Roger writing the LAWmag

French: Language of Law Non Grata.

Thousands of miles from la Belle Province de Québec is the very English enclave, with name to prove it, the sister-province of British Columbia.

Even in “BC”, as the locals know it, 5 per cent of the population speaks French.

Hanging over all are seemingly formidable language rights, enshrined in most of the statutes that count: the Constitution, the Charter and the Criminal Code.

Section 530 of the Code, for example:

“On application by an accused whose language is one of the official languages of Canada, ... a ... judge .... shall grant an order directing that the accused be tried before a ... judge or judge and jury, as the case may be, who speak the official language of Canada that is the language of the accused or, if the circumstances warrant, who speak both official languages of Canada.”

South Slavey

Before the Western Canada Concept Party of BC raises arms on this, consider that in the Northwest Territories, the accused may elect to be tried not only in English and French, but also in one of nine Aboriginal languages:

  • Chipewyan,
  • Cree,
  • English,
  • French,
  • Gwich’in,
  • Inuinnaqtun,
  • Inuktitut,
  • Inuvialuktun,
  • North Slavey,
  • South Slavey, and
  • Tåîchô. 

The resistance when it comes to language rights in Canadian law is not federal but provincial. Some, like New Brunswick, Ontario and Manitoba are truly bilingual.

In others jurisdictions, such as British Columbia, litigation language rights laws are not worth the paper they are written on. Both institutionally and in the local urban villages, French is an occasional scent, always welcomed but at best, never really more than whatever the kids are speaking as they do their French immersion homework.

Circumventing the spirit if not the word of language right guarantees, British Columbia judges are not adverse to playing language god. Supreme Court directives exist restricting all French language jury trials to the New Westminster Registry only. 

Imagine the thrill of Vancouver francophones who receive several jury notices a year compared to Anglophones who may not receive such a notice in a lifetime.

This stuff would not survive a Charter challenge but while we wait the rich French litigant who wonders why he keeps receiving Courthouse jury duty spam, it stays on the books.

Further, a real disincentive exists against jury trials the farther the accused lives from New Westminster. No advance fees for travel or accommodation, and not just for the accused but for his lawyer and witnesses as well.

In civil matters, you may as well be in downtown Chicago: the courts will not take any document in French. Rule 4(2) of the Supreme Court Rules leaves no wriggle room:

“... every document prepared for use in the court shall be in the English language."

What about Mandarin? Spanish? Farsi?

Why not Esperanto, while we’re warding off blows? 

French is just as much language non grata even though it was a Frenchman who first stepped into the Wild West ... a French man who established the first permanent habitation in what is now Canada ... and a Frenchman who writes this common law website!

You cannot file a divorce claim in Supreme Court in French nor even a separation agreement without a translation. Who pays for the translation? 

The litigant.

And this, even though the Divorce Act is a federal statute and the Supreme Court judges appointed by the federal minister of justice.

Survive

Some survival tips for the French lawyers who takes a wrong turn at Portage and Main:

  • It’s never easy for any lawyer in an English province like BC to avoid anglicisms: literal translations when a preferred term is available. Examples, “Monsieur le juge” instead of “Votre Seigneurie”; “possibilité realiste” instead of “possibilité vraisemblable”; “eligible” instead of “admissible”; “être le sujet d’un enquête” instead of “fait l’objet d’un enquête”; “entrer en piece” instead of “deposer”, ”mandatoire" instead of “obligatoire”, “officier de police” instead of “agent de police”. 
  • These things can matter if the judge is really bilingual which, unfortunately, many are not instead of their stated abilities. I’ve had a judge assigned to a French trial who struggled with French; it was beyond stilted. In her reasons on a peace bond which she wanted to issue, she accidentally used words which acquitted my client of the assault charge from which the peace bond resulted. From the context of her other remarks, it was obvious she did not mean that. With great reluctance given my responsibilities towards my client, but as an officer of the court, I consulted with the Crown and intervened to correct the record. 
  • In Court, Canadian judges have held not just lawyers but even investigating police officers to common sense when first approaching a suspect. If there is any doubt as to the French accused’s comprehension of English, the police either accommodate or risk having the charges thrown out at trial. In Vanstaceghem, a breathalyzer result was rejected because the accused’s mastery of English was imperfect. To this are added a plethora of cases involving a deaf mute,2 a Syrian suspect,3 a Portuguese,4 and Spanish litigant.5

Terre de Nos Aïeux

It's a wild ride out here in Canada's beautiful but very Anglo West. Everywhere the red and white maple leaf flutters as we bellow out terre de nos aïeux and yet at the Courthouse, it seems that one of the red stripes is much thinner.

REFERENCES

The author would like to thank lawyer Pierre Gagnon for some of the research used in this article. However, the content and opinions in this article are those of the author only.

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