Bilingual and Bijural Legislation

• Author: Ruth Sullivan
• Profession: Faculty of Law, University of Ottawa
• Pages: 83-99

83

CHAP TER 5

BILINGUAL AND

BIJURAL LEGISLATION

Canada is both a bilingual and a bijural country. The legislation of the

Parliament of Canada and of some provincial legislatures is bilingual

in th at it is enacted i n both French and Engli sh. And feder al legisl ation

is bijural in that it applies in both a civil law context in Quebec and a

common law context in other provinces and the territories. In some

respects, like many nations, Canada is becoming a multilingual, multi-

jural nation. For example, international agreements currently exert an

important inf‌luence on domestic law at both the federal and provincial

levels. Leg islation designed to implement such agreements may incor-

porate or adapt provisions that have been drafted in several languages

and ref‌lect diverse legal system s. To date, neither federal nor provincial

legislation is enacted in any of the First Nations languages, nor does

it take into account First Nations law. However, Aboriginal languages

are used in the legislative assemblies of the territories. In Nunavut,

elders participate in the legisl ative proces s, tradit ional knowledge is

sometimes incorporated into legislation, and the statutes of Nunav ut

are published in Inuktituk as well a s English and French. It is evident

that First Nations’ law will play a role in the government of Aborig-

inal people s in the future. These developments contr ibute to a growing

national and international law on the drafting and interpretation of

multilingual, multicultural legal instruments.1

1 For further di scussion of these is sues, see Ruth Sullivan, “The Cha llenges of In-

terpreting Multilingual, Multijural Legislation” (2004) 29 Brook. J. Int’l L. 1–82.

STATUTORY INTERPRETATION84

A. BILINGUAL LEGISLATION

Under the Constitution of Canada, Acts of the Parliament of Canada

and of the legislatures of Quebec, New Brunswick, and Manitoba must

be printed and published in both French and English.2 Under Ontario’s

French Language Services Act, the legislation of Ontario is now enacted

in French as well as English.3 The purpose of enacting bilingual legis-

lation is to permit Canadians who are English or French speaking to

have access to the law in t heir own language.

The Supreme Court of Canada has held that when legislation must

be enacted in two languages, both language versions have equal status

and are equally authoritative.4 This is known as the equal authenticity

rule, and it i s well est ablished. The i mplication s of the rule, however,

are open to debate. In the view of Michael Beaupré, who wrote exten-

sively on the subject, equal authenticity means that by itself a single

language version of a bilingual statute is incomplete; its true mean-

ing can be determined only by reading and correctly interpreting both

language versions.5 It is also possible to argue that equal authenticity

means that each reader can rely on the version of the statute written in

his or her own language. While this understanding is more in keeping

with the evident purpose of the rule, courts to date have preferred the

former view: the meaning of a bilingual provision is the meaning of

both versions read together. This approach is preferred because it en-

sures that the meaning of the provision is the same for both language

groups. It would violate the principle of equality under the law if the

same provision could be understood to say something different in Eng-

lish and in French.

Because the two versions of bilingual legislation are equally au-

thentic, neither can be given paramountcy over the other. If the two

versions do not appear to say the same thing, the discrepancy must

be resolved in a way that does not automatically give priority to one

or the other version. In the Manitoba Language Reference, for example,

the Supreme Court of Canada struck down a provision of An Act Re-

2 See the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 133; the Manitoba

Act, 1870 (U.K.), 33 Vict., c. 3, s. 23; the Constitution Act, 1982, being Schedule B

to the Canada Act 1982 (U.K.), 1982, c. 11, s. 18.

3 R.S.O. 1990, c. F.32, ss. 3–4.

4See

Reference Re La nguage Rights Under s. 23 of Manitoba Act, 1870 and s. 133 of

Constitution Act, 1867, [1985] 1 S.C.R. 721 at 774–75 [Manitoba Langu age Refer-

ence]. Section 18 of the Constitution Act, 1982 codif‌ies the equa l authenticity

rule for federal a nd New Brunswick legi slation.

5 See R.M. Beaupré, Inte rpreting Bilingual Legisla tion, 2d ed. (Toronto: Carswell, 1986).