At the time this paper was written Alexandre
Covacs was Chief, French Language Services, Legislation Section, Department of
Justice.
Under section 133 of the British North
America Act, the Parliament created in 1867 was to be a bilingual one. But the
Fathers of Confederation did not consider all the problems involved in
establishing real equality between the French and English languages. Nor did
they have the technology necessary for such a grand project. In the years that
followed, a number of measures were adopted in an attempt to create real
linguistic equality in Parliament. These include the creation in 1885 of the
position of Deputy Speaker of the House of Commons with the requirement he have
a knowledge of the language other than that in which the Speaker is fluent; the
establishment of a Translation Bureau in 1934; the introduction of simultaneous
translation services in 1959, the adoption of the Official Languages Act in
1969 and, in 1982, of the Canadian Charter of Rights and Freedoms.
One of the most recent attempts to overcome the
practical problems of legislating in two languages was the creation, in 1979,
of the French Jurilinguistics Group in the Department of Justice. All
legislative drafting in Canada has been centralized in the Justice Department
since 1944 and is carried out by the Legislation Section.
French is, at the federal level, an official
language on equal terms with English. Statute law, although originating from
English law or common law, has been strongly influenced by roman-germanic legal
concepts, or civil law in the broad sense of the term. The drafting of bills is
done in co-operation by teams of French-speaking and English-speaking
lawyer-drafters; the former with a civil law background the latter with common
law training. As soon as the Cabinet authorizes the Legislation Section to
prepare a bill, a lawyer is designated from each official language group and
from each legal system. According to a task assignment procedure, each member
of the team is alternately given a greater degree of responsibility.
This system has existed for only a few
years. Until recently, bills were prepared in English and then translated,
generally quite literally, by a service outside the Department. For many years
this translation was final. It was not even reread by a French-speaking lawyer
before being tabled before Parliament. Hence, the French translator was, quite
wrongly, the first, and in many cases, the only interpreter of the Act.
Aware that the situation had to be
corrected, the Department appointed French-speaking lawyers with civil law
training to vet the French version of bills.
This initiative certainly helped to improve
the situation. The French version, however, continued to follow the lead of the
English text. Furthermore, French-speaking lawyers, unlike their English-speaking
colleagues, only vetted legislative texts and, despite the nature of their
training and vocation, were prevented from trying their hand at drafting. For
this reason, the Department decided, in a second phase, to create the
bilingual-bilegal team mentioned above. To assure its operation, this practice
had to be given theoretical and practical foundations.
On the theoretical level, the Department
postulated that the objective was to draft statutes whose sense, spirit and
legal effects are equivalent in both languages: the concept of a French version
which merely reflects, word for word, the English "original" was
deemed inadequate. This meant a radical change of approach, the emphasis being
put from the outset on drafting rather than on translation. As the federal
government had no French legislative drafting tradition, however, it had to
create one in order to guide its lawyers in both drafting directly in French
and in drafting from the English. That is why the Department defined the nature
of legislative writing and established its optimal qualitative characteristics.
On the practical level, this led to the
creation of a group responsible for implementing the concept into daily work
structures, for promoting its progress, and for doing its fine-tuning. The
French Jurilinguistics Group or JLF was born.
Composed of roughly twenty members, this
group includes all the French speaking lawyers and linguists of the Legislation
Section and of the Law Revision Commission (responsible for revising
periodically the language of all statutes), as well as representatives of the
editing unit of the Section, of the Legal Services of the Privy Council
(regulations) and of the Translation Section (seconded to the Department by the
Federal Translation Bureau, Secretary of State). The JLF meets regularly,
circumstances permitting. It is entrusted with studying, and, as far as
possible, resolving, all French legislative problems brought to its attention
by its members.
Its first task was to produce a paper
entitled Guide canadien de rédaction legislative française (Canadian Guide to
French Legislative Drafting). For reference purposes, the material is presented
in a series of articles whose French and English titles have been classified
alphabetically, and is followed by an index.
French legislative drafting is done, as we
have seen, either directly in French (for bills), or indirectly from the
English (for bills and, in the short term, the revision of existing statutes).
The articles in the guide contain, therefore, unilingual French texts dealing
with law or language (advice or rules, drafting models, terminology, and
miscellaneous information, including format and typographical presentation) and
bilingual texts reproducing the official English version of characteristic passages
which now occur over and over again, in various forms, in the Statutes, as well
as a nonofficial French version of theses passages which can be used as a
model.
The rules are either mandatory in character
(this is partially the case with unilingual texts) or optional (this normally
being the case for bilingual texts that often have to be adopted). The
distinction can clearly be drawn from the subject matter at hand.
In its present form, this guide, first
published in 1980, is but a starting point. New editions will incorporate the
ongoing research of the JLF and benefit from any criticisms forthcoming from
all those who make it a point to contribute to the quality of legislative
French.
As a natural complement to their
problem-solving and creative work, the senior lawyers have undertaken a
self-training program. Newly arrived lawyers are trained and French-speaking
lawyers will, with increasing frequency, be put in charge of drafting bills. In
the past owing to a lack of seniority, the French-speaking are generally less
experienced than their English-speaking colleagues. The latter, therefore, will
continue to direct for some time yet the preparation of important or
particularly complex bills. Moreover, even though the French-speaking drafter
may have an excellent secondary training to his credit, he has, nevertheless,
learned the law by studying many texts which have been translated with varied
success from English, or which are full of English terms, formulations and
structures. His teachers and professors have provided him, either unknowingly
or because they judged it to be legally essential, with a training which has
been marked in many respects by the same influences. If this lawyer has
practised law or some other profession in the private or public sector before
occupying his current position, there exists a strong possibility it is only
human that this anglicizing influence has become even more deeply rooted.
By participating in the work carried out by
the JLF, lawyers benefit in two ways: They are freed from the habit of using
English structures, and are also trained in the use of authentically French
structures. Both aspects of the training are reinforced by the contributions of
jurilinguists, that is of linguists specialized in the field of law.
Within the JLF, the jurilinguists assist in
drafting and translating bills, and revising statutes. In this capacity their
duties are: to review French versions which the lawyer-drafters present to them
(produced either through drafting or through the translation of bills), and to
take part in the versions' finalization; to provide consultation services on
request; to examine French texts in order to adapt and prepare, terminological
or phraseological cards to be placed at the disposal of their colleagues or included
in the guide; to make presentations on any point considered appropriate; and to
ensure communication with the Terminology and Documentation Branch of the
Federal Translation Bureau and, where necessary, with the appropriate agencies
in the provinces and abroad.
So far, the activities of JLF members, as a
group and individually, have had numerous positive results. A number of bills
whose French version is quite acceptable with regard to terminology and
formulation have been introduced or passed. French legislative drafting and
translation is tending to free itself more and more from the lexical or
stylistic influence of English, Through the growing co-operation of members of
the bilingual drafting groups, a fruitful exchange is taking place between French
and English versions of a bill, a process of particular benefit in formulating
the spirit and the letter of the law. It is therefore not utopian to expect the
birth, in the medium term, of a truly Canadian bilingual legislative drafting
school that could eventually serve as a model for those countries or groups of
countries where juridicial standards must be established in more than one
language.