Double Aspect

Chief Justice Wagner’s explanations for refusing to have the Supreme Court’s decisions that pre-date the Official Languages Act translated into French, as the Official Languages Commissioner has recommended, have attracted a great deal of scorn. Most have seized upon his claim that decisions issued before 1970 are only of historical interest and hence not worth bothering with. Yet as co-blogger Mark Mancini puts it in an excellent piece, “[p]ast cases generally do not have an expiration date” and the Chief Justice of Canada, of all people, should know this.

There is no need for me to revisit these arguments. But there is more to say about the Chief Justice’s comments, made at his misbegotten annual press conference. As Yan Campagnolo, François Larocque, and Lawrence David note in a piece the Conversation that brought them to light, he gave two other reasons to justify his position. First, any translation produced by the court decades after a case is decided would be unofficial. Second, translation would be costly. Unlike the claim about the supposed irrelevance of old decisions, both are true―so far as they go. But both point to complicated issues worth addressing in some detail.

Professors Campagnolo, Larocque, and David point out that even unofficial translations would help access to justice, and thus would have some value even if they are not an equal substitute to the original. That’s fair enough. But the deeper point is a different one.

Legislation enacts into law specific words, ideally ones carefully chosen by elected officials, though as my last post shows, actual legislation commonly falls short of the standard of care people would like to see demonstrated. Those words (whether in one language or in several) that have gone through the constitutionally required process of choice are official and binding. Any other version, not having gone through the constitutionally required process, can be helpful, but is not binding.

But judicial decisions are not legislation. They do not enact law: they declare it. Indeed, in the words of perhaps the greatest common law judge, Lord Mansfield, in R v Bembridge, (1783) 3 Doug 327 at 332,  99 ER 679 (KB), “[t]he law does not consist of particular cases, but of general principles, which are illustrated and explained by those cases”. Hence the longstanding view that the common law “has no form of words”. It does not have an official text and an unofficial one.

The very existence of official reports of judicial decisions is a relatively recent phenomenon. Foundational English cases, such as the Five Knights’ Case to which Professor Mancini refers, were reported by judges or lawyers acting in a private capacity. Provided the translation of a report is faithful and accurate, its ostensibly unofficial character is no obstacle to its serving as an explanation and illustration of the law.

In the Chief Justice’s defence, he is not the only one to hold the view, popularized by Jeremy Bentham, that judges are engaged in making, indeed (as Bentham put it) in manufacturing law. And while Bentham thought that this was a thoroughly disreputable thing, modern judges sometimes embrace this interpretation of their role. But it is unjustifiable, for reasons to which Professor Mancini alludes, and this episode is only the latest illustration of its inconsistency with the way the law has long understood itself.

As for the Chief Justice’s observations about the cost of translations, while no doubt true, they point to some trade-offs that his court, and for that matter others, often fail to consider. Perhaps most obviously, there is a trade-off that the Supreme Court, under Chief Justice Wagner’s leadership, makes in managing its own resources.

The court has, for instance, taken to the road on several occasions, holding hearings in Winnipeg and Quebec City, in the name of transparency and accessibility. These are fine values, obviously, but transporting, lodging, and feeding the judges and other personnel, who presumably do not sleep on the floor of a school gym and eat at McDonald’s, costs money. Money that could, alternatively, have paid for some of those translations.

Also, just recently, the court proudly unveiled a special logo, complete with a self-awarded laurel wreath, to celebrate its sesquicentennial. That too, presumably, wasn’t a just a law clerk’s extra-curricular assignment; the court drew on its budget for this celebration, choosing to pay a graphic designer for something that, apparently, symbolizes bilingualism ― rather than a legal translator who could have made that commitment a bit more concrete.

The Supreme Court’s choices, like everyone else’s, reveal where its preferences lie. Under Chief Justice Wagner, flummery is in, while the unglamorous but useful if not essential hard work is out.

The Court’s refusal to put its money where its mouth is is the more remarkable because it is not so shy about making others spend in the name of the cause of bilingualism. Consider last year’s decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31. This was a case brought by people who, by their own admission, had no constitutional right to send their children to French school, but asked the Northwest Territories’ government to let them do it anyway. The Supreme Court unanimously held that the pro-bilingualism vibes allegedly emitted by the Canadian Charter of Rights and Freedoms and detectable by the finely sensitive antennae of its judges require the government to balance these vibes with its (financial) concerns. Trade-offs? What trade-offs? Bilingualism is all-important, so long as it comes out of someone else’s budget!

Yet perhaps the biggest trade-off concerning the Supreme Court and bilingualism is not of its making or one about which it can do much. It concerns the appointment of the Court’s judges. By insisting on only appointing functionally bilingual individuals, the present Prime Minister has severely restricted the pool of eligible candidates, which has been at least a factor in his subsequent appointment of a thoroughly unqualified ― but bilingual ― candidate, and perhaps of other less-than-stellar ones.

While I have long opposed making bilingualism a requirement for appointment to the Supreme Court, as opposed to a highly desirable qualification which it certainly should be, I can see the case for the other point of view. What I want to insist on here is the inevitability of trade-offs. There ain’t no such thing as a free lunch, even if, indeed especially if, the lunch in question is especially healthy.

In short, even when he wasn’t talking outright nonsense in his defence of not translating pre-1970s decisions, Chief Justice Wagner said things that didn’t tell the whole story. He made unconvincing excuses for a policy that would be regrettable if it were truly forced upon him by a lack of resources and is positively reprehensible to the extent that it results from choices that favour appearance over substance. But he also revealed his misunderstanding of the business he is engaged in and reminded us of his lack of aptitude for true leadership, which requires being conscious of the stakes of one’s decisions. For a man so preoccupied with his image, it was not a good look.