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NOTES FOR AND ADDRESS AT A SYMPOSIUM
ON THE HARMONIZATION OF FEDERAL
LEGISLATION WITH QUEBEC CIVIL LAW
MONTREAL, QUEBEC
NOVEMBER 24, 1997
Introduction
I am happy to open this Conference on the
Harmonization of Federal Legislation with Quebec Civil Law. Your deliberations
will provide us with food for thought on a topic that is of close interest to
the legal community in Quebec and in Canada as a whole. I intend to devote my
opening address to the concept of bijuralism and the advantages it brings to
Canada.
Canada: a bijural country
Without a doubt, Canada has one of the most
respected legal systems in the world. That well-earned reputation is clearly due
to the excellence of our law faculties, the exceptional quality of our judges
and the wisdom of their decisions. But it is also due to the coexistence of two
great legal traditions of the Western world, civil law and common law.
For Canada can in fact be proud to be one of the
rare bijural countries in the world. As early as 1774, the Quebec Act maintained
in force French laws and customs with respect to property and civil rights in
the province. The Constitutional Act, 1791 and the Union Act, 1840 did not
modify the rights recognized in 1774. And when the Canadian federal union was
created, this legal duality was confidently entrenched. Indeed, the Constitution
Act, 1867 provides that private law is an exclusive provincial jurisdiction,
which has allowed Quebec to make the Civil Code of Lower Canada the framework of
its civil law, while the other provinces could continue to be governed by common
law. That duality is also reflected in the requirement that superior court
judges in Quebec be selected from members of the bar of that province. The same
is true for the Supreme Court of Canada, for under the Supreme Court Act, three
of its nine judges must be from the Barreau du Québec. The bijural character of
our legal system is thus entrenched in the very heart of our basic law. In that
and many other respects, Quebec enjoys a degree of autonomy that is uncommonly
high, and much higher than that of many other federated states.
The civil law tradition is not only an essential
characteristic of Quebec society, as the premiers of nine provinces recognized
once again in the Calgary Declaration, but it is also an asset for Canada as a
whole.
Bijuralism certainly poses some particular
challenges, which you will be studying in the course of your deliberations. But
it is an undeniable richness for those who know how to use it and benefit from
it. In the words of Mr. Philip Simpson, a British lawyer who works with the
Court of Justice of the European Communities:
"... the existence of two independent legal
systems within a single nation-state does not inevitably lead to conflict; on
the contrary, such coexistence can be advantageous for all."
Absolutely: Canada has every reason to be proud
of its two great legal traditions, and it has a duty to do everything in its
power to ensure that they flourish and complement each other. Civil law cannot
but benefit from its interactions with common law, and the reverse is also true.
In that respect, it is wonderful that more and more Canadian jurists are
mastering our two legal systems, a development which promotes the teaching of
common law in French and the learning of civil law in English. In so doing, not
only are our jurists expanding their horizons and honing their skills; the
entire legal community is forging closer ties, and all Canadians are the
winners.
Our bijuralism is not only advantageous in our
mutual relations among Canadians. It also facilitates access to other countries.
We thus gain a better understanding of the laws in force in the countries with
which we are intensifying our relations, the vast majority of which are governed
by legal systems stemming from common law or civil law. As points of contact
between very diverse legal cultures multiply, that is an appreciable competitive
edge. Indeed, in this era of economic and market globalization, mastering the
two most widespread legal systems in the world is more than ever a substantial
asset. For example, the fact that most South American countries are governed by
legislation inspired by civil law gives us in our relations with them an
advantage over our neighbours in the United States.
Our bijuralism obliges us to develop expertise in
solving problems relating to the juxtaposition of rules of law stemming from
different traditions. We can help other countries to benefit from that
experience we have acquired. The Government intends to make Canada a leader in
that field.
Bilingualism allows Canada to be a member of both
the Francophonie and the Commonwealth. The varied cultural origins of the
Canadian population also give us many footholds in the world. Our opening to the
Pacific and the Atlantic bolsters our cultural and commercial exchanges. In the
same way, our bijuralism gives us a window on the world, and the Government of
Canada wants to work actively to promote that fundamental characteristic of
Quebec society, which is shared by all of Canada.
Respecting the civil law tradition
As Professor Morel of the Faculty of Law of the
Université de Montréal has noted.
"The complementarity of federal law and
civil law, however natural it may be [...] must be constantly maintained and
reaffirmed, if not reinvented, to remain alive."
More than ever, then, we must do all we can to
develop this important aspect of Canadian diversity. Prime Minister Jean
Chrétien believes deeply in the advantages of that diversity, which is why he
moved the resolution adopted in 1995 by both Houses of Parliament recognizing
that Quebec society is distinguished in particular by its civil law tradition
and calling on "all components of the legislative and executive branches of
government to take note of this recognition and be guided in their conduct
accordingly." Turning words into action, his government developed the means
to capitalize on this richness. First, the Department of Justice adopted in June
1995 a policy on legislative bijuralism, which reflects its desire to make laws
clearer and for an interpretation that is more accessible to all Canadians. The
Department of Justice also made a commitment at that time to draft both versions
of all bills or regulations relating to private law, also taking account of the
terminology, concepts, notions and institutions specific to Canada's two private
law systems.
The coming into force of the Civil Code of Quebec
in 1994 was the catalyst of the harmonization project. The scope of this
project, which seeks to bring Quebec civil law and existing federal legislation
more into step, is without precedent in Canada's legal history. This initiative,
which has now been underway for more than four years, is based on close
cooperation between the departments of justice of Canada and Quebec and has
benefitted from the vital contribution of the academic community.
The objective is ambitious. It is not only to
bring about terminological changes, but in particular genuinely to take into
account the bilingual and bijural nature of Canada. While the harmonization
project is designed first and foremost to allow Quebecers to recognize
themselves better in federal legislation, it will also be an opportunity to
ensure that there is not too much discrepancy between the common law in various
provinces and the concepts imparted in federal legislation. All Canadians will
benefit, because the end result will be clarification and a legal corpus that is
more respectful of their own institutions.
My colleague, the Minister of Justice, the
Honourable Anne McLellan, will give you an initial overview in a few moments of
what has been done so far. I would simply like to underscore the scope of the
task. Of some 700 federal laws that have been examined by jurists in the
Department of Justice, just over 300 have been earmarked for a more in-depth
review. In the bill to be tabled by June 1998, laws with the clearest links to
civil law and having a greater effect on citizens will be harmonized.
Once that phase of the project is completed, the
Department will proceed to harmonize more complex legislation in the fields of
securities, property, family and civil liability. More extensive studies will
also have to be conducted with respect to laws that present more specific
difficulties, such as the Divorce Act and the Interpretation Act. There is thus
much work to be done. This is obviously an undertaking that will be spread out
over several years.
I am therefore proud to announce today, in
Montreal, that the Government of Canada has decided to provide, for the
harmonization of federal legislation with Quebec civil law, initial funding of
over $7,418,839 for this large-scale project: $3,931,193 for the 1997-1998
fiscal year and $3,487,646 for the 1998-1999 fiscal year. The Department's needs
will have to be reassessed in two years, to enable it to proceed with and
complete its project. Conclusion
We have long known that the unity of the state
does not necessarily go hand in hand with uniformity of legislation. In The
Spirit of Laws, Montesquieu wrote, 250 years ago: [Translation] "If
citizens follow laws, what matter if they follow the same."
Montesquieu could have been Canadian. If there is
one country that knows that equality is not synonymous with uniformity, it is
certainly ours.
Quebec is governed by a legal system that is
specific to it and whose existence is protected by the Constitution. Its private
law tradition is an essential component of its specificity and also an element
of Canada's diversity. The Honourable Charles Gonthier, Justice of the Supreme
Court of Canada, has given this eloquent description of the importance of the
Civil Code:
"It thus appears that as a fundamental
building block of the Quebec identity, the Civil Code also constitutes an
original and characteristic component of the Canadian identity [...] This Code
is more than a mere legal instrument. It is truly a social statement."
The project to harmonize federal legislation with
Quebec civil law is an inevitable necessity. It will be a considerable task, and
the Department of Justice of Canada has the good fortune of being able to count
on one of the most skilled legal communities in the world to bring this
enterprise to fruition. Common law and civil law will both be enriched by it,
and all our citizens will reap the fruits of this labour. I wish you productive
deliberations and stimulating exchanges.
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