Rebuilding Canada’s Bilingual Legislative Tradition: A Road Map Solidified by and for Legislators

The clear and cohesive drafting of Canada’s laws is of crucial importance in the application of these laws in society. Each word, comma and expression influences the meaning of each law and how judges interpret the intention of the legislator. This process of interpreting laws sometimes creates a divide between the French and English versions in certain legal decisions. This ambiguity forces the judge to interpret the legislator’s intention and sometimes this process leads to the preference of one version over the other. This premise is the basis of this article, which aims to find the different causes of discrepancies between the English and French versions of federal legislation. More importantly, it aims to identify practical solutions, in collaboration with Members of Parliament and senators in order for these discrepancies to become less frequent. All in all, the guiding principles of this article are the respect of democracy and the separation of powers.

Élizabeth Bergeron

Élizabeth Bergeron holds a bachelor’s degree in law from Université de Montréal. She is working as legal counsel since 2025, following her completion of the Barreau du Québec. She participated in the Parliamentary Internship Programme in 2021-2022.

Introduction

Humans have a fascinating way of cementing complex, prolific social constructs through discussion and the sharing of knowledge. The power to influence the behaviour of those around us stems from our collective verbal imagination.

Accordingly, clear rules of conduct require unambiguous language. Semantic ambiguities can pose obstacles to an individual’s comprehension of the behavior to be adopted. The use of different languages can also pose challenges to mutual understanding. Canada, as a constitutionally bilingual country, is a case in point. The coexistence of its different dialects and their particular nuances creates obstacles at the legislative level within the country.

This article examines those communication barriers and the consequences for bilingual federal law in Canada. Specifically, it addresses how cohesion between Canada’s two official languages affects the drafting of bills. First, this article provides a literary review of legislative bilingualism in Canada and the legal implications, which are intrinsically tied to politics. Next, it examines the practical challenges of legislative bilingualism as bills are drafted in the House of Commons and the Senate. Lastly, this article aims to identify solutions to strengthen the cohesion of bilingual federal legislation.

Literary review of legislative bilingualism in Canada

Legislative bilingualism relies on the equality between the French and English languages, which is an essential part of the country’s identity.

Much has been written about this vast topic, which has both legal and political roots. Consequently, this article will apply a multidisciplinary lens to federal laws before and after the drafting process.

To understand why it is so important to make laws that are clear to Canadians, it is necessary to first understand some of the theoretical concepts behind statutory interpretation. They will provide the foundation for the main analysis that follows.

First, bilingualism is essential within the context of legislative co-drafting rooted in the Constitution. Specifically, that constitutional obligation flows from section 1331 of the Constitution Act, 1867, which provides the following:

133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

Admittedly, section 133 does not explicitly state that laws must be codrafted at the same time in each language version, but it is complemented by the Canadian Charter of Rights and Freedoms2 and the Official Languages Act,3 which makes clear that co-drafting is the preferred method for drafting legislation. In theory, federal legislation is not written in one language and then translated into the other.4 To adhere to the spirit and letter of the provision, federal legislation must be drafted simultaneously, both English and French; a process that seeks to put both languages on an equal footing. In Blaikie,5 the courts cemented that idea, interpreting the obligation to enact federal legislation in English and French as implicit under section 133 of the Constitution Act, 1867. It is also worth noting that this constitutional obligation applies both to the federal government and to the provinces of Quebec, Manitoba and New Brunswick under similar legal processes.6

Professor Pierre-André Côté examined the consequences of having dual communication mediums in law7 and summarized the legal principles governing the interpretation of bilingual legislation in Canada.8

• Bilingual statutes should be given a bilingual interpretation. [The first step is to read both language versions of the legislation.]
• In interpreting bilingual statutes, both versions should be attributed the same importance or weight.
• Discrepancies in the two versions are to be treated as any other ambiguity and, subject to the fourth principle, must be resolved by resorting to the usual method of interpretation.
• In case of discrepancies, the meaning shared by both versions, if one can be found, constitutes a factor which should be considered in the interpretation of the provision, in addition to all the other relevant factors.9

In practice, the constitutional underpinnings of legislative bilingualism require judges to respect the rule that both language versions are equally authoritative.10 No version should be viewed as taking precedence over the other.11 Although they are equals, these versions sometimes give rise to legal challenges when they diverge in their interpretation. Three types of discrepancy are examined in more detail in order to fully grasp the scope of the constitutional obligation that is legislative bilingualism, and the direct consequences of ambiguous legislative drafting. These divergences are drawn from the legislative interpretation manual authored by Stéphane Beaulac and Frédéric Bérard (see note 7).

1) One version is clear and the other is ambiguous

When an article in a federal statute is open to interpretation in one of the two languages, the judge must rely on the other language version to interpret the meaning of the article, if that version is clear and unambiguous. This is illustrated in R. v. Mac.12 In regard to the interpretation of article 369(b) of the Criminal Code13 and the illegality of being in possession of an instrument adapted and intended to be used to commit forgery. The term used in the English version is “adapted,” which can mean either “suitable for” or “modified or altered.” As a result, it makes the term ambiguous. The question is therefore whether it is necessary to prove that the objects have actually been modified in order to establish the individual’s guilt, to which the English version offers no clear answer. In the French version, only one clear interpretation is possible, namely that it is not necessary to prove the actual modification of the object. It is sufficient to prove that the person is in possession of an object that could be used to commit forgery. As the legislator’s intention is clearer in the French version, it was favored by the judges in their analysis.

• The two versions are inconsistent

Another discrepancy that could occur is whent the two language versions are incompatible, in which case, the ordinary rules of legal interpretation apply, not the rules of interpretation of bilingual legislation. As a result, when the two versions of the same section of the law are clear, but open to conflicting interpretations, the one whose interpretation represents the true intent of the legislator, based on the rules of the ordinary rules, is the one that is retained.

• One version has a narrower meaning and the other has a broader meaning

The last type of discrepancy arises when one version has a narrower meaning and the other has a broader one. This occurred in The King v. Dubois,14 where the court preferred the French definition of the word “chantier public,” because it had a narrower meaning than the corresponding expression in the English version, “public works.” The reason is that legislators do not write without purpose, and if a specification is added that limits or restricts its meaning, it must be taken into account in the analysis.

These are three types of discrepancy that can occur with a bilingual law. As previously mentioned, both versions of a federal statute carry the same weight and are equally authoritative. In cases of discrepancy, the judge must, however, give precedence to the interpretation that best reflects the intention of Parliament, even if the federal statute applies to an issue in a province that is not constitutionally bilingual in the eyes of the law. When a federal law is ambiguous, it can be difficult to determine the legislature’s singular intent. It is even greater when the bill in question is amended multiple times prior to being passed, increasing the likelihood of ambiguity.

Thus far, this article has focused on the impact of ambiguity from a legal standpoint. The ambiguity often stem from communication gaps between English and French in the House of Commons and the Senate. It is now necessary to take a closer look at the political sphere, and the problems encountered by legislative members when drafting bills, which can lead to ambiguity. Some of the linguistic challenges raised during the research will be addressed in this next section.

Language challenges in Parliament: qualitative analysis

It is difficult, if not impossible, to produce legislation that is identical in every aspect in both English and French. In fact, the paradigm of perfect harmony is unattainable given the culturally diverse ways in which the languages developed over time. That is why Sullivan warns against the pitfall of failing to consider both language versions. Sullivan points out that “reliance on a single version [is] dangerous for the citizen and totally unacceptable for any official interpreter.”15 In reality, however, many MPs and senators speak only English or French. These parliamentarians refer to and debate only one language version of a bill, with the help of translation.

Methodology

In an effort to get to the root of the problem, federal lawmakers were interviewed to identify how they draft legislation in practice. For the purposes of this article, eight semi-structured interviews were conducted with lawmakers who had varying levels of proficiency in English and French. Members of the government party, members of opposition parties and senators were interviewed. To consolidate the information, a meeting was held with a member of the law clerk’s office. An open discussion approach was favoured to encourage suggestions for improving the process of legislative co-drafting. The data collection process ensured that participants remained anonymous. The next two sections focus on the interviews. The first deals with the language challenges in Parliament, and the other examines solutions to overcome the barriers, the idea being, of course, to ensure that Parliament speaks with a single voice in its legislative intent.

Results

The first noteworthy finding was made not during the interviews, but when research participants were being sought. A number of unilingual speakers questioned the usefulness of being interviewed for a research project that aimed to examine how the degree of consistency between Canada’s two official languages affected the drafting of bills. However, some of the most enlightening discussions took place during interviews with unilingual speakers, given that they viewed the issue in a different way. Those discussions played a key role in the article, considering that anglophones and francophones are equally affected by the legal consequences outlined earlier. The dynamic warrants a closer look to take the research a step further and better understand how both official languages are used in the two chambers.

English, the default language

In principle, Parliament is a bilingual institution. In practice, however, the interview results show that English is the default language in many formal and informal discussions, including committee discussions.16

It is often true that committees are made up mostly of anglophones, and so the natural tendency is to work in English. Among the francophone Members of Parliament interviewed, some stated that they did not use simultaneous interpretation services because they did not want to lose the momentum during important conversations between committee members and witnesses. Instead, they asked their parliamentary assistant to listen to the interpreted remarks to ensure the linguistic integrity of the interpretation.

One Member of Parliament made the following comment:

[In an exchange between an English-speaking Member of Parliament and an English-speaking witness], a dynamic emerges. It’s a real conversation. When I ask questions in French, there’s a delay. I ask my question, and then a few seconds go by. Depending on the situation, it could be three or four seconds, five seconds or seven seconds between when I finish my question and when the witness hears it. Those seconds add up. They affect the dynamic and the witness’s answer, especially when interpretation problems arise.17

In addition, some participants mentioned that a person’s intonation is especially important to grasp the rationale of an argument when an amendment is being debated and discussed. In light of that, working- level discussions often take place largely in English. Although a unilingual English- or French-speaking Member of Parliament is free to work in their mother tongue, translation can influence their understanding of the intention of other parliamentarians when they are speaking.

Translation service

Another issue that arose in the interviews is the need for and challenges associated with the translation service. This service was in particularly high demand during the COVID-19 pandemic, given the significant increase in virtual meetings in Parliament.18

“The typical day for a parliamentary interpreter consists of six hours of interpretation. Virtual meetings are handled differently because the cognitive load is much heavier, which leads to more strain and more injuries. This means shorter assignments, shorter shifts and more interpreters going on sick leave for days or being permanently redeployed to other non-virtual assignments at their request.”19

In some cases, interpreters who usually translate from one language into their mother tongue had to do the opposite. They had to translate from their mother tongue into the other language, which made the interpretation more challenging. Some senators20 also raised concerns about the difference between the translation services provided to the Senate and the services available in the House of Commons. The lack of interpreters, which partly stems from a labour shortage, seems to particularly affect the upper house. According to one senator, this situation puts francophones at a particular disadvantage, especially on diplomatic trips. The senator stated that:

“…[I am] an advocate for the French language, [but] for practical and economic reasons, we would [sometimes] not have translators if we had to pay for hotel rooms and plane tickets and risk cutting into the budget. This would prevent us from doing some of our work in these cases. I accept not having a translation service so that we can complete the [entire] trip.”21

The senator noted that he decided to forego the interpretation service when the committee’s chair asked him personally whether he would accept this compromise in order to respect the budget.22 This situation may seem trivial. However, it makes a big difference given that, for this trip, an English translation service was available for everyone23 since the other attendees at the meetings spoke neither English nor French.

Amendments to bills

Another aspect to consider is the process of amending bills. This component can give rise to ambiguities in both versions of bills. Numerous amendments are made by unanimous consent without debate and without going through an official translator. Instead, the amendments go through interpreters during committee sessions.24 This process is worrisome, since the translation service is suppose to ensure that the two pieces of legislation remain cohesive. In addition, a francophone member of Parliament stated the following:

“… there is a great deal of adoption by consent or consensus in committees. This creates problems. If it is not brought up, this discrepancy [the amendment in one language] goes unchallenged. It is [impossible] to go back to the verbatims, for example, to verify the legislator’s intention. If these specific parts were not discussed, the clause met with consensus and went through not the official translators, but the interpreters.”25

The legislator’s intention, a crucial factor in the interpretation of legislation, can then fall on the shoulders of the interpreters.

Preparation of documents and reports

Another francophone Member of Parliament stated that committee documents and reports often contain translation errors. Specifically, the Member of Parliament explained the following:

“Colleagues tend to send us a hastily [translated] French version of the [documents] generally submitted to all colleagues in English … A routine motion had to be passed to emphasize the importance of submitting documents in both languages, and [the French version] had to be corrected by the interpretation office beforehand.”26

The Member of Parliament also added that a problem arises when witnesses “do not send documents in both languages or tend to want to send us documents that they consider translated, but that went through Google Translate.”35 Another Member of Parliament noted that this different treatment of the two official languages is further exacerbated when the committee is composed largely of anglophones. “If the committee chair is an anglophone, or if your committee is fairly anglophone, then we review the report [or the bill] according to the English assessment. This means, again, having to use both different words and different pages.”27 In addition, some legislative members read bills in only one language.28 However, realistically, since not all members are equally proficient in both official languages, it would be impossible to require all Members of Parliament and senators to analyse every bill in both languages.

Overall, the interviews showed that Parliament and the Senate have certain gaps when it comes to co- drafting bilingual legislation.

Ultimately, this article aims to find practical solutions to strengthen cohesion between the two official languages when it comes to legislative drafting.

Becoming part of the solution

Possible ways to ensure greater cohesion between the two official languages in bill development include changing certain procedural techniques. These solutions are discussed in this last part of the article. The brief ideas put forward constitute more of an overview of the various issues raised during the interviews. They each warrant further analysis in the future.

Training for committee chairs

To begin, chairs could have access to voluntary training on the best practices regarding the use and significance of both official languages in committees.29 Ensuring that they know about the requirement to distribute internal documents in both languages would reduce the number of points of order or routine motions from Members of Parliament or senators, which are currently needed to have an impact. This training could also focus on the need for chairs to refer to page numbers in both languages, especially when amending a bill. The training could look at the chair’s role, when amending by unanimous consent, in conveying the meaning of the change in both languages to ensure that the legislator’s intention remains clear and to avoid linguistic discrepancies.

Bill provisions

To ensure that all Members of Parliament and senators can keep up with bills in both languages in real time, the pages could have a different layout that always displays English and French clauses side by side. This measure would ensure that everyone can follow the discussion in real time, without having to search for the clause being discussed. It would also help the committee analyze bills more efficiently.

Official translation

The challenges related to bill amendments were discussed earlier. Since these amendments are translated by committee interpreters rather than by the official translation service, they can lead to legislative errors. Requiring an official translation for each amendment to a bill and ensuring that this information is provided to the committee chair could make the two languages more cohesive for bill amendments.

Similarly, particularly for committees whose members are all anglophones, avoiding the use of unanimous motions to prepare a document in a single language would reduce legislative errors.

It was also mentioned that the labour shortage, particularly in the Senate, impacts  the cohesiveness of the two languages. Additional funding could be allocated to the service to alleviate staff shortages.

Another option would involve requiring Members of Parliament or senators to include a translation service in French and English on their trips whenever a member does not speak the language of the country or community visited. That way, parliamentarians would avoid having to make this choice on their own and face pressure to pick between the translation service and a longer trip. The choice would not be left to the discretion of a single Member of Parliament or senator.

Role of witnesses

The concept of language equality came up multiple times in the course of this article. One way to help ensure this equality would involve adding additional time in committees for interpretation when a Member of Parliament or senator does not speak the same language as the witness. Several Members of Parliament and senators raised this issue in their interviews,30 given the time required to send the translation to both sides. This time could be calculated on a pro-rata basis according to the average time needed for translation. Of course, this solution entails more preparation and procedural involvement. However, it could help promote use of translation services.

Another aspect concerns the submission of documents. The witnesses summoned must be well informed of the need to provide quality documents in both official languages. To encourage this practice, one idea is to offer the House of Commons and Senate translation service for the documents that will ultimately help legislative members.

Broader training

On a broader level, it might be worthwhile to ensure that new Members of Parliament and senators receive training on the principles of statutory interpretation set out in the first part of this article. Parliamentarians can learn to recognize that the context of the legislative process directly influences the way in which judges may interpret the legislation. Ultimately, more people may then take a closer look at both versions, rather than just one version.

In multiple interviews,31 courses were also described as an effective way to improve second-language skills. A greater emphasis on promoting language courses and regular reminders to Members of Parliament or senators and their employees can help improve the cohabitation of both languages.

Conclusion

This article aimed to shed light on the challenges posed by legislative bilingualism in Parliament and the Senate and to provide concrete solutions together with Members of Parliament and senators.

Some issues were addressed, such as the use of English as the default language in numerous parliamentary circumstances; the challenges associated with interpretation and getting messages across; the interpretation service’s labour shortage resulting from the COVID-19 pandemic; and the mistranslation of documents.

A review of the literature and informative discussions with legislative members also helped to propose a roadmap for making Canada’s two official languages more cohesive. This roadmap includes training; modifying certain committee procedures; changing the method for preparing significant documents in both languages; and promoting language courses.

The findings speak to the fact that legislative bilingualism affects anglophone and francophone legislative members differently, while having a similar legal impact for both language groups in the population. Nonetheless, several solutions could help improve the process of drafting legislation as a result of the legislator’s presumed sole intention. Some solutions are relatively easy to implement and will help prevent discrepancies between versions during the bilingual co-drafting of legislation. However, other solutions will require a more significant structural change and will produce visible results only over the long term. It would be worth exploring in the future whether some of these options constitute viable solutions.

Notes

1. Constitution Act, 1867. 30 & 31 Victoria, c. 3 (U.K.).
2. Canadian Charter of Rights and Freedoms. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, ss. 16–18.
3. Official Languages Act (OLA). R.S.C. 1985, c. 31 (4th Supp.); Forget, Chloé. Official Languages and Parliament. Library of Parliament, 2020 (revised): “The courts have given quasi-constitutional status to the OLA. In Lavigne v. Canada (Office of the Commissioner of Official Languages) (2002), the Supreme Court of Canada confirmed that the OLA is no ordinary statute.”
4. Hudon, Marie-Ève. Bilingualism in Canada’s Court System: The Role of the Federal Government. Library of Parliament, 2020 (revised).
5. Attorney General of Quebec v. Blaikie et al. [1979] 2 SCR 1016 [Blaikie No. 1].
6. Doré v. Verdun (City). [1997] 2 SCR 862; Reference re Manitoba Language Rights. [1985] 1 SCR 721; Canadian Charter of Rights and Freedoms. Supra, note 2, s. 18(2).
7. Beaulac, Stéphane and Bérard, Frédéric. Précis d’interprétation législative. 2nd ed. LexisNexis, Montréal, 2014.
8. Beaulac, Stéphane and Bérard, Frédéric. Précis d’interprétation législative. 2nd ed. LexisNexis, Montréal, 2014, as per Côté, Pierre-André. Billingual Interpretation of Enactments in Canada: Principles v. Practice. (2003– 2004) 29 Brook. J. Int’l L., pp. 1067–1070 [translation of professors Beaulac and Bérard].
9. Beaulac, Stéphane and Bérard, Frédéric. Précis d’interprétation législative. 2nd ed. LexisNexis, Montréal, 2014, p. 110.
10. McLaren, Karine. “Bilinguisme législatif : regard sur l’interprétation et la rédaction des lois bilingues au Canada.” Ottawa Law Review. Vol. 45, No. 1, January 1, 2015.
11. Supra, note 6; Bastarache, Michel et al. Le droit de l’interprétation bilingue. 1st ed. LexisNexis, Montréal, 2009, p. 29.