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.