BIJURALISM AND HARMONIZATION: GENESIS

LEGAL PERSPECTIVES OF THE NEW MILLENNIUM
INTERNATIONAL MEETING OF
FRANCOPHONE LEGAL EXPERTS

Harmonization of Federal Law with Quebec Civil Law:
Canadian Bijuralism and its Actualization

Introductory Notes by Mario Dion, Associate Deputy Minister
Civil Law and Corporate Management Sector,
Department of Justice Canada

Montpellier University
June 29-30 and July 1, 2000

Introduction

Many of the differences between the civil law and common law systems are more apparent than real: they arise much more from the manner and order of presentation rather than the content of the rules, and the few underlying differences are attributable mostly, the authors note, to the vicissitudes of history.

The convergences within western society largely transcend the national systems which comparative law has sometimes unduly pitted against each other. In fact, the similarities between the civil law and the common law are much more significant than the technical differences.

Quebec civil law, for example, mirrors French law which itself shares commonalty of thought with British law and the historical peculiarities of 19th Century law; in other words the codification and stiffening of the rule of precedent are two stabilizing phenomena of the industrial era that run parallel.

It is these two systems that I wish to address, today, more specifically still and beyond their seeming divergence, their co-existential interrelations and closeness that we, in Canada, are energizing and vitalizing.

Bijuralism refers to a statement of fact in the Canadian context. Canada is indebted to its history and, along with it, to the development of complementarity relationships that bind the civil law to the common law, for the richness as much as the wonderful uniqueness of Canadian bijuralism. By adopting methodologies and analytical frameworks derived from various legal systems, Canadian bijuralism allows for innovative solutions that are in keeping with the requirements of a constantly evolving world.

Bijuralism, as practised in Canada generally and at the Department of Justice in particular, is first and foremost the interaction between the common law and the civil law. Eighty percent of the citizens world-wide are governed either by the common law or the civil law. Canada, for its part, shares this peculiarity as well as the benefit of being governed by these two systems.

How has Canada proceeded to translate this fact into reality? Here lies the focal point of my speech. But first, may I recall the gist of Canadian legal history.

Legal History of the Co-Existence in Canada
of the Common Law and the Civil Law

Along with the royal edicts and ordinances of the Governor General, the Custom of Paris was the main source of legislation in New France until the British conquest.

However, the insistence of the inhabitants on maintaining their private law regime contributed to achieving the compromise of the Quebec Act adopted by the British Parliament in 1774. Section8 restored, with a few minor exceptions, the absolute authority of pre-conquest French law, except in criminal and penal matters.

This marks the birth of the co-existence, in Canada, of British common law and French civil law.

The continuance of this legal duality arises from the sharing of legislative powers as provided under the Canadian constitution: the provinces have authority to legislate in matters of property and civil law under subsection 92(13) of the Constitution Act, 1867, in other words in respect of the essentials of private law. Nine of the ten Canadian provinces, and the Territories, operate a common law regime. Quebec, on the other hand, uses the civil law as private law.

Only the standards adopted accordingly by provincial parliaments can compliment federal enactments that are silent on any issue that comes under property and civil rights law and proves to be an essential requirement for their enforcement.

Originating from the common pool of Roman law, the two systems that are part of the Canadian heritage are thus brought to interact, which puts us under the constraint of specific congruency procedures and, beyond that, a broadening of our horizons and a new synthesis of our social values, hence of our legal regime.

Harmonization of Federal Legislation with the
Civil Law of the Province of Quebec

Origins of the Harmonization Program

As part of its firm commitment to the revamping of its enactments, Canada desires improved harnessing of federal laws and regulations with the civil law of the province of Quebec in all areas where the two interact.

In its concern to use concepts and a terminology consistent with the new Quebec civil law following the coming into force of the Civil Code of Quebec, 1994, the federal legislator has made a strong commitment to harmonize federal legislation, without affecting English common law, with Quebec civil law so that civil law experts are able to identify their private law concepts and more adequately apply to Quebec the federal normative texts.

To that extent, the Program to harmonize federal law with the civil law of the Province of Quebec fits into the context of the adoption by the federal government, in 1993, of the Policy on the Application of the Civil Code of Quebec to the Federal Government.

The Harmonization Program also fits into the context of the adoption, in 1995, of yet another policy. The Policy on Legislative Bijuralism provides for the respect by the federal legislator of the four Canadian legal audiences, namely civil law Francophones and Anglophones, on the one hand, and common law Francophones and Anglophones on the other hand. Although the two language versions of the enactment are equally authoritative, it is important to ensure that the civilian concept and the common law concept are given, in each of the two languages, the meaning specific to either based on the legal system they derive from and currently in force in the province where the law is applied.

The preliminary work undertaken by the Department of Justice Canada since 1993 was instrumental in developing a comprehensive approach to the process of adjusting federal legislation to civil law and identifying the goals, including the following major ones:

  • adapt federal laws and regulations dealing with or using private law concepts to the new concepts, institutions and terminology of the Civil Code of Quebec;
  • that francophone and anglophone civilians as well as anglophone and francophone common law experts can identify with their respective legal traditions.

The early stages of the harmonization work were accomplished in co-operation with the Quebec Ministry of Justice and benefited from the vital contribution of academics. These law faculties are now being encouraged to submit, as part of the bursary awards program, applications from postgraduate university students who want to distinguish themselves in the area of comparative law and contribute to the advance of legal research, from a Canadian bijural standpoint.

Thanks to this research contract program, developed in spring, and scheduled for implementation by the Civil Code Section as early as September 2000, the Department hopes to boost the interest, in various areas of Canadian bijuralism, of university law graduates pursuing graduate studies and, ultimately, doctoral studies.

The early harmonization work culminated in Bill C-50 which was introduced in June 1998, but died on the Order Paper with the prorogation of Parliament. Since that time, more laws have been harmonized in the areas of property law, liability and security law. Bill S-22, tabled in the Senate on May 11 last, consolidates these new proposals for amendments and the provisions that were contained in Bill C-50.

The Bill is intended to harmonize forty-eight (48) federal laws; besides, it amends the Interpretation Act to incorporate into the Act provisions designed to recognize the co-existence of the two Canadian legal traditions, repeal the pre-Confederation provisions of the Civil Code of Lower Canada, 1866, dealing with matters within the competence of Parliament since 1867, and replace the pre-Confederation provisions of the Civil Code of Lower Canada in the matter of marriage.

Bill S-22 is the first of a series of bills designed to harmonize the corpus of federal laws, those currently in force as well as in the process of adoption. Regulations will also be harmonized.

Based on Department of Justice Canada estimates, among others, some 60new laws are adopted annually by Parliament and about thirty of these are candidates for harmonization with the Quebec civil law. In addition, on a total of 700federal laws in existence, over 300 are likely to be harmonized with Quebec civil law.

Also, this past June 5, a Notice of ways-and-means motion was tabled in Parliament for the first time with a view to amending the Income Tax Act and certain laws in relation to the Income Tax Act. This is the first time that an amendment proposal to tax legislation will be partially harmonized.

Obviously, the process of harmonization of federal enactments with the new terminology and concepts of the revised Civil Code of Quebec, as well as the drafting techniques of bijural and bilingual legislation are innovative and need to be refined. Expertise in this field "places us in the forefront of the international scene" declared Honourable Gerald-ABeaudoin, Senator[1], in the course of the debate on Bill S-22 entitled A First Act to Harmonize Federal Law with the Civil Law of Quebec, tabled in the Senate on May 11, 2000.

This expertise has naturally resulted in the creation of a number of neologisms, new concepts and the development of new research and harmonization processes.

Because of the manifold methodological implications involved in achieving harmonization, the Civil Code Section actually proceeded to rationalize its harmonization techniques.

Methodological components of the harmonization approach and work tools

The first methodological implication derives from the analysis of interactions between federal law and the civil law. The peculiarity of the harmonization approach is ingrained in the nature of the ties that bind federal law to Quebec civil law.

Where federal legislation in relation to property and civil rights is silent, and the use of complementary standards is required so as to ensure its application in Quebec, the civil law in force in that province is suppletive for the purposes of interpretation, unless otherwise provided by the federal legislator.

There are however exceptions to the principle of complementarity of federal law and the civil law which professors Morel and Brisson have characterized as "disassociations". Where this occurs, a standard foreign to the private law of the province where the federal legislation is applied is used to make up for the incompleteness of the federal standard, thereby ruling out any application, on a suppletive basis, of the provincial law.

A review committee was set up in August 1999 responsible for developing the Guide to Harmonization Methodology for the civil law experts at the Civil Code Section. The Guide outlines the successive steps of the rationale that governs a legislative amendment and provides a preferred characterization format as a basis to identify those provisions that qualify for harmonization and to search for the most fitting harmonization solutions. Thus, each judicial situation is scrutinized in the following terms:

  1. What is the intent of the legislator who presided over the introduction of the federal standard?
  2. What linguistic and conceptual vehicles are used in the process?
  3. What tradition civilian or common law does it support and which of the four audiences francophone civil law, anglophone civil law, francophone common law or anglophone common law does it address?
  4. What operation is likely to actualize its bijural content?
  5. Does the chosen technique generate a linguistic or conceptual adjustment, or both?
  6. What is the most effective drafting technique to address these goals?
  7. Finally, what is the impact of the proposed adjustments?

A judicial situation is said to be unijural when a legislative provision is based on a concept or terminology specific only to the common law in the English and French-language versions:

Example: "dommages-intérêts spéciaux"/special damages, subsection 31(3) of the Crown Liability and Proceedings Act.[2]

The term "dommages-intérêts spéciaux" and its English equivalent special damages are specific to the common law. In civil law, the terms "pertes pécuniaires antérieures au procès"/pre-trial pecuniary loss are more appropriately used.

It may happen that a given judicial situation is characterized as semi-bijural. This is the case when a legislative provision is based on concepts or terminology specific to civil law in the French-language version and concepts or terminology specific to the common law in the English-language version.

Example: real property/ "immeuble", section 20 of the Federal Real Property Act.

A further methodological implication arising from the previous one is that of spelling-out legislative drafting guidelines. The following is intended as a frame of reference for the drafting and interpretation of future laws.

While both versions of a text may be equally authoritative, it is important to ensure that the civil law concept and the common law concept used or proposed are each interpreted according to their specific meaning based on the legal system they derive from, in the province where the law is applied. This is of course a praiseworthy goal. However, it is never an easy task to recommend and draft an amendment to the given provisions where the issues to be resolved are of a complex nature: federal legislation is required to simultaneously address the four audiences, not only in a bilingual but a bijural medium.

The creation of new terminology and the development of new research procedures go hand in hand, all things considered, with the new legislative drafting techniques: for example, sometimes the use of the doublet, the so-called simple doublet or avec alinéas (with indent) will be preferred to render, through different terms, the rule of law applicable to each system[3]; sometimes terminological neutrality will be desirable, that is the use of a neutral term that has no connotation in one or the other legal system.

It will be clear by now that the use of the doublet has the benefit of sanctioning, in a given provision, a delineation of the application of the particular rule of law in Quebec and across Canada. On the other hand, the use of terminological neutrality allows efficiencies in terms of phraseology.

The Civil Code Section has set itself the task of developing other work tools such as terminological records. In the framework of the memorandum of understanding by which it is linked to the Translation Bureau, the Civil Code Section of the Department of Justice will develop a set of bijural terminological records to help share the results of its harmonization work as harmonization laws are adopted. These records are incorporated in TERMIUM Plus®, the terminological database of the Translation Bureau[4], in a special section entitled "bijuralism: civil law/common law".

Here is an example:

Real property (English common law)
Bien réel (French common law)
Immovable (English civil law)
Immeuble (French civil law)

Conclusion

The Harmonization Program, a landmark in Canadian legal history by its indubitable scope, is without equal or precedent world-wide; in this era of globalization of national economies and markets, the mastery of the two legal systems that are the most widespread throughout the world, and its vealization in legislation of national application are a major asset, specially in the area of international trade.

The concept of bijuralism has gained ground in the legal environment and has all but won acclaim. In a presentation entitled Le bijuridisme au Canada, Justice Michel Bastarache of the Supreme Court of Canada had this to say: [Translation] "There are relatively few countries where two fundamentally different judicial regimes coexist. Canada is one of them. Bijuralism or bijuridisme in Canada refers to the co-existence of the traditions of English common law and French civil law in a country governed by a federal system."

Finally, the thought that now supports the study of legal systems must go beyond the frontiers of comparison by building on awareness of their similarities and the benefits of their interactions.

I invite you to engage such thinking. Thank you.

Footnotes