The Charter of the French Language isn’t the only law that protects the language rights of English and French speakers. The Official Languages Act, adopted in 1969 and modernized in 2023, also plays an important role. This law requires that all Canadian courts translate their decisions into both official languages. The Supreme Court of Canada has complied with this requirement since 1969 but did not translate all of its decisions before the law’s adoption. According to Canada’s Commissioner of Official Languages, failure to provide these decisions in both languages is a violation of the law.
In theory, the Official Languages Act does not apply to decisions made before the law was adopted. However, the Commissioner of Official Languages concluded in a report that the rule was different for decisions available online. The Commissioner argued that, under the law, communications between federal institutions and the public had to be in both official languages and that decisions available online are considered as such type of communication.
Based on this, the group Droits collectifs Québec (DCQ or collective rights Quebec) filed a motion with the Federal Court to force the Supreme Court’s Registrar to translate into French about 6,000 decisions issued before 1969, which were originally only written in English. Before the Official Languages Act was adopted, decisions were only written in the language in which the case was argued.
A lack of resources
Why hasn’t the Supreme Court translated these decisions if it’s violating the law according to the Commissioner? In June 2024, the Chief Justice of the Supreme Court, Richard Wagner, explained during a press conference that costs and resources were lacking.
The Fédération des associations des juristes d’expression française de common law (federation of French-speaking common law jurists’ associations) described the Supreme Court’s position as disappointing. The federation felt that “certain key decisions still used today as case law could be translated,” according to a media report (French only).
Last November, to work around the DCQ’s request, the Supreme Court’s Registrar removed untranslated decisions from its website. However, the Registrar issued a statement saying that the most historically and legally significant decisions will be translated and published on its website in 2025.
According to the statement, “these decisions will not be official, however, since they cannot be approved by the judges who made them, as they are all deceased.”
Useful or not?
According to various media reports, Chief Justice Wagner stated that from a legal standpoint, pre-1969 decisions would be of little to no use before the courts. He cited the rapid evolution of the law as one reason for this – especially the adoption of the Charter of Rights and Freedoms in 1982.
Daniel Turp, DCQ’s president, rejected this argument. When filing the motion with the Federal Court, the jurist and former politician cited the 1959 Roncarelli v Duplessis decision as an example. According to Daniel Turp, cited in a La Presse article dated November 8, 2024 (French only), this decision was a significant legal milestone for freedom of religion. Mr Turp points out that this decision has been cited 1,317 times by the courts, including 30 times in 2014, which shows that it remains historically and legally important.
Chief Justice Wagner’s position on the matter also sparked a reaction from Patrick Taillon, a professor of constitutional and administrative law at Université Laval’s Faculty of Law. In a column for La Presse, he stressed the importance of judicial precedent in a common law system. He also referenced a 1958 Supreme Court decision that required the translation of all laws and regulations adopted in Manitoba between 1890 and 1985. The Supreme Court imposed this translation “without regard to the cost or ‘minimal legal value’ of these older texts,” he wrote with a touch of irony.
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What is common law? Common law is a system of law that applies in all Canadian provinces except Quebec. It originates from decisions of England’s Royal Courts of Justice since the Norman Conquest of 1066. Unlike civil law where sources are legislative, common law is based on court decisions, from which principles and rules of conduct are gradually derived. Today, common law systems encompass both legislation and court decisions. |