No doubt our audience doesn’t have much inherent interest in Canadian official-language affrays, but anyone interested in the general topic of institutional rot may wish to read an editorial published at The Conversation on Tuesday by three bilingual University of Ottawa law professors. Yan Campagnolo, François Larocque and Lawrence David are concerned about an instance of what looks like flagrant disregard for language rights on the part of our Supreme Court. And that’s not even the whole story.
Our Official Languages Act (OLA) was passed in 1970, and many readers will recall that in 1985 the Supreme Court itself required the province of Manitoba to (very expensively) translate a century of statutes into French to meet the obligations in the OLA. And yet, a bit curiously, the court has never embarked on the project of translating its own pre-1970 decisions, which were delivered mostly in English.
The official view of the court was that these past rulings, many of which remain embedded in the law of the land, don’t qualify as “communications with the public by a federal institution” — even though that’s what they were and are, self-evidently. This position became even less tenable when the good old World Wide Web came along and the Supreme Court itself began to publish its older, exclusively English-language decisions.
A UOttawa graduate student squawked, and in 2021 she got a ruling from the official languages commissioner that the court was in breach of the OLA, with a recommendation that the old legal corpus should be translated within 18 months. The court hasn’t budged. At his annual press conference on June 3, Chief Justice Richard Wagner was asked why and gave his explanation.
Because he did this in French, his words didn’t attract much attention until now. But his first stated reason for the court’s inaction was remarkable. He essentially advanced the view that pre-1970 Supreme Court rulings are a pile of irrelevant folderol not worth the attention of the Official Languages bureaucracy.
These rulings, he said, are “a part of our juridical cultural heritage,” but “no one today is going to refer to a precedent from 1892 to justify their case. The law evolves so rapidly, especially in Canada with the Charter of Rights in 1982. The judicial landscape has changed completely, and a decision five years old is often, in commercial or civil matters, already a very old decision. To make a long story short, I am simply telling you that the legal interest in these historical decisions is very minimal.”
Campagnolo et al. describe these words, coming from a chief justice of Canada, as “astonishing” — not only an apparent denial of the fundamental premise of the common law, but factually questionable on their face. And decisions of the pre-1970 Supreme Court are law unless they have been explicitly reversed. Wagner’s attitude haphazardly places beyond the reach of monoglots many rules by which you and I and our governments are still actively bound. The authors of the Conversation editorial are not legal ultra-conservatives (those people will have stronger words than “astonishing”), but are simply active law professors baffled by the chief justice’s Year Zero stance.
It didn’t get much better from there, if you are concerned with the object-level official-languages question. Wagner basically complained of the expense of having translations made, and insisted that those translations wouldn’t even have fully official standing because there is no opportunity to have them checked by their long-dead author-justices. (We don’t suppose the ghost of Louis Riel was consulted too often when Manitoba was required to translate its statutes.)
You and I are probably content with the Supreme Court’s inaction on the expensive translation project that the official language commissioner proposed at our expense. And maybe Google Translate makes it all moot. But the chief justice’s frank dismissal of the value of the corpus of appellate law will create its own controversy, and it obviously throws light on the ahistorical philosophy of our ruling elite. Remember, Chief Justice Wagner was initially added to the Supreme Court as a puisne justice by a Conservative government. Was there even a Canada, one wonders, before Trudeau I?
National Post