Promulgation, Access, and Linguistic Diversity

Sensibly, everyone’s presumed to know the law: to have it otherwise would encourage willful ignorance or claims of ignorance as means of evading legal consequences. And with equal sense, laws have to be promulgated for their application to be fundamentally fair or even instrumentally useful. So much for theory. Practice, as always, is rather more of a messy struggle, as you’ll know.

There’s the basic matter of getting the text of laws out to the people. We’re doing a decent job of that in Canada as our various jurisdictions make their legislation and judicial opinions increasingly available in digitized formats and CanLII facilitates access to these sources. Then there’s the business of ensuring that the people can make sense of the text. I say “business” advisedly because it costs money to hire the lawyers necessary to know what the words might actually mean, and this sets up an “access to justice” problem with which we’re all familiar and about which we seem to be floundering right now.

Now add to these the further problem that a very large number of Canadian residents don’t have English or French as their mother tongue or, indeed, as the language used in the home. Statistics Canada has issued a report on languages used in the country based on the 2011 census (The Daily offers a concise summary), revealing that:

• more than 200 “mother tongues” are in use
• 6,630,000 people, spoke a language other than English or French at home in 2011
• 2,145,000 people reported that the only language they spoke at home was a language other than English or French
• the use of multiple languages at home has increased from 9.1% of the population in 2006 to 11.5% in 2011

According to StatsCan, “The top 10 immigrant languages spoken most often at home in 2011 were: Punjabi, Chinese [not otherwise specified], Cantonese, Spanish, Tagalog, Arabic, Mandarin, Italian, Urdu and German.”

The difficulties this diversity creates are obvious. The solutions, however, are not. One approach, of course, is simply to wait, to assume that with time assimilation will occur and that the official languages of English and French will become pervasive. In the meantime we might work to see that the law schools graduated a sufficient number of lawyers who could speak the major languages. But this would require not just the equality practices that are already in place but outreach policies as well, something that seems unlikely, in my experience. And in any event there would be no guarantee, or even likelihood perhaps, that graduates would serve the linguistic communities from which they came.

What other means of addressing the difficulty do you see? Would the greater admission of foreign-trained lawyers assist? Is technology likely to provide answers such as (vastly improved) machine translation for example?