A lawsuit by the Quebec and Montreal Bars to compel the Quebec government to implement measures to ensure the legal equivalence of the French and English-language versions of Quebec statutes was quietly settled out of court.
The deal, years in the making, was settled after the Quebec government and the National Assembly took “concrete” steps to address long-standing problems with the English text of Quebec statutes, according to the law societies. The provincial government established a team of legal experts, including hiring three lawyers with a “perfect command of English,” exclusively for the English version of bills. It also has hired more translator and revisers. And it issued a decree in October 2018 that formally calls on the legislative committee — a committee of the cabinet that coordinates the preparation of draft legislation – to ensure the legal equivalence of the English version compared to the French version, to ensure that the linguistic and terminological quality of the French and English versions of bills, and the use of English terminology specific to the Quebec legal system. On top of that, the president of the National Assembly, the government and the law societies also agreed to conduct an annual review of the implemented measures.
“In light of the introduction of improvements to the legislative process and additional information conveyed since the bringing of the legal action, the law societies have agreed to end the dispute and withdraw their application,” wrote Alexandre Forest, bâtonnier of the Barreau de Montréal, in a missive dated July 16th to members.
The deal, just as the lawsuit, has polarized the Quebec legal community. Some believe more vigorous legislative “protection” than an order in council is needed to ensure that future Quebec governments respect the commitment, others assert the deal does not go far enough to improve the treatment of the English text, and yet others have chastised the Quebec Bars for even launching the legal action.
“It’s good news but more has to be done such as planning for legal protection to make sure that these errors don’t happen again,” remarked Louis Fortier, a lawyer, jurilinguist and head of the Canadian Association of Legal Translators (CALT). “That takes political will.”
Long a bone of contention, the Barreau du Québec and the Barreau de Montréal launched a suit in April 2018 against the Quebec government, the president of the Quebec National Assembly and the Attorney General of Quebec to force them to improve the “quality of the texts” of the laws, particularly to ensure that legislation in both languages have the same meaning from a legal perspective. A study conducted by the Bar of Montreal to determine the differences between the French and English-language version of the Civil Code of Quebec revealed that the English version contained some 5,000 errors.
Just as troubling, English version statutes are given short-shrift in spite of s. 133 of the Constitution Act, 1867, article 7 of the Quebec Charter of the French Language, and the landmark ruling by the Supreme Court of Canada in Att. Gen. of Quebec v. Blaikie et al.,  2 SCR 1016, all of which affirm the legal equivalence of French and English texts, according to critics. As reaffirmed by the SCC in Re Manitoba Language Rights,  1 SCR 721, s. 133 of the Constitution Act “requires simultaneous enactment of legislation in both English and French, and equal authority and status for both the English and the French versions. Nothing less would adequately preserve the linguistic guarantees of those sections or ensure that the law was equally accessible to francophones and anglophones alike.”
But that’s not what happens. While the initial draft for a law is presented to the National Assembly in French and English, the National Assembly’s committees study only the French text. The English text is not usually available before the National Assembly votes to incorporate them into the bill. Individual members of the National Assembly have asked to have access to the English text, but the Speaker has ruled them against them, something referred to as the Mulcair precedent, noted Montreal lawyer Edmund Coates who participated as a legislative counsel in an extensive revision of the English text of the Civil Code.
The new Quebec Code of Civil Procedure (CCP) is a case in point. Three days before it was assented on February 21, 2014, a government report revealed that there were some 330 amendments made to the bill that were done only in the French version. In fact, the day before it was assented, an English version of the CCP was not still tabled to the National Assembly, and it was ultimately sanctioned without Quebec legislators having a say about the English text, contrary to s. 133 of the Constitution Act.
In contrast, Ontario has made an effort to ensure that its laws are equally accessible and are of equal quality in English and in French, even though it is under no constitutional obligation to do so, pointed out Coates.
Quebec’s legislature did in fact study the French and English texts of bills, and approved the French and English text of amendments made to bills until they were enacted into law — until the 1970s when the Parti Québécois came to power, pointed out Coates.
Unlike other provinces and in Ottawa where drafting of laws is centralized in an office of the Ministry of Justice among a group of legislative drafters, Quebec’s process of preparing draft laws is dispersed among a large number of jurists who have been seconded on a permanent basis to the offices of various ministries and government entities, all of which is overseen by the committee of cabinet, explained Coates. Thanks to Quebec’s unique system, the study of bills in the National Assembly plays a much larger role in the detailed formulation of laws than it does in the other provinces or Ottawa.
In theory, adds Coates, this process should encourage consultations between jurists seconded in the different ministries, between lawyers and notaries in different offices of large ministries and with translators at the National Assembly. In practice, “all this is a long and process and so is only deployed to deal with the more obvious or politically sensitive issues,” added Coates.
“So a settlement that only seeks to improve the treatment of the English text, before it reaches the National Assembly, but does seek to set aside the Mulcair precedent, does not address the heart of the issue,” said Coates. “The members of the National Assembly can disclaim their democratic responsibility for the quality of the English text of amendments since they can’t insist on having access to it. The English text will continue to be treated like a last minute formality at the National Assembly, and the quality of the English text will continue to be impaired.”
Fortier concurs, and that’s why he believes it is important for the Quebec government to enact stronger legal protection to ensure that future governments will be as committed as the current provincial government appears to be to address the issue. “There now appears to be good will from this government but it’s not enough to have a decree or an administrative measure because all is needed is another decree to undo all that has been done,” said Fortier, who believes that Quebec should follow the lead set by Ottawa and some of other provinces like Ontario, Manitoba and New Brunswick where joint English and French drafting of legal texts takes place. “Stronger legislative protection is needed. If we want to be consistent, we cannot demand the federal government to provide legal texts, judicial texts and case law to be of good French quality and at the same time have English versions in Quebec that are an afterthought.”
David MacKinnon too bemoans the use of governing by decree under the guise of an administrative mechanism, asserting that it is a serious breach of the machinery of government and two of the pillars of democracy, the legislative and judicial branches. “I think the Barreau de Montréal is on the right track,” said MacKinnon, a director at the CALT and president of the Rosetta Scribes Corporation. “The need for legal translation is based upon the requirement that the text of both versions of laws must be enforceable in exactly the same manner as in the original text of the relevant text,” said MacKinnon, who translated defence briefs for the International Criminal Tribunal for Rwanda for several years in the genocide trials. “It cannot be properly enforceable unless its exact wording has been weighed and analyzed by the informed expertise of a jurist.”
But Guillaume Rousseau, a law professor at the Université de Sherbrooke who teaches constitutional law and French language rights, believes the Quebec and Montreal Bars should have never launched the lawsuit. So did the majority, 52 per cent, of lawyers who attended an extraordinary general assembly held by the Barreau du Québec on May 2018 over the controversial lawsuit.
Rousseau maintains that the Quebec should do more to encourage the use of the French language, particularly legislatively. He suggests that the Quebec government should consider reverting back to the 1976 version Bill 101 which stipulated that only laws written in French would be considered to be official. The English version of legal statutes would be administrative in nature. Another alternative, said Rousseau, is to go back to Bill 22, or the Official Language Act. Under Bill 22, both French and English versions of the law would be deemed to be official but in cases where there were conflicts existed, the French version would take precedence, explained Rousseau.
“That is an honorable compromise, and would solve all of the issues raised by the Barreau du Québec,” said Rousseau. “There will always be differences between the French and English version, and the French version is the only one that has democratic legitimacy because it is debated by elected members. But once before the courts, the English version has the same weight as the French version, and it can even have more weight if the judge so decides.”
This story was originally published in The Lawyer’s Daily.