First, many thanks to Simon F. and the rest of the Slaw team for asking me to join. I've been an enthusiastic reader and occasional commenter on Slaw for the last couple of years, and I am looking forward to the opportunity to contribute more regularly to our exchanges of ideas.
As a topic for discussion, I'd like to propose the following hypothetical scenario. Let's suppose that tomorrow you are presented with a legal problem requiring a bit of digging. You go to the library, and find, much to your surprise, that every fourth book is filled with empty pages. You turn to the printed reporters, or QuickLaw and eCarswell, and similarly find every fourth case or so missing. Even when reading federal and (some) provincial legislation, half the words are blank.
Of course, this scenario is not really that hypothetical at all. It's the experience of unilingual anglophone lawyers faced with Canadian legal writing, cases, and legislation in French.
My question is this: should we be willing to accept that most anglophone lawyers lack minimum competency in both languages? Can we fulfill our responsibility to advise on the law if we can't understand what much of it says? Why isn't having a basic reading knowledge of French considered part of an English legal education?
Many lawyers might argue that an inability to speak French is largely a theoretical lacuna in their skill set, having little or no effect on their day to day practices. Moreover, the growth of national firms means that English-only lawyers who are more likely to be working on files where understanding French is critical will also more likely have access to French speaking colleagues.
Even if often the language gap has limited effect, or can be easily bridged, I nonetheless ask why the gap need exist in the first place. My own prejudices on this subject have been formed by my having obtained my law degree and begun practising in Montreal. In six years there, I don't think I met a single lawyer who was not bilingual at least to some degree.
Should we expect more from English speaking lawyers in the rest of Canada? Not perfect bilingualism, not even necessarily the ability to serve clients in French, but just the simple ability to read a case, book, or article in French and understand what it says? Having not learned French until I was in law school, I don't think it's much to ask, but I would be interested in hearing other views.
It has always utterly amazed me that the linguistic solitudes posited by Jules Jules Deschênes, Chief Justice of the Superior Court of Quebec, still exist. Thirty years ago, he warned of what he called “legal separatism.”
“Québec has shown the willingness and the ability to contribute to the building of […] a national scheme of federal law, but the legal community of the rest of
Canada has, by and large, closed itself off and away by simply ignoring the Québec contribution,” he said. “There now exists an actual separation in legal Canada, but it has been worked upon Québec from without, not by Québec from within.”
He noted the academic legal work that had been carried out in Quebec in the fields of commercial law, criminal law and administrative law and that had gone unnoticed in the rest of Canada—and went on to discuss the absence of citation of Quebec decisions.
More recently, François Rocher analyzed the degree to which English-speaking scholars in Canada take into account the work of French-speaking scholars. He stated:
"Fully understanding the social and political Canadian reality implies a deep awareness of its complexity. It also implies that the researcher will take into consideration the works related to the object of research without systematically ignoring a significant proportion of scholarly work, particularly emanating from another linguistic universe".
Rocher then relates this assumption about research to the country as a whole:
“If Canada, as a political community (and a national community, as is used widely in the vocabulary of English Canada) is composed of two global societies [...], scholarly production related to it must reflect this reality if it wishes to be inclusive and comprehensive.” He concludes his normative expectation with the following: “Knowledge of the French language, at least the capacity to read it, constitutes a prerequisite for a complete and serious analysis of Canada.” See Rocher, “The End of the ‘Two Solitudes’? The Presence (or Absence) of the Work of French-speaking Scholars in Canadian Politics,” Canadian Journal of Political Science / Revue canadienne de science politique, 40, 4 (December 2007): 833–857.
For Deschenes, see “On legal separatism in Canada,” address at a dinner in honour of the Ontario judges, Toronto, January 9, 1978. Republished in Jules Deschênes, The Sword and the Scales, foreword by the Right Honourable Bora Laskin, Toronto, Butterworths, 1979, pp. 31–42. For recent evidence of scholarly separation on geographical and linguistic bases, see Marie-Claude Prémont, Book Review of Access to Care—Access to Justice. The Legal Debate over Private Health Insurance in Canada ed. by C.M. Flood, K. Roach & L. Sossin (2006) 21 Can. J. L. & Soc’y 201.
I've done post-secondary courses in French, but I don't think it helps my literacy any when it comes to legal work.
Online translation tools are useful (Babelfish, Google Translate). I wouldn't submit a factum or any legal document using it, but cases can easily enough be converted for personal use to see why a Quebec court cites a case.
Bilingualism is extremely important, especially for clerks and judges. Is it essential for every lawyer in Canada? Not necessarily.
I'm pretty much of Simon Chester's and Alex's view: that a working knowledge of French should be a part of all good lawyers' stock of abilities. One aspect seems vital to me, which is the fact that federal legislation and that of some provinces is official in both languages; translation being the art that it is, this extra dimension will in certain cases give a lawyer added arguments with respect to interpretation. Put it another way: In cases where legislative interpretation is important, failure to have considered the other language's text should be a clear instance of professional negligence.
I agree that bilingualism is important for Canadian lawyers. We founded the Francophone Society in Osgoode Hall Law School last year to help fill some of the gap you are talking about in your post.
Section 13 of the Official Languages Act states that both the French and English versions of a federal statute are equally authoritative. I have relied on this section when trying to help the Ontario court interpret an unwieldy, slightly confusing provision. I had the French version translated and compared the results with the original English. Because my French is miserable, I had to rely on online translation tools and a law clerk whose first language was French – and the court did ask where the translation had been obtained! A very practical lesson in why Canadian lawyers should have at least a working knowledge of French.
Any journal, record, Act of Parliament, instrument, document, rule, order, regulation, treaty, convention, agreement, notice, advertisement or other matter referred to in this Part that is made, enacted, printed, published or tabled in both official languages shall be made, enacted, printed, published or tabled simultaneously in both languages, and both language versions are equally authoritative.