|BILINGUAL DRAFTING IN CANADA1
Lionel A. Levert2
Bilingual legislation is not new to Canada. By virtue of section 133 of the Constitution Act, 1867 (30-31 Vict., c. 3, U.K.), the Parliament of Canada and the Legislature of Quebec have been enacting their legislation in both English and French ever since Confederation in 1867. Since Confederation, and especially in recent years, Ottawa and Quebec have been joined in this regard by several other Canadian jurisdictions: the provinces of Manitoba, New Brunswick, Ontario and, to a lesser extent, Saskatchewan, and the Northwest Territories and Yukon Territory.
Bilingual Drafting (Federal Laws)
The preparation of bilingual legislation in Canada does not necessarily entail a bilingual drafting process. Most of the Canadian jurisdictions that enact their legislation in two official languages draft their bills in one language and then have them translated into the other. The Federal Government, however, after using this “unilingual drafting / translation” approach for over a century, opted, in the late 1970’s, for an approach that it considered to be more respectful of the legal equality of status of its two official languages: bilingual drafting. The Province of New Brunswick has also devised a similar system for the drafting of its legislation. In all of the other “bilingual” Canadian jurisdictions, bills are prepared in one official language and translated into the other, although there are important differences in drafting procedure from one jurisdiction to another.
My purpose in preparing this paper is to provide you with an overview of the important changes that have taken place in Canada since 1978 with respect to the way in which Federal legislation is prepared in both English and French. Being myself directly involved in the preparation of bills for the Federal Government, I will dwell solely on the Federal practices in this regard, even though I have no doubt that the provincial and territorial practices would also be of great interest to this group of legislative counsel.
Task Force on Bilingual Drafting
In the mid-1970’s, the Department of Justice of Canada set up a task force to examine the legislative drafting practices of other countries where legislation is enacted in more than one official language. In 1978, the Department decided to do away with the “unilingual drafting / translation” approach that had been used in Ottawa since Confederation. Since that date, the two language versions of all government bills (the preparation of which is the responsibility of the Legislation Section of the Department of Justice) have been drafted by a team of two drafters: an anglophone lawyer assigned to the drafting of the English version and a francophone lawyer put in charge of the French version.
Co-drafting - Dual Responsibility
When this new system, which we call co-drafting, was put into place, another important change occurred in the Legislation Section: the position of Deputy Chief Legislative Counsel (my current position) was created. It was felt that the ultimate responsibility for the two official language versions of the bills prepared by the Legislation Section should lie in the hands of two senior officials, each of whom represents one of the official linguistic groups and one of the two Canadian legal systems (i.e., common law and civil law). Whenever the Chief Legislative Counsel is an anglophone, the deputy will be a francophone, and vice versa. One of them will always be a lawyer trained in common law, while the other will be a civil law graduate.
The way the system works is fairly straightforward. When Cabinet drafting authority is received by the Chief Legislative Counsel, we jointly decide which two drafters the file will be assigned to. In making that decision, we normally take into consideration the workload of the drafters, the urgency and complexity of the file and, in some rare instances, the area of the law involved (we normally try to avoid specialization). As a training measure, we try, in as far as possible, to match an experienced drafter with a less experienced drafter.
Co-ordination of Files
One of the drafters is assigned the primary responsibility for the file. This entails coordinating the file and being the main contact for the sponsoring department. The two drafters are expected to consult and to cooperate with one another to the fullest extent, and no decision is to be taken in isolation on any aspect of the file. The first drafter has no authority to impose his or her views on the second drafter. If both drafters cannot agree on any given aspect of the bill they are drafting, they must seek advice from more senior drafters or, if the disagreement persists, call upon the Chief Legislative Counsel to make a decision on the matter. If the difficulty relates to linguistic aspects of the bill, the Chief Legislative Counsel will consult with the Deputy Chief Legislative Counsel before making any decision. Subject to special circumstances, the role of first drafter is assigned to anglophone drafters and francophone drafters on an equal basis.
Full Participation of both Drafters
The first drafter will make the initial contact with the sponsoring department with a view to obtaining the name of the person (or persons) who will be instructing the drafters on behalf of that department (we insist that, wherever possible, the instructing officer be bilingual, or else that there be two instructing officers: one anglophone and one francophone) and to organizing the first meeting. The first drafter always consults with the second drafter before setting a date for a meeting. Indeed, we want to make sure that, as a general rule, both drafters are in attendance at every meeting. Our view is that, if only the first drafter attends the meetings, the second drafter will be in no better position than any of the translators who, prior to 1978, used to translate the English version of our bills into French in complete isolation. Ensuring that the two drafters are fully involved in every step of the preparation of the bill is, in our opinion, an essential part of our bilingual drafting process. We want the two drafters to have the fullest understanding of the sponsoring department’s views, concerns and policy considerations.
When the drafters have received sufficient information from the instructing officer(s) to start drafting the bill, it would be utterly unrealistic to think that they could both go back to their offices immediately and start drafting simultaneously. What happens in most cases is that the first drafter prepares a first draft and submits it to the second drafter for comments. The first drafter may produce several drafts before the second drafter even produces his or her first one. In the meantime, the second drafter will be working on other bills and most probably on bills that he or she is drafting as first drafter. Each drafter is expected to read thoroughly, and to comment on, every draft produced by his or her colleague. This interaction is considered by our office to be one of the important features of bilingual drafting: each language version benefits greatly from the input of the two drafters. As a general rule, both versions of our drafts are sent out to the sponsoring departments at the same time, even if, as is usually the case, the first drafter’s version is ready well in advance of the second drafter’s version. The purpose of this practice is to incite sponsoring departments to read and compare the two versions, and also to avoid giving them the impression that the second drafter’s version is only a translation of the first drafter’s version.
Procedures can vary in special circumstances. Some of our drafters will, especially when it comes to preparing very urgent legislation, share their responsibility as first drafters with their second drafters. They may agree, for instance, that the first part of the bill will be drafted by the first drafter, at the same time as the second part is being drafted by the second drafter, each drafter preparing his or her part of the bill in his or her own official language. This way, the sponsoring department can have a “complete” bill to comment on very quickly. Once the sponsoring department has approved the content of the draft, each drafter can then prepare his or her language version of the part that was initially drafted by the other colleague.
Single Drafter Approach
Would it not be more expeditious and cost-efficient to have our bills drafted by fluently bilingual drafters who could handle both language versions? When we first started implementing our bilingual drafting approach, some of our drafters thought that the idea would solve many of our problems (e.g., shortage of drafters, inconsistencies between the two versions, etc.). We did at that time, to a certain extent, experiment with that approach. Our experience was not particularly conclusive, however. We rapidly drew the conclusion that it is virtually impossible for any person to be fluent enough in a language other than his or her mother tongue to be completely comfortable in drafting, with all the necessary nuances, a bill in that language. Another important disadvantage of such a drafting system is the fact that it is almost impossible for the drafter to be completely objective in his or her preparation of the second language version. There is a tremendous advantage in having a second person consider and criticize the first language version. Therefore we do not recommend that the “single drafter approach” be used for the bilingual drafting of legislation.
Two Genuine Language Versions
Our ultimate goal is to produce, with the same level of care and attention, two quality language versions, neither of which can be considered to be a mere translation of the other. In order to achieve that goal, our drafters benefit from the support of a group of highly skilled language specialists (jurilinguists and legislative editors) who have a major role to play throughout the drafting process, reviewing the drafts to ensure textual consistency and logic and accuracy of terminology. In the final stages of the process, all bills are also reviewed by the Chief Legislative Counsel, the Deputy Chief Legislative Counsel and a review committee composed of both anglophone and francophone drafters and chaired by a senior drafter. Before any bill goes to print, it is also carefully reviewed by a revisor, whose sole role is to compare the two versions in order to identify, and bring to the attention of the drafters, any apparent inconsistency or discrepancy between the two versions that may persist despite the extensive analysis the bill has already undergone during the drafting process.
Role of the Sponsoring Departments
Bilingual drafting is not, and cannot possibly be, the sole responsibility of the drafters. The sponsoring departments have a key role to play in this regard. Firstly, they are required to appoint instructing officers who have the capability of instructing the drafters in both official languages. Secondly, they must realize the importance of reading, and commenting on, both language versions. Finally, they must satisfy themselves that the bill meets their needs and expectations in both of its official language versions. In other words, the sponsoring departments have to bear in mind, in practice as well as in theory, the fact that the two versions, once enacted, will be equally authoritative.
Drafting bilingual legislation is a difficult task - drafting bilingually in a country with two co existing legal systems is an even greater challenge. Our drafters are asked to produce two language versions that are not only linguistically correct, but also reflect the two legal systems - common law and civil law - that prevail in our country. Neither language version must reflect one legal system only. The legislation must be meaningful to Canadians in all parts of the country, regardless of the legal system that prevails in the place in which they live and regardless of whether they are reading the English version or the French version.
Bilingual drafting of legislation has proven to be a very challenging and rewarding experience for Canadian legislative drafters. We remain convinced that it has greatly assisted us in producing better quality legislation. If our expertise in this area can be of assistance to those of you from other bilingual or multilingual Commonwealth countries, we would be more than happy to share with you the experience and knowledge we have acquired in co-drafting bilingual legislation for the past fifteen years.