Bijuralism and Harmonization: Genesis

Symposium On The Harmonization Of Federal Legislation With Quebec Civil Law

Notes for an Address by The Honourable Stéphane Dion, President of the Queen's Privy Council for Canada and Minister of Intergovernmental Affairs

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 to 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 are 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, [Translation] " 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 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 benefited 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 of the federal status 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.

Respecting the civil law tradition

As Professor Morel of the faculty of law of the Université de Montréal has noted, [Translation] "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 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.

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 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.

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