Wednesday, May 23, 2018

Legal history: SCC embargoes the documents

Thinking about writing a history of the Supreme Court of Canada? Or any of its judges?  Particularly about the recent decades when it became truly "supreme," began to control the docket of cases that came to it, and was empowered by the 1982 constitutional amendments to wield power as never before?

You might have to wait. The Supreme Court recently put a fifty year embargo on the internal court documents and judges' communications that provide the kind of sources judicial historians require. Biographers and legal historians are pushing back, with the support of many retired judges:
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.
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