On Nov. 8, 2024, the Office of the Registrar of the Supreme Court of Canada announced that “going forward, only translated judgments will appear online via the court’s website.”
As of that date, the top court removed from its website some 6,000 untranslated judgments that were issued only in one official language (the vast majority in English) between 1877 and 1970 — a period during which when the Supreme Court was not legally required to publish its decisions in both official languages.
However, since the Official Languages Act (OLA) went into effect in 1970, the Supreme Court has rendered all its judgments simultaneously in English and French.
And in a boon for lawyers, researchers and the public, since 2019, the registry has also made available on the court’s website all Supreme Court judgments handed down since the court’s inception in 1875.
That online resource became defunct last week.
“Anyone wishing to access all the court’s decisions, including those rendered before 1970, may search open online databases,” the office of the registrar said in a press release.
The registry added that “also on the occasion of the court’s 150th anniversary in 2025, the office of the registrar will begin translating the court’s most historically or jurisprudentially significant pre-1970 decisions. They will then be available in both French and English on the court’s website. These translations will, however, not be official, given that they cannot be approved by the judges who decided the cases, who are all deceased.”
Droits collectifs Québec, which filed suit against the Supreme Court’s registry on Nov. 1, reacted in a Nov. 11 press release by stating that the court’s choice to remove all the unilingual judgments — rather than proceed to translate them into the other official language in a timely way — is not in line with the spirit of the OLA.
Nor was it in accord with the court’s own prior acknowledgment — when the court defended a complaint by the group to the Commissioner of Official Languages for Canada — that removing the unilingual judgments would undercut the Supreme Court’s own extensive efforts to improve the public’s access to justice and enable Canadians to access all the court’s decisions, the language rights advocacy group said.
Daniel Turp, Université de Montréal
“That’s an issue of access to justice,” remarked the former Bloc Québécois MP and ex-Parti Quebecois MNA, who is president of Droits collectifs Québec, which describes its mission as defending Quebecers’ collective linguistic and constitutional rights.
Turp confirmed the “firm intention” of Droits collectifs Québec to continue its court action in order “to ensure that the fundamental rights of Francophones are fully respected by the highest court of the Canadian state.”
The group’s Federal Court action against the office of the registrar of the Supreme Court of Canada claims $1 million in damages, which the applicants undertake to pay (less costs) to one or more civil society organizations dedicated to the promotion and defence of the French language and French linguistic rights. The plaintiff also seeks a formal apology to citizens and francophone communities for having violated their language rights and access to justice by failing to make all the Supreme Court’s jurisprudence available in French. The apology is to be posted on the court’s website for at least five years.
As well, Droits collectifs Québec seeks a declaration that the court’s registry has failed to comply with its linguistic obligations under the OLA and that, in doing so, the court violated the applicants’ language rights, “as confirmed in the final investigation report of the Commissioner of Official Languages dated Sept. 16, 2024” (ref. no. 2024-0029-EI).
The remedy claimed is an order that the top court start “official” translations within a year of the Federal Court’s judgment — and that the defendant complete such translation of all pre-1970 English-only decisions within three years — with priority to be given to the most often cited or referenced unilingual decisions.
Raymond Théberge, Commissioner of Official Languages for Canada
Théberge remarked that the apex court has been “exemplary” among federal courts in that the court has simultaneously published all its decisions in both official languages since 1970. He also acknowledged “the difficulties experienced by the Supreme Court” in rendering accessible to the public, in both official languages, the court’s historical decisions.
“However, Part IV of the Act does not provide any exception for displaying historical information (translation),” the commissioner wrote. “It simply states that in Canada, members of the public have the right to communicate with federal institutions and receive services in the official language of their choice. This applies to all content produced by federal institutions published on their websites.”
He went on to recommend that in order for the Supreme Court of Canada to become compliant with its OLA obligations, the court should ensure, within 18 months of his report, that all decisions on its website are published in both official languages.
Reacting to the top court’s “new approach on publishing judgments on their website,” Théberge told Law360 Canada by email “I have consistently maintained that the Official Languages Act and its Regulations are clear that communications to the public published by federal institutions on their websites must be available in both official languages. I will continue to monitor developments in this matter closely.”
The court may be in compliance with the OLA now — having removed all the untranslated decisions from its website — “but that doesn’t mean it was in the past,” Turp remarked.
“It doesn’t at all solve the problem and settle the issue — we’re going on [with the lawsuit],” he said. “That’s still something that needs to be argued and needs to be decided by the Federal Court.”
He said the case is about making sure that the two official languages “are put on an equal footing,” noting, for example, that for decades his Francophone law students have had to contend with reading English-only constitutional precedents, such as Roncarelli v. Duplessis, [1959] S.C.R. 121.
Supreme Court of Canada Chief Justice Richard Wagner
“In our view, we were not required to translate the decisions before 1970 because they were not considered communications to the public — they were considered legal decisions,” he explained in French.
He said the court examined, in good faith, what it would take to translate the thousands of unilingual decisions from before 1970. “It would take roughly 100 translators working on this, and it would cost between $10 and $20 million,” he estimated. “That’s not the kind of funding we have (translation).”
He added that although the pre-1970 decisions are part of Canada’s legal heritage, they have limited current precedential value given the vast changes in the legal landscape since the Charter went into effect in 1982.
The Supreme Court’s registrar, Chantal Carbonneau, did not answer Law360 Canada’s questions about the removal of the unilingual judgments from the website and about the ongoing litigation against the registry. But she elaborated on the registry’s statement in its Nov. 8 public communique that future translations of pre-1970 decisions will not be “official” because the judges who made those decisions are dead and can’t approve them — an assertion challenged by the plaintiff.
“The English and French versions of all judgments of the Supreme Court of Canada are reviewed by the judge(s) who wrote them, and approved by them, before being rendered,” Carbonneau said. “Both versions are, therefore, official.”
Turp said that the lawsuit against the Supreme Court’s registry is a first.
Asked if he anticipates a preliminary bid by the defendant to get the case removed on jurisdictional, mootness or other grounds, he answered, “Yes, but we are confident that a judge of the Federal Court will reject such a bid, on any ground, since the decision to withdraw the unilingual English versions of the judgments of the court off the website does not address the multiple claims of our case.”
Asked if the top court or any of its members would be able to rule on the case if the litigation landed on the steps of the Supreme Court of Canada, Turp replied, “Obviously not, since none of the nine judges would have the impartiality required to hear a leave to appeal concerning a case related to their own registry.”
“There is, as obviously, a real or reasonably discernible conflict of interest that would cause judges to recuse themselves from the case,” he remarked.
The Supreme Court of Canada is not the only federal court that says it lacks enough funds to translate judgments into both official languages.
Federal Court Chief Justice Paul Crampton told Law360 Canada last September that a new statutory duty requiring the Federal Court to simultaneously issue its “precedential” rulings in both French and English — without Parliament also providing the many millions of dollars the court needs to carry out its task — will spark judgment delays and exacerbate translation backlogs unless the government steps up with adequate resources.
Photo of Supreme Court of Canada Chief Justice Richard Wagner: SCC Collection
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