BIJURALISM AND HARMONIZATION: GENESIS

Preface

Mario Dion, Associate Deputy Minister
Civil Law and Corporate Management
Department of Justice Canada

As Associate Deputy Minister responsible for civil law, I am pleased to be associated with the publication of this collection and to have the privilege of writing its preface. In describing the background to this compilation, I propose to outline the history of the federal government's harmonization effort and the present harmonization program as well as summarize this second publication intended to share our knowledge, its purpose and content.

First of all, I should note that Canada is the only G-8 nation where bijuralism is being achieved through a formal program organized by the national government. According to available sources, it would also appear to be the only country where national legislation is genuinely based on two separate systems of law. The division of powers provided for in the Constitution Act, 1867 grants jurisdiction over "property and civil rights" to the provinces, except where such matters are placed under federal jurisdiction, e.g. banking, marriage and divorce, bankruptcy and insolvency. Provincial jurisdiction over "property and civil rights" is the reason for the coexistence of two private law systems in Canada: civil law in Quebec and common law in the other Canadian provinces and territories.

It must be borne in mind, however, that this process of bijuralism in federal legislation did not begin formally until the Civil Code reform, which was started in 1955 by the Government of Quebec and led to the coming into force of the Civil Code of Quebec on January 1, 1994. The substantive changes provided for in this reform led to the amendment of nearly 80% of the provisions of the Civil Code of Lower Canada. In response to this reform which affected one quarter of Canada's population, the federal government introduced a program to coordinate federal legislation with the terms and concepts of the new Civil Code of Quebec. In 1993, it put in place a small team that was responsible for harmonizing federal legislation with the new concepts, notions and institutions of the Province of Quebec's civil law system.

Although a joint drafting policy has been in place since 1978, federal legislation and regulations remained incomplete since they did not reflect all four of Canada's legal audiences: Francophone and Anglophone civil law jurists and Anglophone and Francophone common lawyers. The Civil Code Section was created in 1993 to, inter alia, harmonize federal laws with the new Civil Code of Quebec. The Section was shortly thereafter given the additional task of ensuring that federal legislation reflected Canada's four legal audiences and was thereby fully bijural. This change came about in spite of the major budgetary cutmakes to the federal administration at that time.

In 1999, the Program for the Harmonization of Federal Legislation with the Civil Law of the Province of Quebec was given permanent resources and at this time has a staff of 50 persons, including a number of jurists for whom the program represents an alternative to the traditional practice of law. The Program is being implemented by the Civil Code Section whose work consists mainly of legal research and the drafting of proposed legislative amendments to make federal legislation fully bijural.

To date, two bills have been tabled in Parliament. The first, Bill C-50, was introduced in the House of Commons on June 11, 1998 and did not receive royal assent before Parliament was prorogued in fall 1999. The bill was reintroduced on May 11, 2000, this time in the Senate (S-22), but met with the same fate when the federal election was called in October of that year. Bill S-4, which contains essentially the same content as the previous bills, was tabled in the Senate on January 31, 2001.

We would like to thank the ministère de la Justice du Québec, the Barreau du Québec and the Chambre des notaires du Québec for their invaluable cooperation during the consultations that preceeded the tabling of these bills. Without their support, the work done under the Harmonization Program would have been considerably more difficult.

It should be recalled that, since harmonization was, up until then, an unexplored field, the Civil Code Section had to develop new work methodology that would enable it to identify and correct bijuralism problems and ensure that the two legal systems were visibly and genuinely respected. It was thus through experiment and an original approach that the methodological procedures necessary to the harmonization work described in this collection were established.

To increase awareness of Canadian bijuralism, the Department of Justice has adopted a promotional strategy that deals specifically with it. The strategy has five components, most notably coordinating bijuralism initiatives, training and integrating Canadian bijuralism into the Department, into the Public Service, and into the broader Canadian legal community. Through a range of activities and initiatives, a number of players are carrying out the strategy and contributing to the promotion of Canadian bijuralism as a competitive advantage for Canadian jurists in the context of globalization and the growth of supranational structures such as the European Union and the Organization of American States.

Against this background, the Civil Code Section has established a program of research contracts for graduate law students and is publishing papers in legal journals. A number of these papers are included in this collection.

The first collection published by the Civil Code Section consisted solely of studies on the harmonization of federal legislation and other aspects of Canadian bijuralism written by law professors and other legal experts for the Civil Code Section. That first collection was very well received by practising lawyers as well as judicial, academic and legal authorities. Since its publication, interest in Canadian bijuralism and the Harmonization Program of the federal Department of Justice has clearly been on the rise. Many presentations relating to bijuralism have been given on different occasions and in different circumstances including the Faculty of Law of the University of Ottawa which recently devoted a significant portion of an international conference to the issue.

I am therefore very pleased to introduce the publication of this second collection, which, contains articles written primarily by both jurists of the Civil Code Section, some of whom were hired when the Program was introduced, and contributors from other sections within the Department. These contributions reflect the decompartmentalizing of our understanding of bijuralism and its extension beyond the sole task of representing the concepts and notions of the two legal systems in federal legislation and regulations.

The publication of this collection on the occasion of the Conference of the Barreau du Québec in May 2001 will raise awareness of the Harmonization Program and of the characteristics of Canadian bijuralism throughout the legal community in Quebec and elsewhere. This is also the perfect opportunity for Canadians to enjoy a partial return on the major investment they have made in this project.

Since this collection is published in both official languages and available in an electronic version it is readily available to the Canadian and international legal community. Although the bijuralism issue has thus far been of interest primarily to civil law jurists, our common law colleagues are now increasingly aware of and interested in the interaction of different private law systems occurring around the world.

The collection's format allows for updates and additions which confirms that work relating to Canadian bijuralism is ongoing and that the Department of Justice Canada firmly intends to share its knowledge of the subject as it develops. The law arising from this work is learned law and those involved as well as the Department deserve due recognition. This work should also benefit Canadians with an interest in this question.

To provide a clearer idea of the collection's value, I would like to say a few words about its content. As mentioned previously, we have developed a harmonization methodology that is outlined in detail in the first article. This is followed by a number of more technical texts essentially concerning specific concepts in the fields of bankruptcy law, tax law and security law, which have formed the subject of proposed legislative amendments in recent years.

Some of the articles refer directly to the progress through Parliament of the most recent harmonization bill tabled. This gives readers a better understanding of the culmination of the research conducted by jurists in the Civil Code Section and, in some instances, elsewhere. It is useful to point out that, since this bill is still the first harmonization bill being considered by Parliament, its preamble and initial clauses contain statements of principle concerning Canadian bijuralism. The impact of these statements in the Interpretation Act is discussed by Mr. Henry Molot in this volume.

As it is our objective to demonstrate the importance of the federal government's harmonization exercise, we have included a booklet on the contribution of the Supreme Court of Canada relating to bijuralism. Since enthusiasm for harmonization extends beyond our borders, we also provide an overview of bijuralism in the world, and discuss the nature of the diverse relations between the two legal traditions in Canada.

The collection also includes a number of speeches delivered by the Minister and departmental employees on Canadian bijuralism and the Harmonization Program. As the reader will note, the message has been delivered in many fora, which will help to promote Canada's unique legal status and the important contribution the Department's jurists can make to similar efforts being undertaken elsewhere in the world.

The last article in the collection is a short humorous piece contributed by one of the Civil Code Section's young lawyers who joined the Department when the Section was created. In it he explains how the Harmonization Program has enabled several young jurists to find interesting and original work despite a lack of legal experience. The article is an attempt to increase awareness of this new field amongst young lawyers and law students seeking an alternative to the traditional opportunities available for lawyers and notaries.

Lastly, I would like to thank all the authors of the articles published in this collection for their rigorous and energetic efforts, particularly in view of the imposing workload and schedules of their regular jobs at the Department of Justice Canada.

In conjunction with the preparation of this collection, we are also very pleased to be involved in organizing the 2001 Conference of the Barreau du Québec where the theme of bijuralism will be in view. The productive association between our Department and the Barreau du Québec in this field dates back to the early 1990s and it is our hope it will continue well into the future.

For readers of this volume, I hope you will find in it legal concepts that stimulate your research and assist you in your work, or at the very least satisfy the curiosity that characterizes jurists in general.