Local Circumstances

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.

Legal Self-Services, Part Deux

Just a follow-up to yesterday’s post about the impact of a “self-service mentality” on the legal profession. This mentality, I suggested, is part of what explains the surge in self-representation. Josh Blackman, of South Texas College of Law, says something similar in a blog post, but his perspective is different and more optimistic. Prof. Blackman points out that “[t]he very same generation of law students who like to do things ‘self-service’ are also the MBA students who will want to obtain legal services in that fashion.” He thinks that self-service-oriented lawyers will be better positioned to meet that demand.

That’s correct I suppose. And it may well be that sophisticated clients can use the legal self-service to their advantage. Perhaps – indeed, hopefully – the self-service model can be adapted for “ordinary” litigants as well, allowing them to benefit from a form of professional help without having to pay the full price if they cannot afford to. The trouble, however, is that those who are categorically averse to paying for legal services because they think they can learn all they to know about the law on their own – which, I am sure, is the case of more than a few, though probably a minority, of self-represented litigants – will not take advantage of the self-service model.

The self-service mentality is already changing the legal profession and affecting the access to justice problem, and its effects will only become stronger. It is change both for the better and for the worse.

Legal Self-Services

Jim Gardner, of SUNY Buffalo, has an interesting post at The Faculty Lounge, arguing that

[t]he capacity to acquire information, shop, travel, and do almost anything without human intermediation is conceived as a right, or at least a new baseline norm.  Insistence upon the necessity of human interaction as a condition for completing a transaction is now the deviation requiring justification.  At the same time, whether human adjuncts to transactions add value seems to be a matter of deep skepticism.

This certainly rings a bell. For what it’s worth, I usually prefer finding information myself (online) to asking for it; I am annoyed when I have to go to a bank teller instead of just using an ATM; and so on. (Though, unlike in prof. Gardner’s most extreme example, I have not taken to resolving disagreements with my room-mate via texting.) In prof. Gardner’s view, this creates problems for legal education (because students are skeptical about the value of human educators and advisers) and is bound to create problems for lawyers who, imbued with this self-service mentality, might lack the personal skills necessary to be professional, effective “human adjuncts”.

But there is another way in which the self-service mentality is already affecting the legal profession. As anyone involved with the legal system probably knows, it is increasingly common for litigants to represent themselves, causing no end of grief to themselves and serious troubles to lawyers and judges who have to deal with them. And while the cost of legal services, and lack of funding for legal aid (especially in civil matters) is a major cause of this problem, it is not the only one. People choose to forego professional assistance, even when they could afford it. They take false confidence from the availability of a great deal of legal information on the internet. The emergence of the self-service mentality described by prof. Gardner helps explain why.

But although share that mentality myself, it is important to stress that when it comes to law – as probably in at least some (though surely not all) other areas – it is a dangerous one. For people who choose to represent themselves rather than rely on a lawyer, consequences tend to be sad. As I wrote here,

law and justice, as any first-year law student learns, are very different beasts. CanLII might succeed in its stated goal, which “is to make Canadian law accessible for free on the Internet.” Yet it seems that by making law freely accessible, such resources give people a false sense of being able to succeed in the legal system without professional help, and even without more than a very superficial acquaintance with it, which leads them to fail to get the justice, if any, that the system could give them if used properly.

As I said back then, if you can help it, don’t try it at home.

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My apologies for the lack of posts lately. There seems to be little going on worth posting about, or perhaps my brain is in aestivation.

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 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.

Don’t Try This at Home

I had missed this story when it came out, but better late than never. The CBC reports on the work of a Windsor Law professor, Julie Macfarlane, according to whose estimation “up to 80 per cent of people in family court and 60 per cent in civil cases represent themselves.” This is is, as she says, “huge,” and creates all sorts of problems for the system, which did not develop with self-represented litigants in mind, and of course for the self-reps themselves. They are, more often than not, bewildered by the process, and emerged frustrated. The report quotes prof. Macfarlane as saying that “[s]ome people feel so burned by this process they need counselling. They’re feeling so emotionally overwhelmed, they need more than legal advice.”

Prof. Macfarlane finds that this wave of self-representation has two main causes. The obvious one is that budgets for legal aid, especially in civil matters, are extremely tight. But the other, says she, is that “[m]any people who, in the past, may have decided they could pay for a lawyer if they scrimped and saved on something else, are increasingly coming to the conclusion that, given the amount of information on the internet, perhaps they can do this for themselves and save a great deal of money in the process.”

That is quite ironic, since the accessibility of legal information is supposed to make “access to justice” easier. But law and justice, as any first-year law student learns, are very different beasts. CanLII might succeed in its stated goal, which “is to make Canadian law accessible for free on the Internet.” Yet it seems that by making law freely accessible, such resources give people a false sense of being able to succeed in the legal system without professional help, and even without more than a very superficial acquaintance with it, which leads them to fail to get the justice, if any, that the system could give them if used properly.

That’s not to say that CanLII should shut down. It is a precious resource, for lawyers and others alike. But it has a perhaps non-obvious downside, of which we should also be aware.

In fact, the whole issue of self-represented litigants and access to justice abounds in complexities that are forgotten more often than they should be. Continue reading “Don’t Try This at Home”