Translation turmoil at the Supreme Court

There has been no shortage of turmoil around translating Supreme Court of Canada decisions that pre-date 1970.

Since 2021, two complaints have been made to the official languages commissioner, who found the Court is in breach of the Official Languages Act by not translating thousands of decisions into French. The Court has argued the legislation doesn't apply retroactively, which led to a lawsuit against the Court registrar's office. In the latest twist, the Court recently decided to start translating certain “significant” pre-1970 decisions and pulled all unilingual decisions from its website, noting they can be found on other public access sites.

Étienne-Alexis Boucher, executive director of Droits Collectives Québec, the civil rights group which brought the legal challenge, says the registrar's decision is not good enough. They intend to proceed with the lawsuit in Federal Court, which seeks an apology, a timeline for the translation, and damages of $1 million, which they intend to give to an organization that promotes the French language in court.

“The commissioner said there was an infraction, but the Supreme Court has put off the judgment in question. We want the Federal Court to take a position on that,” Boucher says, insisting their cause is still pertinent despite the unilateral gesture.

The country's top court has published all of its decisions in both official languages since 1970, shortly after the enactment of Official Languages Act. However, more than 6,000 decisions handed down before 1970 have not been translated. The Court has previously estimated that it would take about a hundred translators 10 years to complete the job, at a cost of between $10 million and $20 million. It noted that those translations would not be considered “official” because the judges who wrote them are no longer alive.

During his annual press conference in June, Chief Justice Richard Wagner dismissed the need to translate the decisions, saying that they were of little utility and would only “please those who are lovers of legal cultural heritage,” which caused an uproar in the legal community.

The decision to sue the office of the registrar is a narrow distinction, given that judges have immunity from civil liability for acts in their capacity as judges and the fact the Court is not a legal entity capable of being sued in a damages action.

“The registrar is listed in the Financial Administration Act, which may be what makes it a proper defendant,” says Eugene Meehan, a partner with Supreme Advocacy in Ottawa.

Earlier this year, the official languages commissioner opened an investigation following a complaint from Droits collectifs Québec, and concluded that all decisions published by the Court on its website must be made available in both official languages since this online offering constitutes a communication to the public by a federal institution. He gave the Court 18 months to remedy the situation.

“I should mention that this is not the first time I have investigated and made recommendations to the Supreme Court of Canada regarding the absence of an official language in decisions published on its website prior to 1970,” Commissioner Raymond Théberge said in a statement on November 18th.

He added that he was aware of the registrar's recent decision and maintains that the Official Languages Act and its regulations clearly state that communications to the public published by federal institutions on their websites must be available in English and French.

“I will continue to monitor developments in this matter closely,” Théberge said.

Meehan notes that the commissioner’s September decision put the Court in a tough spot as it suggested everything should be translated.

“The Supreme Court’s solution is clever,” Meehan says.

“It’s a Band-Aid solution, but a reasonable and proportionate one. The Court has committed to translating significant decisions from pre-1970 and posting those on its website. That seems like a fair compromise between doing nothing and translating over 6,000 decisions.”

However, critics will question just who determines what constitutes a significant decision.

“To speak plainly, in many instances, that tends to be obvious,” Meehan says. 

“Our firm tracks how often past decisions get cited by courts. Does the 1904 decision in Miller v. King, which dismissed a worker’s—then workmen’s—compensation claim and hasn’t been cited in 120 years, need to be translated right away or ever?”

Emmett Macfarlane, a professor at the University of Waterloo who studies the Supreme Court closely, says that its decision to backtrack on its “stubborn” stance is a good one.

“The chief justice's rationale for not translating historic decisions was met by confusion and condemnation from many in the legal community, and rightly so,” he says.

“I'm still unclear on how they will identify the important or relevant decisions, and I think the government should provide enough funding to ensure all written judgments are properly translated.”

As for the decision to take down the unilingual decisions from the website, Macfarlane says that’s unfortunate and unnecessary, as there's a need to balance the linguistic equality demands with the need for transparency, and having those decisions publicly available, even if only in English.

Denis Frawley, a partner with Momentum Law in Toronto and the chair of the Canadian Bar Association’s French Speaking Common Law Members section, says the Court’s “pragmatic” response doesn’t address the issue, as there will continue to be instances where old decisions are cited in current judgments.

“If it’s a decision prior to 1970, what happens with the translation,” Frawley asks.

“The current judgements are translated, so what do they do about the excerpts they cite? If they’re not translating the whole judgment, do they just translate the excerpt because that may not be sufficient to understand the old case?”

Frawley says it’s particularly important for lawyers who have some practice in French outside of Quebec because many of those decisions have precedential value in common law rather than civil law jurisdictions or federal laws that apply in Quebec.

He says this case drives home the importance of being able to bring court actions.

“There was an administrative complaint that was filed with the official languages commissioner, there was an investigation and a report, and the issue has been out there for some time,” Frawley says.

“It’s not for nothing that the case was filed two weeks ago, and a week later, the registrar takes strong action. It reinforces the need for court actions to spur movement from public authorities.”

He points to the Supreme Court’s recent decision in Tayo Tompouba, which affirmed the right to a trial in one’s official language of choice.

“Strangely, you have the Court saying in that decision that these are serious rights and they need to be taken seriously, and you can’t skirt around them,” Frawley says.

“The flip side is that if you take these issues seriously, then why aren’t these decisions translated?”

How they actually get translated is another issue. While many point to AI as a solution, there are legitimate concerns about AI-enabled translation.

Boucher acknowledges that while AI translation can help in the process, an official translator must approve all final versions of the translations.

“For us, it’s non-negotiable—yes to the AI, but not entirely,” he says.“A human must approve the final version in order for them to have the capacity to be official.”

Droits collectives Québec’s President Daniel Turp also rejects the notion that these translations would not be considered official if the judge who wrote them is no longer alive to sign off on them.

“That doesn’t make any sense,” Turp says.

“This is an issue that we want to litigate because the Supreme Court, in our opinion, is wrong when they say that the translations they have to make aren’t official. If they’re not, they’ll be in breach of the Official Languages Act, and there again be a notion that the English language version is pre-eminent. That’s not acceptable when it comes to the equality of both official languages.”

Boucher points to the Court’s own reference decision in Manitoba Language Rights, where the province was required to translate its statutes into both languages, even though Louis Riel could not sign off on translations of early laws.

He also doesn’t buy the excuse that it lacks the resources to do the work.

“How many judgments of the Supreme Court have said that a lack of resources is not an excuse to not respect fundamental rights of Canadians?” Boucher says.

“We say the same thing—that it’s not an excuse. I’m sure the federal government will be open and generous about some demands of the Court to have more money to be able to translate those judgments.”