Aram KuyumjianBijural Language: Translating Legal Documents Across Canada’s Legal Systems
Understanding Bijuralism in Canada
Whenever I translate legal documents, one of my considerations in choosing appropriate terminology is the legal systems at play and more specifically the province of my audience.
We cannot fully understand legal translation in Canada without first understanding bijuralism—the coexistence of two legal systems: civil law in Quebec, and common law in the rest of Canada.
For context, about 6% of countries worldwide are bijural, including Canada, Scotland, South Africa, and the Philippines, and approximately 70% of countries use either civil or common law as their primary legal system. See Bijuralism: A Supreme Court of Canada Justice’s Perspective
In Canada, bijuralism arose from its colonial history, where French and British influences shaped a legal framework that respects both traditions.
The Role of Bijural Language in Legal Translation
For translators working in the legal field, an awareness of bijuralism is essential, as it shapes terminology choices and the interpretation of legal concepts. When translating contracts, wills, judgments, or other legal documents intended for use across jurisdictions, translators might draw inspiration from terminology in federal legislative statutes, taking into account the need to reconcile civil and common law systems. This practice helps ensure consistency and clarity across legal systems.
For example, since contracts are legally binding for signatories often situated in different jurisdictions and possibly subject to varying legal systems, translators must adopt an interpretative role. Their task is to ensure that the legal significance of each clause remains consistent across jurisdictions, thereby mitigating potential disputes and misunderstandings. This is particularly crucial when handling French to English contract translation in Canada, where ensuring accuracy across both common law and civil law traditions is essential for enforceability.
Adapting Legal Terminology Based on Jurisdiction
Translators therefore must keep in mind not only their target audience when translating legal terminology (i.e. French-speaking or English-speaking) but also the legal system (civil and common law), and the legal context in which the terminology will be applied. For example, if we have a contract that must be translated into French for an Ontario client, we would consider the legal system in that province (common law) for decisions about terminology to ensure accuracy and appropriateness.
Conversely, if our translation is for an English-speaking client in Québec, we would take into account civil law terminology in English. Finally, if our target audience is located in both Quebec and Ontario or even Quebec and the United States, we would either use terminology commonly understood by both parties, or flag any ambiguity to our clients, allowing them to decide whether to include clarifications or annotations, as necessary. To learn more, see Bijuralism in Canada: Harmonization and Terminology.
This nuanced approach is particularly important for legal translation in cross-border contracts, where language precision helps avoid misinterpretations that could lead to disputes in different jurisdictions.
Examples of Bijural Terminology
Saisie-Exécution
The legal concept of “saisie-exécution”, the process by which a creditor can seize a debtor’s property to satisfy a judgment, can be translated for example by “seizure in execution”, “execution” or “seizure and sale”, depending on our audience. While these terms may seem equivalent, the rules and procedures surrounding their application vary by province. For example, contracts clarify the applicable law to ensure it’s clear which jurisdiction’s procedures apply.
Fiducie
Other common law concepts such as “trusts” do not fully capture their French translation (“fiducie”). The fundamental difference between fiducies in civil law and trusts in common law lies in their legal frameworks and underlying structures. In common law, there is a duality of ownership for a property held in trust: the beneficiary holds the beneficial title, while the trustee holds the legal title to the property. In civil law, this duality does not exist. The trustee never holds the legal title to the property. The title is established in their name in the quality of trustee but they serve only as administrators of the trust property. See Symposium: Canadian Bijuralism and Harmonization of Federal Tax Legislation (in English only).
Each system has its pros and cons. To bridge gaps across provinces and legal systems, additional context or explanatory notes are often necessary to help civil law audiences understand the trust’s full legal function. This ensures clarity across legal systems while maintaining accuracy in the translation.
Hypothèque
Another example is the word “hypothèque”, which in Quebec civil law refers to a “mortgage” or “security interest”, should have an accurate equivalent that resonates across both civil and common law traditions. As a reference for translators, federal statutes might opt for terms like “security on property” or “security interest” to bridge this gap, providing a unified understanding across jurisdictions. See Cross border lending in Canada: What you need to know
Conclusion: Why Bijural Language Matters
In conclusion, bijural language is essential for accurately translating legal documents across Canada’s civil and common law systems. Translators must navigate the complexities of both systems to ensure clarity and consistency in legal terms. Understanding each system’s nuances, using proper terminology, and adding explanatory notes when necessary help prevent misinterpretations and ensure documents are clear and enforceable across provinces. This attention to bijuralism fosters trust and prevents disputes in cross-jurisdictional contexts.
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