Slaw Survey on SCC Factums

Early in April Slaw, together with the CBA, posted a survey inquiring about public access to Supreme Court of Canada factums. Recently the results of that survey were analyzed and presented to the Court.

PUBLIC ACCESS TO SUPREME COURT OF CANADA FACTUMS
SUMMARY OF A SLAW SURVEY

The Canadian Legal Research and Legal Technology Collaborative Blog, known as https://www.slaw.ca launched a web-based survey of views on the issue of public access to SCC factums. This report summarizes both postings to a discussion of the issue and responses to a web-based survey that was distributed across Canada. Just under sixty responses were received. The vast bulk came from practising lawyers, across Canada, with responses from every region.

The survey showed broad support for making factums more broadly available. The lawyers responding strongly endorsed transparency and disclosure, believing that public access to factums will not significantly interfere with the court or the administration of justice. Of the concerns raised in earlier discussions, none appeared to be an insurmountable obstacle.

While there was strong support for enhanced public access to SCC factums, those surveyed recognized that some issues would need to be addressed to protect other interests. Those issues were generally felt to be minor, and easily remedied.

Three quotes from the survey were typical:
• Fundamental public values are at stake: “Transparency and disclosure is a concern which overrides private concerns for loss of whatever confidentiality still exists for documents which are publicly filed”.
• “If court records are going to be available online one day, SCC factums are among the documents that should be out there first, given the benefits that they represent with regard to the openness of our highest court”.
• “In general, yes, on the principle of open access to court records; but there are clearly some difficult copyright and privacy issues that need to be addressed. Online and direct access should be equal unless there are very sound reasons to distinguish them”.

The lawyers polled felt that the value of transparency was paramount, and that the open justice principle required that documents which up to now have been publicly available in principle, should be in fact more widely available. For the vast majority of cases, the only people accessing the factums would be other lawyers and researchers. The factums were felt to offer “a fabulous research source”, with significant professional and educational benefits. The experience in the United States Supreme Court with briefs being publicly available on the Internet encouraged those replying to believe that the benefits far outweighed the potential negatives.

In terms of negatives, the chief risk identified was invasion of privacy, particularly in the areas of family and criminal law. Some lawyers pointed to the possibility of prurient media interest, identity theft, or private investigator access. Others took a more phlegmatic view – factums tended to be highly abstract arguments of legal principle, and to the extent that there were sensational facts, they would have been aired during media coverage of the lower court decisions. There were, moreover, mechanisms for masking sensitive personal information. The results showed strongest support for doing this in family law cases, and to a lesser extent in criminal law cases.

Similar views were expressed about the possibility of defamatory materials in factums being broadcast through universal access over the Internet. This was felt to be more of a theoretical than actual risk – as one lawyer put it: he had never seen a defamatory Supreme Court factum in thirty years of practice. Others wondered whether the client’s cause would ever be advanced by defamatory written advocacy. The respondents noted the privilege that attached to pleadings generally; and since this would continue to apply, there really was no reason to apply the protection differently because of greater public access. Others thought that fair reporting was perfectly acceptable, but improper use, for example by reposting factums on private websites might justify the loss of the privilege.

On copyright, there was no clearly dominant position although respondents were attracted by the idea that factums were documents created for a specific public purpose, and should be made publicly accessible. Again the existing protections under the Copyright Act should protect against use that falls outside the fair dealing defence. Those taking the survey noted that the chief use of the factums would be for legal research purposes. Others noted that factums were drafted not as creative works for all time, but as advocacy documents that had the sole purpose of advancing the client’s argument and winning appeals.

In responding to the question whether public access would change the process of factum drafting, most thought that any change would be for the better, and that legal writing would be improved. Factums would be more concise, less over the top. It would be good for the profession to have access to well written factums.

A small minority of respondents favoured restricted access, either through a semi-public system or by requiring users to register. Others were so attracted by the sped and ease of access that they suggested making the factums available through RSS feeds (Really Simple Syndication) and mandating open source formats for submission. Again the bulk of respondents fell between these two extremes – and indeed the number of lawyers in Canada who would be anxiously awaiting the automatic delivery of information on every factum received by the court must be somewhat limited.

The detailed responses to the survey are available for consultation. However the numbers speak for themselves, and provide additional professional support for the project of making the factums submitted to the court publicly available over the Internet.

What follow are the images (somewhat reduced in size) that make up the pdf file sent to the Court: