Kerry Harnish says SCC removing pre-1970 online decisions left him scrambling for an alternative
Following the Supreme Court of Canada’s announcement last week that its website will no longer provide access to decisions published before 1970 unless both French and English versions are available, some people who have long relied on the court for access to historic judgments are left wondering where they can look instead.
Among them is Kerry Harnish, a former senior official with the Department of Finance Canada whose new book is slated for publication in January.
Bench Strength: Judging a Century of Tax Avoidance in Canada examines how the SCC’s approach to tax avoidance disputes shifted following the Canadian Charter of Rights and Freedoms’ enactment in 1982. In the eBook version of Bench Strength, Harnish links to a selection of tax decisions that the SCC published between 1920 and 2019, each of which he analyzes.
Harnish included the links – which led directly to the SCC’s website – to provide easy access to original sources for readers, whom he expects to include students and lawyers. He says he was stunned by the SCC’s sudden removal of the decisions from its website, which left him scrambling to find an alternative resource for his eBook.
While Harnish was able to find copies of all the tax decisions on the nonprofit legal database CanLII, others may not be so lucky. Since 2012, CanLII has provided free access to every SCC decision dating back to 1907 through a joint initiative with the SCC and Lexum Inc., according to the database’s website. Though the database also includes many high court decisions that predate 1907, the SCC’s website had previously published every decision in the court’s history – which dates back to 1877.
To fill in any gaps, individuals looking for historic decisions may be able to find them through private databases that command a high fee or physical copies of judgments in law libraries – options that aren’t necessarily accessible to everyone, Harnish says.
“Kudos needs to go out to [CanLII], and the funding that's been going on to that institute to ensure that these decisions are available to Canadians if they cannot be available to the public through the Supreme Court website,” he says.
The SCC announced that it would pull a large swath of its historic decisions from its website a week after Droits collectifs Québec, a civil rights group, took legal action against the court’s registrar. The group alleged that by failing to translate all its pre-1970 decisions into French and English, the registrar refused to comply with the Official Languages Act.
In June, Supreme Court Chief Justice Richard Wagner estimated that translating every historic decision could cost up to $20 million.
Droits collectifs Québec said Tuesday that the court's decision to remove the judgments from its website does not resolve the issues it raised. The group added that it intends to continue pursuing its lawsuit against the SCC’s registrar.
The SCC said individuals looking to access all the court’s decisions can search open online databases moving forward. The SCC added that starting on its 150th anniversary next year, the court would translate historically and jurisprudentially significant decisions published before 1970 and offer both English and French versions on its website.
While Harnish said he understood both sides of the dispute, “there are fiscal realities that come into play in these situations.
“What we achieve as a society has to recognize that there are limits to what we're capable of spending as a nation, and at the same time, we have to make decisions as to how those limited fiscal resources are allocated.”
He added of the dispute, “I just find, as a Canadian, it's all unfortunate.”