Jurisprudential Solitudes?

A discussion on the Canadian Association of Law Libraries list this morning strikes me as worth a share here. Dawn Urquhart drew subscribers’ attention to a National PostLegal Post article published on the web yesterday, “Court decisions may be lost in translation.” The article appears in today’s National Post with the somewhat less fair title, “Quebec decisions isolated by lack of translation,” and the even less fair lede, “Lawyers outside Quebec can’t read useful judgments.”

The author cites Ted Tjaden’s excellent post here on Slaw from last year, wherein Ted noted the limited overlap in publication of court decisions in both French and English and also referred readers to the unofficial translations of selected decisions made available by SOQUIJ.

Ted’s post explains the situation:

The reality is that unless the decision is published in an official court reporter or a bilingual jurisdiction (see below), most court decisions in Canada will be published only in a single language, typically the language in which the cases is argued. For most decisions in Canada, this means that the decision will be in English only and there will not automatically be English translations of most French-language decisions.

Ted notes the exceptions of New Brunswick and decisions of the Federal Courts and the Supreme Court, which publish decisions in both languages; this is also referenced in the Legal Post article.

Those readers of the print edition who continued beyond the headline and lede will have seen that the issue is not one of linguistic isolation by Quebec. Lawyers, librarians, and other researchers are likely to miss a large body of Canadian case law if they do not have at least reading ability in both French and English or access to translation services.

Perhaps it is accurate to suggest Quebec court decisions are less accessible to researchers in other jurisdictions than decisions of other jurisdictions are to Quebec researchers. Without any supporting data, I’d venture to suggest any such disparity can be attributed to comprehension of English in Quebec that is greater than is comprehension of French outside of Quebec.

What are others’ thoughts?

Retweet information »

Comments

  1. Melanie Bueckert

    This is an issue that seems to crop up with greater frequency in my practice these days. An extension of this difficulty is that even though the researcher may be able to read and understand the cases in another language, their audience may not – and most researchers are not skilled translators.

    What can be done to address this situation, aside from the use of Google Translate? Would CanLII be able to coordinate an initiative to translate decisions upon request? CALL? Where could the funding come from? Why is translation of decisions a cost individual users must bear, but access to cases in their original language is something we consider a fundamental right?

    Of course, some kind of translation process assumes that the researcher at least has the ability to understand the basic content of the material in its original form – if they do not have an understanding of the other language, they would never come across the decision in the first place. Obviously, this places unilingual researchers at a disadvantage.

    What are the costs involved in translating decisions? Is there a difference (in cost) between official translations & translations that are ‘good enough to get the gist’? Could the legal community provide free access to the latter and leave more official translations to those parties who need to rely on a more official version of the case? Would translators allow parties who pay for translations to later make those translations available online, such as through CanLII? If you are not bilingual, would you trust an unofficial translation of a case? What if the decision-maker to whom you present the case as authority is not bilingual? Are there any bilingual researchers/lawyers out there willing to do basic case translations pro bono? Might be a nifty marketing tool for a (Quebec-based) law firm…

  2. Susan Anderson Behn

    This is an incredibly important point, for everyone watching how Canadian Law develops and changes. Many of the important distinctions in Canadian Law as it now exists came about because of the “rubbing together” of concepts and ideas that existed in either the Common Law or in Civil Code.
    Aboriginal Law as we know it today in Canada was forever changed when the Supreme Court of Canada ruling in St Catherines Milling was appealed to the Privy Council.( J.C.P.C. # 46, 1888) The definitions and understanding of the term “usufruct” come entirely from Civil Code – At the time there was nothing similar in Common Law, so the idea that First Nations rights were a from of “usufruct”…that provided a right of use, but not ownership, was a new, purely Canadian, idea.
    And it came about because the Supreme Court of the day included members who understood that concept as it was articulated in French, in Quebec Civil Code. Usufructary rights described aboriginal interests, in a way that allowed for the recognition of aboriginal rights as existing in Canadian Law.

    There is probably a need for some scholarly work to look at the situation described in the Posts, and see if we are missing similar conceptual connections. The Courts are busy enough, and it would be unfortunate if something as important as “usufruct” turned out to be, was missed, and not argued when it was relevant, because translation services were not available.

  3. As the National Post article explains, this is mostly an issue outside Québec because here, most lawyers have at least a reading knowledge of English and it is routine to cite English judgments, even while pleading in French.
    First, some basic context, poorly understood in the rest of Canada: in Québec, private law — property, contracts, liability — is civilian, but public law is based on common law. In simple terms, Québec lawyers and judges apply the same administrative, criminal and constitutional law as in the rest of Canada (subject to the normal variations between provinces based on different provincial statutes).
    Second, a constitutional principle: the courts are bilingual in Québec, “and either of those Languages may be used by any Person or in any Pleading or Process …in or from all or any of the Courts of Quebec.” The practical result is that parties plead in the language that suits them, so that it is not uncommon in Montréal for the plaintiff to plead in one language and the defendant in another. Judges may render judgment in the language that suits them though they try to accommodate the parties. It is in fact not uncommon for Québec courts to render judgment in English, rather than French, particularly if both parties prefer it.
    As a result of the judges’ discretion, s. 9 of the Charter of the French Language (Bill 101) actually creates a right for a party to obtain a translation of a judgment into English (though presumably it is mainly meant to guarantee the right to obtain a translation into French). The translation is free of charge and prepared at the expense of the Ministry of Justice, though in practice it is prepared by SOQUIJ. These translations are always marked “unofficial” but they are generally sent to the judge for approval.
    The former Chief Justice of the Québec Court of Appeal, Michel Robert, was well aware that lawyers and judges elsewhere in Canada were missing out on Québec case law of relevance to their work and during his tenure the Court of Appeal began translating important judgments more regularly, even without any request by a party. Unfortunately, so far as I know, the appellate court has no additional funding for this initiative.
    Finally, CanLII is inconsistent about posting the English versions, for reasons that are not clear to me. For instance, the translation of Crevette du Nord Atlantique inc. c. Conseil de la Première Nation malécite de Viger, 2012 QCCA 7 is currently on SOQUIJ’s site (http://soquij.qc.ca/fr/services-aux-citoyens/english-translation), but not on CanLII’s.
    For the record, I am on the editorial committee of the Canadian Native Law Reporter and have devoted considerable time to obtaining readable English versions of important Québec judgments in the Aboriginal law field. It would be good to know that reporters in other fields made similar efforts.

  4. In answer to Mr. Schulze’s latest comments about posting of English versions on CanLII: they are posted within a week or so after their release by SOQUIJ. The 2012 QCCA 7 English version was in fact posted on June 12.

  5. Daniel Champagne

    For the last eight years, SOQUIJ has been translating judgments from the Quebec Court of Appeal, the Superior Court and the Court of Quebec, at a rate of about 1250 pages per year. And in 2011-2012, for the second year in a row, a grant from the federal government allowed us to translate an additional 1250 of Court of Appeal judgments exclusively.

    As a result, there are 297 Court of Appeal judgments, 139 Superior Court judgments, 156 Court of Quebec judgments, 7 judgments of the Professions Tribunal, and 41 of the Human Rights Tribunal translated into English, all available free of charge on SOQUIJ’s website

    Both the selection of jugments to be translated and the translations themselves are approved by the respective courts. In the last year, nearly 10,000 visitors have viewed this section of our website, where we post new translations every week.

    A step in the right direction?

  6. Thanks to those who posted additional information. One other point I neglected to mention: not only public law (administrative, criminal, constitutional) is the same in Québec as in the rest of Canada. So too, of course, are federal areas of private law: for instance, bankruptcy and insolvency, copyright, patents and trademarks, or divorce (subject to provincial rules about matrimonial property.

  7. I’d like to expand on Mr. Schulze’s first post (despite the late date) and clarify a couple of points, specifically with regard to the translations of Quebec judgments done by SOQUIJ.

    First of all, full disclosure: I am a translator at SOQUIJ, and have been since it began preparing and publishing translations in 2004.

    SOQUIJ does indeed prepare translations of Quebec judgments, but never at the request of the parties. SOQUIJ is mandated by the government to publish judgments and process legal information for the purposes of making it available to the legal community and the public. SOQUIJ has been translating judgments since 2004, when it entered into an agreement with the Minister of Justice and the Court of Appeal (agreements with the Court of Quebec and the Superior Court were finalized shortly thereafter). The initiative was motivated by an interest in making Quebec judgments more readily available in the rest of Canada and was spearheaded by then-Chief Justice of Quebec Michel Robert.

    Today, under Chief Justice Nicole Duval-Hesler, the Court of Appeal continues to take a great interest in this project. Indeed, since the QCCA represents the second-largest appellate jurisdiction in Canada (after Ontario), and this translation project seeks to put as many of its judgments as possible into greater circulation, it has a keen interest in seeing the project continue and grow.

    The majority of the judgments translated from all of the courts concern areas of law that are of federal jurisdiction and are therefore relevant across Canada: as Mr. Schulze pointed out, this includes constitutional and criminal law, as well as bankruptcy, extradition, Aboriginal, and a few other areas. Judgments in areas of law that are strictly provincial (such as property law) are not translated, while ones concerning areas where there is some overlap (such as family law) are, depending on the issue.

    The courts are always involved in the selection of judgments for translation, and every translation is approved by the court before being made available online. All of the translations published by SOQUIJ are flagged as “Unofficial English Translations” since they are produced after the judgment has been rendered; it is also a way of indicating that, in the event of any discrepancy between the original and the translation, the original French version should prevail. Considering the involvement of the courts, however, these translations are as official as unofficial can get.

    All of our translations are available on the SOQUIJ website at http://soquij.qc.ca/fr/services-aux-citoyens/english-translation and on Azimut, which is SOQUIJ’s subscription database service. New translations are added almost every week. Our production of Court of Appeal judgments in English has increased significantly over the last two years with the hiring of a second translator thanks to a grant from the federal government. We’re still waiting to hear whether the grant will be renewed for another two years.

    I’d just like to add a final note regarding the use of Google Translate, which was mentioned in the National Post article and by one of the contributors here. I strongly recommend against using it for the translation of judgments. This may sound self-serving, but I assure you it isn’t. Google Translate can be useful to get a “gist” translation of general documents, but it can be misleading, confusing, or just plain unhelpful in the case of a judgment, which uses specialized language, no matter what jurisdiction it was written in. This is especially true in the case of judgments drafted in Quebec, where the terminology sometimes has its own unique flavour because of the influence of the civil law, even when the area of law is one that falls under federal jurisdiction.

  8. Plus ça change, plus c’est la même chose.

    My view now is as it was then: all Canadian law schools should require a basic reading knowledge of French as either a requirement for admission or, at a minimum, as a requirement for graduation, and all Canadian law societies should require such knowledge as a requirement to be called to the bar. This is not about some ideal of perfect bilingualism, or even being able to plead or advise clients in French – it’s about the ability of a lawyer to be able to know the law.

  9. When I was practicing intellectual property law, we were aware that interesting developments were going on in the Quebec Courts. Most of us never had the time to read up on the jurisprudence, however. The IP Year in Review always included briefs of useful Quebec Caselaw, which I greatly appreciated.

    I think Alex’s point is a very interesting one. I once saw two very senior litigators embarassed before the Supreme Court when the Chief Justice asked if they had read the French version of a statute they were arguing about. It certainly made an impression on me as a young law student. I’m not sure that every lawyer needs to have a working knowledge of French, but checking the French versions of statutes should be considered part of any lawyer’s due diligence. Almost every law firm has at least one bilingual lawyer to consult.