Construing Bilingual Legislation in
Canada, by, Michael Beaupré, Toronto, Butterworth, 1981, 161 p. incl.
Bibliography+ Index+ Table of cases.
This book is the result of a comprehensive
effort to synthesize legal materials, on the interpretation of bilingual
legislation in Canada. In the first two chapters the author. who is Assistant
Parliamentary Counsel to the House of Commons, examines those rules of
construction as applied by Canadian courts before and after their partial
codification in section 8 of the Official Languages Act. His survey, of the
case laws leads to the conclusion that, "the only, dogma to be retained in
the interpretation of bilingual legislation [is that once] a construction is
found that is common to both the English and French versions, that construction
must he related back to and tested against the entire context of the provision
before being settled upon".
This approach is an eminently, reasonable
one and. as the author illustrates, will successfully, resolve most apparent
conflicts and discrepancies between two versions of a statute. Whether it is
still useful in cases of true conflict between versions is not so obvious.
Applied in a case such as Food Machinery Corp. v. Registrar of' Trade Marks,
¸(1946)2 D.L.R. 258, it led to the adoption of a construction having "no
possible analogue in the other language version. In light of the basic
principle of equal authenticity, a principle assigned constitutional value by,
the courts in A. G. of Quebec v. Blaikie, the author's statement that this
result is an important refinement of the rule of equal authenticity" is
Except for this point, Mr. Beaupré
convincingly shows that Boult's [R. Boult, "Le bilinguisme des lois dans
la jurisprudence de la Cour suprême du Canada", (1968) 3 Ott. L.R. 323]
concept of two distinct and hierarchical systems of rules of construction (one
for interprétation simple, the other for interpretation croisée), evaporates
when applied to concrete problems of bilingual construction.
The second chapter is devoted specifically
to an assessment of the effect of section 8 of the Official Languages Act on
the, by now, traditional rules of bilingual construction. After reviewing the
jurisprudence, the author's conclusions point to the relatively minor impact
this codification has had. This assessment is confirmed by the finding that
"a number of decisions have been rendered since the passage of the
Official Languages Act in 1969, where traditional bilingual approaches are
employed. without so much as a passing reference to the specific requirements
of that Act."
The third chapter, on Quebec jurisprudence,
is the most important of the book and perhaps the most interesting. Any
discussion of interpretation of bilingual statutes is bound to be thrown into
sharper focus when related to a jurisdiction whose courts have long had to
resolve bilingual conflicts with respect to both federal legislation and the
Civil Code with its specific rule., on the interpretative value to be assigned
French and English provisions of the Code. Here, the legislative universe is
not only bilingual but "bijural" as well. In this context.
application of the principle of equal authenticity, takes on new dimensions and
becomes, as aptly put by the author. a "fundamental problem of Canadian
federalism." While Mr. Beaupré offers no authoritative solution, he very
ably sets out the parameters of the problem as he isolates and defines the
intertwined issues it presents.
In the fourth and concluding chapter, the
author states his conclusions and closes with some personal impressions on
collateral issues that he acknowledges are somewhat provocative in
nature". His conclusions may be briefly, summarized as follows: 1) the
"Maxweillan" rules of interpretation are of limited usefulness in
dealing with problems posed by, bilingual legislation and Professor Driedger's
"context" approach is best suited to a correct application of the
rule of equal authenticity; 2) the current rules offer no satisfactory solution
to the problem of "bijural" aspects of federal legislation, and in
this respect, a legislated solution may be desirable: 3) "while s. 8 of
the Official Languages Act purports to he an exhaustive code of the rules and
approaches applicable to the construction of federal bilingual legislation, It
is patently incomplete, and so Jails as a code." The author's preference
is to retain only ss. 8(1), embodying the rule of equal authenticity, and to
leave its application to courts who have shown they, are capable of doing so
"in a pragmatic way according to the legislative problems they [are] faced
Finishing the book, the reader is inevitably
reminded of the author's introductory, warning that "... in the last
analysis. there are no magical recipes for harmonizing French and English in
our statute books. outside of fundamental reforms to Canadian drafting and
legislative processes." A study such as that of Mr. Beaupré should prove a
useful contribution to any such reform.
On the editorial side, one only regrets the
decision not to include full case citations in the footnotes, forcing the
reader who wants to keep some chronological perspective to constantly refer
back to the table of cases.
Construing Bilingual Legislation in Canada
is a needed addition to Canadian legal literature. It is well written and in
its detailed review of the case law, comes as a first rate reference tool on
François R. Bernier, Law and Government Division, Research Branch,
Library of Parliament