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TOP COURT TALES BY PHILIP SLAYTON On a clear day you can Chief Justice Beverley McLachlin has brought much transparency to the top court but there is still a way to go. N see forever ext January, Beverley McLachlin will have been Chief Justice of Canada for 10 years. One of her constant themes has been the need for transparency at the Supreme Court of Canada. She has returned to this topic time and time again. In a 2004 article, for example, pub- lished in Australia's Deakin Law Review, McLachlin vigorously endorsed what is sometimes called the "open court princi- ple." She wrote, "Openness signifies that the public and the press have free access to the courts of justice and are entitled to attend and observe any hearing. It signi- fies that court records and documents are available for public examination. The rule of openness entails that reasons for judg- ment are public and, therefore, subject to the scrutiny of the parties, the media, the bar, legal scholars and, ultimately, the populace. And, under the open courts principle, the public and the press may freely discuss and publish accounts of court proceedings, hearings, examina- tions, and decisions." This is a long way from the day when Supreme Court justices gravely discussed whether the author of a law review article critical of their decisions was in contempt of court. (Believe me, this discussion actually took place). Has the chief justice delivered the goods on transparency? In many respects, she has. Most notably, a new policy for access to formal court records came into effect this past February (see: www. scc-csc.gc.ca/court-cour/rec-doc/pol- eng.asp). The policy says, the Supreme Court "will provide public access to its court records in a manner that balances the constitutional requirement of open courts against other rights and interests of the public and participants to judicial proceedings, namely privacy and security of individuals and the proper 30 JULY 2009 www. C ANADIAN Law ye rmag.com administration of justice." Appeal factums are now available through the Supreme Court's impressive web site. For the YouTube generation, court hearings are webcast live, and there is an archive of recent broadcasts (www.scc-csc.gc.ca/information/cms- sgd/webcast-webdiffusion-eng.asp). Judgments, of course, have been easily available for some time, free of charge, on the Internet (scc.lexum.umontreal.ca/ en/index.html, run by LexUM laboratory at the University of Montreal's Faculty of Law). And, at the personal level, McLachlin has speechified considerably on the subject for some years, although to traditional and safe audiences: universities, bar associations, the Empire Club, etc. Should we take our hats off to the chief justice when it comes to transparency? Certainly she's taken some valuable initiatives. But broader JASON SCHNEIDER