This July, the Centre d’accès à l’information juridique (CAIJ), funded the addition of 546 Supreme Court of Canada (SCC) decisions to CanLII’s databases. With this addition every SCC decisions originating from Quebec are now available on CanLII (CAIJ’s press release). This effort constitutes one more step in assembling a collection of SCC decisions freely accessible to the public. These decisions are accessible through CanLII, but also through the Judgments of the Supreme Court of Canada website published by Lexum.
The long story of assembling the public collection of SCC decisions
Even though not yet finished, the project to build a comprehensive public collection of SCC decisions started over 20 years ago. Actually, the publication of SCC decisions on the web was the very first activity launched by the U. of Montreal research team which became Lexum Inc. in 2010. Along the years, many stakeholders contributed to building this public collection. The following table summarizes how the collection was assembled.
|1994-…||Lexum (then at U. of Montreal)||Ongoing, current decisions since 1993|
|Mid 1990s||Lexum||Decisions published, 1984 – 1993|
|2007||Law Foundation of Ontario (through a support grant to CanLII)||All missing decisions appealed from Ontario|
|2008||SCC and Lexum||All missing decisions, 1965-1984|
|2009||Law Foundation of British Columbia (through a support grant to CanLII)||All missing decisions appealed from British Columbia|
|2009||SCC and Lexum (SCC Grant and Lexum contribution)||All missing decisions, 1949-1965|
|2009||Lexum||Missing decisions appealed from PEI, NFLD, and the Territories|
|2010||Alberta Law Foundation (through a support grant to CanLII)||All missing decisions appealed from Alberta|
|2011||SCC and Lexum (SCC Grant and Lexum contribution)||All missing decisions since 1907-1948|
|2014||Centre d’accès à l’information juridique (CAIJ) (support to CanLII)||All missing decisions appealed from Québec|
What remains to be added?
The most obvious remaining gaps are constituted by the sets of decisions appealed from Manitoba, New Brunswick, Nova Scotia, and from the federal jurisdictions published in the Supreme Court of Canada Reports before 1907. The total number of those decisions is estimated to 522.
|Missing sets (decisions reported before 1907)||Number of decisions|
|Appealed from Manitoba||44|
|Appealed from New Brunswick||126|
|Appealed from Nova Scotia||234|
|Appealed from Federal jurisdictions||118|
However, even then, with all the decisions ever reported in the Supreme Court of Canada Reports (SCR) part of the public collection, the historical collection of SCC decisions will not be complete. Indeed, yet another set of decisions from the SCC must be identified and acquired, the ones not selected to be reported in the SCR.
I’m sure that many professional law librarians are aware of the fact, but I still remember my surprise when I discovered a in a paper from Peter McCormick and Tammy Praskach (“Judicial Citation, the Supreme Court of Canada, and the Lower Courts: A Statistical Overview and the Influence of Manitoba”, (1996) 24 Man. L.J. 335-364) that not all SCC decisions have been reported in the SCR. In their presentation of a citation study of the Supreme Court case law, the authors informed their readers of a known limitation of their research: “[…] since 1970, almost all Supreme Court decisions are reported, but before that time the selection process was sometimes criticized as unreliable and erratic, a consideration which slightly qualifies findings for the first half of the period”. They further mentioned that “several hundred” pre-1970 cases omitted from the Supreme Court Reports were reported in the Dominion Law Reports. When questioned, Ms. Rosalie Fox, director of the SCC Library, further disturbed me by confirming the incompleteness of the SCR and adding that unreported cases existed from the Court’s inception, Cassels digested some in the 1880s, other have been reported by Cameron and further indexed in the appendices to volumes 14, 16 and 18 of the SCRs. All in all, Ms. Fox estimated the number of unreported Supreme Court of Canada decisions to some five hundred cases. To have a really comprehensive public collection of the Supreme Court decisions, these ones too will have to be identified, compiled, digitized and published.
To sum up, around a thousand decisions are still to be digitized and published on public and free platforms. While not a trivial project, such an addition is very much within reach. With 9,700 decisions already published, more than half of them in both official languages, it can be estimated that soon the opportunity will be found to add the last one thousand. It appears now certain that in a very near future a complete historical collection of all decisions from the higher court in Canada will have been made public and hopefully will remain so forever.
— Daniel Poulin