In early October, word got around that the Chief Justice of Canada had made some flaky remarks about older judgments issued by the Supreme Court he leads. That court is stubbornly refusing to translate Supreme Court caselaw from before 1970 into both official languages — something that flies in the face of the Official Languages Act, according to the advice of the Official Languages Commissioner.
At his annual press conference during the summer, Chief Justice Richard Wagner had been asked why the Court had taken such an eccentric position. It’s one, after all, that reeks of illegality, and of course it spares the Court from a part of the eternal burden of bilingualism that our businesses and our public treasuries have little power to elude or diminish.
Wagner complained about the potential expense of making official translations, but went on to add gratuitously that it would be pointless to translate pre-Charter jurisprudence anyway. “No one today,” he claimed, “references a precedent from 1892 to justify their case … A decision that is five years old is often already considered outdated in commercial or civil matters. To make a long story short, I’m simply telling you that the legal interest in these historical decisions is very minimal.”
A lot of law professors and other experts responded to these remarks with amazement and concern. And at least a few must have thought, “The Chief Justice knows that computers exist, right?” The opportunity was seized by University of New Brunswick legal historian Paul Warchuk, who was able to publish an extensive statistical analysis of the Wagner Question — “Do Pre-1970 Precedents Still Matter?” — on Dec. 23.
Warchuk used three big datasets to tackle the question. One simply covers citations of earlier cases in the past 40 years of judgments by the Supreme Court itself. One contains the citations in factums submitted to the Supreme Court from 2009-2024, allowing a look at the point of view of petitioners rather than justices. And the third, containing an awesome 1.4 million data points, contains citations of Supreme Court decisions by lower courts and tribunals from 1876 on.
These three sources all show more or less the same thing: the condemned decisions of the old pre-1970 Supreme Court do make up only a small fraction of all citations, but they remain ubiquitous and relevant. The Supreme Court itself, over the past decade, has cited its pre-1970 work in 31 per cent of its decisions. In the factum data, the old court appears in 23 per cent of filings. Wagnerians might well wonder if this is a matter of a few “greatest hits” like Roncarelli v. Duplessis (1959) being cited over and over again: Warchuk checked and found that, in fact, hundreds of older cases are still “alive” in the law of today (and are sometimes suddenly revived after long periods of dormancy).
Moreover, when we turn to the huge third dataset of lower courts and administrative tribunals, we discover a point that the Chief Justice may not have considered: certain older Supreme Court decisions that may be relatively forgotten in the federal setting are still very much alive in particular provinces, or even before particular tribunals. When there’s a fight over mineral rights, or workers’ compensation, or landlord-tenant rules, the foundational principles are sometimes still to be found in the dusty back pages of the caselaw. Warchuk’s analysis suggests, in particular, that older rulings are relatively more important in commercial and civil matters, and not, as Wagner suggested, less so.
National Post