The goal of this collection is to create a universally-accessible, searchable archive all public documents relating to the debates which occurred surrounding the Constitution Act, 1867, the Constitution Act, 1982, and each one of the other statutes which together constitute the organic and constitutional law of Canada.
This archive is intended to be:
- Available everywhere;
- Searchable or divisible by topic, or by section of the Constitution;
- Searchable by keyword, date, and by the individual and corporate authorship of each document;
- Connected, via hotlinks, to external sources of information that can provide additional context and supplementary information.
Users of this collection can keep track of how we are doing vis-à-vis each of these goals, by clicking on the relevant goal, and reading the linked self-analysis.
Why compile such an archive? The reason is this: Unless present-day Canadian lawyers, jurists and historians can determine with reasonable certainty what each of the provisions of the Constitution meant to those who were present at the time of enactment, they cannot be certain what these laws mean today. This in turn means that these present-day actors need access to the complete record left behind by the people who wrote, debated, revised, and enacted these laws.
In the absence of such a comprehensive collection, courts will continue to face the problem that Justice Ian Binnie outlined in a 2004 essay, while he was still serving on the Supreme Court of Canada:
In Canada we speak vaguely of what the framers of the constitution ‘surely’ meant or just as ‘surely’ could not have meant. These assertions are rarely buttressed with detailed historical research….
There seems to be little scholarly work detailing and assessing the drafting of the BNA Act. Conferences were held in Quebec and London prior to the enactment of the BNA Act in 1867, just as there were public hearings and first ministers’ meetings prior to the enactment of the Charter, and resolutions were laid before the provincial legislatures. But Canadian historians have tended not to occupy themselves with the minutiae of constitutional drafting. Asking judges to take judicial notice of primary historical materials, without some filtering and explanations by professional historians, is a recipe for ‘judge-made history’….
[D]etailed historical works directed to the original intent of the various constitutional provisions oriented to the needs of a court are, I believe, conspicuous by their absence.
PrimaryDocuments.ca is an attempt to answer the need that Justice Binnie has identified. We concur with Binnie’s desire to avoid what he calls “judge-made history.” But it is our view that the best tool for judges who hope to avoid this trap, is not “detailed historical works” in which historians attempt to summarize the publicly-expressed intentions of the authors of Canada’s constitutional law. Instead, we seek to place at judges’ fingertips the actual documents—all the primary documents—that constitute the public record as to what these intentions were, and how they were understood at the time.
The historian’s traditional challenge, when attempting to provide an exhaustive record of some part of the past, is that the sheer volume of material quickly renders the whole too cumbersome to be of much use. The user of an exhaustive collection of primary documents would find himself or herself so overwhelmed by the mountains of materials that he or she would be unable to determine which ones were most relevant, which ones were most representative, and he or she might simply run out of time without having done a proper (let alone an exhaustive) survey.
Justice Binnie believed, in 2004, that he and his fellow judges faced an insoluble problem; the documents of 1867 would forever remain too few and too vague, and those of 1982 would always be too many and too disorganized to be consulted. So judges would, now and forever, be left with the task of inventing meanings for the words in the Constitution, whose true meaning is essentially unknowable.
But Binnie stood at the tail-end of an era in which archived information was difficult to collate and to understand. To us, looking at the problem a decade after it was expressed, Binnie’s conundrum seems less like an insoluble tragedy and more like a practical problem, capable of a practical solution. What Canadian judges need is easy access to the relevant documents, in a sortable, word-searchable format. If someone were sufficiently patient, diligent, and organized, he or she could gradually compile all the scattered documents, currently scattered in a thousand archivist’s boxes in darkened rooms across the nation, and compile them in a single place. Once online, these documents could then be searched to determine what the framers of each component of today’s constitution had been discussing.
To rephrase this in Binnie’s own words, the purpose of PrimaryDocuments.ca is to create a “detailed historical work directed to the original intent of the various constitutional provisions [and] oriented to the needs of [the Supreme] court”—and, of course, to all our other courts as well.