Laws in Multilingual Countries - The Pitfalls of Nuance

Factual Questions
1

A humorous story here got me to thinking:

The short article is worth a read for a chuckle.

But in a nutshell, the Canadians write their laws in English and in French. Human language being what it is, there can be no perfect translation that means exactly the same things in each language. Conversely, as we all know, the law often turns on subtle distinctions in the wording or even punctuation of legislative acts and statutes.

So what happens when the French and English versions are different enough to matter? As it seems to be in the case at hand. How does Canadian jurisprudence deal with this?

And in general how are these sorts of things handled in inherently multilingual activities like the EU, NATO, ordinary bilateral inter-country treaties, etc.? Common treaty boilerplate says all the language versions are equally the original definitive text. Which they can’t really be when put under a microscope.

I thought about putting this in FQ because there is (probably) a factual answer to the narrow question abut canoes. But pretty quickly the wider questions turn into matters of opinion, albeit ideally well-informed opinion.

Calling all Canadians, but especially @Northern_Piper.

2

The law in one language is considered the binding text, and the translation is non-binding commentary. The Alsace region of France still has laws called “local law” written in German that were enacted between 1871 and 1918 or 1940-1945 while Alsace was part of Germany. In European business, there is usually a clause in private contracts about the jurisdiction where the contract will be enforced and the translated versions will have “non binding for informational purposes only” in the header of every page.

3

That might be true in France, but is decidedly not the case in Canada where the laws in French or English are each considered definitive. In any case, the law should make it clear whether a human-powered boat is covered or not. And that works in French or English. What about a guy floating on an inflated inner-tube?

4

Not commercial law but the 1840 Treaty of Waitangi immediately springs to mind. This formalised the relationship between British occupiers and Maori landowning tribes in New Zealand and essentially formed NZ as a bilingual and bicultural state, with continuing traditional rights.

There were significant differences between the Maori and English versions of the Treaty which, if the concepts had been better translated, would have probably given pause to the Maori acceding to it. Subsequent grievances which sometimes broke out into warfare rest in part on the misalignment between the two texts. From the Wikipedia article:

The text of the treaty includes a preamble and three articles. It is bilingual, with the Māori text translated in the context of the time from the English.

  • Article one of the Māori text grants governance rights to the Crown while the English text cedes “all rights and powers of sovereignty” to the Crown.
  • Article two of the Māori text establishes that Māori will retain full chieftainship over their lands, villages and all their treasures while the English text establishes the continued ownership of the Māori over their lands and establishes the exclusive right of pre-emption of the Crown.
  • Article three gives Māori people full rights and protections as British subjects.
5

That is a very good question, and the answer is lawyer linguists. Every law, regulation and directive passes through this EU department before being adopted. They are phenomenal, and very well paid and highly regarded.

6

In Canada, a discrepancy of a comma between English and French led to a $1M award in a lawsuit.

As @Hari_Seldon pointed out, both languages are equal here.

7

@Hari_Seldon got it right. In Canada, if a law is enacted in both English and French, then both language versions are equally authoritative. The French version is not a “translation” of the law; it is the law, equal in status to the English version.

There are, of course, rules of construction which have evolved to deal with cases where the two versions may not agree. One approach, and the narrowest, is the “equal common content” guide. If one version of the law has a much narrower apparent meaning than the other, then the narrow version governs, because that is the common content of both versions.

There is another approach, though, (name escapes me at the moment) where both versions are considered to modify the other. That’s because it’s not very common to encounter a version that is clearly narrower than the other. What’s more common, as in this case, is that the wording in one version may be more ambiguous than the other.

At first glance, it may be that in English, “vessel” means a large boat, as argued by the accused. However, if some dictionaries use that meaning, and other dictionaries use a different meaning that fits with the meaning in the other language, then that points the courts towards the less ambiguous version, to reach an identical interpretation.

For example, noodling around on the internet, I find that Oxford and Cambridge both define “vessel” as “large boat”. That supports the accused’s argument.

However, I’ve found another source, don’t know how reputable, that says this:

That supports the Crown’s interpretation. The ambiguity between the different English meanings of “vessel” can be resolved by comparing it to the French version to resolve the ambiguity.

Still another approach is to consider the purpose of the provision in question. For example, in this case, does it make sense to include “canoes” in the prohibition on impaired operation? The accused apparently argued that it doesn’t, because there is no one person in control of the canoe, so it’s different from other vehicles. But, if both persons have a degree of control, both could endanger the vessel’s operation, so wouldn’t it mean that both could potentially be criminally liable if operating it while impaired? For example, the impaired offence applies to pilots operating airplanes. I’ve never seen a suggestion that the copilot can come on board drunk and escape criminal liability because the pilot was sober.

And then, in the specific case of canoes, they take skill and balance. One impaired person could endanger the other person in the canoe, and that suggests that the criminal prohibition should apply.

For instance, if a guy named Harrison and his buddy Tyler go out canoeing, and Harrison is blotto, it could easily be a case where he tips the canoe and Tyler too.

8

I will pierce you in 44 and polk you in 52.

9

Painful! :grin:

10

You type with an American accent. :wink:

11

Thank you learned counsel.

When Tyler goes swimming, it’s a bad day in canoe-land. Very well-played Good Sir! Very well-played.

12

You left off the possibility that someone might get drunk on Bud Light, and then have sex in a canoe.

13

As long as they’re both straight white men then there’s no problem with Bud Light.

Oh, wait, that might still be a problem with butt buddies and Bud Light. Outrage is hard to be consistent with.

14

Reading the article, it seems that the original dispute was in English:

So it appears that the original dispute was the interpretation of the comma in English, then after the one side lost, they appealed and then went hunting for a French version of the contract.

15

Very Interesting. Seems to be an example of @Northern_Piper’s statement that if one language is ambiguous, look to the other for (possible) clarification.

IANA contracts lawyer, although my late wife was and I’ve picked up a thing or three on the topic over the years. I have signed a lot of multi-year contracts when I was condo prez or in other roles. IMO/IME the “5 year term renewable, but cancellable on one year’s notice” should be read as a right of cancellation on any day to take effect one year later, irrespective of the planned 5 year terms.

Given the clear language of the contract and the relative equality of the parties, Roger’s cockamamie theory doesn’t even pass the laugh test. The point of the multi-year terms (among other things) is to avoid the effort to renegotiate 4 years out of 5 for what’s assumed to be an ongoing long-term relationship. The idea that a right of cancellation renders the 5 year term “completely meaningless” is laughable.

There are much more clear and direct ways to construct a contract clause that really means “fixed 5 year terms, renewable or cancelable at the renewal date only, and only if given 1 years notice to cancel”.

16

I do not understand that part. If there is a contract in English and French, wouldn’t you have signed both language versions, i.e. have a copy of both in your files? Why did they search for two months, then? Bad record keeping?

Also with contracts, wouldn’t discrepancies between language versions be resolved against the party that drafted the contract, like ambiguities in one language version would be?

17

I know of one case with the Patent Act, where the discrepancy wasn’t with the language so much as , someone just screwed up. The deadlines for certain actions were different between the English and French versions, and the courts decided the longer deadlines were the definitive version, thus broadening the coverage, rather than narrowing it.

Of course, this is a much easier thing to interpret than definitions of words.

18

I will just say, reading the article in the OP, it seems a pretty weak case for this being a problem of an ambiguous law written in two languages with words that have potentially legally significant differences, and more an example of someone who obviously violated the law trying to weasel his way out of liability by pleading ambiguity.

But maybe that’s because I grew up reading the International Regulations for Preventing Collisions at Sea (or at least its US equivalent, the Navigation Rules), which clearly defines vessel as “…every description of water craft, including nondisplacement craft, WIG craft and seaplanes, used or capable of being used as a means of transportation on water.”

There’s even (in the Navigation Rules) a handy picture to show how a “vessel under oars” may be safely illuminated by means of an “electric torch” (yep) so as to prevent collision at night:

ETA: Oh, and “Sailing vessel underway—less than 7 meters in length” too, just because the guy looks so chill, tiller in one hand, “electric torch” in the other!

19

I totally agree. That blog is about legal humor, specifically about highlighting ludicrous cases involving ludicrous legal reasoning. And sometimes highlighting ludicrous law-making, or at least ludicrous law-writing. This particular case totally has the feeling of trivial angels dancing on especially small pinheads. But includes the inherently funny ideas of Canadians being, well, so nicely wholesomely Canadian, and their multilingualism, and of course drunkenness.

All the funniest cases from anywhere on Earth involve defendants who were impaired while doing [whatever]. Which of course leads to all sorts of legal weaseling trying to escape responsibility, when what they really want is for there to be a general clause in the Constitution or whatever local foundational document, that provides “Oh, he was drunk at the time” as a general get-out-of-jail-free card.

I just thought the case and article was a light-hearted intro to the actually serious subject of multi-lingual law & jurisprudence.

20

Interesting thread.

I find it suggestive that the Canadian Parliament apparently twice considered amending the statute to exclude canoes, but didn’t. That would tend to support the Crown’s argument that canoes are “vessels” and that the defendant was properly convicted.

IIRC treaties between warring powers are typically written in the languages of both the victor and the defeated, with the proviso that, in case of a dispute, the version in the victor’s language is the authoritative one. That was true of the German surrender at the end of WWII, for instance.

“Tips the canoe and Tyler, too”? Go to your room, NoPi.