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New SCC clerkship interview process: Equity and sound public administration | Lawrence David

Tuesday, November 12, 2019 @ 11:18 AM | By Lawrence David


Lawrence David %>
Lawrence David
Cambridge doctoral student Paul Warchuk messaged me this morning with the following news:

“The Supreme Court of Canada recently announced that the next round of interviews for clerkships at the court will be conducted via Skype. Any thoughts?”

My first thought was: “Wow. This is, to my knowledge, the first time interviews will be conducted exclusively via Skype.” After experimenting with different models for clerkship interviews over the last few years, it appears that the court now seeks to tap into the great utility of social media and online communications tools.

But what may be driving these changes?

First, I have no inside knowledge. But for my colleague messaging me with the news, I would perhaps have found out about it through one of my law students, or by visiting the Supreme Court of Canada (SCC) website — as I do over 50 times a day (only a slight exaggeration!)

Second, because I have no inside knowledge and was not involved in any conversations or deliberations on this topic, all of what follows can only be taken as educated “academic guesstimation.” This guesstimation is the fruit of my reflections as a Supreme Court fanatic, law nerd, former Supreme Court law clerk, student of democracy, and author of a forthcoming treatise on the Supreme Court of Canada.

Importantly, the new interview process is institutional in nature. It applies for all judges and to all applicants. Skype interviews are not optional simply for those who may be unable to attend in person; they represent the new status quo, at least for the time being. The court does specify that it retains the discretion to change course in light of operational requirements and capacities.

But is this a good thing?

In my view, the move to Skype-only interviews for Supreme Court clerkships may reasonably be linked to two overarching principles:

  • Sound stewardship of public funds; and
  • Ensuring equitable access to interviews and actual clerkships at the Supreme Court of Canada.

At first glance, both of these objectives are advanced by conducting Skype-only interviews.

Sound stewardship of public funds is advanced by conducting Skype-only interviews.

Every year the Supreme Court of Canada invites selected applicants to the court for in-person interviews. More applicants are invited and interviewed than are actually selected. This is, of course, owing to the wealth of available talent and the restricted number of available clerkship positions. The Supreme Court has long shouldered the costs and accommodation for all applicants not situated in the National Capital Region.

This is a laudatory gesture, and one that was particularly helpful in days before Internet communications facilitated exchanges regardless of geographical distance. I do not have the figures before me, but it is easy to estimate the costs of the SCC interview process have increased over the years, especially in light of the number of applicants flown in from abroad, for example, where they may be completing graduate studies.

Essential principles of sound stewardship of public funds involves constantly assessing the existence of instruments or mechanisms that can achieve current public-oriented tasks better or at less costly rates. To the extent that all applicants will be interviewed by Skype, and to the extent that Skype interviews will, only exceptionally, give rise to expenditures, we can easily view the SCC’s move as one consistent with and in furtherance of the principles of sound public resource administration.

Second, Skype-only interviews are essential in ensuring equitable access to interviews and actual clerkship at the Supreme Court for all qualified Canadian applicants. Other measures may, of course, be envisaged.

Skype-only interviews pay special solicitude to applicants who may be have mobility impairments. A round-trip flight to Ottawa for an SCC interview is of very little assistance to an applicant whose limitations make mobility in their daily lives an arduous task.

This can arise from physical limitations or from the simple difficulty of accessing airports, buses, or other ways of travelling to Ottawa. The Skype-only interview process is not, however, a special accommodation only for applicants who may be suffering from mobility-related impairments. It is the new status quo for all applicants. This is precisely what makes it an equity-furthering measure.

In this light, the SCC’s new measure echoes the Law School Application Council’s (LSAC) decision to remove visual components of the Law School Application Test (LSAT) in order to ensure equitable access to the law school application process for qualified students who are visually impaired.

Interviews are often about the elusive concept of “fit.” Many interviewers say fit is best measured via in-person interviews. If all mobility-impaired applicants to the court availed themselves of the Skype option, while non-impaired applicants did not, the result would likely be an adverse exclusionary effect on mobility-impaired applicants.

This would result from a systematic, yet unaccounted for structural disadvantage of having the fit factor not being assessed to the same degree on the basis of geographical distance and mobility. None of this is compatible with equity or access to justice.

Skype-only interviews place everyone on a level playing field. The fit factor is assessed the same for all applicants regardless of ability, disability, or special talent.

My friend Paul further notes that persons who are caregivers and have difficulty arranging for alternative care for children, for example, also stand to benefit from the SCC’s new approach to clerkship interviews. Northern and rural applicants who reside in remote parts of Canada will also be encouraged to apply. Homefield advantage will, moreover, no longer extend to applicants situated in the National Capital Region (that is, within a 40-kilometre radius of Parliament, whether in Gatineau, Que., or Ottawa, or otherwise).

Of course, for northern and rural applicants, the challenge will become ensuring access to Internet at the given time for the SCC interview. Internet access is not a given in many Northern and rural communities. It is, however, reasonable to expect that the vast majority of law students and applicants will have some form of access to the Internet at a given time.

Sufficient notice to applicants invited for interviews can help address these difficulties.

As may additional measures designed to ensure that the SCC’s new model of clerkship interviews delivers in terms of sound management of public funds and ensuring equitable access to SCC interviews. Another reason to be proud of Canada’s highest court.

*This piece is written exclusively in my private, academic capacity and does not necessarily represent the views of my employer.

Lawrence David is part time professor of law, criminal law and procedure, University of Ottawa, Faculty of Law — common law section. He can be contacted at lawrencedavidlegal@gmail.com.

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