Karine McLaren
Professor of Law and Director of the Centre de traduction et de terminologie juridiques (http://www.cttj.ca)
Panel: Linguistic equality and justice in the face federal diversity: A Canadian perspective
Chair: Karine McLaren
The classic canons of statutory interpretation are well-settled. Today, Elmer Driedger’s modern contextual approach is widely accepted as Canadian courts’ preferred approach to statutory interpretation. Yet the existence of bilingual statutes in Canada adds a fourth dimension to the interpreters’ toolbox, one that is foreign to the standard interpreters’ toolbox, carefully constructed over centuries and shared by common law traditions. The “shared meaning rule”, derived from the equal authenticity of English and French versions of Canadian statutes, thus “seeks to fill a void” left by the contextual interpretive approach. It does so by adding a step to the interpretive process, which, in the event of linguistic discordance, focuses on the meaning that is shared between the words respectively in the two language versions of the offending disposition.
Not surprisingly, the unmistakable “textualist bend” of this approach has led to criticisms:
«Linguistic analysis of the text is the servant, not the master, in the task of ascertaining Parliamentary intention. A blinkered focus on the textual variations might lead to an interpretation at odds with the modern rule because, standing alone, linguistic considerations ought not to elevate an argument about text above the relevant context, purpose and objectives of the legislative scheme». Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, at 39. Our goal in this paper is two-fold: First, illustrate, by reference to case-law, the inconsistent weight given to the Shared Meaning Rule by Canadian courts and its consequences on citizens affected by their rulings. Second, lay the foundations of an interpretative paradigm which frees itself of the excessive weight attributed to the very letter of the (bilingual) law and reflects the evolution of contextual Statutory Interpretation.