The interpretation of bilingual statutes

Today's Supreme Court of Canada decision in R. v. S.A.C., 2008 SCC 47 deals specifically with the proper interpretation of s. 39(1)(c) of the Youth Criminal Justice Act.

In reviewing the statute the Court had to consider a potential discrepancy between English and French versions of the Youth Criminal Justice Act, s. 39. 

The specific decision is of limited importance but the issue of interpreting bilingual statutes is broadly important.

All federal and much provincial legislation and regulation is bilingual and discrepancies between the English and French meanings are more common than might be expected (readers may recall that even s. 24(2) of the Charter, surely a document written with great care, varies between the English and French text).

The Court writes:

[14] The interpretation of bilingual statutes begins with a search for the shared meaning of the English and French versions. This Court has on a number of occasions discussed the appropriate approach for determining the shared meaning of English and French legislative provisions: see e.g., R. v. Daoust, 2004 SCC 6 (CanLII), [2004] 1 S.C.R. 217, 2004 SCC 6; Schreiber v. Canada (Attorney General), 2002 SCC 62 (CanLII), [2002] 3 S.C.R. 269, 2002 SCC 62.  In those cases, the Court adopted a two-step approach. 

[15] The first step is to determine whether there is discordance between the English and French versions of the provision and, if so, whether a shared meaning can be found.  Where a provision may have different meanings, the court has to determine what kind of discrepancy is involved.  There are three possibilities. First, the English and French versions may be irreconcilable.  In such cases, it will be impossible to find a shared meaning and the ordinary rules of interpretation will accordingly apply: Daoust, at para. 27; P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at  p. 327.  Second, one version may be ambiguous while the other is plain and unequivocal.  The shared meaning will then be that of the version that is plain and unambiguous: Daoust, at para. 28; Côté, at p. 327.  Third, one version may have a broader meaning than the other. According to LeBel J. in Schreiber, at para. 56, "where one of the two versions is broader than the other, the common meaning would favour the more restricted or limited meaning". 

[16] At the second step, it must be determined whether the shared meaning is consistent with Parliament's intent: Daoust, at para. 30.  In the penal context, courts must also ensure that any ambiguity is resolved in favour of the accused whose liberty is at stake (Marcotte v. Deputy Attorney General for Canada, 1974 CanLII 1 (S.C.C.), [1976] 1 S.C.R. 108).
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