This is a complicated only-in-Canada sort of story. (Okay, maybe it could arise in the EU).
prior to 1968, Supreme Court of Canada decisions were mainly written in English. Some parts of decisions were in French, but English was the rule.
in 1968, Pierre Trudeau brought in the Official Languages Act, requiring all federal institutions, including the Federal and Supreme Courts, to provide bilingual versions of their work.
okay, said the SCC, and started issuing all its decisions bilingually
Come the Internet, and the SCC worked hard to put all its decisions up online, dating back to 1875. Gets it all up online by around 2005. Major kudos for being an Internet leader, etc.
20 years later, ie now, a francophone rights group argues that just because a decision was written before 1968 doesn’t take it out of the Official Languages Act. They say that if the Court wants to put them up online now, they have to be bilingual.
Chief Justice of Canada steps in it and says goofy things. Says that nobody cites those old decisions anyway, and besides it would cost too much.
Francophone rights group responds by pointing out that one of the most important constitutional cases, Roncarelli v Duplessis from the 1950s, is mainly in English only and has been frequently cited by the SCC itself. Are lawyers supposed to stop citing it? And the SCC didn’t seem bothered by costs when they told Manitoba to translate a century’s worth of English-only statutes a while ago.
Doesn’t matter, says the Chief.
So the francophone rights group starts an action in Federal Court against the Registrar of the Suprême Court of Canada, asking the Federal Court to order the Registrar to have all the English-only decisions translated.
Hmm, says the Chief.
And he caved.
Solution: Registrar announces that all of the pre-1968 decisions will be taken down immediately.
My opinion: CJC looks kinda goofy in all this. And the public has lost a valuable public resource. No idea how long it will take to translate close to a century worth of decisions.
Let me guess. These are like the same people who sue Air Canada because they cannot order a “Sept-en-haut,” (a Seven-Up) or because AC’s seat belts only say “Lift.”
More seriously, is this only online, through the SCC’s decision website, or will it affect CanLii too? And the physical law libraries. Am I going to be greeted by dozens of feet of empty shelves in the “SCC Decisions” section when I next visit?
Nope, shouldn’t be too bad. Books that have been published in the past and then sold by the Queen’s Printer to eager lawyers a century ago aren’t affected by the Official Languages Act. Law libraries own them.
And the SCC in its announcement said that they had already distributed free electronic versions years ago to the e-publishers, so should still be available on CanLII, Westlaw and Lexis/Nexis.
But the older ones won’t be searchable on the SCC webpage any more, is my understanding. Plus if you’ve linked to the older SCC decisions in your briefs, those will be 404s now.
But, they have a point. If you’re a francophone lawyer and want to cite old SCC decisions, you need to be bilingual to do your research. Even the headnotes (key to most legal research!) are entirely in English, pre-1968. If you’re an anglophone lawyer, no need to be bilingual.
Thanks. There isn’t too much pre-1968 I’ve ever needed, especially with all the decisions made in the wake of the Charter, but there are some that are absolutely necessary, such as Roncarelli. Good to know that they’re still online somewhere, and in physical form at the law library.
Seems to me the answer of course isn’t to keep the entire corpus of pre-1968 decisions offline until every single one is translated.
But rather have a small committee cherry pick the most famous or significant ones (maybe 20) and translate and re-upload those. Not sweating getting this perfect, just taking the very obvious low hanging fruit. Next start work working on the most cited couple hundred ones. Objectively identifying what those are ought to be an easy computer problem for somebody like CanLII to answer. Now translate and upload them working from most recent to most ancient. Or most cited to least.
Finally, just start with the dates immediately preceding the OLA and work back in history: 1968, 1967, 1966 etc. This latter project can be slow-rolled; if it takes 20 years that’s fine as long as publicly observable progress is still being made.
Here’s a question to perhaps bedevil the annoying busybodies?
We all know the e.g 1880 decisions are written in the sorta florid circumlocutions popular in English at the time. It’s hard work to read those closely for content & meaning.
Should they be translated into 1880-flavored Quebecois or 2024-flavored? Seems to me if Anglophone lawyers have to do battle with archaic writing styles, it would be an act of linguistic discrimination to give francophone lawyers the big easy button of modern language.
Thanks a lot, Northern_Piper, for letting me know about this mess. It is not, as you state, an only-in-Canada sort of story: Catalonia and Spain are capable of this level of self defeating blinkeredness concerning liguistics too and the Basques are not far behind!
Concerning the Canadian case I guess it is out of the question to translate the prior to 1968 decisions badly, i.e. with artificial intelligence? Because they would be binding if officially published even if wrong, correct? Which is a pity, as this is the kind of revenge I would be tempted to engage in: you want formal nit-pickery? I’ll give you formal, word-for-word literal translation, whether it makes sense or not. Are you happy now?
I am afraid this attitude shows that I am not suited for public office, but that kind of unconstructive stupidity makes me irrationally angry.
The EU, on the other hand, would have translated everything a long time ago. They are nothing if not formalistic. Every law, regulation, directive, decision, interpretation, comment, footnote, whereas clause, conclusion, treaty, you name it, must be translated into all official languages of the UE. And when a new member adheres, this translations must be done beforehand. And they are. I am a bit surprised Canada has not done so too, including the historical decisions.
This and the rest of your post make perfect sense. Seems to me this wouldn’t be an issue if the SCC had taken that approach, instead of the CJ saying « who reads those old cases anyway? »
In a system based on precedent, that sounds incredibly goofy coming from the highest judge in the country.
There are uniligual francophone judges, lawyers, and law students who need to be able to access Supreme Court judgments. The point of the Official Languages Act is that all Canadians can access federal services in either English or French. Intentionally giving poor translations would go contrary to that basic principle.
And, the Official Languages Act is backed up by constitutional provisions that require equal access in both languages. Intentionally giving bad translations would run contrary to that constitutional provision, I would guess.
Of course you wouldn’t! Having two contradicting versions of the law would kill jurisprudence!
I did not mean to write the translations should be done badly on purpose, but that I would not be surprised if somebody is tempted out of ignorance and lazyness to use artificial intelligence to translate a corpus of law that seems to big to be translated otherwise. And those translations will automatically be wrong, because AI is not up to that task, even though it has improved a lot.
LSLGuy’s suggested approach makes good sense to me.
Or… Francophone litigants could be permitted to cite machine-translated pre-1968 cases, as needed, making clear in their briefs that it was not an official translation of this case or that. Opposing counsel would be free to take issue with that translation. The court could then order an expert translation that either side would be free to object to, but which (after any necessary corrections) the court could then take judicial notice of as an accurate translation.
Droits collectifs Quebec says it will press on with its legal case against the SCC registrar:
The organization had gone to Federal Courtalleging the high court’s registrar — the court’s administrative body — was not respecting the Official Languages Act. It was seeking a public apology, a judgment from the court, official translations of the English-only decisions within three years, and $1 million in exemplary damages to be shared with groups working to preserve the French language.
Also, without actually contradicting the CJ’s goofy statement, the Registrar says that the Court will proceed with some translations:
The registrar said Friday that although the judgments were taken down, it would begin translating the “most historically or jurisprudentially significant” decisions from before 1970.
Huh. I guess the Court is acknowledging that some of those pre-1970 cases actually have continuing impact.
Seems to me the answer is to repeal the Bilingual laws that created this monster. Less than 22% of Canadians speak French. Mind you- I am not saying to stop encouraging people to be bilingual, and etc. but when the francophones get stupid, it is time to explain to them (in both languages) what the meaning of “minority” means.
That would require a constitutional amendment passed by the two Houses of Parliament and all ten provincial assemblies, including Quebec and New Brunswick. Easy-peasy. Good way to break up the country: end linguistic guarantees that have been in existence since before Confederation.
