The Editing of Reasons for Judgment Post-Release
There’s a possibly apocryphal story of Lord Denning MR changing his mind on who won an appeal after the judgment had been released to the WLR so that the WLR version has the plaintiff winning 2-1 while the All ER version had the defendant winning 2-1. [Challenge to those who have free access to Lexis – was there such a case?]
But this week’s Lawyer’s Weekly refers to a case being redacted by the Supreme Court of Canada after it had been released. The deletion was a reference to the Federal Government’s withdrawal from the Charter Challenges programme.
The counsel was my colleague Mark Power who appeared for Marie-Claire Paulin and the New Brunswick Acadian Society, in a case about whether the RCMP, as a federal institution, was responsible for discharging the province’s duty, under s. 20(2) of the Charter, to offer all government services in both official languages.
The original text before redaction was:
“The appellants ask for $135,000 in costs. In light of the abolition of the Court Challenges Program, which would have applied to a case such as this one, and since the respondent [Crown] appears to have acknowledged the importance of the principles in issue in this case, as she has not asked for costs, the appellants are awarded the requested amount.”
It now reads:
“The appellants ask for $135,000 in costs. Since the respondent appears to have acknowledged the importance of the principles in issue in this case, as she has not asked for costs, the appellants are awarded the requested amount.”
I am not aware of any similar redactions by the Supreme Court of Canada.
Simon’s tale of Lord Denning changing his mind on the outcome of an appeal has at least one real life equivalent in Canada. Early in my publishing career, a judgment was selected for publication in the Municipal and Planning Reports. After it appeared in print, I received a call from a judge who wanted us to withdraw it from circulation. The version we had published was written before the judge had dinner with some colleagues. After dinner, he issued a new version of the judgment with a different outcome. Both versions were mailed to legal publishers. We published the version we received first. Fortunately, we were able to “correct” the judgment in the hard bound volume that was published shortly after.