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.
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.
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.
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.
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.