (Chair)
- Ms. Lauren Wihak (Vice-Chair)
- Mr. Christopher Rupar
- Ms. Colleen Bauman
- Ms. Margaret Mereigh
- Ms. Rekha Malaviya
- Ms. Gillian Carter
Justice Abella welcomed the members of the Committee to the Court. She particularly welcomed the new members of the Committee, and acknowledged Nadia Loreti’s contributions over the years and wished her a happy retirement in 2017.
1. Approval of the Agenda
The agenda was approved.
2. Approval of the Minutes of the Meeting of May 12, 2014
The minutes were approved.
3. Follow-up on Matters Arising from Minutes
a. Virtual Lock-Ups
Justice Abella indicated that the Court had serious reservations about proceeding with virtual lock-ups for counsel located outside Ottawa at this time, and that this would not be implemented.
b. Webinar
Mr. Mitchell signalled that the CBA is very interested in having the Court and CBA co-host a Webinar on the topic of effective interventions during the course of this year. He anticipates that the Webinar would consist of two parts. The first would consist of a SCC Justice explaining what the Court looks for in interventions. The second would consist of a senior lawyer discussing best practices. The CBA would look to the SCC to identify a Justice who could participate in the Webinar. The CBA members felt that Justice Cromwell or perhaps one of the more recent appointments would be excellent choices.
Mr. Mitchell indicated that he would need to apply to the Professional Development Committee of the CBA for funding for this project. He indicated that he would communicate with Mr. Power to establish timelines once funding had been approved.
4. New Matters
a. Rules amendments
The Public Consultation Draft of the Rules amendments was circulated to the members of the Committee.
Ms. Malaviya indicated that Rule 33 may need to be clarified as it implies that only appellants may state constitutional questions, but Form 33B states that both appellants and respondents may state such questions. Ms. Kincaid indicated that this would be reviewed to ensure that it is clear that both appellants and respondents may state constitutional questions.
Justice Abella thanked the members for their comments throughout this process, particularly those made at last year’s meeting. The amendments to the Rules will now proceed through their regular process.
b. Oral arguments for interveners
Ms. Bauman raised the issue that many in the Bar have concerns that the standard five minute allotment for oral argument does not permit for effective oral advocacy.
Justice Abella indicated that while there is no set rule on the allotment of time for oral argument, the Court has generally opted to provide opportunities for oral argument to as many interveners as is necessary in light of the general time constraints of a hearing. The judicial members also stressed that while oral argument is not always allowed, the judges carefully read all factums that are filed by interveners. A five minute allotment also ensures that interveners focus on their issues and do not address the merits of a case. The Court is also looking for a different perspective, and is not looking to interveners to repeat the same arguments.
Some concerns were raised that the five minute allotment is quickly used up if there are questions from the Bench, or if more than one issue is addressed by an intervener. It was agreed by all that this could be addressed by counsel requesting additional time from the presiding judge at the hearing in circumstances where they have been interrupted.
The Justices all mentioned that they find 10-page factums to be just the right length to make succinct arguments. Justice Wagner inquired whether interveners would prefer to be permitted to file longer factums rather than be given additional time for oral argument. This was not an option preferred by the members of the Bar.
Justice Moldaver inquired whether there was a movement among interveners to act in a cooperative manner to allocate their allotted time for oral argument in the most effective manner. Ms. Bauman mentioned that the notice received by interveners as to whether they have been granted the right for oral argument is sometimes very short, and that this does not allow interveners to effectively allocate argument amongst themselves. Ms. Kincaid indicated that the issue of notice may largely be resolved by the amendments to the Rules, and that the shortened deadlines will lead to a streamlining of the process.
The members of the Bar saw the proposed Webinar on effective interventions to be a good opportunity for lawyers to be made aware of what the Court looks for in interventions. Ms. Kincaid also mentioned that the Supreme Court Advocacy Institute could offer some training on how to make effective five-minute arguments.
Justice Abella concluded by saying that the current practice would be continued but that concerns would be shared with the Court, including the possibility of allocating a greater amount of time for oral argument for those interveners bringing a new issue to the Court.
c. Podcasts
Ms. Wihak mentioned that the Webcasts of Court hearings are sometimes difficult to access and are beset by some technical difficulties. She indicated that podcasts or an mp3 upload may be an additional valuable educational resource to have on the Court’s Website.
Mr. Power stated that the Court’s administration was reviewing the matter of accessibility to Webcasts and other information on the Website generally. It was looking particularly at the issue of making Webcasts more accessible across all platforms. He also indicated that the Court is open to podcasts, but that technical and other issues would need to be considered before moving ahead.
d. Women’s Robing Room
The issue was raised by the CBA that there was an insufficient number of lockers in the Women’s Robing Room.
Ms. Kincaid indicated that steps have been taken to have an additional 4 lockers installed in the Women’s Robing Room, bringing the total to 14. With this addition, there will be an equal number of lockers in the men’s and women’s robing rooms. Additional lockers are also available in the men’s and women’s washrooms on the ground floor. With the installation of the new lockers, there will be a total of 30 lockers available for women, and 33 for men.
5. Level of Satisfaction with the Service of the Court Registry
The members of the Bar were unanimous in commending the excellence of the service at the Registry, and throughout the Court.
6. End of Meeting
Justice Abella thanked the members of the Committee for their attendance at the meeting. Mr. Mitchell thanked the Court for hosting the meeting, and stated that the CBA finds this meeting to be very useful. The meeting adjourned at 17:50 and was followed by dinner in the Judges’ Dining Room.