Some problems with the shared meaning rule as formulated in R. v. Daoust and 'The Law of Bilingual Interpretation'.

• Date: 22 December 2010
• Author: Sullivan, Ruth
• Published date: 22 December 2010
• Author: Sullivan, Ruth

This article offers a critical analysis of the account of the shared meaning rule adopted by the Supreme Court of Canada in R v Daoust and subsequently defended by the authors of The Law of Bilingual Interpretation, including retired Justice Michel Bastarache who wrote the unanimous judgment of the Court in Daoust. The author argues that, contrary to the position taken in Daoust, the presumption of shared meaning should not arise when one language version of a legislative text is clear but broad while the other is clear but narrow. She suggests that relying on the presumption in these circumstances focuses too narrowly on the norms of linguistic equality and the protection of minority language rights while inappropriately neglecting the norms of rule of law and linguistic security. The position taken in Daoust can only be justified by the textualist assumption that the literal meaning of a text -and by extension the shared literal meaning of the text--can be equated with legislative intent. This textualist assumption is inconsistent with the modern principle of interpretation that has been repeatedly endorsed by the Supreme Court of Canada. She endorses and justifies an alternative formulation of the shared meaning rule.

Cet article presente une analyse critique du principe du sens commun, adopte par la Cour supreme du Canada dans l'arret R c Daoust, que les auteurs de Le droit de l'interpretation bilingue ont par la suite defendu, notamment le juge a la retraite Michel Bastarache, qui a redige la decision unanime de la Cour dans Daoust. L'auteure soutient que, contrairement a la position adoptee dans Daoust, la presomption du sens commun ne devrait pas etre invoquee lorsque la version dans une langue d'un texte legislatif est claire mais large alors que la version dans l'autre langue est claire mais plus restreinte. Elle est d'avis que si l'on se fie a la presomption dans ces circonstances, on se concentre trop sur les normes regissant l'egalite linguistique et la protection des droits des minorites linguistiques au detriment du principe de la primaute du droit et des normes de la securite linguistique. La position degagee dans l'arret Daoust ne peut se justifier qu'en vertu du postulat de nature textuelle selon lequel la signification litterale d'un texte--et par extension le sens litteral commun du texte--peut equivaloir a l'intention du legislateur. Ce postulat va a l'encontre du principe moderne de l'interpretation que la Cour supreme du Canada a maintes fois enterine. L'auteure avalise et justifie une formulation de rechange a la regle du sens commun.

Table of Contents I. INTRODUCTION II. THE RELEVANT CONSTITUTIONAL NORMS A. Equal Authenticity and the Shared Meaning Rule B. The Steps to be Followed in Interpreting Bilingual Legislation III. WHEN DOES THE presumption arise? IV. THE GOVERNING PRINCIPLE OF STATUTORY INTERPRETATION V. JUSTIFYING THE SHARED MEANING RULE A. Norm Based Justification B. Textualist Justification VI. The Daoust Case A. The Strong Version Analysis B. The Weak Version Analysis VII. POST-DAOUST LAW VIII. CONCLUSION I. introduction

In recent years the Supreme Court of Canada has had a lot to say about the interpretation of bilingual legislation, culminating in its judgment in R v Daoust, (1) written by Justice Bastarache on behalf of a unanimous panel. In 2008, Justice Bastarache along with others published a book entitled The Law of Bilingual Interpretation. (2) Almost half the book is devoted to surveying the evolution of the shared meaning rule as it applies to bilingual legislation in Canada and explaining the conception of the rule adopted in Daoust. The remainder of the book deals with the challenges of interpreting bijural legislation, bilingual case law, legislation drafted in Aboriginal languages and multilingual treaties. The Law of Bilingual Interpretation packs a great deal of information and analysis into relatively few pages.

In this paper, I have two goals. The first is to set out the understanding of the shared meaning rule adopted in Daoust and the book and to explain why I find it unsatisfactory. My first objection to the account of the rule in Daoust is that it effectively introduces a new strict construction rule to statutory interpretation without offering satisfactory justification for this innovation. My second objection is that it depends on a textualist approach to interpretation that is inconsistent with Driedger's modern principle, as explained and applied by the Supreme Court of Canada in its judgments of the past IS years. Of course, many of those judgments were written by Justice Bastarache himself and are not particularly textualist in their approach. But in the judgments addressing bilingual interpretation, the textualist bent is unmistakable. In these judgments, and in the book as well, it appears that respect for textual meaning is equated not only with legislative intent--the usual textualist assumption-but also with respect for linguistic equality and minority language rights. In my view, these equations do not stand up to a careful examination.

My second goal in this paper is to offer an account of the shared meaning rule that is grounded in a broader set of constitutional norms than those relied on by the authors of The Law of Bilingual Interpretation. No one challenges the fundamental assumption that if the two versions of bilingual legislation are authentic, rule of law requires that both express the same rule. It is unthinkable for there to be one law for English speakers and another for French speakers. And everyone agrees that interpreters must give effect to the intentions of the legislature, for this remains the official goal of statutory interpretation, grounded in the norm of legislative sovereignty. After that, however, views diverge. The account of the shared meaning rule offered in the book is grounded almost exclusively in the values of linguistic equality and the protection of minority language rights. The account offered in this paper emphasizes the rule of law, fairness and linguistic security in addition to linguistic equality and the protection of minorities.

Part II of the paper reviews the constitutional underpinnings of the equal authenticity rule and the problem of discrepancy between the versions that gives rise to the shared meaning rule. Linguistic equality was and remains an important ideal of confederation, as evidenced by section 133 of the Constitution Act, 1867, (3) section 23 of the Manitoba Act, 1870 (4) and sections 16 to 23 of the Canadian Charter of Rights and Freedoms. (5) Realization of linguistic equality in the enactment and publication of legislation is subject to many impediments, of which the most intractable is the inevitable discrepancy (or perceived discrepancy) between the two language versions. The shared meaning rule is an attempt to address this impediment. Part II sets out the steps an interpreter must go through in applying the shared meaning rule.

Part III then addresses two important questions in bilingual interpretation. When there is a discrepancy between the two language versions of a legislative text and it is possible to identify a shared meaning, should the presumption in favour of shared meaning be triggered in every case? If not, how should instances in which the presumption is triggered be distinguished from instances in which it is not? In this part, I contrast the book's expansive understanding of the presumption--which I call the "strong version"--with my own understanding--the "weak version."

Part IV steps back from the specific issue of bilingual interpretation and briefly sets out what in my view judges do--and should do--when they apply Driedger's modern principle to interpret legislation. My purpose here is to point out that the modern principle is inconsistent with textualism.

Part V compares the justifications underlying the weak and strong versions of the shared meaning rule, and points out the textualist underpinnings of the strong version. Like textualism, the strong version identifies textual meaning with intended meaning;. However, while it is plausible to suppose that the clear meaning, of a unilingual text expresses the rule that the legislature intended to enact, it is not plausible to suppose that the narrower version of a bilingual text expresses this intention. Furthermore, in the case of a clear unilingual text, it is plausible to suppose that the public will rely upon the clear meaning as an accurate expression of the law, so that adopting it protects the subject from surprise. However, in the case of bdingual legislation, when one text clearly expresses a narrow rule and the other text clearly expresses a broad one, adopting the shared meaning does not protect unilingual readers from surprise. If the narrow version prevails, those who relied on the broad version are necessarily surprised.

Part VI reviews the facts and reasoning in the Daoust case and suggests that the case was rightly decided not because the court gave effect to the shared meaning, but because of rule of law concerns. When dealing with penal legislation, strict construction--a presumption in favour of the narrow version is appropriate. It protects the subject from unfair surprise. However, in the case of benefitconferring or quasi-constitutional legislation, to automatically prefer the narrow version serves no one's interest.

Part VII looks at bilingual interpretation in the aftermath of Daoust. While several judgments of the Supreme Court of Canada have approved and applied Daoust, the majority judgment in Canada (Citizenship and Immigration) v Khosa (6) suggests that not all members of the Court are committed to the strong version of the presumption. Furthermore, in recent writing, Pierre-Andre Cote himself has rejected the strong version. It is likely that Daoust will not prove to be the final word on the law governing the interpretation of bdingual legislation.

H. THE...