Affidavits

Should be drafted in English or in French?

Catherine Duff-Caron*

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Affidavits should be drafted in the language chosen by the witness, where that language is English or French. Neither an earth shattering statement nor one that will elicit from the Montreal legal community a more violent reaction than a shrug of the shoulders and a bored " So, what else is new! ". And yet, that statement constitutes one of thirty-seven recommendations adopted by the Council of the Bar of Montreal on September 18, 1996 in order to bring to the attention of the legal community measures to ensure that everyone have access to judicial services in French and English.

To the same purpose, the Council adopted a further recommendation to the effect that where counsel considers it necessary for the examination of witnessess in either French or English, counsel retain the services of an interpreter or engage co-counsel who can complete that aspect of the examination.

Council's recommendations were made on the basis of its Special Committee's study of the Report of the Ad Hoc Committee on Access to Justice in the English Language in the District of Montreal, commonly known as the Gold Report after its president, the honorable Alan B. Gold and after consultation with various liaison committees.

The recommendation on the language of affidavits may appear superfluous. In fact, the Gold Report found from its investigations that a significant majority of lawyers polled used, as the determining factor in the choice of language of an affidavit, the language of choice of the affiant. The Report noted however that there seemed to exist a practice which favoured drafting affidavits in the language of the lawyer rather than that of the witness. Although not widespread, this practice is troubling. It results in the situation where a witness is examined in a language other than the one in which his or her affidavit has been made. According to the Gold Report, this situation raises serious questions of credibility and is analagous to the case where a witness is examined in one language and is cross examined in another.

The Council's recommendation to obtain assistance in the examination of witnesses results from a finding in the Gold Report that certain lawyers had difficulty examining witnesses in English. In today's context where cases can involve highly technical evidence with a specialized vocabulary, this is understandable. Retaining the services of an interpreter or engaging co-counsel who can complete that aspect of the examination are solutions which will minimize this difficulty.

Of the other thirty-five recommendations forming part of the resolution adopted by the Council at its meeting on September 18, 1996, some deal with matters to be acted upon by the courts or administrative tribunals, others by the Minister of Justice and others by the Quebec Bar and the Montreal Bar. The Montreal Bar has established a committee, the Committee to Follow Up the Question of Access to Justice in English under the presidency of Mr. Bâtonnier Pierre Sébastien, Q.C., to suggest ways of implementing those of the recommendations over which it has jurisdiction, to oversee such implementation and to chart the progress made. The Committee's mandate is also to suggest ways in which to sensitize those having jurisdiction over the subject matter of other recommendations, to the existence of such recommendations and to encourage their implementation.

One of the means of sensitizing the legal community is through publications directed at it. Hence this article which is aimed at bringing to the attention of all practitioners the role which they play individually in providing access to judicial services in English and French.

There is much of which the Montreal legal community may be proud in the area of access to justice in two languages. Our long tradition of bilingualism exists because individuals at all levels have made the required effort. Each of us must be sensitive to the effort that we can make. The aforementioned recommendations of the Montreal Bar Council are a clear indication. To borrow a phrase from a well-known athletic shoe manufacturer: JUST DO IT!

* Member of the Council of the Bar of Montreal and member of the Commitee to Follow Up on the Question of Access to Justice in English.

 

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