The Supreme Court has delivered its ruling this morning in the dispute about the ability of a party to submit exhibits in French into evidence in cases before the courts of British Columbia. In Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2013 SCC 42, it holds, by a bare 4-3 majority, that exhibits submitted for the truth of their contents (as well as pleadings and other materials) must be in English, pursuant to an 18th century British statute that is still applicable in British Columbia. It thus confirms the decision of the BC Court of Appeal, about which I had blogged here. The main questions in the appeal were whether the Proceedings in the Court of Justice Act, 1731 applied to documents submitted as exhibits, whether it was applicable in the British Columbia, and whether it had been modified by subsequent legislation. (The Court also considered an alternative argument based on the BC rules of civil procedure, but I will skip it here.)
The appellants’ first argument was that the 1731 Act does not apply to documents submitted into evidence ― contrary to, say, pleadings. The Act provides that
all Writs, Process and Returns thereof, and Proceedings thereon, and all Pleadings, Rules, Orders, Indictments, Informations, Inquisitions, Presentments, Verdicts, Prohibitions, Certificates, and all Patents, Charters, Pardons, Commissions, Records, Judgments, Statutes, Recognizances, Bonds, Rolls, Entries, Fines and Recoveries, and all Proceedings relating thereunto, and all Proceedings of Courts Leet, Courts Baron and Customary Courts, and all Copies thereof, and all Proceedings whatsoever …
must be in English. Justice Wagner, for the majority, concluded that the word “proceedings” was broad enough to extend not only to pleadings and similar documents, but also to exhibits:
“proceedings” include the taking of evidence for the purpose of hearing a motion or conducting a trial, and this includes documentary evidence filed as an exhibit attached to an affidavit. (par. 20)
The appellants further argued that, whatever its scope, the 1731 Act was not the law of British Columbia. According to common law principles, eventually codified in provincial legislation, English law was “received” in British Columbia at the time it was settled by British colonists, insofar as it was applicable in the “local circumstances.” BC law has fixed the “reception date” at 1858, at which time the 1731 Act was in force. However, the appellants claimed that “local circumstances” rendered it inapplicable. They claimed, first, that “applicable” should be taken to mean “necessary,” and second, that necessity should be assessed at the time when the dispute to which the rule of law at issue potentially applies, rather than at reception date. Since there is no necessity for the 1731 Act, it should no longer apply in British Columbia.
Justice Wagner rejects these arguments. Applicability does not require necessity ― it is enough that the law not be unsuitable to the local circumstances. Otherwise, the status of English law would be too uncertain, to the detriment of the legal system. It would be wrong to require the particular “mischief” that motivated the legislation’s enactment by the Westminster Parliament to have been present in the colony at time of reception: “If reception depended on comparing the very specific historical circumstances that motivated a statute, almost no statutes would be received” (par. 32). As for the time at which suitability is to be assessed, it is the reception date, not the moment when a dispute arises. Again, to do otherwise “would be to introduce an unacceptable level of uncertainty into the law” (par. 35) and would go against the longstanding approach of common law courts, usurping the legislature’s role to change the law.
The appellants’ third argument was that even if applicable, the 1731 Act had been modified or repealed by subsequent legislation. Although no law modified it explicitly, implied repeal is possible, says Justice Wagner, “if subsequent legislation” ― whether primary or subordinate legislation (such rules of court, which are technically a regulation) ― “has occupied the field to such an extent that the court can infer that the legislature intended to repeal the earlier statutes” (par. 44). To apply this test, it is important correctly to characterize “the field” ― here, according to Justice Wagner, it is the language of judicial proceedings. No legislation subsequent to the 1731 Act occupies it completely for civil matters. (For criminal matters, s. 530 of the Criminal Code does.) The BC rules of civil procedure only govern documents prepared for use in court, and not all the aspects of proceedings covered by the 1731 Act. Indeed, although that law has been repeatedly applied by BC courts, the legislature never intervened to change it. As for the influence of the Charter, with its recognition of bilingualism and minority linguistic rights, it must not be forgotten that it “also reflects a recognition that Canada is a federation,” (par. 56) and, in this area, does not impose the same obligations on each province. It might be well for the BC legislature to act, but the Court has no power to force it to do so.
Justice Karakatsanis disssented, along with Justices Lebel and Abella. In her view, the courts have an inherent residual discretion to control proceedings before them, which includes the power to authorize the submission of evidence in a language other than English. This inherent jurisdiction can be ousted by legislation, but only “by clear and precise statutory language” (par. 84). The 1731 Act is not clear; on the contrary, its “origins, precise meaning and scope remain shrouded in antiquity” (par. 81). It is not enough to oust the courts’ inherent jurisdiction. Furthermore, Justice Karakatsanis disagrees with the majority’s approach to the issue whether the 1731 Act has been modified by subsequent legislation. Although not repealed, it has been modified by the BC rules of civil procedure. These require documents prepared for use in court to be in English ― but not documents originally prepared for other purposes. They do not prevent the courts from exercising their discretion to accept documents in French. Constitutional values, and especially respect for bilingualism, should guide the exercise of discretion.
Although the majority and the dissent are, to some extent, talking past each other, I find the majority’s reasoning more persuasive. I think Justice Karakatsanis’ reasoning based on the “antiquity” and consequent obscurity of the 1731 Act is a bit facile. If it is part of the law, then the court must interpret it. I think she also fails to address the federalism concerns raised by Justice Wagner. (Indeed, when discussing the importance of bilingualism, she brings up the federal Official Languages Act; I do not think it is either fair or legally correct to rely on it to impose more bilingualism on a province than its legislature or the Charter do.)
Finally, as a matter of policy, I am far from sure that Justice Karakatsanis’ preferred approach of leaving the admission of French-language documents to the discretion of judges promotes access to justice. It would cause disputes and preliminary hearings, which would drive up the costs of litigation for all parties ― perhaps more than simply translating the documents.