Supreme Court removes all unilingual decisions from its website

Representatives of Droits collectifs Québec, Alyson Mercure, attorney François Côté, Daniel Turp, President, and Étienne-Alexis Boucher, Executive Director, stand in front of the Federal Court in Montreal following the filing of legal proceedings to force the Office of the Registrar of the Supreme Court to translate all unilingual English decisions of the highest court dating back to the adoption of the Official Languages Act in 1969. Friday, Nov. 1, 2024. (The Canadian Press)/Pierre Saint-Arnaud

The Supreme Court may have succeeded in sidestepping the request from Droits collectifs Québec (DCQ), which had dragged its registrar before the Federal Court to compel the translation into French of some 6,000 decisions made before 1969 that were only available in English.

On Friday, the Registrar’s Office of the Supreme Court announced that it would remove all the court's decisions that are not in both official languages from the court's website, and that translation of some of these decisions will begin in 2025.

“From now on, only translated judgments will be available online through the court's website. Those wishing to access the full set of court decisions, including those rendered before 1970, can consult online databases available to all,” the Registrar's Office said in a press release.

Before the Federal Court

Droits collectifs Québec, a civil rights group, had filed a request in Federal Court last week, seeking to compel the Registrar's Office (the administrative arm of the Supreme Court) to translate the older decisions.

The organization targeted the Registrar’s Office because the Court itself is immune from legal proceedings under the principle of judicial independence.

The dispute centers around the fact that before the adoption of the Official Languages Act in 1969, the Supreme Court rendered its decisions solely in the language in which the case had been argued.

Simply removing the unilingual decisions from the website could thwart the legal proceedings initiated by Droits collectifs Québec, despite two opinions from the Commissioner of Official Languages, Raymond Théberge, who had determined—first in a preliminary investigation report in June and then in a final report in September—that the failure to make decisions prior to 1969 available in both languages violated the Official Languages Act.

A way out

However, and this is where the Registrar's Office's decision comes into play, the Commissioner had agreed with the Supreme Court, recognizing that the Official Languages Act did not apply to decisions made before its adoption.

He did, however, conclude that the situation is different when it comes to posting these decisions online.

The Act, he argued, mandates the use of both languages in federal institutions' communications with the public. In other words, although the court was not required to issue its decisions in both languages before 1969, “the subsequent administrative action of the Supreme Court in publishing these same decisions, in this case on its website, triggers the application of the Act.”

The Commissioner's opinion, which forms the basis of Droits collectifs Québec's argument before the Federal Court, no longer holds if the unilingual decisions are no longer available on the Supreme Court's website.

However, as the Registrar’s Office points out, these decisions remain accessible on public websites that fall outside its jurisdiction.

Partial translations

The Registrar's Office does concede, albeit indirectly, that Droits collectifs Québec’s argument is partially justified. It announces that starting next year, as the Supreme Court celebrates its 150th anniversary, it will begin translating historically or jurisprudentially significant decisions rendered before 1970. These will then be available in both French and English on the Court's website.

When asked by The Canadian Press about the criteria that would determine the historical or jurisprudential significance of the selected decisions, the Registrar's Office responded briefly in an email, saying, “We will not provide further comments beyond the information contained in the press release you received this afternoon.”

The release also stated that the translations posted online “will not have official status, as they cannot be approved by the judges who issued them, all of whom are deceased.”

An ‘exemplary’ practice

It further reminds that, “when the Official Languages Act came into effect in 1970, the Registrar’s Office ensured that all new judgments would be issued in both French and English” and adds that “the Commissioner of Official Languages of Canada recognized that this practice was ‘exemplary.’”

Chief Justice Richard Wagner of the Supreme Court had previously expressed his opposition to the request for translating all of the Court's decisions, citing unreasonable costs and the perceived uselessness of translating decisions made before 1970, given their outdated nature.

When Droits collectifs Québec filed its request in Federal Court on Nov. 1, Daniel Turp, president of the organization, dismissed this argument, citing the 1959 Roncarelli v. (Maurice) Duplessis decision—an important milestone in the affirmation of religious freedom.

"This decision has been cited 1,317 times by the courts. Just in 2024, it has been cited 30 times,” he argued.

The Federal Court application sought four outcomes: a ruling that the lack of a French version of the decisions constitutes a violation, an order for the Registrar's Office to translate them within three years, a formal letter of apology to French-speaking Canadians, and a $1 million damages award to be paid to organizations dedicated to promoting and defending the French language.

In addition to the Commissioner's opinion, Droits collectifs Québec also cited a 1985 decision by the Supreme Court itself, which had forced the government of Manitoba to translate all of its laws since 1867 into French. As of the time of writing, the organization had not yet responded.

This report by The Canadian Press was first published in French on Nov. 8, 2024.