The Supreme Court of Canada quietly took control of the case notes that pass between judges, ensuring the court’s secret inner workings could not be revealed, more than a decade before it announced a 50-year embargo on public access to those notes.
The embargo was not announced until last June, but since 2005, the court has been claiming ownership of the written communications between judges and removing those communications from case files, thus guaranteeing that its members could no longer open their deliberative materials to researchers and other members of the public.
The practice began two years after the publication of a biography of the late chief justice Brian Dickson. Drawn partly from 200 boxes of his papers, which the authors described as a “rich and unusual resource,” it produced revelations of a fatigued court, with one judge threatening to quit over perceived sexism, one leaving because of mental-health problems (Chief Justice Dickson would not let him return) and two judges accused of not pulling their weight.
The court did not reveal the practice until now – confirming it, and the date it began, for The Globe and Mail after retired justice Louis LeBel, who left the court 3 1/2 years ago, said in an interview that it had removed his communications with his colleagues from his files before he donated his papers to the archives.
Between 2005 and 2017, nine judges retired: John Major, Michel Bastarache, Louise Charron, Ian Binnie, Marie Deschamps, Morris Fish, Mr. LeBel, Marshall Rothstein and Thomas Cromwell. Their communications with their fellow judges will be transferred to the archives and subject to the embargo.
Last June, the 2005 practice became formalized in an agreement with Library and Archives Canada. It was announced in a joint news release but attracted little notice at the time.
The Dickson biography, while respectful and scholarly, showed a court “desperately worried about its eroding credibility,” according to a review in The Globe at the time.
The book caused consternation at the court.
“There was a discussion. Because I think that was probably part of the reason [for discussing] should we have a policy on this,” retired judge Frank Iacobucci said in an interview.
The biography displeased the chief justice of the time, Beverley McLachlin, according to legal historian DeLloyd Guth of the University of Manitoba. Prof. Guth was closely involved with the Dickson papers. He spent the summers of 1991 and 1992 helping Mr. Dickson organize the files from his career. In 1987-88, at Chief Justice Dickson’s request, he worked for the court for a year organizing what he called its “piles of files.”
“She was not happy on this particular point,” Prof. Guth said in an interview, referring to the use of internal communications. “She let Bob Sharpe know.”
Robert Sharpe was a co-author of the book. He had been Chief Justice Dickson’s executive legal officer at the court from 1988-90, before becoming the dean of law at the University of Toronto. Today he is a judge on Ontario’s highest court, the Court of Appeal. His co-author was Kent Roach, a law professor at the University of Toronto.
Ms. McLachlin, now retired, declined to comment.
Both Justice Sharpe and Prof. Roach declined to comment when asked about the court’s 50-year embargo, although Justice Sharpe did say in an e-mail that he was unaware of it. They did not reply to a subsequent request for comment on how the court reacted to their book.
In the preface to their book, the two discussed at length how they used the judicial notes and why they decided to disclose them. Mr. Dickson’s case files, they said, were the “principal source” for the book. He had set a 25-year embargo on his files when he retired in 1990, but soon after granted Mr. Sharpe and whomever might work with him access to his papers. He died in 1998, leaving them to decide whether they should go public with the internal communications.
In his era, judges spoke in conference (the meeting shortly after an appeal hearing) from the most junior to senior, and Chief Justice Dickson made notes as they spoke. At the end of the day, he would have the notes typed up. His files also included memos between judges commenting on draft judgments, as well as draft judgments that he completely rewrote in response to suggestions.
The two authors acknowledged in their preface that confidentiality “provides judges with a zone of privacy within which they can engage in free and open discussion. If every comment or tentative thought were exposed to public view and scrutiny, discussions among judges could be inhibited and judicial decision-making might be adversely affected.”
As Mr. Dickson had personally gone through every case file and removed material he did not want to be made public, the authors chose to reveal the contents he had left behind. But they said they did not quote from any document involving a judge who was still sitting when they wrote the book. (Justice McLachlin was the only one.)
“As time passes, matters that required the protection of confidentiality have passed into history,” they wrote.