Why Codify (Encore)

In connection with yesterday’s post, in which I discussed the reasons for the codification of the civil law of Lower Canada that were expressed in the preamble of the statute which set up the commission responsible for the codification, my friend Alastair C.F. Gillespie pointed me to some speeches by Sir George-Étienne Cartier who was responsible for that legislation. These speeches confirm, though with some interesting nuances, the motivations expressed in the preamble of the Codification Act ― which mainly had to do with the difficulties the inhabitants and the lawyers of Lower Canada faced in accessing their laws, notably because these laws were most unavailable in English or, sometimes, in French, and indeed, in the case of some French legal sources, unavailable in Canada in either language.

One such speech was delivered upon the introduction in the legislature of the United Province of Canada of the bill that would eventually become the Codification Act. Cartier explained that codification was necessary so that Lower Canada’s “inhabitants of diverse origins” would all know their laws. (130; translation mine, here and throughout.) I suppose this might be a reference to the linguistic concerns that took pride of place in the preamble of the Codification Act and, as I will shortly show, in Cartier’s recollections of his fight for codification. However, the reference is a strangely oblique one, in comparison with the straightforward language of these later sources. I wonder whether it does not make more sense to read this passage as showing that Cartier subscribed to the idea, admittedly more popular with common lawyers than with civilians, that a people’s laws are its customs, its heritage passed on from generation to generation. If people “of diverse origins” live together, each group will only know its own customs, and not those of their fellow citizens ― unless, they are educated by a positive act of legislation. This motive, however, has not made it to the Act’s preamble.

Codification was also necessary, Cartier argued, because “the inhabitants of lower Canada, while they feel the wisdom of the French laws that regulate their persons and their properties, can only study the sources of these laws after immense research, which codification will spare them.” (130) Cartier went on to list the legal instruments which “we do not possess” (130). Legal research in 1857 did, indeed, lack the resources of 2015. This concern was, as I explained in my last post, prominent in the preamble of the Codification Act.

Much later, in 1871, Cartier reminded an (anglophone) audience that before codification, the issue of civil law was a matter of great concern to the “English-speaking inhabitants. All admired the spirit of the system, the gentlemen of the profession as well as the others, but they could not all read the text and understand it for themselves.” (717) Cartier boasted that “[t]o remove this just cause of discontent, I demanded and obtained the revision of our laws of Lower Canada and their printing in both languages.” (717)  Indeed, he added, his response to his opponents among both lawyers and judges was that the codification “was less necessary for the French Canadians than to the English population, and that it was a matter of justice towards them.” (717)

This is an interesting counterpoint to the claims of the 1980s Québec nationalists, who counted “institutions” ― including, perhaps first and foremost, the civil law and, specifically, the Civil Code ― among the markers of Québec’s “distinct society” (alongside language, culture, and history). According to the man responsible for that law’s codification, it was done more for the benefit of the anglophones than for that of their francophone compatriots. Of course, Cartier was a politician, both in 1857 and in 1871, and no doubt chose his words for his audiences. Still, even allowing for this fact, these words are of some interest to us today.

Why Codify

Apologies for my silence of late. I’m afraid blogging will be light for another week or so. In the meantime, however, here’s something related to the topic of my last post, the codification of law. It won’t be news to those versed in the history of Québec law, but it’s something that I, in my ignorance, did not know, and find interesting, fascinating even: the reasons given by the legislature of the United Province of Canada for codifying the substantive and procedural civil law of Lower Canada.

These reasons are set out in the preamble of the Act Respecting the Codification of the Laws of Lower Canada Relative to Civil Matters and Procedure, Con. St. L.C., c. 2 (available here at XXXIII). There are three of them, and while they have, in a general sense, to do with the accessibility of the law, a consideration of the foremost importance to proponents of codification such as Jeremy Bentham, they concern aspects of this problem that are quite different from those with which Bentham was concerned. For him, codification was an opportunity to provide a statement of the law that would be both comprehensive and comprehensible to everyone (by virtue of being expressed in a concise, clear, and logical text). As I noted in my last post, the drafters of the French civil code knew that such ambitions for codification were not realistic. For them, codification was a means of realizing some political objectives ― notably national unity and the consecration of a certain (conservative) mindset. (I plan on returning to this issue eventually.) But the Canadian codification pursued other aims again.

The first “whereas” of the preamble notes that much of Lower Canada’s civil law being French, and some of it being English, “it therefore happens, that the great body of the Laws in that division of the Province exist only in a language which is not the mother tongue of the inhabitants thereof of British origin while other portions of it are not to be found in the mother tongue of those of French origin.” Codification was thus presented, first, as an opportunity to make all the laws accessible to the speakers of both languages. It was, in a way, the continuation in Lower Canada of efforts begun in England with the Pleading in English Act, 1362, 36 Edw. III c. 15, which provided that court procedures would thenceforth be in English, rather than, as before, “in the French Tongue, which is much unknown in the … Realm,” and continued with the Proceedings in the Courts of Justice Act, 1731, which also complained of the “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.” These linguistic concerns are also reflected in the first section of the Codification Act, which required that of the two Secretaries to the Commissioners for Codifying the Laws of Lower Canada one “be a person whose mother tongue is English but who is well versed in the French language, and the other a person whose mother tongue is French but who is well versed in the English language.”

The second “whereas” of the preamble, for its part, referred to the increasing difficulty of obtaining copies of the old French laws “still in force in Lower Canada,” as well as “commentaries upon them,” due to their “hav[ing] been altered and reduced to one general Code.” This is a practical consideration and one that is obviously peculiar to the situation of Lower Canada in the mid-19th century. But the reference to “commentaries upon” French laws as being important, perhaps even necessary, is worth noting, mostly because it stands in an interesting contrast with the hostility to legal commentary that the French codifiers saw the need to address at some length, but perhaps also in light of contemporary doubts about the value of legal scholarship. The legislators who decided on the codification of the laws of Lower Canada seem to have believed that the writings of legal commentators are as important as legal texts themselves in making the law accessible ― a belief that CanLII Connects represents in the digital age.

Finally, the the third “whereas” also referred to “the great advantages which have resulted from Codification, as well in France as the state of Louisiana, and other places” ― without elaborating on what these “great advantages” were. Codification, it was content to proclaim, was “manifestly expedient.”

As in post-revolutionary France, the circumstances of time and place seem to have provided the impetus for codification in Lower Canada. However, the reasons which (at least ostensibly) motivated Canadian legislators had more to do with the needs of the legal community ― and thus, even if indirectly, the litigants ― and universal principles than those that moved Bonaparte and his codifiers to action. Whether this difference had any substantive consequences, I am not qualified to say. But I think it is interesting to note.

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.

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.

What the Fuck?!

Adam Liptak has an interesting article in the New York Times today, looking at the use of  “[t]he most versatile of the classic Anglo-Saxon swear words” before and by the Supreme Court of the United States. That Court, it turns out is rather prudish: after its decision in Cohen v. California, in 1971,  holding that the slogan “fuck the draft” on a t-shirt was protected by the First Amendment, “the word,” which Mr. Liptak never names, “was used in nine Supreme Court decisions, typically in quotations of something a criminal had said. Its last appearance was in 1993.”

I was intrigued and decided to investigate how things stood in Canada. Well, our Supreme Court is less inhibited, or less tasteful, than its American counterpart. Although it did not get in the game until a year later, (quoting a poem, of dubious literary merit, in which a member of a biker gang let it be known that his and his colleagues’ occupation was to “fuck the world”) the words “fuck,” “fucking,” or “fucked” appear in 29 of its decisions, with no sign of a slowdown. However, unlike in Cohen, nothing much seems to turn on “the word” in any of these decisions; they all belong to the “quoting-shit-criminals-say” variety.

Because, unlike Mr. Liptak, I’m not getting paid for looking for dirty words in judicial decisions, I am unable, for now at least, to push my inquiry any further. But for those interested in the subject, there is an article by Christopher M. Fairman, whom Mr. Liptak describes as the “leading authority on the legal status of the word” in the United States, pithily entitled “Fuck”.

UPDATE: When I publish a post, WordPress volunteers some tags which its algorithms think might be relevant to it. The first one that came up for this post was “occupy Wall Street”. Looks like the movement has a foul-mouthed reputation.