You can’t really sue a judge, but people do try. So on the rare occasion when one of the justices of Canada’s highest court ends up on the wrong end of a lawsuit, the duty to defend falls to Barbara Kincaid, general counsel of the Supreme Court of Canada. “It happens, but you don’t tend to get very far,” she says. “The principal of judicial immunity [means] you can’t sue a judge.” Defending the Supremes is only a small part of what Kincaid actually does, but it does point out similarities between her work and that of legal departments everywhere. “We are like the court’s law firm,” says Kincaid. “I obviously run a unique practice, but many of the challenges of running an in-house department are the same.”
In the typical legal department sense, her general counsel work also involves things like reviewing contracts for the corporate services sector and dealing with disputes when a staff member gets sued over something they’ve done at work — for example rejecting a document. But because this is the Supreme Court, there is a lot more to the job. Kincaid heads the operations sector at Canada’s top court, which makes her and her staff responsible for all activities related to processing cases that are brought to the SCC, including case management, providing legal and research services, and publication of the court’s decisions. That places her in command of about 80 court employees and four operational branches — law, reports, registry, and library and information management.
Intellectual property work also keeps the staff busy. Many of the court’s publications or records require licensing when they are used for commercial purposes, and there are always requests to use court-related videos and images.
Kincaid has held the SCC general counsel position since 1999, but has been with the court since 1988, rising through the ranks on the law department side, first as counsel then as senior counsel. “Like everything in life, it kind of just happened,” she says. Called to the Ontario bar in 1981, Kincaid practised in Ottawa with Jennifer Lynch & Associates until 1984. She had two boys in the early 1980s, which made general private practice harder to juggle. “I ended up staying home with my two sons until the youngest one was in kindergarden,” she recalls. “But in the meantime I was involved, I did a lot of charity work, volunteering.”
She wanted to get back into law though, so she tested the waters with, among other things, a two-week contract at the Supreme Court in 1987 to do a research project on some aspects of criminal jurisdiction. The next year, she was offered a three-month contract. “That was three months in September 1988 — and I’ve been here ever since,” says Kincaid. “Obviously, it was a good fit for me and a good fit for the court.”
Things have changed a lot since then though. The court staff has almost doubled, and Kincaid has gone from a contract worker to one of the court’s highest officials. “I suppose I worked my way through the system,” she says, adding the idea of having 18 staff lawyers 22 years ago would seem unbelievable. There were only three when she started. Today, some of the lawyers work part time, and others telecommute from different parts of Canada. “I’m pretty passionate about making sure we have a good workplace, that people have the sense that they are entitled to a good work-life balance,” says Kincaid. “I’m a big proponent of a tele-work project, and we’ve got a lot of people that are able to work from home, at least part of the time.”
From a personal perspective, Kincaid knows the country she serves well. Born in Winnipeg to a military family, she went to nine schools in five provinces before starting university. “Ottawa was where I got off the train,” she says. “Dad got transferred to P.E.I., and the rest of the family left. I stayed behind.” Taking on an extra workload, Kincaid received her university degree at 19 — her law degree at 22 — both from the University of Ottawa. “In the ’70s, I had my nose in the books, a lot of that passed me by,” she says. “I was pretty keen to get to law school and when I got there I quite enjoyed it. We had a very, very nice class of ’79. Very interesting people, and we’ve kept up.”
After 22 years at the top court, Kincaid says it has been an amazing experience. “It is such an honour, such a privilege,” she says, adding that whether one is a legal counsel or law clerk, or the person working in the photocopying room, you really have a sense that what you do really makes a difference when you are working on a case. “You see the impact that the work of the court has, and you see how incredibly challenging the job of the judges really is — how hard they work, and what they are called on to do, the kind of pressure that they face,” she says. “So it’s a point of pride for everybody to make sure that when the court sits down to hear a case that they know that we’ve covered off the potential issues, they are not going to worry about anything other than listening to the case and deciding on it. When they come to release a judgment, they know that everything has been double-checked, and triple-checked, and that the translation is amazing. There is just so much pride.”
Years of experience help, but Kincaid knows that working at the Supreme Court of Canada can be intimidating too. “I would think I am nowhere near good enough to be writing a legal opinion for the chief justice of Canada, but then if you think about it that way, you can’t do anything, you can be paralyzed,” says Kincaid. “But I always think of it this way: ‘I’ve got the time, I’ve got the in-depth knowledge of the rules, I can sort through these files, and I can help out the chief justice.’ It’s a different way of looking at it.”
In addition to her duties at the SCC, Kincaid is a member of the Canadian Bar Association, the Canadian Forum on Civil Justice, and a director of the Canadian Institute for the Administration of Justice. She is also a former president of the Association of Reporters of Judicial Decisions, an international organization composed of law reporters from Canada, the United States, Great Britain, and Africa.
This article originally appeared in the February 2010 issue of Canadian Lawyer.