Does Linguistic Diversity Matter in Law?

During a bilingual hearing in the Court of Appeal, an unrepresented party made an objection to the use of the court-appointed translator.  When this occurred, the presiding judge on the panel asked whether the parties were content to hold the hearing in French only.

It turned out the only one who demurred was the lawyer from the Crown, who was not a party but who had standing as an intervenor because of a Charter issue.  Eager to avoid an adjournment, I turned around, spoke to the lawyer in French and ascertained that he could in fact speak French.  I avoided the adjournment.  The hearing continued in French only, and the young lawyer from the Crown Law Office prevailed against me.  (Belende v. Patel [Eng.]; Belende c. Patel [Fr.])

If success in the Court of Appeal could not spur the lawyer to use more French in his practice, I cannot think what could.  Alas, there is a tremendous amount of bilingual capacity in Canadian law offices which we will eventually lose through lack of use.  A quarter of a century ago, a common task for me as an articling student was to summarize case law from Québec courts.  As the only francophone professional in the office, it was nevertheless a daunting task.  First, judgments concerning the application of the Civil Code involved legal concepts with which I was wholly unfamiliar.  Second, Québecois legal writing tends to have been slower than English Canada in embracing the Plain Language revolution of the 1970’s.  Today, apart from the odd piece of translation, private law firms in English Canada have little use for French-Speaking lawyers.  In contrast with government, where bilingualism attracts economic and status incentives, there is even tacit discrimination against francophones.

According to UNESCO, half of the 6,000 languages spoken worldwide will disappear by the end of this century.  The commonly understood consequence of language extinction to our planet is the loss of world heritage.  For example, as the reach of industrialized cultures extends ever more into the lands of indigenous peoples, the local knowledge of plant, animal and geological phenomena collected over millennia stand to be lost.

Law’s loss from the decline of our profession’s linguistic pluralism is most pronounced, because the world of law is populated entirely by words.  Throughout Anglo-American history, cultural depth and linguistic sensitivity have been integral elements of lawyering.  Values coming from diverse cultures and languages have inspired Anglo legal monuments from Magna Carta (via Old French) to the American Constitution (Iroquois Confederacy).  The signposts of English law come from French (tort, contrat, mortgage, autrefois acquit, renvoie – the list goes on.)

French, both as a mother tongue in Québec and as a minority language in the rest of Canada, is endangered. But English itself is a composite language, not a native language.  Borrowing words and phrases from other languages is the way English evolves.  When English speakers no longer learn other languages, the unhealing wound is on the body of English.  When Canadian lawyers live in a an official bilingual country but do practice in two unilingual solitudes, we contribute to the great historical rift in Confederation.

So when you start your day with your favourite breakfast cereal, read the bilingual nutritional label.  At the office, zigzag between the left and right columns of the Supreme Court Reports every other paragraph (try it – it’s better brain exercise than Sudoku).  At home, Channel-surf between The National‘s Peter Mansbridge and Le Téléjournal‘s Céline Galipeau and make up your mind which newscast is better.  (Hint – there is a clear choice.)  Open your eyes. You live and work in Canada, a young officially bilingual country inspiring model laws around the planet.


Related post: La Profession juridique en français en Ontario

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