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Charter - Interpretation (2). Taylor v. Newfoundland and Labrador [bilingual Charter interpretation]
In Taylor v. Newfoundland and Labrador (SCC, 2026) the Supreme Court of Canada partially allowed an appeal, this brought against a Newfoundland and Labrador Court of Appeal order that dismissed an earlier appeal from a Superior Court dismissal of an application seeking "a declaration that the [SS: covid-era] Travel Restrictions infringed the mobility rights in s. 6 of the Charter, could not be justified under s. 1, and were of no force and effect".
Here the court considers bilingual aspects of Charter interpretation:(2) The Bilingual Interpretation of Charter Rights
[86] The language used to define and describe the mobility rights enshrined in s. 6 of the Charter is markedly different as between its French and English versions (see, e.g., C.-E. Côté, “Circulation et établissement”, in JurisClasseur Québec — Collection Droit public — Droit constitutionnel (loose-leaf), fasc. 11, at No. 4). Yet both versions are equally authoritative (Constitution Act, 1982, s. 57; M. Bastarache et al., The Law of Bilingual Interpretation (2008), at p. 96; and M. Beaupré, Interpreting Bilingual Legislation (2nd ed. 1986), at p. 199). The parties and interveners before this Court disagree about the nature and impact of these differences. Their arguments on how to read s. 6 draw heavily upon the principles this Court has developed for interpreting statutes where the two official language versions diverge. But as we explain, those principles should not be transposed directly to constitutional interpretation. Instead, what is required is a clear and principled approach which builds upon, and is consistent with, how courts interpret the constitutionally entrenched rights and freedoms in the Charter.
[87] The methodology applicable to the bilingual interpretation of legislation is well-established and generally involves three steps (R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217).[1]
[88] First, courts read the two versions of the legislative provision and compare them to assess whether any discordance exists between them (Daoust, at para. 27; Montreal (City) v. Watt and Scott Ltd., 1922 CanLII 490 (UK JCPC), [1922] 2 A.C. 555 (P.C.), at p. 562; Bastarache et al., at pp. 48-54). Common ways discordance may arise include: one language version may be ambiguous, while the other is clear; one language version may be broader than the other; or the versions may be irreconcilable (Daoust, at paras. 26-27; Bastarache et al., at p. 56; R. Sullivan, The Construction of Statutes (7th ed. 2022), at p. 120).
[89] Second, if there is any discordance, courts must look for a meaning common to both versions (Daoust, at paras. 28-29; Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269, at para. 56; and R. v. Mac, 2002 SCC 24, [2002] 1 S.C.R. 856, at para. 5). The pathway to common meaning — if available — differs based on the type of discordance at issue. If the discordance is formed on grounds of ambiguity in one version, the shared meaning is that of the clear version (Daoust, at para. 28; P.-A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 347). Where the discordance arises from differences in breadth, the shared meaning is the narrower version (Daoust, at para. 29; Côté, Beaulac and Devinat, at p. 348; Bastarache et al., at p. 74). That said, where the two authoritative versions are irreconcilable, then there will be no shared meaning at this stage, and the court must rely on other principles of interpretation (Daoust, at para. 27; Côté, Beaulac and Devinat, at p. 349).
[90] Third, the court must determine whether the common or dominant meaning reflects Parliamentary intent, relying on the ordinary rules of statutory interpretation (Daoust, at para. 30; Bastarache et al., at p. 82; Côté, Beaulac and Devinat, at pp. 349-53). Thus, if the clear version (in the context of an ambiguity) or the narrow version (in the context of difference in breadth) does not accord with the intention of the legislature, the interpretation must be rejected (Côté, Beaulac and Devinat, at p. 349; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 39).
[91] Relying on this methodology, the appellants argued that the English text of s. 6 is ambiguous, while the respondents argued that — if at all — it is the French text which is ambiguous. On the other hand, the Attorney General of Nunavut characterized the variance as one of breadth, noting that the French text is broader than the English.
[92] The approach to statutory interpretation helps us understand how language conveys meaning, how different languages may convey different meanings, and that equally authoritative versions may vary based on their clarity, breadth, and consistency (R. Sullivan, “The Challenges of Interpreting Multilingual, Multijural Legislation” (2004), 29 Brook. J. Int’l. L. 985; J. P. Salembier, “Equal Authenticity and Rule of Law in the Adjudication of Bilingual Legislation” (2004), 26 S.C.L.R. (2d) 579). That said, its methodology arises from its own particular context, being the interpretation of statutory provisions. Statutory interpretation is the search for legislative intent at the time of the statute’s enactment (Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, at para. 32). The priority given to the narrowest area of agreement between the French and English versions is tied to this search for legislative intent.
[93] This approach is unsuitable in the Charter context. Charter rights are entrenched normative constitutional statements, intended to protect broad personal interests against state intervention. So, unlike statutory interpretation, Charter interpretation is not an exercise in determining legislative intent (Bastarache et al., at p. 98). As a result, the narrower version of the shared meaning between English and French versions of the Constitution cannot be preferred. Presumptively preferring the narrower version would run contrary to this Court’s consistent direction to interpret rights liberally and broadly.
[94] Put differently, the problem with the Daoust framework as applied to the Charter is that Daoust would direct courts to begin their interpretation with a search for the narrow common reading, and then to reject that narrow reading only if it is inconsistent with the purpose of the Charter provision in question. This approach turns Charter interpretation on its head. Charter interpretation must begin with the broad, liberal, and purposive reading of the text. Otherwise, we risk unduly limiting the scope of the Charter’s protections.
[95] The significant differences between the French and English versions of s. 6 means that this Court must now articulate a clear and principled approach applicable to bilingual Charter interpretation. The limited jurisprudence on this topic has yet to do so (Bastarache et al., at pp. 97-101). Sometimes the Court has simply adopted the methodology used for bilingual statutory interpretation (see, e.g., R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144; Poulin). In others, the methodology is unclear or the discordance between the French and English versions is resolved without engaging in a purposive inquiry (see, e.g., Mahe v. Alberta, 1990 CanLII 133 (SCC), [1990] 1 S.C.R. 342, at p. 371; R. v. Schmautz, 1990 CanLII 134 (SCC), [1990] 1 S.C.R. 398, at pp. 415-16). Elsewhere, the Court has preferred the version that “would appear to reflect better the purpose underlying the right” (R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296, at p. 1314; see also R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 287).
[96] In constitutional cases in which the mobility rights in s. 6 have been specifically considered, the differences between the French and English versions have not figured prominently in the argument or analysis. While Skapinker acknowledged some differences, the Court resolved the discordance largely through reference to the wording of the headings, and did not undertake an overt bilingual interpretation. The remainder of this Court’s s. 6 jurisprudence does not rely on bilingual interpretation or explicitly acknowledge both official language versions (United States of America v. Cotroni, 1989 CanLII 106 (SCC), [1989] 1 S.C.R. 1469; Black v. Law Society of Alberta, 1989 CanLII 132 (SCC), [1989] 1 S.C.R. 591; Canadian Egg Marketing Agency v. Richardson, 1997 CanLII 17020 (SCC), [1998] 3 S.C.R. 157 (Egg Marketing); Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157). However, the differences between the French and English versions of s. 6 have been the subject of academic commentary (see M.-R. N. Girard, “L’article 6 de la Charte canadienne des droits et libertés: la liberté de circulation et d’établissement — Un volcan dormant?”, in G.-A. Beaudoin and E. Mendes, eds., Canadian Charter of Rights and Freedoms (4th ed. 2005), 415, at pp. 418-20; and I. Atak, “L’article 6 de la Charte canadienne des droits et libertés: La liberté de circulation et d’établissement”, in E. Mendes and S. Beaulac, eds., Canadian Charter of Rights and Freedoms (6th ed. 2025), 619, at p. 623).
[97] Our starting point is that the bilingual interpretation of Charter rights is governed by the general methodology for Charter interpretation. To reiterate, s. 6 must not be read by reference to the rules developed to interpret statutory provisions. Its status as a constitutionally protected right means it must be read according to the unique interpretative approach developed to allow Charter rights to speak well into the future. This requires a purposive approach to bilingual Charter interpretation (see, e.g., Collins). To proceed otherwise would be to jeopardize the protection of the Charter provision’s underlying interests.
[98] Recall that each Charter right must “be placed in its proper linguistic, philosophic and historical contexts” (Big M, at p. 344). The linguistic context includes that the French and English versions of Charter rights are equally authoritative (Constitution Act, 1982, s. 57; see also, generally, J. P. McEvoy, “The Charter as a Bilingual Instrument” (1986), 64 Can. Bar Rev. 155). In our officially bilingual country, reading both linguistic formulations together best protects the interests underlying that right.
[99] The text of the Charter is the first indicator of the scope of the right and guides the court towards other indicators of purpose. When there is an apparent difference between the equally authoritative versions of the Charter, both the English and the French texts, whether different, ambiguous, or of various breadths, inform purpose. When reasonably capable of more than one meaning, both authoritative versions of Charter rights are simply read together, and each gives colour and content to the interests protected and the purpose of the right at issue.
[100] Sometimes, linguistic divergence between French and English versions persists, despite all efforts to read them harmoniously. In those cases, a purposive approach makes it inappropriate to adopt a rule, taken from the statutory context, that the narrower shared wording is determinative. Instead, given the general interpretive aim of erring in favour of advancing protected interests through a large, liberal, and generous interpretation, a purposive approach to bilingual Charter interpretation requires courts to select the reading that better protects the right — which will generally be the broader of the two. That accords with the purposive methodology more broadly, and with our limited precedents governing this domain (Collins, at pp. 287-88; Martineau v. M.N.R., 2004 SCC 81, [2004] 3 S.C.R. 737, at paras. 81-83).
[101] Finally, we agree with our colleagues Kasirer and Jamal JJ. that parties asking a court to interpret a provision of the Charter ought, as a best practice, to draw that court’s attention to both official language versions of that provision’s text (para. 14). . Taylor v. Newfoundland and Labrador
In Taylor v. Newfoundland and Labrador (SCC, 2026) the Supreme Court of Canada partially allowed an appeal, this brought against a Newfoundland and Labrador Court of Appeal order that dismissed an earlier appeal from a Superior Court dismissal of an application seeking "a declaration that the [SS: covid-era] Travel Restrictions infringed the mobility rights in s. 6 of the Charter, could not be justified under s. 1, and were of no force and effect".
Here the court considers interpretive principles applicable to Charter law:(1) The Methodology of Charter Interpretation
[70] Charter interpretation is crucially different from statutory interpretation (J. Weinrib, “What Is Purposive Interpretation?” (2024), 74 U.T.L.J. 74, at p. 83). The Charter entrenches protections for fundamental rights and freedoms in our Constitution. Unlike a statute that speaks to present rights and obligations — and that in comparison, can be easily enacted, amended, or repealed — the Charter “is drafted with an eye to the future”, and its purpose is to provide a “continuing framework for the legitimate exercise of governmental power and . . . for the unremitting protection of individual rights and liberties” (Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 155; see also L. E. Weinrib, “The Canadian Charter’s Transformative Aspirations” (2003), 19 S.C.L.R. (2d) 17). Like a “living tree”, it must be “capable of growth and expansion within its natural limits” (Hunter, at pp. 155-56, quoting Edwards v. Attorney-General for Canada, 1929 CanLII 438 (UK JCPC), [1930] A.C. 124 (P.C.), at p. 136).
[71] For more than 40 years, this Court has made these principles meaningful by interpreting the Charter purposively. In what follows, we review and reaffirm our longstanding purposive approach. We also discuss the sources on which courts rely to determine the purpose of a constitutional right.
[72] This Court first outlined a methodology for interpreting the Charter in Hunter. Speaking for a unanimous Court, Dickson J., as he then was, cautioned that courts cannot interpret the Charter “by recourse to a dictionary, nor for that matter, by reference to the rules of statutory construction” (p. 155). Instead, he explained that the Charter is a “purposive document” that requires a “broad, purposive analysis, which interprets specific provisions . . . in the light of its larger objects” (p. 156). A court can only interpret the meaning of a particular right or freedom by first delineating “the nature of the interests it is meant to protect” (p. 157).
[73] Justice Dickson expanded on this purposive approach in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, and later, as Chief Justice, in Oakes. He explained that the purpose of a right or freedom is found in both “the interests it was meant to protect” (Big M, at p. 344) and “the cardinal values it embodies” (Oakes, at p. 119). Put differently, the purpose of a right or freedom is to protect the interests and values embodied by the individual Charter provision. So, before a court can interpret how the Charter restrains state action, it must first determine what interests the provision in question protects, and why it protects them. That requires a generous rather than legalistic approach, aimed at securing the full benefit of the Charter’s protection (Big M, at p. 344). Two examples illustrate this methodological approach.
[74] In Hunter, the Court did not define the guarantee in s. 8 as simply a right against unreasonable search and seizure. Instead, the Court construed the protections of s. 8 as relating at a minimum to the right of privacy, which in turn protects the “public’s interest in being left alone by government” (pp. 159-60). Only after determining what interest s. 8 protects and why, did the Court determine how s. 8 restrained the state: namely, by preventing unreasonable state intrusions upon reasonable expectations of privacy.
[75] Similarly, in Big M, the Court did not decide which state actions are prohibited by s. 2(a)’s freedom of conscience and religion until after it rigorously determined the values underlying that freedom (pp. 346-47). The Court looked first to the underlying objectives of the Charter as a whole, including respect for freedom, equality, and human dignity (pp. 336-37). It then rejected the notion that freedom of religion is limited to an “anti-establishment” principle, or to the degree to which freedom of religion was enjoyed by Canadians before the proclamation of the Charter (pp. 339-44). Instead, the Court identified the essence of free conscience and religion as “[t]he ability of each citizen to make free and informed decisions” (p. 346). Section 2(a) preserves this interest to safeguard “basic beliefs about human worth and dignity” and “a free and democratic political system” (p. 346). Only with these underlying interests in mind did the Court then interpret s. 2(a) as guaranteeing that the government could not “coerce individuals to affirm a specific religious belief or to manifest a specific religious practice for a sectarian purpose” (p. 347).
[76] In Big M, Dickson J. elaborated on the sources which courts must consult to determine the underlying interests and purposes of a Charter guarantee. He explained that a provision must be understood in light of (1) the character and the larger objects of the Charter itself; (2) the language chosen to articulate the specific right or freedom; (3) the historical origins of the concept enshrined; and (4) where applicable, the meaning and purpose of the other specific rights and freedoms with which it is associated (p. 344). We have since identified others, including international and comparative constitutional law, and — to a lesser extent — the drafting history of a provision.
[77] A purposive interpretation starts with the broad objective of the Charter: constitutionally enshrining fundamental rights and freedoms. The most essential purpose of the Charter “is to entrench certain basic rights and freedoms and immunize them from legislative encroachments” (R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3, at p. 14, per Dickson C.J.). Section 52 of the Constitution Act, 1982 provides that the Charter, as part of the Constitution, is the supreme law of Canada and any law that is inconsistent with it is to the extent of the inconsistency of no force and effect. As Wilson J. observed in R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, “the rights guaranteed in the Charter erect around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass” (p. 164).
[78] The Charter is structured as a broad guarantee of rights and freedoms, subject under s. 1 to such reasonable limitations prescribed by law that can be demonstrably justified by the government in a free and democratic society. Justice Dickson elaborated on this theme of the Charter as an instrument of reasonable freedom, discussing how a “truly free society” is one “which aims at equality with respect to the enjoyment of fundamental freedoms”, and how “[f]reedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person” (Big M, at p. 336). The exact contours of a Charter provision’s guarantee must be interpreted recognizing that “[o]ne of the major purposes of the Charter is to protect, within reason, from compulsion or restraint” (p. 336). Courts therefore interpret Charter guarantees broadly, recognizing that under s. 1 the state can justify reasonable limits on those broad rights to protect public safety, order, health, morals, or the fundamental rights and freedoms of others (pp. 336-37).
[79] The text of a constitutional right is embedded in the Charter, and so takes its context from the Charter’s overall purposes. A court begins the interpretive exercise by first reading the words of the provision (Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426, at para. 8; Desautel, at para. 18). The text of a particular provision is a key indicator of the interests it protects and why it does so (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 15; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at para. 64; see also Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511, at para. 36). It contributes to the scope of the provision’s possible linguistic meaning, and also guides the court to relevant bodies of history, international law, and other indicators of the interests to be protected. Similarly, headings are probative of a right’s purposes, and “the Court must take them into consideration” when interpreting a right or freedom (Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357, at p. 376). But there is no place for rigid textualism (9147-0732 Québec inc., at para. 12). Justice Dickson’s admonition from Hunter not to read the Charter as if it were ordinary legislation remains true. Charter interpretation is a unique, purposive methodology.
[80] The historical origins of the right in question provide another interpretive source of purpose. The rights the Charter protects are “rooted in and hence to some extent defined by historical and existing practices” (Reference re Prov. Electoral Boundaries (Sask.), 1991 CanLII 61 (SCC), [1991] 2 S.C.R. 158, at p. 181; see also Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 49). Understanding those norms helps delineate the interests and values the rights and freedoms serve, and offers clues as to why they are constitutionally enshrined. Yet constitutional meaning is not frozen by the past. This part of the analysis does not look to the content of the right at the time of ratification or the scope that the framers would have afforded to the provision. It examines “historical and existing practices” to determine “the broader philosophy underlying the historical development of the right” (Reference re Prov. Electoral Boundaries (Sask.), at p. 181). The living tree’s roots offer guidance, but it “must be capable of growth to meet the future” (p. 180). A right’s historical origins may reveal something about the interests underlying it, or shed light on why those interests are important, but it does not restrict the form their protection may take.
[81] Other provisions of the Charter may also assist the search for purpose. The Charter is a system where “[e]very component contributes to the meaning as a whole, and the whole gives meaning to its parts” (Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, at p. 365, quoting P.‐A. Côté, The Interpretation of Legislation in Canada (1984), at p. 236). As a starting point, that means there is no hierarchy of rights, and courts must avoid interpretations that privilege one right at the expense of another (Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at p. 877). But other provisions do more than preclude conflicting interpretations. They invite interpretations that draw inferences about one provision from the interests protected elsewhere in the Charter, thereby uniting its “underlying values” and maintaining its “internal coherence” (Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, at para. 80).
[82] This Court has identified other indicators of the interests underlying Charter provisions. For instance, international law and comparative constitutional law can shed light on the purposes behind analogous Charter protections. Courts must presume that the Charter guarantees protections at least as broad as those afforded by similar international human rights documents that Canada has ratified (9147-0732 Québec inc., at para. 31). And they may look to the comparative constitutional landscape in other rights-respecting democracies as “relevant and persuasive” to domestic constitutional meaning (United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at para. 80; 9147-0732 Québec inc., at para. 35). Finally, the drafting history of a provision, while never determinative of meaning, can provide some indication of purpose (Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 508; Poulin, at paras. 78-79; Desautel, at para. 41). The drafting history, critically, is distinct from the historical origins of the right in question. The former relates to the actual process of drafting and ratifying the Charter, and the latter relates to the historical development of the values and interests enshrined in the Constitution.
[83] Courts must interpret a Charter provision in a fashion that best protects its underlying interests, consistent with their purposes. If more than one interpretation is similarly capable of doing so, then the Court should favour the most large, liberal, and generous option (Hunter, at pp. 155-56, citing Edwards, and Minister of Home Affairs v. Fisher, [1980] A.C. 319 (P.C.); see also Big M, at p. 344; Grant, at para. 16).
[84] To be clear, the principle of liberal interpretation of Charter provisions follows a rigorous determination of a provision’s purposes (Poulin, at para. 53; Grant, at para. 17; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236, at para. 40). As Dickson J. stated in Big M, at p. 344, “it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter . . . must . . . be placed in its proper linguistic, philosophic and historical contexts.”
[85] Thus, the interpretation of a Charter provision is first and foremost an exercise in ascertaining what interests that provision protects, and why it does so. The court must consider the character and larger objects of the Charter; the text of the particular Charter provision, including any headings; the history of the concept enshrined therein; analogous international and comparative law; the interpretation of related rights and freedoms in the Charter; the drafting history of the provision, and any other relevant source. Once the court has rigorously reviewed these sources, it must then interpret the text of the provision to provide the most generous protection it can support to safeguard its interests.
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