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Legal Translation: A Voir Dire on Its Basic Concepts and Methods

Presented at the 6th AnnualLegislative Counsel Retreat

October 5, 2012

Guy Jourdain

Director of Legal Translation

Presentation Outline1. Constitutional Principles

2. Purpose of Translation

3. Main Differences Between French and English as to Their Mode of Expression

4. Methods for Production of Bilingual Legislation

5. Drafting Style for French Language Version of Statutes and Regulations

6. French Language Common Law Terminology

7. Vision for Legal Translation Branch

8. Practical Tips for Effective Cooperation Between Legislative Drafters and Legal Translators

9. ReferencesNote: Manitoba and Ontario have similar approaches for the production of bilingual legislation. A brief overview of Ontario’s situation is therefore included along with this PowerPoint presentation.

Constitutional PrinciplesRequirement of Legislative and Judicial Bilingualism

Pursuant to section 23 of the Manitoba Act, 1870, English and French have an official status in the legislative and judicial spheres of government in the province. In Reference Re Manitoba Language Rights, the Supreme Court of Canada, in discussing the intent of section 23, stated that “[t]he purpose of . . . section 23 of the Manitoba Act, 1870 . . . was to ensure equal access to the legislatures, the laws and the courts for francophones and anglophones alike.” As a result, all provincial statutes and regulations must be passed in English and French and the courts must be able to operate in both these languages.

Equal Authenticity Rule

The requirement in Canada that legislation be enacted in both English and French has important implications. It means that both language versions of a bilingual statute are original, official and authoritative expressions of the law. Neither version has the status of a copy or translation – and neither has paramountcy over the other. As a result, both versions of a bilingual statute must be used in order to determine or ascertain the intent of Parliament or the Legislature. This is known as the “equal authenticity rule” which the Supreme Court of Canada first formulated in relation to Quebec legislation in 1891 in C.P.R. v. Robinson and reaffirmed with respect to federal legislation in 1935 in R. v. Dubois.

In Reference Re Manitoba Language Rights, the Supreme Court expressly stated that the equal authenticity rule applies to Manitoba legislation. This principle is also codified in section 7 of The Interpretation Act (Manitoba).

Purpose of TranslationThe fundamental purpose of translation is to express in the target language, in a natural and idiomatic manner, the exact meaning conveyed by a statement in the source language. It must be emphasized that translation is not about the literal rendering or transposition of words.

Professional translators are thus writers producing texts that read well in the target language. They are usually fluent in their source language(s) as well. But they are above all effective bridges between the languages they work in; they can render the message of the original text, with appropriate style and terminology, in their mother tongue.

Examples

French-speakers in Canada will say “Il ne fait pas chaud ce matin” to express the idea that the weather is unseasonably cool. A literal translation such as “the weather is not warm this morning”, although correct, would not convey the appropriate meaning. A more suitable translation would be “the weather is a bit crisp this morning” or “the weather is on the cool side this morning.”

English-speakers will say “I am sick and tired” to express the idea that they find a situation exasperating. A literal translation such as “Je suis malade et fatigué” would make very little sense in French. An idiomatic equivalent such as “J’en ai complètement marre” [I am completely fed up] would be required.

Main Differences Between French and Englishas to Their Mode of Expression

Generally, it can be said that French words function at a higher degree of abstraction than the corresponding English words. They tend to be less cluttered with details of reality.

Similarly, when expressing ideas, French-speakers will favour synthesis and concision over an exhaustive description of the aspects and properties of things. A well-known author used the following metaphor in this respect: “To translate an English sentence into French is like copying a coloured image in pencil.”

Examples in General Vocabulary

• dress rehearsal = répétition générale

• heart attack = crise cardiaque

• time zone = fuseau horaire

• painkiller = antidouleur/analgésique

Main Differences Between French and English as to Their Modes of Expression (cont’d)

Impact in the Area of Legal Expression

The French language’s typical mode of expression is reflected in the style of legal codes enacted in jurisdictions governed or influenced by French law. In these codes, legal rules are expounded in the form of broad and abstract statements. For example, the basic rules applying to the law of delicts (torts) in Quebec were formerly encapsulated in the following terse statement in Article 1053 of the Civil Code of Lower Canada:

Every person capable of discerning right Toute personne capable de discerner

from wrong is responsible for the damage le bien du mal, est responsable

caused by his fault to another, whether by du dommage causé par sa faute à

positive act, imprudence, neglect or autrui, soit par son fait, soit par

want of skill. imprudence, négligence ou inhabileté.

Methods for Production ofBilingual Legislation

1. Translation in Isolation

This method prevailed at the federal level until 1978 and was severely criticized by law practitioners, translators, academics and other commentators. It is now considered obsolete.

Legislation was drafted in English and then forwarded to translators as a finished product. It was extremely difficult for translators to produce high quality texts since their contribution would come at the very end of the process and they had to deal with tight deadlines. They also had very little access to drafters of the original text, as well as to relevant materials, and would seldom be part of the discussions held between the drafters and the departmental instructing officers.

Methods for Production ofBilingual Legislation (cont’d)

2. Translation in Tandem with Legislative Drafters

Legislation is written by a drafter in the source language until the text has sufficiently gelled. A translator then comes on board and prepares the target language version, interacting with the drafter until the final version is produced. The translator’s function is to prepare a text that accurately reflects the original text in law while at the same time being linguistically correct in the target language. This method is used in several jurisdictions, including Manitoba and Ontario.

Specialists in the field recognize that, in optimal conditions, this approach to legislative translation can yield a very high-quality product:

“One has to admit, however, that in certain drafting offices translations are handled with such care that the end result is in fact very close to the quality achieved through co-drafting.” [Lionel Levert, Bilingual and Bijural Legislative Drafting: To Be or Not To Be? (2004) 25 Statute Law Review 151, at 157]

“I believe that a properly established translation process that is supported by the political will of the executive and of the legislature results in legislation that clearly respects both cultural groups.” [Donald L. Revell, Bilingual Legislation: The Ontario Experience (1998) 19 Statute Law Review 32, at 36]

Methods for Production ofBilingual Legislation (cont’d)

3. Co-Drafting

Under this system, legislation is prepared by a team made up of an English-speaking drafter and a French-speaking drafter. The co-drafters have access to the same information. They both attend meetings to discuss legislative proposals with departmental instructing officers, they establish the legislative scheme in close cooperation, and they subsequently each draft the legislative initiative in their respective language. Each drafter is expected to comment on the text of the other drafter, and each has the responsibility of ensuring that both texts are consistent with each other. The ultimate objective is to produce, with the same professional care and attention, two original and authentic versions.

The co-drafting method was instituted by the federal government in the late 1970’s to address the problems associated with translation in isolation. It was also adopted by the government of New Brunswick in the 1980’s.

Drafting Style for French LanguageVersion of Statutes and Regulations

Over the last several decades, a unique drafting style has been developed in order to ensure that the general rules and conventions of French are properly adhered to in the French-language version of statutes and regulations in Canada. The following examples illustrate rules and conventions that differ from those used in English-language legislative drafting.

Definitions

Definitions are to the greatest extent possible presented as though they were entries in a dictionary. When required, linking words such as “s’entend de” and “assimiler à” are added. However, direct equivalents for the English words “means” and “includes” are never used.

“and”/“or”

Whether a series of clauses in a provision is conjunctive or disjunctive is indicated by appropriate introductory words, not by literal equivalents of "and" and "or".

“shall” / “may”

The proper equivalents to be used for the English words “shall” and “may” vary according to the circumstances. An obligation is usually imposed by the present indicative form of the verb, occasionally by auxiliaries such as “doit” or “est tenu de”. A prohibition is indicated by the use of the auxiliary “ne peut”, by “il est interdit de” or sometimes by the auxiliary “ne doit”. A power, right or choice is indicated by the auxiliary “peut” or occasionally by other phrases.

French Language Common Law Terminology

Under the Quebec Act, 1774, a mixed or “bijural” legal system was created in the Province of Quebec whereby:

• French law was reinstated with respect to private law matters (legal relations between individuals); and

• English law continued to apply with respect to public law matters (legal relations between individuals and the State [the Crown]).

As a result, more than 200 years ago, Quebec lawyers and judges developed a French-language terminology for legal concepts related to English public law. However, except for the period during the 1800’s when legislation was enacted in both English and French in the Prairie provinces, the need to create a French language terminology pertaining to English private law did not arise until New Brunswick became an officially bilingual province at the end of the 1960’s.

Although the basic principles of common law were initially conceived and articulated in Anglo-Norman or Law French (e.g.: en ventre sa mère, cestui que trust, feme sole, estate pur autrui, autrefois convict), it is (somewhat paradoxically) only in the last 30 or 40 years that a structured and systematic vocabulary was devised in order to express the concepts of English private law correctly in modern French. In particular, as of the early 1980’s, significant efforts have been made under the auspices of the National Program for the Integration of Both Official Languages in the Administration of Justice (POLAJ) to produce a dictionary containing a standardized French-language terminology for common law concepts in various areas including property law, evidence, wills and estates, torts, trusts and family law [http://www.pajlo.org/en/dictionary.php].

French Language Common Law Terminology (cont’d)

Examples

• Mortgage: Although “mortgage” is actually an Anglo-Norman word originating from old French, members of the Standardization Committee decided to opt for “hypothèque” which was already widely used by Francophones in common law jurisdictions across Canada.

• Real and personal property: Given that the common law draws a clear conceptual difference between real and personal property and immoveable and moveable property, the Standardization Committee adopted “bien réel” and “bien personnel” as equivalents for “real property” and “personal property”. It ruled out the words “bien immeuble” and “bien meuble” which are well known throughout the French-speaking world.

• Bailment: There is no direct or close equivalent for the concept of bailment in civil law. Given that “bailment” is an Anglo-Norman word derived from “baillement” in old French, the Standardization Committee chose to resurrect this latter term.

• Estoppel: Again, there is no direct or close equivalent for the concept of estoppel in civil law. Although the word “estoppel” is also of Anglo-Norman origin, the Standardization Committee did not give it new life in modern French and preferred the neologism “préclusion” already used to some extent in international law.

Vision for Legal Translation Branch

In my opinion, the Legal Translation Branch should adopt a vision whereby it would position itself as a Canadian centre of excellence offering a modern and dynamic work environment with the following benefits for staff:

• A structured program for staff training and mentoring;

• An optimal use of technology to streamline work.

The Branch will endeavour to establish partnerships with translation programs, law schools and professional associations to develop and benefit from innovative approaches for the training and recruitment of legal translators. This could include, for example, a cooperative training program, internships and practicums for law and translation students. The organizations to be approached include among others:

• The Université de Saint-Boniface’s Translation School;

• The University of Manitoba’s Faculty of Law;

• The University of Ottawa’s French Language Common Law Program;

• The Université de Moncton’s Faculty of Law;

• The Association des juristes d’expression française du Manitoba;

• The Association of Translators, Terminologists and Interpreters of Manitoba;

• The Centre canadien de français juridique.

Practical Tips for Effective Cooperation Between Legislative Drafters and Legal Translators

• Shortly after a bill or regulation has been assigned to a specific translator, the legislative drafter in charge of the document should briefly meet with the translator to provide general background information on the main legal issues and policy objectives coming into play.

• Legislative drafters should provide legal translators with a draft version of a bill or regulation when its content is reasonably close to the expected final product and when sufficient time is still available for translation and revision. If a bill or regulation is expected to require several successive drafts, the early versions are to be translated only if deadlines do not allow enough time for translation of the full document once an advanced draft becomes available.

• Draft bills or regulations should clearly indicate the source of their various provisions. This is particularly relevant when provisions are borrowed from bilingual jurisdictions.

• If a bill or regulation requires several successive drafts, each version should clearly indicate changes in relation to the previous one.

ReferencesCase Law

Canadian Pacific Railway Company v. Robinson, (1891) 19 S.C.R. 292

R. v. Dubois, [1935] S.C.R. 378

Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721

Books and Articles

Michel BASTARACHE, Naiomi METALLIC, Regan MORRIS and Christopher ESSERT, The Law of Bilingual Interpretation, Markham, Ontario: Lexis Nexis, 2008

Michael BEAUPRÉ, “Legal Translation: Introduction” (1987) 28 Cahiers de droit 735-745

Gérard René DE GROOT, “The Point of View of a Comparative Lawyer” (1987) 28 Cahiers dedroit 793-812

Elmer A. DRIEDGER, “Legislative Drafting” (1980) 25 Meta: Translators’ Journal 316-324

References (cont’d)Marie-Claude GUAY, “The Yin and Yan of Drafting in Two Languages: From Finesse to Faux Pas – A Canadian Perspective” 2012 Journal of the Commonwealth Association of Legislative Counsel , Issue No. 1, pp. 7-20

Malcolm HARVEY, “What’s so Special about Legal Translation” (2002) 47 Meta: Translators’Journal 177-185

Guy JOURDAIN, “Bilingual Legislation in Manitoba: The Dream of a French Version Tailored to its Audience” (2002) 47 Meta: Translators’ Journal 244-264

Alexander LANE, “Legal and Administrative Terminology and Translation Problems” in The Language of the Law and Translation: Essays on Jurilinguistics edited by Jean-Claude Gémar (1982)

KASIRER, Nicholas “François Gény’s libre recherche scientifique as a Guide for Legal Translation” (2001) 61 Louisiana Law Review 331-352

Lionel LEVERT, “Bilingual and Bijural Legislative Drafting: To Be or Not to Be?” (2004) 25 Statute Law Review 151-164

References (cont’d)Serge LORTIE and Robert C. BERGERON, “Legislative Drafting and Language in Canada”, (2007) 28 Statute Law Review 83-118

Clive MEREDITH, “Some Notes on English Legal Translation” (1979) 24 Meta: Translators’Journal 54-67

Donald L. REVELL, “Bilingual Legislation: The Ontario Experience” (1998) 19 Statute LawReview 32-40

Paul SALEMBIER, “Rethinking the Interpretation of Bilingual Legislation: The Demise of the Shared Meaning Rule” (2004) 35 Ottawa Law Review 75-99

Arthur N. STONE, “Bilingual Drafting in a Common Law Jurisdiction in Canada” (1987) 8 Statute LawReview 123-125

Jean-Paul VINAY and Jean DARBELNET, Comparative Stylistics of French and English: A Methodology for Translation, Amsterdam/Philadelphia, John Benjamins Publishing, 1995, 358 pages

Michael J. B. WOOD, “Drafting Bilingual Legislation in Canada: Examples of Beneficial Cross-Pollination Between the Two Language Versions” (1996) 17 Statute Law Review 66-77

References (cont’d)

Guides and Other Resources

American Translators Association – Translation: Getting it Right [http://www.atanet.org/docs/Getting_it_right.pdf]

BASTARACHE, Michel, “Bijuralism in Canada” Lecture Given as Part of the Department of Justice, Lunch and Learn Workshop on Bijuralism and the Judicial Function – February 4, 2000 [http://canada.justice.gc.ca/eng/dept-min/pub/hfl-hlf/b1-f1/bf1g.html]

Federal Regulations Manual [http://www.justice.gc.ca/eng/dept-min/pub/legis/rm-mr]

Guide fédéral de jurilinguistique législative française

[http://www.canada.justice.gc.ca/eng/dept-min/pub/juril/index.html]

Legistics [http://www.canada.justice.gc.ca/eng/dept-min/pub/legis/index.html]

Uniform Law Conference – Bilingual Legislative Drafting Conventions [http://www.ulcc.ca/en/us/index.cfm?sec=6]

Uniform Law Conference – Protocole de rédaction législative bilingue [http://www.ulcc.ca/fr/us/index.cfm?sec=6]