The Supreme Court of Canada has published all of its decisions in both official languages since 1970, immediately after the Official Languages Act was enacted.
But what about the decisions the highest court handed down prior to 1970? Should these decisions, which were mostly written in English, be translated so that they are available in both official languages?
Until very recently, the OLA was not interpreted as requiring the Supreme Court to translate its old decisions. However, in 2021, in response to a complaint filed by lawyer Marie-Andrée Denis-Boileau, the Commissioner of Official Languages, Raymond Théberge, held that the Court was in breach of the OLA by publishing unilingual decisions on its website, on the grounds that they constitute communications with the public by a federal institution.
The Commissioner recommended that the Court translate its pre-1970 decisions within 18 months. On Sept. 17, he reiterated this recommendation in response to another complaint, filed by Droits collectifs Québec. Regrettably, the Court has not implemented the Commissioner’s repeated recommendations.
The Supreme Court and the Commissioner clearly disagree about the requirements of the OLA. In addition to this interpretative divergence, the Chief Justice of Canada, Richard Wagner, offered three reasons for the Court’s inaction on this matter at his annual press conference on June 3, 2024:
- The old decisions are of purely historical interest.
- Any translations would be unofficial.
- The Court lacks the necessary resources.
As constitutionalists and experts in language rights, we do not find these reasons particularly convincing.
Legal significance of old decisions
The Chief Justice argued that the legal value of old Supreme Court decisions is “minute.” He referred to these decisions as being merely part of our “legal cultural heritage.” Given the rapid evolution of the law, especially since the adoption of the Canadian Charter of Rights and Freedoms, he said that “no one today [would] refer to a precedent from 1892 to support their case.”
These statements are astonishing. In a common law system such as ours, judicial decisions are legally authoritative unless explicitly overturned. In accordance with the rule of precedent (stare decisis), courts must apply the rules of law established in previous decisions when similar situations arise. The rule of precedent lends stability to the law, allowing individuals to plan their activities so that they stay within the applicable rules.
As such, unless they have been explicitly set aside, decisions of the highest court from before 1970 still have precedential value. They are part of Canada’s normative landscape. Lower courts are required to apply the rules of law established by the Supreme Court, including those handed down prior to 1970. Similarly, the Supreme Court must follow its own precedents, unless it determines there is a “compelling reason” to depart from them.
In fact, many Supreme Court decisions of that era are still taught in Canadian law schools. Moreover, lawyers still refer to pre-1970 precedents in their daily practice to support their legal pleadings. The Supreme Court itself regularly cites its old decisions.
One need only think of R. v. Comeau, in which the highest court relied on a decision it had rendered on interprovincial trade in 1921. Another example is St. Lawrence Cement Inc. v. Barrette, in which the Court cited an 1896 decision on neighbourhood disturbances. Other classic decisions, such as Roncarelli v. Duplessis, in which the Court found that the Premier of Québec had abused his power, remain particularly important. These decisions are among the threads that make up the fabric of Canadian law.
Unofficial status of translated decisions
The Chief Justice also pointed out that translations of Supreme Court decisions from before 1970 would not have official status, because the authors of these decisions are deceased and therefore could not verify or approve them.
It is true that the translations could not be approved by the authors of the original decisions. This does not mean, however, that they would be useless. From an access to justice perspective, in an officially bilingual country, citizens, law students, lawyers, and judges should have access to all the decisions of the Supreme Court in both English and French.
It is also important to note that official French versions of several Canadian constitutional documents, including the Constitution Act, 1867, remain unavailable. Yet, recognizing the importance of accessibility, the federal government has provided unofficial French translations of these documents. These translations ensure francophones can read these crucial legal texts while waiting for them to be formally adopted under section 55 of the Constitution Act, 1982, thereby enhancing access to justice.
Lack of resources
Finally, the Chief Justice asserted that translating the Supreme Court’s old decisions would require the services of some 100 translators and cost between $10 million and $20 million. He said the Court does not have those resources or the staff to ensure the quality of the translations produced.
Translating the thousands of unilingual decisions the Supreme Court handed down before 1970 is certainly an ambitious and costly project. It would surely take more than the 18 months recommended by the Commissioner. It is a long-term project that would likely take several years.
However, simply because translating the unilingual decisions may take some time is not a valid reason for refusing to undertake the project. If Manitoba managed to translate and re-enact nearly 100 years of English-only legislation following the Court’s decision in Reference Re Manitoba Language Rights, the Supreme Court should logically be capable of meeting this type of challenge as well.
The Supreme Court should seize the opportunity and recognize that, because of its status and importance, all of its decisions must be available in both official languages. Publishing all the Court’s decisions in both official languages is clearly consistent with the spirit of the OLA, the principle of substantive equality of English and French, and the constitutional provisions that protect the rights of official language minorities.
In carrying out this project, the Supreme Court should give priority to translating the old decisions most regularly cited by Canadian courts (i.e., those that are most relevant). While the translation project could not be accomplished solely using artificial intelligence tools, these tools could be expected to play a growing role in it as time goes on, facilitating the work of the translators involved.
Federal government’s role
As the Supreme Court itself recognized in R. v. Beaulac, “administrative inconvenience” and “financial costs” are not valid reasons for refusing to implement language rights.
Ultimately, it is the federal government’s responsibility to provide the Supreme Court with the financial means to carry out this important project. Under Part VII of the OLA, the federal government is required to take “positive measures” to “support the creation and dissemination of information in French that contributes to the advancement of scientific knowledge in any discipline” and to “support sectors that are essential to enhancing the vitality of English and French linguistic minority communities,” including the “justice” sector.
In many respects, the Supreme Court is exemplary in terms of institutional bilingualism, and in this instance, no one doubts its good faith. But these old, unilingual decisions are a stain on its record that sooner or later it needs to remove.
Les auteurs ne travaillent pas, ne conseillent pas, ne possèdent pas de parts, ne reçoivent pas de fonds d'une organisation qui pourrait tirer profit de cet article, et n'ont déclaré aucune autre affiliation que leur organisme de recherche.
This article was originally published on The Conversation. Read the original article.
