The highest court in the country says it does not have the resources to translate all of the decisions rendered in only one of the two official languages before 1970.
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More than 18 months after receiving a recommendation from the Commissioner of Official Languages to translate all of his decisions, the Supreme Court of Canada has taken no action to implement it.
The commissioner, Raymond Théberge, made this recommendation in October 2021, after investigating a complaint made by a Montreal lawyer. The latter denounced the fact that many judgments rendered before the entry into force of the Official Languages Act in 1970 are only available in one language on the Court's website.
In his final investigation report, the commissioner concluded that the absence of decisions in both official languages online contravened the law.
However, in his follow-up report published last October, the commissioner points out that the Supreme Court of Canada (SCC) not only refused to implement the recommendation, but also raised the same objections that it had formulated in the investigation.
[T]he Supreme Court of Canada took no tangible measure to make its decisions prior to 1970 available in both languages.
A quote from Excerpt from the Preliminary Follow-up Report on the Recommendations of the Commissioner of Official Languages
He adds that the CSC considered four solutions: having humans translate all decisions, doing this work with translation tools, translating only certain decisions, or removing all decisions prior to 1970 from its website.
The Court, however, raised objections to all these proposals, citing the cost that this would represent, the technical limits of automatic translation and the disappearance of the authors of these decisions. As for the last proposition, the Court concludes that removing the decisions from its website would be contrary to its efforts to improve access to justice.
When contacted by Radio-Canada, the Commissioner of Official Languages declined our interview request, specifying that the follow-up of the complaint was still at the preliminary stage and that new information could be provided by the Supreme Court between now and the sending of the final follow-up report.
Radio-Canada attempted several times to contact the Supreme Court of Canada, without success.
The inaction of the Supreme Court greatly disappoints the plaintiff at the origin of this case, Me Marie-Andrée Denis-Boileau. It recognizes the scale of the work necessary to translate all of the decisions rendered in a single language by the Court throughout its history. The lawyer notes, however, that it is she who must do this work when she consults an archaic decision in her second language.
Sometimes, my client is the government of Quebec […]. Sometimes, my client is an individual. Sometimes, they are universities. Someone is paying for this translation somewhere because it is not true that all French speakers understand English very well. So, we have to translate it for our clients, we have no choice.
A quote from Me Marie-Andrée Denis-Boileau, complainant
According to her, it is necessary to do this work so that access to justice is equivalent between French speakers and English speakers in a country that prides itself on being bilingual. Me Denis-Boileau believes that it would be possible for the Supreme Court to find solutions to respond to the recommendation, for example, to translate these decisions into stages.
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Lawyer Marie-Andrée Denis-Boileau filed a complaint against the Supreme Court of Canada with the Commissioner of Official Languages to denounce the absence of decisions translated on the court's website.
She is not the only one to be disappointed with the conduct of the Supreme Court in this matter. The Federation of Associations of French-speaking Common Law Jurists (FAJEF) believes that the inaction of the highest court is unacceptable.
Its president, Me Justin Kingston, believes that this situation creates a risk that jurists will not properly understand a rule of law set out in a decision rendered in only one language that they do not master.
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Me Justin Kingston believes that the Supreme Court of Canada should translate its past decisions to provide fair access to justice.
He gives as an example the Roncarelli v. Duplessis, delivered in 1959, pitting Quebec Prime Minister Maurice Duplessis against a restaurateur who was a member of Jehovah's Witnesses. Justin Kingston emphasizes that this fundamental ruling in Canadian constitutional law is only available in English despite its importance and the fact that the facts took place in Quebec.
He adds that it is generally French-speaking jurists who are at a disadvantage since the vast majority of decisions prior to the Official Languages Act are written only in English.
If it were my choice, I would ask that all pre-1970 decisions be translated purely and simply.
A quote from Me Justin Kingston, president of the Fédération des associations de juristes d'expression française de common law
Interviewed by Radio-Canada, the office of Minister of Justice, Arif Virani, initially refused to answer our questions for reasons of judicial independence. We were also directed to the office of the Minister of Official Languages, Randy Boissonnault. He was not available to answer our questions and indicated that he was letting the commissioner, who is an independent agent, do his job.
Teilor Stone has been a reporter on the news desk since 2013. Before that she wrote about young adolescence and family dynamics for Styles and was the legal affairs correspondent for the Metro desk. Before joining Thesaxon , Teilor Stone worked as a staff writer at the Village Voice and a freelancer for Newsday, The Wall Street Journal, GQ and Mirabella. To get in touch, contact me through my firstname.lastname@example.org 1-800-268-7116