Legislative Intent and Ordinary Meaning

Jérémy Boulanger-Bonnelly

Introduction

Constitutional interpretation has been the subject of heated debates in recent years. In some decisions, the Supreme Court of Canada reframed the long-standing purposive method as “purposive textual interpretation,”[1] treating text as the “primal constraint”[2] of the interpretive process rather than its starting point. In others, however, the Court returned to a more traditional and flexible purposive method.[3] This hesitancy caused some confusion.

The Court revisited this debate in Taylor.[4] The case arose from Newfoundland and Labrador’s decision, during the first wave of the COVID-19 pandemic, to prevent non-residents from entering the province except in limited cases. Taylor, who lived in Nova Scotia at the time, requested permission to attend her mother’s funeral and take care of her elderly father. While she ultimately received that permission, she viewed the restrictions as unjustifiable infringements on her mobility rights guaranteed by section 6 of the Canadian Charter and sought a declaratory judgment to that effect.

The Court unanimously dismissed Taylor’s arguments, holding that while the restrictions infringed on her section 6 mobility rights, they were justified under section 1 of the Charter. More consequentially perhaps, the case provided the Court with its very first opportunity to determine whether any of the subsections of section 6—and if so, which one(s)—guarantee interprovincial travel simpliciter, i.e. not for the purpose of work or establishing residence.[5] This question of interpretation arose from the ambiguous wording of some parts of section 6:

Fortunately for us, these differences of opinion led the judges to explain and clarify two dimensions of constitutional interpretation, namely (1) the scope of the purposive method, and (2) the nuances of bilingual constitutional interpretation.

The Scope of Purposive Constitutional Interpretation

The three sets of reasons agree that constitutional interpretation must be purposive, but they diverge on the scope of that method and, in particular, on the role of the text in the analysis. The majority adopts the most expansive view, finding a right that, while technically associated with both subsections 6(1) and 6(2)(a), is largely untethered to the text. For the majority, the text of a provision is only one “key indicator of the interests it protects and why it does so,”[6] but it does not limit the exercise. As a result, “a broad right to mobility simpliciter” exists simply because it “is foundational to s. 6 as a whole” and “underl[ies] the more specific rights in both subsections.”[7] The first dissent ostensibly adopts a similar method, which “starts with a reading of the text … [but] does not end there,”[8] and yet rejects the majority’s expansive view, focusing more intensely on the text. Finally, Rowe J. purports to adopt a “generous, purposive and contextual”[9] approach, but reiterates the mantra of purposive textualists that “the words used remain ‘the most primal constraint on judicial review’.”[10]

Overall, then, a strong majority of the Court reiterates a purposive approach that considers text as only one indication of a provision’s true meaning. However, the reasons never explain why that approach is the most compelling one, beyond a few references to tradition and to the Constitution having “an eye to the future.”[11] Yet, this rationale is important as it may provide further guidance for the interpretive exercise.

I explored that point in a recent article in which, in support of the purposive method, I argued that constitutional statutes should be interpreted like civil codes, i.e., by going beyond the text to identify and apply the spirit of each provision.[12] My argument is based on the generally accepted idea that the method for interpreting a text depends on the nature of that text. In the case of both civil codes and constitutional statutes, their foundational role in the system of which they are a part, their aspiration to last generations, their focus on presenting a coherent and all-encompassing whole, and their generally broad and abstract drafting all justify a method that attaches less importance to the text and more importance to purpose than ordinary legislation. The key point is that the justification for adopting a purposive approach to interpreting constitutional statutes is not merely a function of their importance but also of how they are drafted.

This argument may seem to point toward the majority’s interpretation, largely untethered from the text. Yet, I believe the first dissent best reflects the proper method. Because, as previously noted, the constitution acts—like civil codes—are designed to present a unitary whole, their structure and the coherence of their parts are key to finding their meaning. In this case, and with great respect for the majority’s opinion, it would be illogical for both subsections to guarantee the exact same right, namely interprovincial mobility simpliciter.

This is not because two provisions can never guarantee the same right: as the majority rightly points out, several cases have “recognized overlapping protections of the same right in multiple sections of the Charter.”[13] However, the particular structure of section 6 does not lend itself to a similar conclusion, since subsections 6(1) and 6(2)(a) guarantee rights that are subject to different limits. Specifically, holding that the same right is guaranteed by both 6(1) and 6(2)(a) would mean that citizens would enjoy it without express limitations under the former, but at the same time with limitations under the latter.[14] If constitutional statutes are presented as coherent units, then that conclusion cannot stand, and their structure requires locating the right of interprovincial mobility simpliciter in either subsection 6(1) or 6(2)(a), not both.

The Nuances of Bilingual Constitutional Interpretation

This is where the principles of bilingual interpretation are particularly helpful. Because of the odd drafting of some parts of section 6, in particular subsection 6(2)(a), the point was debated and gave the majority and the first dissent an opportunity to reiterate and nuance the principles governing the interpretation of bilingual constitutional provisions.[15]

The method for interpreting bilingual ordinary legislation is well settled and proceeds in three steps: (1) the interpreter determines whether there is discordance between the two versions; (2) if so, they “look for a meaning common to both versions,” which is typically the clear version (if the other is ambiguous) or the narrower version (if they diverge in breadth); and in the end, the interpreter must ensure that the common meaning reflects legislative intent.[16]

However, as both the majority and the first dissent note, constitutional interpretation is not a search for legislative intent, and that method must be adjusted when applied to constitutional acts. Despite writing different reasons, their approach is almost identical. The starting point remains the text, which must be read to determine whether the versions differ, i.e. whether they cannot be read together.[17] However, both the majority and the first dissent reject the priority given to “the narrowest area of agreement between the French and English versions,”[18] as that narrower meaning does not necessarily reflect the broad and liberal method of Charter interpretation. To the contrary, the majority notes that the broader of the two meanings will generally best reflect the purposive approach to interpretation.[19] And the first dissent emphasizes that the clearer of the two versions should usually be preferred unless it does not align with the provision’s purpose.[20] This latter point is also mentioned, although much less prominently, in the majority’s reasons, which note that “[a]dopting a narrow interpretation would ignore the clear breadth of the French text.”[21] Ultimately, however, both the majority and the first dissent emphasize that the meaning gleaned from comparing the two language versions must be assessed with reference to the provision’s purpose.[22]

Returning to the structural point made above, if only one of subsections 6(1) or 6(2)(a) can logically guarantee the right of interprovincial mobility simpliciter, the principles of bilingual interpretation point toward the latter. As the judges unanimously note, subsection 6(1) is admittedly vague in both French and English and, standing alone, could very well encompass that right, as “remain[ing]” in a place may also mean moving freely within it, depending on the context. However, another plausible reading of subsection 6(1) is that it allows citizens to “remain” in Canada without telling us anything about the rules that may govern movement within the country. On the contrary, subsection 6(2)(a) is clear, at least in French: citizens and permanent residents have the right “de se déplacer dans tout le pays et d’établir leur résidence dans toute province.” Beyond the word “et” which, as some judges note, may introduce a qualifier in some circumstances, the key point is that the phrasing employs two different qualifiers—“dans tout le pays” and “dans toute province”—thus reinforcing the disjunctive nature of the terms used. While the English version may be read in different ways, the French version leaves no doubt that subsection 6(2)(a) guarantees both the right to move about the country and to establish residence in any province, the two being independent.

In the end, beyond these technicalities and the split reasons, all judges but one agree on several important points for future cases. Constitutional interpretation is a purposive endeavour that relies on text as one indicator of purpose, but is not constrained by it. When a bilingual text is at issue, both versions should be considered, and while technical rules of interpretation do not supersede purpose, the comparison of these versions may help in identifying their meaning. The subtle difference between the majority and the first dissent may, in the end, lie in their differing conceptions of the importance of structural coherence in our constitutional enactments, but fortunately, it seems that the short-lived era of purposive textualism is over… at least for now. ■

JÉRÉMY BOULANGER-BONNELLY is an assistant professor at McGill University’s Faculty of Law and a member of the Barreau du Québec.

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[1] See e.g. Toronto (City) v Ontario (Attorney General), 2021 SCC 34 at para 53 (emphasis added).

[2] Quebec (Attorney General) v 9147-0732 Québec inc., 2020 SCC 32 at para 9.

[3] See e.g. R v Lafrance, 2022 SCC 32 at para 76; R v Albashir, 2021 SCC 48 at para 26, 42.

[4] Taylor v Newfoundland and Labrador, 2026 SCC 5 [Taylor].

[5] Taylor at para 64 (majority), 264 (Jamal & Kasirer JJ., dissenting in part). The case touches on many other issues, including the justificatory analysis under section 1, the role of international sources, headings and subheadings in constitutional interpretation, and several others. This post focuses on two dimensions only.

[6] Taylor at para 79 (majority).

[7] Taylor at para 65, see also at para 105 (majority). This holding reflects, for instance, cases which have interpreted section 96 of the Constitution Act, 1867, and which have found in its very laconic text the source of expansive guarantees (judicial independence, the core jurisdiction of superior courts, etc.): see e.g. Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [1997] 3 SCR 3; Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27.

[8] Taylor at para 267 (Jamal & Kasirer JJ., dissenting in part).

[9] Taylor at para 328 (Rowe J., dissenting in part).

[10] Taylor at para 330 (Rowe J., dissenting in part).

[11] Taylor at para 70-71 (majority).

[12] Jérémy Boulanger‑Bonnelly, “Contributions civilistes à l’interprétation des lois constitutionnelles canadiennes” (2025) 70 McGill LJ 203.

[13] Taylor at para 152 (majority).

[14] Taylor at para 260, 315 (Jamal & Kasirer JJ., dissenting in part).

[15] Rowe J. discusses the French versions of the provisions (see, e.g., at para 332), but not the method of bilingual interpretation.

[16] Taylor at para 88-90 (majority); citing R. v. Daoust, 2004 SCC 6.

[17] Taylor at para 99 (majority), 279 (Jamal & Kasirer JJ., dissenting in part).

[18] Taylor at para 92 (majority), 280 (Jamal & Kasirer JJ., dissenting in part).

[19] Taylor at para 100 (majority).

[20] Taylor at para 281, 292 (Jamal & Kasirer JJ., dissenting in part).

[21] Taylor at para 172, see also at para 174 (majority).

[22] Taylor at para 94, 97 (majority), 282 (Jamal & Kasirer JJ., dissenting in part).