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François Bernier

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 somewhat problematic.

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 with."

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 the subject.

François R. Bernier, Law and Government Division, Research Branch, Library of Parliament

 


Canadian Parliamentary Review Cover
Vol 4 no 3
1981






Last Updated: 2019-11-29