Double Aspect

The Supreme Court’s approach to its pre-1970 opinions, which mostly only exist in the language in which they were originally written (so mostly, but not exclusively, English), has been the subject of much controversy of late. The Chief Justice has said that there was no point in translating these decisions, because they were in effect no more than historical curiosities not worth the trouble and expense. This has attracted vigorous criticism, including from co-blogger Mark Mancini and from yours truly.

As reported e.g. by the Canadian Press, the Supreme Court’s position has also attracted a lawsuit by Droits collectifs Québec. The claim is that, while the Court was not obliged to translate its decisions rendered before the Official Languages Act went into effect, its present-day communications ― including the decisions published on its website ― have to be bilingual. The hope was to force the Court’s hand into translating the old decisions.

But there was of course another possible outcome and, as the CP report notes and the Supreme Court’s own press release (which, however, does not mention the Droits collectifs Québec proceedings) explains, that the one the Court has chosen. Pre-1970 decisions have simply been removed from its website. And voilà, the Court is now beyond legal reproach.

Interestingly ― and in an obvious change from to the Chief Justice’s previous position ― the Supreme Court now says that

[T]he Office of the Registrar will begin translating the Court’s most historically or jurisprudentially significant pre-1970 decisions. They will then be available in both French and English on the Court’s website. These translations will however not be official, given that they cannot be approved by the judges who decided the cases, who are all deceased.

There is no word yet on how “the most historically or jurisprudentially significant” decisions are to be chosen. For reasons well explained by Mark, there is a strong argument to be made that this sort of picking and choosing, however understandable from a practical or academic perspective, is not something the Court itself ought to be doing. A commentator can certainly say that some decisions are more important than others (indeed… stay tuned!). But they are all law, except the ones the Court itself has overruled or the ones that have been overturned by the Judicial Committee of the Privy Council, and the Court arguably should not be emphasizing some parts of the law over others. As for the translations not being “official”, I have argued in my earlier post that that’s neither here nor there. The report (which can be official or not) is not the law, but only evidence and explanation of the law.

Be that as it may, the broader point on which this development invites reflection is, surely, whether our approach to official bilingualism makes sense. To my mind, the Supreme Court’s decision is both understandable ― it doesn’t want to find itself on the losing end of judicial decision, which would be rather a bad look ― and an obvious instance of levelling down. Instead of the Court’s website making old decisions available to some people, it will make them available to nobody. Everybody is equal because nobody is getting anything.

Now it’s easy to say that the Supreme Court shouldn’t be levelling down and needs to put in the resources necessary to be a truly bilingual institution. But the Court has no money printer of its own it could just make go brrrrrr. As I argued in my previous post, the trade-offs the Court faces are real, and while it is possible to criticise both some decisions the Court makes and its refusal to acknowledge very similar trade-offs faced by others, that takes nothing away from their reality.

It is more arguable that levelling down is preferable to unequal treatment. There is a trade-off too, after all, between equality and giving people stuff. If public resources are limited so that we can’t give a free pony to everybody, it makes sense to give nobody a pony rather than, say, only people whose name starts with an S or indeed the people chosen by some entirely fair lottery, let alone people belonging to a favoured racial, religious, or linguistic group. If anything, politicians should take this principle more frequently than they do; as it is they are far too tempted to give out free ponies to their friends and constituents.

But I’m inclined to think that the trade-off need not always be made in favour of equality. When the stuff that would be distributed unequally already exists and equality can only be achieved by taking it away from some people without giving it to others, the situation is not comparable with the distribution of ponies that are yet to be procured. It may be that earlier decisions that resulted in the unequal distribution were objectionable. I hope that comparatively few people would disagree that Canadian institutions were nowhere near serious enough bilingualism for the first century of Confederation. But redressing injustice in the past is often much more difficult than avoiding it for the future. And, importantly, I think we shouldn’t confuse the rectification of the past with the improvement of the future. The claim pursued by Droits collectifs Québec is ostensibly aimed at the latter, but in substance it does the former. And for that reason it does not work as intended.

It might not be easy to re-write the Official Languages Act to solve these problems. Even if it were, I assume that doing so would not be high on either the present or the likely next federal government’s agenda. I suppose that’s understandable too. In the meantime, this is yet another way, however insignificant in the grand scheme of things, in which Canadian institutions are not as good as one would like them to be. The consolation, here, is that private initiative is free to do what the government is not. Just get those old decisions from CanLII.