Coming soon to the Web: SCC factums

Supreme Court of Canada (“SCC”) factums will be available on-line beginning next year. That’s according to Justice Michel Bastarache, who made the announcement during a speech last week at LexUM’s Law Via the Internet Conference in Montreal.

According to Slaw.ca, Justice Bastarache told attendees that the Justices were still struggling with a handful of thorny issues – including what form that on-line factums will take, and how privacy interests of litigants will be preserved. However, Justice Bastarache said decisions on these issues were “imminent.”

The announcement is the result of a long campaign to improve access to documents filed with the SCC. An SCC/Canadian Bar Association liaison committee has been mulling the issue for two years. And just last year, the results of a Slaw.ca survey revealed strong support among practitioners for improved on-line access to SCC factums.

Admittedly, the idea has also met opposition. Some commentators have raised concerns about copyright. Others have wondered about the implications for defamation law, since factums often contain “facts” not proven in court, and since the immunity that generally applies to court documents may not extend to the Internet. In addition, some have warned that the on-line publication of factums will have grave implications for privacy, particularly in the family law context. Indeed, they argue that it may not only jeopardize privacy; on-line factums may also have a “chilling effect”, by deterring those with perfectly legitimate claims from coming forward, lest the details of their private lives wind up on the Internet.

By contrast, proponents note that on-line access to Supreme Court materials in Canada currently lags far behind that in the United States, where judiciophiles have web access not only to written submissions, but also to Supreme Court oral arguments, which can be downloaded as podcasts at websites like oyez.org. According to proponents of initiatives like these, on-line access to factums has several advantages. It’s in keeping with the open-court principle, and the principle of access to justice. It would also provide academics and practitioners alike with a valuable research tool. Further, some have argued that the quality of factums may actually improve if lawyers have access to their peers’ work, and if they know that those same peers will have access to their work.

Proponents have also responded to many of the concerns raised by those on the other side of the debate. For starters, they note that public access to factums is hardly new; many SCC litigants already publish their factums on-line, and will happily share them with journalists. A new database, according to this line of argument, will simply serve to make access easier. Moreover, to the extent that there are legitimate concerns about the reliability of a factum’s contents, or the privacy of parties to litigation, fans of the on-line database idea argue that these concerns can be easily addressed. Reliability concerns, for example, would presumably be diminished if factums are not placed on-line until after the SCC has ruled. Further, the SCC can address privacy concerns by requesting that counsel prepare two separate versions of their factums, one with personal details deleted.

It is unclear whether the SCC will heed any of these suggestions. Justice Bastarache’s remarks suggest, however, that the Justices have begun to embrace the concept of an on-line database for written submissions. Can SCC podcasts be far off?