Supreme Court of Canada to keep records of deliberations secret for at least 50 years

May 14, 2018
Article Source
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.)

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.

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