In an Unknown Language

It is not every day, or even every month, that courts get to quote and discuss a statute enacted in the reign of Edward III. But the BC Court of Appeal did just that in an interesting decision it issued last week, in the case of Conseil Scolaire Francophone de la Colombie-Britannique v. British Columbia, 2012 BCCA 282. The issue in the case was whether documents (prepared in the ordinary course of business) in French could be submitted as exhibits to an affidavit tendered in evidence in a civil lawsuit in British Columbia without being translated. In effect, the fight is largely about who has to pay to have the documents translated – the party submitting them, or the other side. At first instance, the judge ruled in favour of the BC government, which argued that untranslated documents in French could not be admitted.

The two main issues on the appeal were whether the British Proceedings in the Courts of Justice Act, 1731 (U.K.), 4 Geo. II, c. 26 was in force in BC and, if so, whether it prohibited the admission of documents in languages other than English.

The Court began by briefly reviewing the history of language use in English courts. As it explained,

[b]y the 13th century, and possibly earlier, oral proceedings in the King’s Court were conducted in French.  … [T]he variety of English dialects made the English language inappropriate for court proceedings.  Latin was the written language.

However, throughout the 14th century, use of the English language was on the rise, and the oral language of the courts became inaccessible to most people.  As a result, the Pleading in English Act, 1362 (U.K.), 36 Edw. III, c. 15 … was enacted (par. 19-20).

That Act, in a discussion that would fit right into modern Rule of Law literature, noted

great Mischiefs which have happened to divers of the Realm, because the Laws, Customs, and Statutes of this Realm be not commonly [holden and kept] in the same Realm, for that they be pleaded, shewed and judged in the French Tongue, which is much unknown in the said Realm; so that the People which do implead, or be impleaded, in the King’s Court, and in the Courts of other, have no Knowledge nor Understanding of that which is said for them or against them … ; and that reasonably the said Laws and Customs [the rather shall be perceived] and known, and better understood in the Tongue used in the said Realm, and by so much every Man of the said Realm may the better govern himself without offending of the Law, and the better keep, save, and defend his Heritage and Possessions; and in divers Regions and Countries, where the King, the Nobles, and other of the said Realm have been, good Governance and full Right is done to every Person, because that their Laws and Customs be learned and used in the Tongue of the Country.

It provided, accordingly, that “all Pleas which shall be pleaded in [any] Courts whatsoever … shall be pleaded, shewed, defended, answered, debated, and judged in the English Tongue,” though written records would be kept in Latin.

That situation persisted until the enactment of the the Proceedings in the Courts of Justice Act in 1731. That statute also took note of

many and great Mischiefs [which] do frequently happen to the Subjects of this Kingdom, from the Proceedings in Courts of Justice being in an unknown Language, those who are summoned and impleaded having no knowledge or understanding of what is alleged for or against them in the pleadings of their Lawyers and Attornies, who use a Character not legible to any but Persons practicing law

– and required that all written records also be kept in English rather than Latin, French, or any other language.

That statute was part of the law of England, which was received in British Columbia in 1858.

The Court of Appeal holds that it is still in force in the province. Parliament has made an exception to it insofar as criminal trials are concerned,  the accused now having the right to be tried in French. But, as regards civil procedure, it was neither repealed nor modified. The appellants’ argument that language rights must be interpreted generously is true so far as it goes, but  “the courts must not import language rights where they do not exist constitutionally or through statute, regardless of how desirable such importation may seem.” An argument of this sort is not enough to conclude that a statute has been repealed by implication.

The court further holds  that the 1731 Act applies to documentary evidence. The appellants claimed that its purpose, which is to increase access to justice, means that it should not be construed so as to prevent them from making their case. However, the court points out that though the statute’s “purpose was, generally speaking, to facilitate access to justice; more specifically … it was aimed at preventing the injustice that resulted from the conduct of litigation in a language most lay litigants could not understand” (par. 48). In a judicial understatement, Justice Bennett  observes that “[i]t is not clear to [her] how requiring a party to pay for the translation of evidence that the other party is obliged to tender would facilitate access to justice” (par. 51)

Rejecting some other arguments put forward by the appellants, the Court dismisses the appeal, and holds that the party tendering into evidence a document originally in French bears the burden of having it translated. That seems the right result to me. As Justice Bennett says, access  to justice is not served by letting people tender evidence which most citizens and most lawyers might not be able to understand. As a matter of policy, it would surely be better if a party were at least able to consent to French-language documents being admitted, but it is not for the courts to make this policy into law.

An Ancient Parliamentary Right

I learned something about constitutional and Parliamentary tradition yesterday, and decided I’d post about because I was probably not alone in my ignorance of this quirk. Apologies to those in the know already!

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Each session of the mother of parliaments, at Westminster, and her daughters throughout the Commonwealth, starts with a Speech from the Throne, which sets out the Crown’s – so, by convention, the cabinet’s – agenda for the session. Debate on the government’s agenda as outline in the Speech from the Throne is the first order of legislative business, and the vote on the Address in Reply – the formal response of each House of Parliament to the Speech from the Throne – is a vote of confidence. So far, so familiar.

But, it turns out, not exact. Actually, the first order of business, in the House of Lords and the House of Commons at Westminster, the Senate and the House of Commons of Canada, and the Ontario Legislative Assembly (and perhaps others – I haven’t researched other provinces) is not debating the Speech from the Throne, but the introduction and first reading of a bill that has nothing to do with the Speech from the Throne. In the U.K. House of Commons, it is the Outlawries Bill. In the House of Lords, it’s the Select Vestries Bill. In the Canadian House of Commons, it is Bill C-1, An Act respecting the administration of oaths of office. In the Senate, it is Bill S-1, An Act relating to railways. The British bills seems to have a substantive content relevant to their titles. Canadian ones do not have anything to do with oaths of office, or railways, or anything else. Their only section reads:

1. This bill asserts the right of the House of Commons [or Senate, in S-1] to give precedence to matters not addressed in the Speech from the Throne.

This wording is revealing. It is unusual, indeed strange, for an act of Parliament to “assert,” although this is not altogether unique in Canadian legislation: the National Horse of Canada Act, S.C. 2002 c. 11, “recognize[s] and declare[s].” More importantly, it probably is unique for an Act of Parliament – even for a bill – to refer to itself as a “bill” rather than as an “Act”.

The reason for this unique wording is that these are bills that are not meant to become Acts. The preamble to C-1 explains this tradition:

Whereas the introduction of a pro forma bill in the House of Commons before the consideration of the Speech from the Throne demonstrates the right of the elected representatives of the people to act without the leave of the Crown;

Whereas that custom, which can be traced to 1558 in the Parliament at Westminster, is practised in a number of jurisdictions having a parliamentary form of government;

And whereas it is desirable to explain and record the constitutional relationship represented by that custom …

That of S-1 is similar, though of course it makes no reference to “the elected representatives of the people.” It also does not specify the date on which the custom of the pro forma bills originated.

This is perhaps as well, since there seems to be some confusion on this point. The latest iteration of Ontario’s version of the pro forma bill, more transparently named An Act to Perpetuate an Ancient Parliamentary Right, also refers to 1558. But the earliest version available on the legislative assembly’s website, dating back to 1998, claims that

[t]his practice dates back to the reign of Elizabeth I, when on March 22, 1603, (just two days before her death), Parliament made this assertion of independence from the Crown for the purposes of legislation.

The British bills seem to actually have a traditional substantive wording, related to their titles. But their purpose is exactly the same as that of the Canadian pro forma bills, for which they have served as a model (though as you can see, we have somewhat innovated on it).

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This is all quite amusing, as are many other constitutional traditions originating in Westminster. But it in a way, it is also rather sad. Pro forma bills are bald assertions of power, not intended to lead to its exercise. Having won its independence from, and then control over, a once-powerful Crown, Parliament has become the servile instrument of the Cabinet. The executive is once again in control of the agenda, and whatever Parliament says at the beginning of each of its sessions, it does not give precedence, or indeed almost any consideration, to matters not put before it by the Cabinet. (Indeed, it is the Prime Minister who tables Bill C-1 in the House of Commons.) Legislative supremacy, or even autonomy, is not much more real now than under the Tudors and the Stuarts.

The Pursuit of Difference

I promised my post earlier today, to say more about the belief that the alleged national slogans of Canada and the United States – respectively “peace, order, and good government,” and “life, liberty and the pursuit of happiness” – tell us something about the two countries generally and their constitutions specifically. Here goes.

Those who hold this belief conveniently forget that the words “life, liberty and the pursuit of happiness” are found not in the U.S. Constitution, but in the Declaration of Independence, which has no legal effect, and does  not define the goals of American government. The Declaration was adopted to justify a revolution, and was animated by  a very different spirit than the Constitution, which was intended to establish an effective government. In his Lectures on the French Revolution (which I heartily recommend, both for the depth of the ideas and for the brilliance of the language), Lord Acton described the Declaration as the Americans’ “cutting,” and the Constitution as their “sewing.”

The Constitution Act, 1867 is the Canadian “sewing,” and it is, accordingly, not appropriate to compare it to the Declaration of Independence. The appropriate comparison is rather with the U.S. Constitution. The preamble of the latter describes its aims as “to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” Well, common defence, domestic tranquility, and general welfare sound an awful lot like peace, order, and good government.

As is usually the case, we are just much less different from the United States than our romantic nationalists like to think. The pursuit of difference is an unprofitable, albeit occasionally entertaining, pastime. We would do well, methinks, not to try to be different from someone else, but to be more ourselves.