The background to the Survey
There is some indication that the Supreme Court of Canada may be getting closer to permitting the publication of factums on Canlii. The CBA’s Supreme Court of Canada Liaison Committee meets annually with judges of the Supreme Court to discuss matters of Supreme Court practice. The Bar Committee is undertaking an informal canvass on the issue of whether it would be worthwile to post Supreme Court factums on a website after the conclusion of cases. It needs feedback from the Canadian legal community.
At a recent CBA/SCC Liaison Committee meeting on Posting of Factums on the Web, the Supreme Court Justices raised questions concerning a number of legal and practical issues:
* Who holds copyright in factums?
* Would copyright consent be required?
* What about the privacy interests of parties?
* While court filings are public record, is there a significant difference between the impact on the privacy of individual litigants when a factum is filed in the Registrar’s office, compared to posting the same document on the Internet?
* Does the proposal raise special privacy concerns in particular area of practice, such as family law, criminal law (i.e. victims’ rights), or immigration and refugee law?
* Are there concerns about defamation?
* Would the privilege associated with court filings continue to apply if the same document is posted on the Internet?
From an account of the last meeting, it appears that the steps towards this issue are very tentative, and curiously the Court appears more adventurous than the Bar
Access to Legal Information
Posting would increase public access to the process of the Supreme Court of Canada, and make the research contained in the factums generally available.
One Supreme Court Justice indicated that there is a growing concern for transparency in the system, despite reservations with respect to privacy concerns.
All paper files were accessible at the Court, except for sealed files and certain family files that are inaccessible by virtue of legislation in the province of Quebec.
The Bar's Hesitations
One Committee member from the Bar side was very hesitant, saying that the issue created a “tangled web” and a “dangerous minefield.”
* One solution would be for counsel to be careful when they draft their factums or to ask for a sealing order.
* Another solution would be to limit access to certain groups of people or to permit access for a fee.
* For counsel there could be practical difficulties – in transferring to PDF format, for example.
* The media was not pushing for access and seemed content to come to the court or to ask Ottawa agents for copies of documents.
The Committee is preparing updates on the situation in other jurisdictions.
Just finished answering: 5 people have answered so far (at 17:16 on Monday). Because court filings are public records, I think that syndicating SCC factums via public RSS feeds, and attaching to them a Canadian Creative Commons license ("Attribution – no derivative – no commercial use" comes to mind), would be not only be fair; but would promote a better understanding of the Canadian Justice system.
"Build it and they will come…"
Thanks Patrick – feel free to pass on the link.
Done here:
http://tinyurl.com/egvxf
I added a bit of fiction to offer some food for thought (the RSS feeds and Creative Commons license bit) (but I do think the Committee should add these two elements to the proposal). ;-)
Just to beat the open-source drum a bit more, transfer to PDF would be less difficult if Canada mandated, as Brazil and other jurisdictions do, that public documents be in an open-source format.
Some of the Court's concerns are harder to answer than others. The copyright issue could be handled by a consent rule, at least for future factums. I suppose the issue is whether counsel holds copyright or whether their clients do. Certainly the Court does not. Can counsel consent/license on behalf of their clients?
The privacy concern is harder – but a study of factums might show that it's rare for there to be real issues except in family or criminal cases, as the Court suggested. There are real issues with the full contents of the court file, but factums are pretty high-level, particularly by the time the case gets to the SCC.
It seems to me that privilege should continue to apply, even if counsel know that what they write will appear in public – after all, the documents are available to the public and the juicy bits can appear in the press now. OTOH the scope of the Net, its searchability and the ease of further publication, makes it arguably different in kind. I suppose some kind of disclaimer could be attached to the factums, of the kind used in the responsible press ("these allegations have not been proved in court") – except that of course sometimes the allegations WILL have been proved in court – subject to the appeal, in any event…. And of course electronic disclaimers are detachable by republishers.
So – not a slam dunk, but it would be good to see even a selection of factums available. Who knows, it might improve the calibre of some legal writing if counsel knew how widely their work was going to be read!
I support the availability of factums for Access on Canlii. The fact is that they are available now they are just difficult to access. So it seems terribly artificial to argue copyright, privacy or defamation when it is just accessabiltiy, cost and convenience.
If the US Supreme Court has been doing it surely they have some data on the supposed problems or have worked them out.
There are not on the face of it any valid legal reasons to not have them available and they may well be of interest to the profession and public. I doubt the medial are interested in 99% of the factums and the 1% they are they have already beat to death at the trial stage. I'm thinking of cases like Lattimer or Rodriquezwhere the medial frenzy happened and it really wouldn't have mattered if the factum were online.