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Gag on SCC law clerks has ‘chilling effect’

|Written By Tim Naumetz

OTTAWA – A “chilling effect” from the Supreme Court of Canada’s negative reaction to an academic survey of former law clerks could be spreading.

The aftermath included a rumour flying through legal circles late last week that administrators of Osgoode Hall’s The Court web site had pulled a list of former Supreme Court clerks that the U.S. professor conducting the survey used to get his mailing list.

But, even though some lawyers failed to find the list on the popular site after having visited it prior to the controversy, it was available last Thursday at noon following Law Times inquiries at Osgoode Hall and the Supreme Court.

“We haven’t been asked to remove the table,” says James Stribopoulos, the associate professor at Osgoode Hall who is editor-in-chief of The Court until July 1.

Stribopoulos added in a subsequent e-mail the list may have been inaccessible “a while back . . . as we had some technical problems with the entire site. All is normal now.” He later added the breakdown occurred two months ago.

Nevertheless, the author of the last main Canadian analysis of clerking at the Supreme Court says the court’s warning that former clerks could be violating a statutory oath if they respond to the survey has undoubtedly sent a scare through the ranks.

“It will certainly have a chilling effect on some former clerks,” University of Toronto law professor Lorne Sossin, a former clerk, tells Law Times.

Meanwhile, the Indiana academic who sparked the controversy says he will remain silent until he concludes the survey.

“I’m not granting any interviews about this project until the research has been completed,” David Weiden, an assistant professor of political science at Indiana University-Purdue University Indianapolis, tells Law Times.

Weiden, co-author of The Brethren, a controversial bestselling book on law clerks at the U.S. Supreme Court, says in an e-mail he will not even disclose how many former clerks of the Canadian court have responded to his request for participation.

The contents of the survey questionnaire, including descriptions of the degree to which clerks help draft judgments and other aspects of their relations with the judges, has prompted a fierce debate about propriety.

The  executive legal officer at the court, Jill Copeland, e-mailed former clerks warning them not to take part.

She says they will be violating an oath of confidentiality they swore under s. 54 of the Public Service Employment Act if they divulge private information from their work at the court.

But Sossin says Copeland’s warning should be taken not as an end to discussion - only the beginning.

He says it should spark a debate between the benefits of a transparent look at how the court operates and the need to keep certain elements of judicial decision-making confidential.

“No one could suggest this isn’t a serious and worthy area for study,” says Sossin. “Not only is it enhancing a public confidence [in the court] but it is also an important academic effort.”

Sossin’s 1996 essay on clerking at the Supreme Court of Canada provides grist for the debate with provocative and detailed insight into the roles clerks played behind closed doors 12 years ago.

Their influence on judgments and, surprisingly, even the annual selection of new clerks, was extensive, the essay concludes.

Sossin cautions that methods may have since changed, but at the time the clerks in office would conduct initial screenings of all applicants who wanted to succeed them and provide the court with a short list of “top candidates.”

“While the clerks can almost never assure an applicant’s success, it is not difficult to imagine how clerks might assure a candidate’s failure,” he says in the thoroughly-footnoted 28-page paper, published in the University of British Columbia Law Review.

The clerks also played an instrumental role in decisions on applications for leave to appeal - being the first to review applications and prepare memoranda for panels of judges recommending whether leave should be granted or not.

“During my year at court, there were a number of cases in which a clerk’s recommendation to grant leave to appeal was not followed by the court,” writes Sossin. “However, I was unaware of any cases in which a clerk’s recommendation to deny leave was not followed.”

Sossin, however, says that staff lawyers now assist the clerks with the screening of applications for leave.

He makes a point of noting that former chief justice Antonio Lamer reviewed his essay and approved it for publication before he submitted it.

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