Is this perhaps because Supreme Court of Canada wants Ernst and others concerned about the court’s charter-damaging and lying ruling in Ernst vs AER to be long dead before Justice Abella’s drafts and deliberations of her ruling, and where she got her fabricated facts from (AER’s outside counsel Glenn Solomon perhaps?) are “accessible” to the public?
Supreme Court document embargo is too long by half Globe Editorial, May 15, 2018, The Globe and Mail
With its fur-trimmed robes and arcane terminology (puisne, headnote), the Supreme Court of Canada cultivates an air of pomp and mystery.
The pomp is its due, as the country’s top court and Constitutional arbiter.
The mystery, on the other hand, is a problem. Canadians ought to be more informed about how the nation’s most important legal body conducts itself, not less, as a recent decision suggests the Court would prefer.
Canadian Supremes toil in obscurity, relative to their American counterparts. It’s hard to imagine a big-budget documentary being made about former chief justice Beverley McLachlin, yet one is screening this week in Toronto about the U.S. Court’s liberal rock star, Ruth Bader Ginsburg.
That low profile is partly down to the SCC’s comparatively scanty pedigree. Only in recent decades, and especially since the introduction of the Charter, has our Supreme Court wielded clout commensurate with its name.
There’s no excuse anymore, however. The Supreme Court is one of the most powerful institutions in the country, one that has not been shy about shaping Canada in dramatic ways on files as diverse as prostitution, assisted dying and aboriginal title. [And enabling energy regulators to violate the Charter rights of frac harmed Canadians and smearing civil litigants to try to keep them silent?]
The Court has made halting gestures toward opening up its vastly important work to the public. Chief Justice Richard Wagner came to his perch late last year and promptly vowed an era of transparency on the bench. He started well, instituting plain-language summaries of the Court’s rulings to be posted online.
Before Justice Wagner took the post, however, in a move that only came to wide notice this week, the Court took a serious step backward in its stated goal of increasing public scrutiny of its work.
In June 2017, the Court agreed to give its “collegial documents” to Library and Archives Canada, where the public will be able to access them – but only 50 years after the relevant case has closed, and while reserving the right not to hand over any documents it doesn’t want to. [!!!!!!!!!!!!!!!!!!!]
Collegial documents are the correspondence between judges as they deliberate – memos, notes, drafts and so on that judges have sent each other about a case. [Imagine what a fascinating read those would be on SCC’s Ernst vs AER file!]
Until fairly recently, those records were the property of individual judges and rarely saw the light of day. When they did, however – as in the case of former chief justice Brian Dickson’s trove – they could provide fascinating and important glimpses into how the Court operates.
Because of the documents’ historical value and the judges’ weak tradition of making them public – here, too, the U.S. trumps us, as fascinating American books have been written on the basis of such material – it is not a bad idea for the Court to take possession of collegial documents and allow federal archives to make them public over time. Done properly, it could have afforded a more reliable way of providing access for curious scholars and lawyers.
But access doesn’t seem to be the objective here. If it were, the parties would have settled on a less onerous embargo period. With some exceptions, federal cabinet records are made public after 20 years. In the Court’s case, 25 years seems reasonable. That would make it unlikely that any records by or about sitting judges would fall into public hands.
After all, there is a public interest in keeping judicial deliberations private for a length of time, in order to encourage candid exchanges between judges and to preserve the integrity of recent rulings. [What’s integral about any court knowingly publishing lies, and sending the lies to media, never mind a country’s top court?]
Nor can we force judges to hand over fulsome collegial records. Cagey justices could always use shorthand, or the waste bin, to get around any such requirement.
But access to whatever records are available after a quarter century would strike a balance between the need for free exchange among judges and the public’s interest in knowing how its most powerful court works.
Under the 50-year rule, that balance is skewed too much toward secrecy.
At the very least, the Court should provide a frank explanation of how it arrived at its current policy. Bizarrely, representatives of the Court and the federal archives have refused to be interviewed on the subject. [Encana ordered them so?]
When the 19th-century British journalist Walter Bagehot wrote, “We must not let in daylight upon magic,” he was referring to the monarchy, not the judiciary. The Supreme Court shouldn’t forget that there’s a difference.
Retired Supreme Court judges object to 50-year embargo on documents: ‘Too long for any useful purpose’ by Sean Fine, May 14, 2018, The Globe and Mail
Two retired judges of the Supreme Court of Canada say 50 years is too long to seal internal court documents revealing the communications between judges on cases.
John Major of Alberta called the half-century embargo “too long for any useful purpose” and Louis LeBel of Quebec said the judges will be “a part of history” long before researchers gain access to the files.
“I have an interest in history,” Mr. LeBel, who served from 2000 to 2015, told The Globe and Mail. “Speaking for myself, I would think that a period of 20 or 25 years might have been enough. … when things have really become a part of history and when all the people involved are gone [from the court], and have really become themselves a part of history.”
The court signed an agreement with Library and Archives Canada last June [A few months after releasing their lying ruling in Ernst vs AER] to transfer files relating to correspondence between judges as they deliberate after hearing a case, but before producing a public, written ruling. The files are not covered by federal access to information law. They are to become publicly accessible in 50 years. In the United States, Britain, Australia and in other Canadian jurisdictions, judges can decide what to do with such documents after retirement. At one time, Canadian Supreme Court judges had similar rights to their own files.
In announcing the agreement, which attracted little attention at the time, the court said it would “ensure that the case files of Canada’s highest court will be preserved and accessible to future generations.”
Chief Justice Richard Wagner has declined to publicly explain the rationale of the new policy and the court’s executive legal officer, Gib van Ert, would only point to the joint news release from the court and the archives issued last June.
However, Frank Iacobucci, a member of the court from 1991 to 2004, explained the judges’ concern: that full, candid exchanges, carried out in an expectation of confidentiality, are an essential part of the court’s work. [Or perhaps to hide judicial corruption and political/corporate/zionist (notably CAPP/Encana/AER/B’nai Brith) interference?]
“Look, it’s a human process,” he said in an interview with The Globe, “and there are very strong opinions on it. [Aren’t judges supposed to uphold the law? What have opinions got to do with it?] If that strength of opinion is taken out of its context it could be made more of than is there. People can be sensitive to having that – you want candour.” [How insulting to intelligent critical thinking citizens! Evidence of judicial failure/corruption would and should rightly infuriate the public!]
Mr. Iacobucci added: “I wouldn’t say there should be censorship but 50 years, or 25 years, or some period of time thereafter, I won’t get into the year-debate … it seems to me it loses its sensitivity.”
A spokesman for Justice Minister Jody Wilson-Raybould said it would be inappropriate for her to comment on the 50-year embargo. “This agreement is between the Supreme Court and the Library and Archives Canada. The Attorney-General respects the independence of the judiciary,” spokesman David Taylor said. [JWR trying to suck and blow at the same time, just like AER tried? Look at what JWR did shortly after this! Look to the shoddy work she did while AG. Does she even know what respecting others is?]
Murray Rankin, justice critic for the New Democratic Party, called the 50-year embargo “shocking.” He said he appreciates that the court is ensuring the transfer of documents and can understand waiting 20 years, but said access should be permitted to historians in a meaningful period.
“Historians are the keepers of our institutional memory of our nation,” he said in an interview.
Mr. Major said he doesn’t understand why the court chose 50 years.
“There’s no sense or reason,” he said by telephone from Calgary, adding, “unless they’re taking themselves too seriously.”
He served on the court from 1992 to 2005. In 2006, then-prime minister Stephen Harper appointed him to lead a federal inquiry into the 1985 bombing of Air India, Canada’s worst terrorism incident.
“I remember that a lot of judges would write to the author of the circulating judgment to say they agreed with this, didn’t agree with that, can you move this, is it better to say that.”
But he said he is hard pressed to remember anything of consequence in those communications.
“I don’t know why this 50-year ban. I can’t describe it. It’s just too long for any useful purpose.”
Jim Phillips, editor-in-chief of the Osgoode Society for Canadian Legal History, which has overseen the publication of several biographies of Supreme Court judges, also said he did not understand why the embargo had to be nearly so long.
“I could see a rule that said ‘nothing that referred to a sitting judge.’ But nothing like 50 years.”
John English, a historian and author of a biography of Pierre Trudeau, said that, decades ago, 50-year embargoes on access to government files gave way to 30 years and then 20.
He said the documents disclosing Supreme Court deliberations is critical to understanding how the country’s most powerful judges dealt with major issues since the 1982 Charter of Rights and Freedoms took effect.
“You understand how institutions function, whether institutions function well, only if you can study them, if you have access to the materials that describe how they function, what their weaknesses are and what their strengths are,” he said in an interview.
Supreme Court of Canada to keep records of deliberations secret for at least 50 years by Sean Fine, May 14, 2018, The Globe and Mail
The judges of the Supreme Court of Canada have ensured that documents disclosing their secret inner workings will not be revealed during their lifetime – and possibly ever.
The court has placed a 50-year embargo on public access to files related to the deliberations of the judges, from the time they rule on a case.
The restriction took effect last June when the court and Library and Archives Canada announced it as part of an agreement to “ensure that the case files of Canada’s highest court will be preserved and accessible to future generations.” (The announcement went largely unnoticed at the time.) [Pfffft! Accessible???? Our high court & library needs a dictionary]
What the court and the archives did not say, but the agreement makes clear, is that the Supreme Court can withdraw the files at any time, and keep the documents secret forever, without providing a justification.
The agreement means that while the Supreme Court enjoys huge influence over Canadian life and politics – through rulings on such cases on gay marriage, assisted dying and even the possible breakup of Canada itself − those seeking to understand how it went about exercising its power will lose the possibility of access to a major source of documentary evidence.
The Globe and Mail obtained the agreement this month after requesting it from the court. It applies to the notes and correspondence between judges as they deliberate on a case, mark up one another’s draft rulings or communicate through their clerks.
These documents were once the property of individual judges who could make them available to researchers on request, when and if they wished, after their retirement. Now, those documents are owned by the court and subject to its 50-year rule.
Federal Access to Information law does not currently apply to the Supreme Court. (A bill is now before the Senate that would make certain Supreme Court records, such as expenses, public.)
The agreement gives the Supreme Court more protection from scrutiny than the federal cabinet, whose records are accessible after 20 years, with some exceptions, such as national security. The terms are also stricter than those in other jurisdictions.
Supreme courts in the United States, Britain and Australia, for example, allow their judges to decide what to do with such information. In lawyer and journalist Jeffrey Toobin’s 2007 work The Nine: Inside the Secret World of the Supreme Court, based in part on the “priceless trove” of retired U.S. justice Harry Blackmun, he shows the court’s internal machinations when abortion rights hung in the balance in a major 1993 case.
Other Canadian courts also let judges choose. And a 2003 biography of former Supreme Court chief justice Brian Dickson contained revelations from his files – such as that the first female justice, Bertha Wilson, considering resigning over perceived sexism within the court. Or that he insisted a judge with mental-health problems, Gerald Le Dain, leave the court permanently.
Reaction from historians, lawyers and political scientists when told by The Globe of the 50-year embargo ranged from shock to bafflement to resigned acceptance.
“Fifty! Five-zero!” said Peter Russell, the dean of Canada’s political scientists and an authority on the Supreme Court. “I don’t know any other constitutional democracy that puts the lid on it for so long.”
Similar documents have been essential reading in the United States, where not only academic books but bestsellers have taken people behind the curtain.
“Without those judicial papers, Americans would be very much in the dark about what makes the Supreme Court tick,” Prof. Russell said.
Eugene Meehan, whose Ottawa law firm Supreme Advocacy publishes a weekly newsletter on the court, said he eagerly awaits the end of the embargo period.
“I will be 115 as I look forward to the release of those papers,” he said, adding: “Having access in 15 or 30 years would be better, but it’s a start.”
Legal historian Philip Girard, who had been told of the embargo weeks before it was announced, said the agreement preserves records that might otherwise be lost, but added that “the length of time does seem on the long side.”
Chief Justice Richard Wagner, who succeeded Beverley McLachlin in December, took up his post by announcing that he intended to make the court more understood and transparent to ordinary Canadians. The court has since begun issuing plain-language summaries of rulings. Chief Justice Wagner declined an interview for this article.
A court spokesman, executive legal officer Gib van Ert, declined to answer questions for the record about the policy, such as why 50 years was deemed an appropriate period.
National archivist Guy Berthiaume also would not be interviewed about the agreement.
The youngest judge on the current court, Justice Russell Brown, heard his first case at 50 and would have to reach 100 to outlive the embargo. The agreement appears to bind future judges of the court. [If there were / are any integral, courageous judges on the court, they’d make their notes public and take the consequences – and make that public too]
It creates no guarantee of access even after 50 years. “The Court … reserves the right, exercisable in its sole discretion, to terminate its deposit of Collegial Documents with LAC [Library and Archives Canada],” the agreement says.
The agreement also distinguishes “Collegial Documents” from “Chambers Documents.” The chambers documents are a judge’s drafts of a decision or notes or communications with law clerks on a case. These remain their personal property. They do not need to donate them to the national archives, or any archives. (If they donate them, they are appraised and the judges receive a charitable tax receipt. The collegial files are treated as court property and therefore not deemed a charitable donation.)
The lockdown of collegial files is so tight that even judges who wish access to them must seek the chief justice’s permission in writing.
The Supreme Court of Canada did, however, leave itself room to move the 50-year embargo period, up or down. The agreement provides for a review every seven years or less, “to determine whether any adjustments need to be made.”
Ryan Reft, a historian who oversees the legal collections in the U.S. Library of Congress manuscript division, told The Globe that U.S. judicial files range from open to restricted. The files of former judges Mr. Blackmun, Thurgood Marshall and William O. Douglas are open. Ruth Bader Ginsburg, on the other hand, stipulated that case files be made accessible only after her death, and the deaths of all her colleagues who sat on the case. Others make the files accessible when all the justices from a case are retired.
The papers of Supreme Court justices “are among our most used collections,” Mr. Reft said.
In a foretaste of what Canadians in 2068 might think of the availability of today’s case files, the court’s news release announcing the agreement pointed to cases now available at the archives, such as Roncarelli v Duplessis, from 1959, and the Margarine Reference from 1949. These cases appear to be of interest only to the most specialized audiences.
Refer also to: