Dossier When language rights do not lead to true translation rights: Judicial bilingualism in Canada and the right to translation When language rights do not lead to true translation rights: Judicial bilingualism in Canada and the right to translation*
While the origins of official bilingualism in Canada date back to the Constitution Act of 1867, it wasn’t until 1969 that the federal government formally granted equal official status to English and French by adopting the landmark Official Languages Act (OLA).
After the Canadian Charter of Rights and Freedoms was enshrined in the Constitution in 1982, a revised Official Languages Act was adopted in 1988. In addition to aligning with the Charter, which included a specific section on language rights, the new OLA clarified the provisions of the 1969 Act, introduced a focus on enhancing the vitality of official language minority communities in Canada, and confirmed language-of-work rights for workers in federal institutions. It took multiple court challenges, however, “to translate into practice the rights and commitments laid out in the Charter and the new OLA.” (Cardinal and Léger, 2018, 26)
Several action plans and roadmaps have been created since 1988 and now, over three decades later, another modernization of the OLA is well underway. In 2018, the Standing Senate Committee on Official Languages was tasked with conducting national consultations and reporting on Canadians’ views on modernizing the Official Languages Act. The Committee consulted young Canadians, official language minority communities, people who have witnessed the evolution of the Act, justice sector experts, and federal institutions (Standing Senate Committee 2019a); the final report based on these consultations was submitted on June 30, 2019, and contained specific recommendations to update the Act.
One area that these recommendations focused on was judicial bilingualism, a topic that is nothing new to Canada; provisions related to judicial bilingualism in the 1988 Act date back to the 1867 Constitution, section 133 of which states that “either [the English or the French Language] may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.” (Constitution Act 1867, s. 133) The 1969 OLA, the Charter, the 1988 OLA, and case law clarified and expanded on these rights. For criminal law specifically, language-related matters have been legislated by the Criminal Code since 1978. Sections 530, 530.01, and 530.1 guarantee all accused persons the right to a criminal trial in the language of their choice. The accused must be informed of this right and may obtain the translation of information or an indictment into their chosen language.
In theory, while some of these provisions apply only to federal courts, the complexity of the Canadian legal system is such that a clear separation between federal and provincial or territorial levels is, generally speaking, unfeasible in reality. The Canadian system is based on two legal traditions (common law and civil law), separates jurisdictions between different levels of government, and relies on a wide range of stakeholders. Certain aspects of the system depend on the federal government (such as the appointment of certain judges), while some areas of law (such as criminal law) are legislated by the federal government but administered by the provinces and territories (Standing Senate Committee 2019b, 13). In the case of criminal law, for example, provinces and territories are required to guarantee the right to a criminal trial in the official language of choice.
In principle, those policy instruments concerning the right to use French and English in court would seem to suggest that language and translation are thought of as rights.
Under the language-as-right approach, the use of one’s language in public life is a right that groups or individuals can claim without the need to justify a lack of mastery of the dominant language(s), and translation is therefore an institutionalized right (Córdoba Serrano and Diaz Fouces 2018, forthcoming)1. In other words, language rights, in principle, lead to translation rights.
However, if we consider the unequal value of the original and translated versions of federal court decisions – an issue that was brought up in the debates and consultations to modernize the OLA – we can see how this model of language rights leading to translation rights does not hold. In fact, this issue illustrates how language rights sometimes compete with translation rights, creating a sterile dichotomy that risks compromising the principle of equality on which official bilingualism is predicated.
Translation of legal decisions: The unequal value of the original and translated versions of federal court decisions
According to section 20 of the OLA, “decisions, orders and judgments [issued by any federal court] must be made available simultaneously in both official languages” where “(a) the decision, order or judgment determines a question of law of general public interest or importance; or (b) the proceedings leading to its issuance were conducted in whole or in part in both official languages.” Other decisions, orders, and judgments “shall be issued in the first instance in one of the official languages and thereafter, at the earliest possible time, in the other official language.”
Federal Courts – with the exception of the Supreme Court, which systematically complies with these provisions – address these language requirements differently (Senate Standing Committee 2019b). The translation of court decisions might not be published, may be published months after the original decision, or decisions and their translations may be published simultaneously, but without revision by jurilinguists and with the translations labeled “unrevised.”
One of the main reasons behind these inconsistencies in compliance is the fact that the English and French versions of federal court decisions are not equally authoritative; in other words, translations of federal court decisions are not considered to be equal in value to the original. The OLA does not explicitly state the equal value of both versions, which, combined with practices such as labelling translated decisions “unrevised,” leads to the widespread interpretation2 that translated versions are not authoritative.
Some of the individuals who participated in the national consultations to modernize the OLA rightly asked: “What is the use of translating a judgment if the two versions do not hold equal value and authority? How can we speak of equality if one of the languages is disadvantaged when it comes to choosing the version of a judicial decision? [...] In reality, there is inequality.” (Beaudoin 2018)
This lack of explicit recognition of the translated version – more often than not the French text in the case of federal courts3 – as authoritative contrasts with bilingual legislation, in which it is explicitly stated that “both language versions are equally authoritative.” It is important to mention, however, that most federal legislation is not translated, but rather co-drafted, which one could say indirectly confirms the negative view of translation.
For a country such as Canada, where, with the exception of Québec, French is primarily a language in translation – in the legal domain, the existence of common law en français evidences this statement – regarding translation as inferior to the original necessarily affects the language rights of the French-speaking minority. When less value is assigned to translation, fewer resources are likely to be invested in it and the resulting quality is likely to be worse, thus reinforcing the perception of translation as inferior to the original; inevitably, this negatively impacts access to justice in both official languages. In other words, the denial of true translation rights – not only formal rights based on the mere existence of a translated version, but also substantive rights – may lead to a denial of language rights and invalidate the language-as-right model as a whole.
Translation is therefore seen as a form of accommodation, rather than a right. As Law Professor Karine McLaren (2014, 45) puts it:
Comment justifier, dans un système juridique qui prône l’égalité de statut de deux langues officielles comme valeur constitutionnelle, que l’une ou l’autre de ses communautés linguistiques officielles n’ait pas accès dans sa langue à une version fiable d’une partie si fondamentale du droit? (…) [l]’égalité réelle implique que les versions linguistiques des décisions judiciaires doivent être de qualité et de statut égal. La solution employée actuellement à l’égard des décisions des certains tribunaux revient à traiter la traduction comme s’il y avait une langue officielle principale, la langue de rédaction des jugements, et une obligation d’accommodement en ce qui concerne l’emploi de l’autre langue officielle, la langue dans laquelle ces décisions sont traduites. (emphasis added)
The justice sector experts consulted by the Standing Senate Committee on Official Languages saw this as an issue that could be addressed by a modernized OLA; one of the recommendations in a draft report was to recognize legal decisions in English and French as equally authoritative and of equal value in the Act. (Standing Senate Committee 2019b, vi) The recommendation was not included in the final report, however, and a vague justification was provided: “Currently, judges make their decisions in only one language and there is no obligation to co-draft decisions. It might therefore be difficult at this stage to recognize both versions of federal court decisions as equally authoritative and of equal value in the Act. In the meantime, however, it is possible for the federal government to take steps to move the Act towards this ideal.” (Standing Senate Committee 2019a, 70).
We can see that the link between language rights and translation rights goes unacknowledged, thereby affecting equal access to justice in the official languages.
In conclusion, in Canada, where language rights have been granted to two language communities and where translation is an integral part of language policy, language rights do not necessarily generate translation rights, which can hinder equal access to justice in both official languages and social justice in general. The question, then, is to what extent true equality can be achieved between the official language communities in Canada if linguistic rights do not lead to true translation rights.
Dr. María Sierra Córdoba Serrano is an Associate Professor and Director of the Translation Studies Unit at McGill University. An active scholar-practitioner, she is interested in the role of translation policy in the management of multilingualism.
References
Beaudoin, Louis. Evidence, 15 October 2018. https://sencanada.ca/en/content/sen/Committee/421/ollo/54275-e
Cardinal, Linda and Rémi Léger. “The politics of multilingualism in Canada: A neo-institutional approach.” In The Politics of Multilingualism: Europeanisation, globalisation and linguistic governance, edited by Peter A. Kraus and François Grin, 19-37. Amsterdam: John Benjamins, 2018.
Córdoba Serrano, María Sierra. “Multilingualism Management in Canada through the Prism of Translation Policies,” Guzmán, María Constanza and Şehnaz Tahir, eds. Negotiating Linguistic Plurality, McGill-Queen’sUniversity Press, forthcoming.
Córdoba Serrano, María Sierra, and Oscar Diaz Fouces, eds., “Building a field: Translation policies and minority languages.” Special issue, International Journal of the Sociology of Language 251 (May 2018).
McLaren, Karine. La langue des décisions judiciaires au Canada. Chaire de rédaction juridique. Laval : Université Laval, 2014 https://www.redactionjuridique.chaire.ulaval.ca/sites/redactionjuridique.chaire.ulaval.ca/files/karine_mclaren_concours_de_redaction_juridique.pdf
Standing Senate Committee on Official Languages. “Modernizing the Official Languages Act: The Views of the Federal Institutions and Recommendations.” Ottawa: Senate 2019a. https://sencanada.ca/content/sen/committee/421/OLLO/reports/ModernOLAFedInst_2019-06-13_E_Final.pdf
Standing Senate Committee on Official Languages. “Modernizing the Official Languages Act: The Views of the Justice Sector.” Ottawa: Senate, 2019b. https://sencanada.ca/content/sen/committee/421/OLLO/reports/OLLO_Report_Final_e.pdf
Legislation
Constitution Act/Canadian Charter of Rights and Freedoms. https://laws-lois.justice.gc.ca/eng/const/page-15.html
Constitution Act 1867. https://laws-lois.justice.gc.ca/eng/const/
Criminal Code 1885. https://laws-lois.justice.gc.ca/eng/acts/c-46/
Official Languages Act 1988. https://laws-lois.justice.gc.ca/eng/acts/o-3.01/
Official Languages Act 1969.
1This approach contrasts with the “language-as-a-problem” approach. When language diversity is considered a problem, translation is seen as a form of temporary ad hoc accommodation that will cease when individuals learn the majority language(s). The right to translation is not a right in and of itself, but rather the means to access other fundamental human rights (access to justice, to education, to healthcare, etc.).
2See McLaren (2014) for a detailed account of different interpretations of section 20 of the OLA and specific practices based on these interpretations.
3The limited number of into-English translations of judgments published in Quebec, as well as their unequal value as compared to the original texts is also a significant problem for the development of Canadian case law. However, space constraints as well as the focus of this article on the OLA will prevent us from delving into this issue.
* revised version
