In memory of Kelly Ricard and with deepest gratitude to Clive Meredith and Mary Plaice
“It is my belief that a Code must be written not for the specialist but for the ordinary citizen with as little of the jargon as is compatible with accuracy and precision of language … We do not want the English version to be a mere translation of the French text. Each version must be written in its own style.”1 – Paul-André Crépeau
While researching the mystery surrounding the translation of the Civil Code of Québec, I thought that the cat was out of the bag when I saw the English Report on the 1977 Draft Civil Code featured in the Civil Code Revision Office’s online archives at McGill. You can imagine my surprise when I turned the pages of the virtual books and saw the translators’ names after so many years of wondering who they were! Although their work did not end up as the final legislation, I am convinced that these mostly freelance English translators, together with Clive Meredith and Mary Plaice, made a contribution to the history of translation in Quebec and deserve better recognition. However, the story doesn’t end there. This article first briefly describes the process followed by the Civil Code Revision Office to translate the Draft Code in 1977 and then covers the subsequent translation in 1991 and finally the revisions to the existing CCQ proposed for 2014.
First, some background information is in order. The new Civil Code of Québec was intended to replace the Civil Code of Lower Canada that was enacted in 1865 and entered into force in 1866. After holding wide consultations, the Civil Code Revision Office submitted its report to the Quebec government in 1977, accompanied by two volumes of comments. In particular, the Draft Report provided the basis for the reform of Quebec family law in 1980. Bill 125 to enact the new Code was introduced by Gil Rémillard in the National Assembly in 1990, received Royal Assent in 1991 and came into force as the Civil Code of Québec (CCQ) in 1994.
Saskatchewan–born Paul-André Crépeau, Q.C., a McGill civil law professor, was the prime mover at the Civil Code Revision Office driving the reform to bring the old Civil Code into the modern era. The reform began with public consultations on family law, which had changed little since 1866. Since the Civil Code of Lower Canada was so outdated, the family law reforms were passed into law in December 1980 as a priority. The Civil Code reform movement was a huge project that snowballed into around 40 committees. After eight years of consultations, the Civil Code Revision Office was ready to publish a report.
R. Clive Meredith (Clive), who was then a senior translator at the Quebec government’s Ministère des Communications and who had spent many years translating statutes for the Quebec National Assembly, was asked to direct the project, which lasted four years. Clive Meredith was to be in charge of the revision and the freelancers. Mary Plaice, an honorary member of OTTIAQ and past president of its predecessor, the STQ, was working in the Montreal office of the Ministère des Communications at that time. She became Clive’s assistant coordinator. Affectionately dubbed “Mrs. Picky” by team members, she helped Clive with proofreading and final touch-ups. Mary occasionally attended terminology meetings in Clive’s absence and was not shy to voice her opinions about un-English sounding phrases to the surprise of the judge in attendance. On other occasions, to quell dissenting voices, Clive referred to Mary by her academic title, Dr. Plaice. Special thanks to Mary and Clive for this anecdotal information.
The Civil Code Revision Office consisted of the late Paul-André Crépeau, “M. L’Office,” secretarial staff and research assistants. Under it were 40 committees each entrusted with reforming one particular aspect of Quebec Civil Law, composed of jurists and various specialists. As each committee finished its work, it submitted a report to the Office containing the proposed legislation. Frequently, tables of concordance were added to indicate which articles of the old Code would be amended or deleted. Once these reports were drawn up in French, they were sent for translation. Generally, 2,000 copies were printed of each report and sent to interested individuals and organizations asking for their comments. When comments or criticisms were received, amendments were made, translated and then consolidated into the final report, which was to constitute the new Civil Code after being submitted to Liberal Minister of Justice Gil Rémillard and subsequently tabled in the National Assembly. All the comments received were also translated, but they were written in a more general style with less legalese. The articles of the new Code were of a different style and were generally very short. Each contained one specific rule or principle, expressed in as few words as possible, leaving no room for ambiguity.2
An added difficulty was that the Civil Code is distinct from Common Law and must use different terminology to reflect philosophical differences. In fact, there is a widely held view in the local translation community that the CCQ translators sought to use unusual or antiquated English terms to be different from common law terms in a bijural context.
Paul-André Crépeau, after whom the McGill Centre for Private and Comparative Law is now named, was available for consultations, as well as John E.C. Brierley, a McGill law professor who chaired the Committee on Legal Terminology for the English Draft Report. According to Edmund Coates, Professor Brierley later wrote that the English translation of Bill 125 [the proposed code] was full of errors and inconsistencies, and he had not been involved during the months immediately preceding its enactment.
It appears that the whole project was handed over to the Ministère de la Justice, which assigned Me Marcel Guy, a former dean of law of the University of Sherbrooke, and perhaps others, with the task of overseeing the final version. According to Archives Canada, Me Guy worked for 25 years on the reform of the CCQ and, from 1977 to 1981, he was a special consultant to the Ministère de la Justice with a view to the adoption
of the new Code by the National Assembly.
After receiving much criticism from jurists, the English version of the proposed legislation provided in the 1977 Report on the Draft Code was substantially retranslated by National Assembly translators (the 1991 translation). Was the criticism fair? One should remember the level of difficulty of translating the Code and all the committee reports and pleasing all the committee members. Moreover, the translations were done without computers, which is difficult for us to imagine today. Mary Plaice remembers that the last versions prepared by all the various translators actually had to be retyped on the same typewriter so that the final text would all look the same for publication purposes. Last but not least, some critics felt that the plain English style of the translation was not appropriate.
Clive Meredith had only accepted the challenge on condition that he be given carte blanche as to English terminology and style, which did not turn out to be the case. His objective had been to ensure that the translation was written in plain and simple English. According to Mary Plaice, Kelly Ricard, a key translator on the 1977 project, was very skilled at plain and clear writing. At the outset, Paul-André Crépeau had expressed the wish that the CCQ would be understandable by the man in the street (see the quote above).
Let’s look at a sample of the different versions:
Source text (identical in 1906 and in 1991)
Les fonds inférieurs sont assujettis, envers ceux qui sont plus élevés, à recevoir les eaux qui en découlent naturellement. (…)
1906 translation of the Civil Code of Lower Canada
Report on the Civil Code (translation by Kelly Ricard)
“Water must be allowed to flow naturally from higher land to lower land.”
Official translation adopted as legislation (1994)
Lower land is subject to receiving water flowing onto it naturally from higher land.
1991, c. 64, a. 979.
The above example illustrates the fact that style—especially plain language—was often sacrificed in the 1991 translation. Traditionalists who wanted to adhere more closely to the original language of the Civil Code of Lower Canada and the new French version won the day. The irony is that the 1991 version is considered by many Anglophones to be unclear and un-English sounding.
A common error pointed out is the inconsistent use of the terms damage, prejudice and injury in the CCQ. Edmund Coates discusses some of the errors and inconsistencies in the English translation in his article, “The English Voice of the Civil Code of Quebec: An Unfinished History” in the Revue de Barreau:
Unfortunately, the English text of the Code only makes occasional use of the expression “act or omission”, to convey the concept which the French text expresses with the term “fait” (e.g., art. 876, 1151, 3020). At times, the English text confuses this concept of “fait”/ “act or omission” with that of a fault (e.g., art. 1732). More often, the English text just mentions “acts” (e.g., art. 1480, 1514, 1609), while intending to encompass acts and omissions (or the text uses the term “actions”, which is no better, art. 874). The English text even uses “act” in one article and then “act or omission” in the next, intending to refer to the same concept (cf., art. 1461 and 1462).3
In summary, the Civil Code Revision Office submitted its report to the government, which was issued in the form of a draft Civil Code, accompanied by two volumes of comments in 1977. The draft CCQ project was taken over by the Ministère de la Justice and approximately 1,000 articles were added to the code (according to Clive Meredith). Me Marcel Guy, a notary, and perhaps others, were mandated to shepherd the bill through the National Assembly. The 1991 English translation was revised by René Chrétien, a manager at the National Assembly and a member of the Bar. Louise Harel was famously quoted as pointing out that, even if a lawyer was responsible, the translators of the CCQ “did not have training in the law; they had studied literature more than anything else.”4 We can assume that the National Assembly translators did their work en vase clos, in other words, in isolation with no access to or discussion with the drafters. Moreover, they probably worked in a pressure cooker atmosphere in order to enact the legislation at the same time as the French version.
Interestingly, the Montreal Gazette and Globe and Mail newspapers use common law terminology for Quebec even when they should refer to civil code terminology, which reflects the public’s lack of familiarity with the CCQ terms. In fact, a joint Montreal Bar and Chambre des notaires committee has worked for the past 20 years on revising the English version of the CCQ. The project was spearheaded by Casper Bloom who co-wrote an article recently in The Montreal Lawyer magazine. He said that the work has now been completed, and the first amendments to the English version should be made this fall by administrative measures. The Montreal Lawyer article states that an agreement has been reached with the Ministère de la Justice to table corrections of substantive legal discrepancies between the French and the English at the National Assembly for enactment in spring 2014. More than 5,000 modifications have been proposed, which should be interesting (The Montreal Lawyer). Hopefully, the English version will at last be the equal of the French text as it is meant to be, because both versions have force of law.
1. Paul-A. Crépeau, Q.C., Civil Code Revision in Québec, 34 La. L. Rev. (1974)
2. This section of the article is based on an unpublished report by R. Clive Meredith, “Pitfalls and Procrastinations, An account of how the Revised Civil Code of the Province of Québec was translated,” 1977.
3. Edmund Coates, La Revue Barreau du Québec, Spring 2011, Vol. 70, p. 58
4. Edmund Coates, La Revue Barreau du Québec, Spring 2011, Vol. 70, p. 52