In a legal system that is too often difficult to access, lawyers are worried that the reform of Bill 101 will add other barriers to those who do not speak French. Lawyers have even taken action to invalidate provisions of the new law (former Bill 96) that have an impact on the judicial system, because they believe that they are in “flagrant contradiction” with the Canadian Constitution. .
The Act respecting the official and common language of Quebec, French, notably imposes new obligations on those who have recourse to the courts to settle a dispute.
One of its provisions means that legal persons — companies, among others — will soon have to file their pleadings in French or accompany documents in English with “translations into French certified by a certified translator”, which they will obviously have to pay. “It’s an irritant that has a link with equal access to justice for all,” says the president of Quebec, Ms.e Catherine Claveau, in interview.
Individuals, however, retain the right to bring their claims before the courts in English, whether for divorce, child custody or damages claims.
And if the Barreau supports the objective of the new law, the Bâtonnière du Québec believes that it will certainly have an impact on civil chamber proceedings and that it will generate constraints that will harm the sound administration of justice by lengthening the delays or adding costs.
Multinationals are unlikely to be affected—they can afford these costs—but SMEs may find the pill hard to swallow. “There are a lot of small businesses in Quebec,” recalls Ms.e Guillaume Talbot-Lachance, from Borden Ladner Gervais. And the human behind the legal entity (the owner of a neighborhood convenience store, for example) may sometimes not have a good command of French. “We fear that some non-profit legal persons do not have the means to pay for a certified translation,” adds Ms.e Claveau.
On the side of the Order of Translators, its president, Donald Barabé, has this reflection on access to justice: “If the documents remain only in English, the French-speaking person does not have access to this content. »
The understanding of justice
Some lawyers consulted indicated that they would draft their proceedings directly in French to avoid additional costs. If necessary, they will do an “in-house” translation for their clients. But what will happen if the litigant has misunderstood what is written? Could an inaccurate phrase be used against him? This raises the question of the client’s understanding of the procedural document: he must approve it and therefore understand it, recalls Ms.e Talbot-Lachance.
As for M.e Renaud Laliberté, a business lawyer, believes that the certified translation requirement violates section 133 of the Canadian Constitution, which provides that court documents may be filed in either official language. “In my view, this is not a provision that will survive constitutional scrutiny. A risk that the Bar had also reported to elected officials in the parliamentary committee on Bill 96.
It is this requirement to file proceedings in French that is currently being challenged in court by a group of lawyers. They maintain that it violates the rights of the English-speaking minority of Quebec and ask that it be invalidated. Given the urgency of the situation — the provision in question comes into force in September — they will plead on August 5 for the articles to be suspended immediately pending trial.
In their request, led by lawyer Félix-Antoine Doyon, they argue that the Supreme Court itself has raised the need for a shift in order to create an environment favorable to expedited and affordable access to the justice system. . However, requiring the use of French translations even in files where each party speaks English “is an excessive formality which causes unnecessary and even detrimental expenses and delays”, they write.
The issue of deadlines
Who says legal action says deadlines to be respected. Some lawyers consulted fear that they will not find a translator quickly enough for their proceedings, which can increase the time taken by civil lawsuits.
The Order of Translators is however reassuring: “Everyone is worried about capacity. The capacity is there, there is no problem”, assures Mr. Barabé. He explains that there are more than 8,600 translators in Quebec, of which 2,700 are members of the Order. About 500 members are already accredited in the legal field, he adds, pointing out that “translators are used to managing deadlines”.
However, the situation can get worse when it comes to urgent measures, such as requests for an injunction to prohibit a company from dumping toxic waste into a lake, for example. What are we going to do if we are in a total emergency? Will litigants have additional time? “That’s a very good question,” agreed Mr.e Talbot-Lachance: “We are on new ground. »
According to the lawyers protesting the law, the practical effect will be to “force the legal person to use the French language” when the deadlines are very tight.
Another section of the law, which provides that judges do not have to be bilingual, also raises concerns, according to the chairman, particularly in matters of youth protection and small claims, where there is no lawyers. However, if the judicial district where a case in English is to be heard does not have a judge fluent in the language, it would likely be postponed or transferred.
In criminal matters, the fear of postponements raises the specter of stays of proceedings under the Jordan decision, rendered by the Supreme Court of Canada, which imposes roughly a maximum time of 18 months in the Court of Quebec and 30 months in Superior Court to bring the case to trial.
For the moment, the new obligations decreed by “Law 96” do not arouse calls from lawyers in panic at the Bar, indicates the president, who maintains to follow the file in order to inform the members and to offer them training if necessary. But the changes are recent, and some are not yet in force, she recalls, saying that she cannot exclude that fears will surface at this time.