Bilingual and Bijural Legislative Drafting of Federal Legislation

A Brief History of Drafting for the Government of Canada

• (a) Centralized Drafting

  In the late 1940s and early 1950s, the Cabinet issued a series of directives which effectively required all government bills to be drafted by the Department of Justice.¹

  Historically, regulations at the federal level were drafted in the various departments responsible for them. However, since the enactment of the Statutory Instruments Act in 1970, all proposed federal regulations are required to be examined by the Clerk of the Privy Council, in consultation with the Deputy Minister of Justice².

  Regulations are examined by various sections of the Legislative Services Branch, some of which are located in the client departments. Today, many regulations are not only examined, but are in fact drafted by the Branch³.

• (b) Mandate of the Legislative Services Branch

  The Legislative Services Branch (the Branch) is headed by the Chief Legislative Counsel, and its responsibilities include:

  • the drafting of all government bills and amendments;
  • the review and drafting of regulations;
  • the harmonization of federal legislation with the civil law of Quebec;
  • the updating, consolidation and publication of federal statutes and regulations and related tables.

  The Branch is also responsible, on behalf of the Minister of Justice, for examining government bills and regulations for compliance with the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights.

  The Branch drafts bills and regulations in both official languages and reflects both the civil and common law systems. In so doing, it contributes to the general recognition and promotion of bilingualism and bijuralism.

• (c) History of Bilingual Co-Drafting

  Section 133 of the Constitution Act, 1867⁴ requires Acts to be enacted, printed and published in both official languages. The same requirement is also set out in section 6 of the Official Languages Act⁵. Section 18 of the Canadian Charter of Rights and Freedoms⁶, which forms part of our Constitution, and section 13 of the Official Languages Act⁷, state that both language versions of the statutes are "equally authoritative". If these requirements are not met, the legislation in question is invalid.

  It is also important to note that, when a federal Act is considered in court, the court interprets and applies both versions. This further underscores the importance of ensuring that both versions say the same thing in law and reflect the intention of the Government.

  In 1976, in response to criticism from the Commissioner of Official Languages, the Department of Justice established a committee to propose ways of ensuring the equality of the French and English versions throughout the process of preparing legislation and of providing the Government with bills of the highest possible quality. The committee concluded that there was no magic solution and recommended co-drafting, an original drafting method that has since been adopted by other jurisdictions, notably New Brunswick⁸.

  The bilingual nature of the Canadian federation imposes obligations on both instructing officers and legislative drafters. Our unique system of co-drafting was developed in 1978 to meet these obligations. Co-drafting involves drafting the two language versions of legislation at the same time by using a team of two drafters, one of whom is responsible for the English version while the other is responsible for the French version. The technique of co-drafting ensures that each language version is properly drafted and reflects both the civil and common law systems. The same rule also generally applies to the drafting and examination of subordinate legislation.

  Co-drafting is now a well-established practice that has proven to be effective in drafting federal bills and regulations to reflect the equal status of both official languages as enshrined in the Official Languages Act and later in the Canadian Charter of Rights and Freedoms.

  The objective of co-drafting is to produce two original and equally authoritative versions through the close and constant cooperation of two drafters. Each version should fully reflect the departmental instructions while respecting the nature of each language as well as Canada's two legal systems, common law and civil law. In co-drafting, neither version is a translation of the other. As a result of working together, the two drafters often prompt each other to change or improve their versions. A critical component of co-drafting is the sound understanding by the drafters of both official languages.

• (d) Bijuralism

  A Bijural Country

  Legal duality, also called bijuralism, is another essential feature of Canadian law because of the two different private law traditions that coexist: civil law in Quebec and common law elsewhere in Canada⁹. The origins of this coexistence can be traced back to the Quebec Act, 1774. The division of legislative powers provided for in the Constitution Act, 1867 further confirmed the coexistence of the two legal traditions as the power to legislate with respect to "property and civil rights in the province" was conferred on the provinces under subsection 92(13).

  Bijuralism is an important part of federal law, which is not an autonomous legal system. Except when it is not necessary in a particular context to refer to provincial private law or unless otherwise provided by law, federal legislation needs to take into account, in both official languages, the various provincial private law' rules, concepts and institutions in the expression of federal legal rules with regard to "property and civil rights". That is exactly what it is provided for in sections 8.1 and 8.2 of the Interpretation Act, R.S., c. I-21.

  A Turning Point

  The coming into force of the Civil Code of Québec on January 1, 1994, marked a turning point: as the Code introduced new concepts, institutions and terminology, a revision of federal legislation had to be undertaken in light of these changes ¹⁰. The Policy for Applying the Civil Code of Quebec to federal government activities, adopted in 1993 by the Department of Justice, recognized the need for measures to ensure that federal legislation be adapted to reflect the new Civil Code and take into account the specificities of Quebec civil law.

  This recognition was followed, in 1995, by the adoption of the Policy on Legislative Bijuralism by which the Department of Justice of Canada made the formal commitment to draft statutes and regulations involving private law in a bijural way, and formally recognized¹¹ that:

  [I]t is imperative that the four Canadian legal audiences (Francophone civil law lawyers, Francophone common law lawyers, Anglophone civil law lawyers and Anglophone common law lawyers) may, on the one hand, read federal statutes and regulations in the official language of their choice and, on the other, be able to find in them terminology and wording that are respectful of the concepts, notions and institutions proper to the legal system (civil law or common law) of their province or territory.

  This commitment to draft bijural legislative texts is part of a series of measures designed to support the official language minority communities¹² and has been reiterated in the Cabinet Directive on Law-making which requires "that proposed laws are properly drafted in both official languages and that they respect both the common law and civil law legal systems".

  An Objective

  In order to achieve such an objective, a thorough revision of all current federal Acts and regulations - as well as bills and draft regulations - is required to ensure their proper application in the common law and civil law contexts, in both French and English. Justice Canada's commitment to a more accessible system of justice for all Canadians is reflected in the drafting of legislation that respects, in both official languages, the two systems of private law that apply in this country.

  Some Achievements

  To date, two harmonization Acts have been adopted by Parliament (the Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4 and the Federal Law-Civil Law Harmonization Act, No. 2, S.C. 2004, c. 25) and further harmonization bills are expected to be introduced in Parliament.

  A number of other amending Acts and regulations have made changes related to harmonization (the Act to amend the First Nations Land Management Act, S.C. 2007, c. 17) or are about to do so (Bill C-37: An Act to amend the National Capital Act and other Acts, First Reading June 9, 2009).

  A significant number of new Acts and regulations have been completely harmonized (the Canada Not-for-profit Corporations Act, S.C. 2009, c. 23 - not yet in force, Bill C-4 - assented to on June 23, 2009). Among these new instruments, those concerning First Nations were reviewed taking into account the issues surrounding the interaction between Aboriginal law, civil law and common law depending on where the text is applied (First Nations Specific Claims Tribunal Act, S.C. 2008, c. 22; Tsawwassen Final Agreement Act, S.C. 2008, c. 32; Bill C-8: An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves.

  Finally, a number of publications on legislative bijuralism are also available, either in paper format or electronically at the Internet website Bijurilex. Conferences and training sessions such as the Bijuralism Training Program are also periodically offered.

Special Projects

a) Review of the Implementation and Operation of the Legislative Instruments Re-enactment Act, S.C. 2002. c. 20.

On June 13, 2002, the coming into force of the Legislative Instruments Re-enactment Act (the Act) marked the beginning of a very ambitious initiative with regard to official languages in the public sector. The Act, although it is only nine sections long, was enacted to dispel doubts as to the legal validity of federal legislative instruments enacted since Confederation.

The Canadian Constitution, as it has been interpreted by the Supreme Court, requires that legislative instruments, such as regulations and orders of a legislative nature that are made by or with the approval of government must be passed, printed and published in both official languages. This constitutional requirement was also included in the Official Languages Act in 1988. However, some doubts existed as to whether all legislative instruments passed between July 1, 1867, and September 15, 1988 satisfied these constitutional obligations.

In order to put these doubts to rest, the Act established the following three mechanisms:

• It re-enacted every legislative instrument that was originally enacted in only one language and was, at the time of its enactment, published in both official languages.
• It authorized the Governor in Council, by regulation, to retroactively re-enact certain legislative instruments in both official languages.  
• As of June 13, 2008, it repealed all other unilingual legislative instruments that were enacted and published in only one language.

All federal departments had to first identify the federal legislative instruments for which they were responsible that had been enacted between July 1, 1867, and September 15, 1988 in order to verify whether or not they met the constitutional language requirements.

The Department of Justice provided extensive support to the departments by concluding agreements with various libraries and the National Archives, developing research methodology, providing research training and preparing legal opinions.

As a result, 259 legislative instruments were re-enacted on the recommendation of the various departments and agencies. The transfer of the original texts into electronic format took several months of continuous work as the originals had to be manually input. Each department or agency was responsible for the translation of their own instruments. Five re-enactment regulations were prepared with the help of the Headquarters Regulations Section, Privy Council Office, Treasury Board Secretariat and the staff of the Canada Gazette. All the legislative instruments requiring re-enactment have now been re-enacted. All the instruments that were not re-enacted were automatically repealed on June 13, 2008.

The Minister of Justice's report on the review of the implementation and operation of the Act was tabled before both Houses of Parliament on June 12, 2008.

b) The Consolidated Federal Statutes and Regulations on the Justice Laws Web Site

On June 1, 2009, amendments to the Statute Revision Act came into effect and the consolidated Acts and regulations published on the Justice Laws Web Site became official¹³ and they are now admissible as evidence in court. This achievement is the result of years of efforts by the Branch to provide the public with a convenient, reliable and regularly updated consolidated version of federal legislation.

To enhance access to the law via Internet publication, new PDF versions of the consolidated Acts and regulations are now available in a side-by-side bilingual and printable format. These new PDFs will better reflect the bilingual character of federal legislation.

As part of an ongoing process to improve federal legislation, the Statute Revision Commission has also been revived and is considering a case-by-case review of legislation.

• [1] R.C. Bergeron, "Legislation Section: 50 Years of Legislative Drafting in Ottawa" (1997), No. 199 Inter Pares 4.
• [2] R.S.C. 1985, c. S-22, s. 3.
• [3] V. Kooiman, "The Regulations Section: A Quarter Century" (1997), No. 199 Inter Pares 6.
• [4] Constitutional Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 91, reprinted in R.S.C. 1985, App. II, No. 5.
• [5] R.S., 1985, c. 31 (4th Supp.).
• [6] s.7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
• [7] Supra note 4.
• [8] Based on an article by Robert Bergeron published in Inter Pares no.199, Winter Issue 1998; based on an article by John Mark Keyes, Chief Legislative Counsel, entitled "Legislative Services Offices and the Roles of Legislative Counsel", February 11, 2009.
• [9] Gaudreault, Marie-Claude, "Canadian Legislative Bijuralism: An Expression of Legal Duality" (2006) 32 C.L.B. 205, 205.
• [10] Idem, p. 210. See also Gaudreault, Marie-Claude "Legislative Bujuralism: Its Foundations and Its Application" (2003) 24 R.P.F.S. 759
• [11] This formal recognition does not constitute a change of focus insofar as the policy on legislative drafting is concerned. Rather, it is the result of the evolution of this policy: Gaudreault, Marie-Claude, "Legislative Bujuralism: Its Foundations and Its Application", (2003) 24 R.P.F.S. 759; see also Gaudreault, Marie-Claude, "Canadian Legislative Bijuralism: An Expression of Legal Duality" (2006) 32 C.L.B. 205, 211.
• [12] Levert, Lionel A, " Harmonization and Dissonance: Language and Law in Canada and Europe - The Cohabitation of Bilingualism and Bijuralism in Federal Legislation in Canada: Myth or Reality?" in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism. Second Publication, Booklet 1, 2001, Ottawa: Department of Justice Canada, at p 7.
• [13] http://laws.justice.gc.ca/en/home http://laws.justice.gc.ca/fr/home