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The Implications of Legal Bilingualism on the Teaching and Practice of Law in Canada
Karine McLaren
(LL.B., LL.M., Lawyer, C.Tran., Director of the Centre de traduction et de terminologie juridiques (CTTJ), Faculty of Law, Université de Moncton)
January 18th, 2007
This text, presented at the conference on“Multilingualism and Law” held at Sapientia Hungarian University of Transylvania, aims to outline, for the benefit of an international audience, the significance of Canadian legal bilingualism and its implications on the teaching and practice of law in Canada.Though Canada is often thought of as a bilingual nation, bilingualism in the general sense doesn’t extend to each of the jurisdictions that make up the Canadian Federation. In the field of law and access to justice, the situation is in fact particular and quite complex.
Diversity and the distribution of legislative power
The Canadian Confederation is made up of ten provinces and three territories, each of which have their own government. At the apex of these thirteen governments is the federal government, which is, to use an analogy, «the ring that binds them all». Each of these fourteen governmentshave their very own legislative body, each intent on preserving its prerogatives and jurisdiction. This federal political structure was the «legal response» to the political and cultural plurality that existed at Confederation and which allowed the country to «reconcile diversity with unity»[1]. The existence, in Quebec and elsewhere, of a French-speaking population, shaped by its own culture, was one of the main reasons behind this federative solution, which allowed French-speaking Canadians to exercise their powers in such a way as to «promote their language and culture»[2].
The distribution of legislative power is dealt with in sections91to 95of the Constitution Act, 1867[3], the Act that created the federal Dominion and is central to Canada’s constitution. It is that Act that determines whichlevel of government (federal or provincial) is competent to legislate in a particular field. The federal government has jurisdiction over matters such as trade and commerce, defence, fisheries, banking, bankruptcy and insolvency, marriage and divorce and criminal law. The provinces have jurisdiction over matters such as education, prisons, hospitals, alcohol, property and civil rights, and generally all matters of a merely local or private nature.
Language as a matter of legislative coincidence
Except for the one disposition which deals with the language of statutes[4], the Constitution Actis silent in relation to the power to legislate in matters of language. Language is therefore a matter of legislative coincidence, meaning that if a province has jurisdiction over a certain matter, it also has jurisdiction to regulate language in that matter[5].
This explains why the language framework is so varied from one end of the country to the other and why the Canadian Federation is not, in fact, universally bilingual.Because bilingualism is perceived as costly, the provinces will generally only adopt legislation that favours language rights if the official language minority has sufficient political power to warrant it. Furthermore, each of theCanadian provinces and territories that make up the Federation has a vastly different linguistic history and make-up. Consequently, notwithstanding the fact that a province might actually be bound by a constitutional obligation to adopt its laws in both languages, it might not in practice adhere to the value conveyed by the principle of language equality. It might therefore attempt to undermine it by not implementing that obligation adequately, for example, by providing poor quality translations of a statute in the minority language[6].
Legal bilingualism: statutes, court decisions and tribunals
Legal bilingualism in Canada bears consequence on the languages in which statutes must be adopted, on the languages in which court decisions must be issued, and on the languages which may be used before tribunals.
- The language of statutes
In relation to the language of statutes, only four of the fourteen jurisdictions are bound by the Constitution to print and publish their laws in French and in English: the federal government, and the provinces of Quebec, Manitoba and New Brunswick[7].
Case law has determined that the obligation to printand publishstatutes in both French and English, referred to in the various constitutional texts, also signifies that statutes must in fact be adoptedin those languages[8], and that both languages must be used throughout the entire adoption process[9]. Where these constitutional obligations apply, statutes cannot therefore be adopted in one language and translated later, as the simultaneous use of both English and French is required throughout the process of enacting bills into law[10]. Case law has also determined that these constitutional obligations do not only apply to statutes, but also to delegated legislation, including regulations and a whole range of other texts which satisfy the criteria of being of a «legal nature»[11].
Of the remaining ten Canadian jurisdictions, four others ˗ namely the three territories (Yukon, the Northwest Territories and Nunavut) and the province of Ontario ˗ have legal obligations in this field, but these are imposed by statute rather than by the Constitution. The three Canadian territories have statutory obligations which are in fact similar to those of the federal government, but in the province of Ontario, bilingualism only applies to public bills, so that private bills and secondary or delegated legislation, including regulations, do not have to be translated into French[12].
None of the other six provincial jurisdictions are subject to any legal obligationin this field. Apart from the province of Saskatchewan, which voluntarily adopts and publishes some of its statutes and regulations in both French and English[13], all ofthe other provinces adopt and publish their laws in English only.
- The language of court decisions
In a legal system rooted in common law, Court decisions are an important source of law in themselves and hence their availabilityin both official languages matters or should matter just as much as bilingual access to statutes.
Yet the Canadian Constitution imposes no obligation in relation to the translation of court decisions. According to case law, a judge is perfectly entitled to issue his (or her) decision in the official language of his (or her) choice, «even if all of the parties appearing before him are unable to understand the judgment which he has rendered»[14]. There are however several statutes which require that court decisions be translated, though they do not apply throughout Canada[15].
Briefly, all final decisions emanating from a federal tribunal must be made available in both French and English[16]. Further, in the field of criminal law, which is of federal jurisdiction, the Criminal Code,17 which applies throughout Canada, requires any trial judgment to be made available by the court in the official language that is the language of the accused. That obligation therefore applies to allCanadian provinces and territories regardless of any conflicting language regime.
In relation to civil proceedings however, the issue is left to be determined by each province or territory. As a consequence, few have adopted legislation requiring the translation of court decisions, and the various obligations in this field are far from uniform. Thus, whilst the province of New Brunswick is legally bound to translate court decisions that determine a question of law of interest or importance to the general public, in the province of Quebec, translationof court decisions is required only if one of the parties requests it.This consequently results in a lack of provincial jurisprudence in one or the other official language[17] and raises questionsas to the accessibility of the law for practitioners and citizens alike.
- The language before tribunals
The right to use either official language in the judicial system is provided for to some extent in the Constitution and in numerous federal and provincial legislative provisions. In the federal courts, there exists a basic level of constitutional protection. That regime is supplemented by the federal Official Languages Actas well as the Criminal Code, which offers some protection to those involved in criminal proceedings.In essence, parties, witnesses and counsel have the right to speak and write in either French or English and, when those rights apply, the court is required to understand the language chosen by the parties.
However, outside of the federal courts, there is great disparity in access to justice in both languages. Only three provinces (Quebec, Manitoba and New Brunswick) are bound by constitutional obligations and thus provide a basicdegree of bilingualism in their provincial courts.The Constitution imposes no obligationson the remainingseven. Since the provinces have jurisdiction to create language use rights in their respective judicial system, they have done so to varying degrees. For example, New Brunswick has enacted extensive legislation allowing the use of both languages in its provincial courts, but Saskatchewan has done nothing to allow the use of French in its provincial courts. Accordingly, the people of Saskatchewanmay only use French in their provincial courts in criminal proceedings, but may not do so in any other type of proceedings.
The above illustrates the importance of context in the apprehension of the notion of “legal bilingualism” in Canada, as its implementation is closely linked to the historical, political, cultural and demographic context in which language rights were actually created and then evolved.
Canadian bijuralism and the teaching of law
Given the legal framework which guarantees, to some extent at least, access to justice in both official languages, there is obviously a need for lawyers to be able to practise law in both French and English and consequently, there is a need to teach law in both those languages.
To complicate matters, the Canadian legal system houses two legal traditions.In Quebec, civil law, imported from France, governs all matters of private law. The rest of the country applies the common law of English origin to private law matters. As to matters of public law, the common law applies throughout the entire country, including Quebec. Lawyers practising in Quebec, whether Francophone or Anglophone, must therefore learn both civil law and those aspects of common law which may be relevant to public law matters. Lawyers practising elsewhere in Canada are only required to learn and apply common law principles.
The teaching of common law in French
The teaching of common law in Frenchhas been an extraordinary challenge. How could Francophone Canadians learn and practiselaw in their language within a legal system whose very fabric had been rooted in the English language since the 17thcentury? That was the challenge that faced the Université de Moncton at the endof the 1970s, when its common law in French program was implemented, in spite of warnings from eminent authors that teaching the common law in French couldprove an impossible mission.
Despite that, the Faculty of Law of Université de Moncton launched its common law in French program in 1978. It was the only establishment in the world to offer a complete curriculum of courses pertaining to the common law system exclusively in French and it is still the only one to do so exclusively today[18].
The need for instructional material in French: the work of the Centre de traduction et de terminologie juridiques (CTTJ)
At the outset, teaching the common law in French was no easy task. The first professors pioneering the program had themselves studied law in English and thus needed to completely transform their mindset. Besides the availability of bilingual federal legislation, of some bilingual provincial statutes, and of a limited body of bilingual caselaw, they disposed of very few teaching resources and materials written in French, which made teaching in that language a daily challenge. It was therefore necessary to start virtually from the beginning and, in essence, create the language of the common law in French.
In order to achieve this, and almost as soon as it was founded, the Faculty of law created a legal translation and terminology research centre, the Centre de traduction et de terminologie juridiques (CTTJ).The primary goal of the CTTJ was, and still is, to provide the necessary tools to say the common law in French. The first priority was to provide resources to enable professors to teach in French. The CTTJ saw to this by translating a whole array of teaching aids and by providing the necessary language and terminology support to the teaching staff.
The CTTJ then perceived the need to create jurilinguistic tools to support legal language professionals. It created JURITERM, the only legal terminology data bank dedicated to the francization of the common law. JURITERM is a working neology which contains more than 18,000 entries in all the fields of private law[19].The CTTJalso produced other tools, such as the Juridictionnaire, a compendium of the difficulties and resources of legal French meant to assist not just with terminology, but with the phraseology associated with it[20].
The standardization of the vocabulary of the common law in French
One of the most important tasks of the CTTJhas been to act as leader in the standardizationof the vocabulary of the common law in French across Canada. Prior to the standardizationundertaking, initiated in the early 1980s under the patronage of the National Program for the Integration of Both Official Languages in the Administration of Justice (now calledPromoting Access to Justice in Both Official Languages or PAJLO), the vocabulary of the common law in French had started to evolve on a makeshift basis, as and when needed for particular purposes, and more importantly, without any uniformity between usage in the federal, provincial or territorial spheres. As a result, legislators, lawyers and professors alike would use different terms in French to designate the same legal concept, a situation which created obvious uncertainty for interpretation purposes, and for the clarity of law itself. If common law in French was to survive and continue to evolve, it was thus essential to standardizethe vocabulary on which it relied throughout Canada. If the teaching of the common law in French was thought impracticableat the outset, the idea of standardizingthe vocabulary in use in the provinces was thought sheer utopianism, as consensus is far from easy when legislative power is shared between a federal government and several provinces and territories.
The process of standardizationof the terminology of the common law in French has nonetheless occupied the CTTJ ever since the 1980s. Today, the CTTJ coordinates and manages this initiative, which is the joint effort of provincial and federal partners.More than 8,500 French terms have since been standardizedas equivalents of English terms, and can be found in statutes and court decisions across Canada. Usage of standardizedterminology is crucially important to this initiative, as there is little point standardizingterminology unless it is adopted by end users.
The challenges associated with the teaching and practice of the common law in French
Today, at the eve of the 40th anniversary of the creation of the common law in French program and of the CTTJ, Canada hashundreds of lawyers who practise the common law in French and what was considered utopic has become reality. Despite these remarkable achievements, the teaching and practiceof the common law exclusively in French is still not without difficulties.
Limited resources in French
Notwithstanding the early efforts which allowed the common law in French program to evolve, there are still today far fewer teaching resources available in French than in English as the efforts have not been sustained through the years. The enthusiasm of the 1980s has gradually waned, as has the interest in language rights, with unfortunate consequences on the financing of activities aimed at fulfilling the needs of a market perceived as “limited”, despite the fact that numbers should be of no consequence within a country which has given equal legal status to its two official languages.
In practice, Francophone students may therefore need to read textbooks, articles or cases which do not actually exist in French. It is true to say that the large majority of Canadian French speakers happento also speak English, because the contacts with English are omnipresent in Canada and also because minority language would-be lawyers know that the language make-up of Canadian society and the requirements of the profession are such that they need to master both languages to succeed. The majority of the Francophone law student body will therefore have no issue consulting resources written in English if need be. However, the fact that competency in English is in fact required to study the common law in French is an issue for those students who either do not speak English at all or have difficulty mastering it sufficiently to understand traditional legalese. This is particularly true of foreign students who come to Canada from Francophonecountries and who have not been exposed to English, but is not limited to them. The question therefore arises as to whether Canada needs to do more than it has done to date to equip students who choose to study the common law in French with all the resources they need in that language.