BIJURALISM IN CANADA :
HARMONIZATION AND TERMINOLOGY

By Louise Maguire Wellington, Legal Counsel
Civil Code Section,
Department of Justice Canada

SUMMARY

This paper provides an overview of the methodology and drafting techniques used in the harmonization of federal legislation with Quebec civil law, and describes new terminology developed in the fields of bijuralism and harmonization.

I. Introduction

Canada benefits from the co-existence of two legal traditions: the common law and the civil law. These two legal systems combined prevail in nearly 80% of the world's countries. Canada's bijural tradition gives the country a unique advantage internationally. In this regard, Senator Gérald‑A. Beaudoin recently observed: "In this era of the globalization of markets and the internationalization of individual rights and freedoms, our two legal traditions of common law and civil law lend weight to us on the international scene."[1]

The methodology and drafting techniques used in harmonizing federal legislation with the new concepts and terminology contained in the reformed Civil Code of Quebec are innovative and indeed unique worldwide. The objective of harmonization is not to merge the common law and the civil law into one legislative norm, but rather to reflect the specificity of each system in federal law. On January 31, 2001, Bill S-4, Federal Law—Civil Law Harmonization Act, No. 1, was tabled in the Senate.

This article provides an overview of the methodology and drafting techniques used in Bill S-4. In addition, a number of neologisms and new notions which resulted from the harmonization process are discussed.

II. Historical background

In a presentation entitled "Bijuralism in Canada", the Honourable Mr. Justice Michel Bastarache of the Supreme Court of Canada had the following to say:

[Translation] "There are relatively few countries where two fundamentally different legal systems co-exist. Canada is one of these countries. "Canadian bijuralism" refers to the co-existence of English common law and French civil law traditions, within a federal state."[2]

Canada's dual legal system was sanctioned in 1774 by the passage of the Quebec Act, and later by the distribution of powers under Canada's Constitution. Under subsection 92(13) of the Constitution Act, 1867, the provincial legislatures have legislative authority in private law matters, that is, matters having to do with property and civil law in each province. While in Quebec private law is derived from the civil law tradition, in Canada's other provinces and territories private law is derived from the common law tradition. As Senator Beaudoin state:

On June 10, 1857, under the Union, the legislation put forward by Attorney General Georges Étienne Cartier to codify the civil law of Lower Canada took effect. The Commission members were selected on February 4, 1859. They were Justices René-Édouard Caron and Charles-Dewey Day from Quebec City, and Justice Augustin-Norbert Morin from Montreal. Eight reports were produced between October 12, 1861 and November 25, 1864. The result was turned over to the legislature on January 31, 1865. A proclamation was issued on May 26, 1866 and the Civil Code of Lower Canada took effect on August 1, 1866, eleven months before Confederation.

In 1867, Westminster recognized the right of Canadian provinces to legislate property and civil rights. This was the most important power to be given provincial legislatures and it later formed the foundation for provincial autonomy. The original four provinces were joined by six others. Only the Province of Quebec is governed by a private law regime of French origin. The other provinces are governed by the common law system. Eugene Forsey was quite right when he wrote:

Quebec is not, has never been, and will never be a province like the others; it is the citadel of French Canada.[3]

Harmonization of federal legislation with the civil law of Quebec has long been an issue. Federal legislation and regulations used to be drafted essentially on the basis of common law. In 1978, the federal government began drafting its bills and regulations using a team of two drafters, generally a Francophone jurist (usually a civil law drafter) and an Anglophone jurist (usually a common law drafter). In this way, co‑drafting produces a final product that better reflects Canada's two legal systems.

However, the coming into force of the new Civil Code of Quebec on January 1, 1994 resulted in significant changes to the substance and terminology of the civil law, and thus a significant increase in the harmonization work already under way. In anticipation of this reform, in 1993 Justice Canada adopted a Policy for Applying the Civil Code of Quebec to Federal Government Activities, the objective of which was to "ensure that we take into account the specificity of Quebec civil law within federal law".[4] The same year, it created the Civil Code Section and gave it the mandate of implementing this policy in co-operation with the Legislative Services Branch. The Civil Code Section not only has a harmonization mandate, but will also serve as the centre of civil law expertise within the federal government, and assume the task of preparing bijural terminology records to which the legal profession as a whole, and other interested parties internationally, will have access.[5]

In 1995, Justice Canada approved its Policy on Legislative Bijuralism,[6] implementation of which is the responsibility of the Legislative Services Branch working in conjunction with the Civil Code Section. The policy is designed to ensure that each language version of legislation and regulations reflects the system of law in force in each province and territory. This policy led to Justice Canada's establishment in 1997 of the Program for the Harmonization of Federal Legislation with the Civil Law of the Province of Quebec.

The advent of the global economy and the growing interdependence of national legal systems has generated interest in Justice Canada's work in the field of bijuralism and harmonization, particularly among international bodies and organizations that use both the common law and the civil law. Canada is recognized internationally as a living laboratory for harmonizing two legal systems.

As far back as 1984, there was reference to bijuralism in Terminology Update, as evidenced by the following comments: [Translation] "It is to be hoped that the effects of the development of Canadian jurilinguism will be felt in Europe and will result in productive exchanges, given that the European Economic Community's legal translators are also looking for language solutions to the problem of the co-existence of French, the language of the civil law, and English, the language of the common law."[7]

In order to carry out its harmonization mandate successfully, the Civil Code Section developed a process and methodology for harmonizing federal legislation with the new civil law concepts and terminology. This exercise led to the development of a harmonization guide, from which the methodology described below is drawn.