Bijuralism and Harmonization: Genesis

HARMONIZATION AND DISSONANCE: LANGUAGE AND LAW IN CANADA AND EUROPE

Program to Harmonize Federal Legislation with the Civil Law of the Province of Quebec, Assumption of Complementarity and Methodological Issues

Introductory Notes by Marie-Claude Gervais, Legal Counsel, Office of La Francophonie, Department of Justice Canada

Moncton, N.B. May 7, 1999

Introduction

In its broadest meaning, bijuralism refers to a state of facts, i.e., the co-existence of two contemporaneous legal systems. In Canada, current federal legislation contains no express mention of the coexistence of both common law and civil law.

Historical references and the study of the complementary relationship between federal law and Quebec civil law form the background for the mandate conferred on the Civil Code Section.

An examination of bijuralism and a review of its definition are helpful in providing a general understanding of the historical context and current status of the relationship between federal and civil law; it is equally necessary to conceptualize and operationalize bijuralism in order to understand the theoretical and methodological requirements associated with characterizing the mandate of harmonizing federal legislation with civil law.

It would not be sufficient simply to describe the phenomenon of bijuralism and the purpose of the harmonization mandate conferred on the Civil Code Section by the Department of Justice; we must also identify the problems associated with the issues, however general the latter may be, conceptualize and structure their resolution and, at the same time, describe some of the successive stages of the method.

In a historical and legal perspective, this means:

  • understanding the historical basis for the coexistence of common and civil law;
  • grasping the nature of the relationship between federal and civil law;
  • finally, becoming aware of the requirements for interpreting and harmonizing laws.

It is also my intention, further to the background paper and the presentation by Mr. Lionel Levert, to discuss departmental policy statements in the context of which the process of harmonizing federal laws and regulations is taking place, as well as the issues raised by the harmonization process, of which the following pages are only a partial treatment:

  • What is the harmonizer's role? Can it serve as a model?
  • What are the special attributes vested in him?
  • Does he change the substance or force of the law?

The study initiated by us in the Symposium, entitled Harmonization and Dissonance: Language and Law in Canada and Europe, may provide a model for such practices and, in exchange, lead us to a reconsideration of bijuralism and the interpretation that it evokes.

Harmonization of Federal Laws and Regulations with Quebec Civil Law, and its Origins: Historical Context

The Department of Justice Canada created the Civil Code Section in April 1993; on June 7 of that year, it adopted a policy on the application of the Civil Code of Quebec, which entered into force on January 1, 1994 in the federal government.

In June 1995, the Department of Justice also adopted a policy on legislative bijuralism, in which it undertook, in drafting both versions of every bill and proposed regulation that touches on provincial or territorial private law, to take care to reflect the terminology, concepts and institutions of both of Canada's private law systems.

Furthermore, a resolution recognizing Quebec as a distinct society within Canada, and recommending that all elements comprising the legislative and executive authority of the Government of Canada give effect to, and that their conduct attest to, this recognition was adopted by the House of Commons on December 11, 1995. A similar motion was adopted by the Senate on December 14, 1995.

Finally, in the 1996 Speech from the Throne, the Government of Canada undertook to renew and update Canadian federalism, and ensure that it meets the needs of Canadians in the 21st century.

Working from the results of studies conducted up until 1997, the Civil Code Section began work on Bill C-50, entitled A First Act to harmonize federal law with the civil law of the province of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law, 1st sess., 36th Legislature, Elizabeth II, 1997-98, (1st reading), tabled in the House of Commons on June 12, 1998. Bill C-50 was the first of a series of harmonization bills and represented the first milestone along the road to harmonization.

Harmonization of Federal Laws and Regulations with Civil Law: Legal Context

A. Statement of Objectives and Origin of Initial Studies

The harmonization of federal laws with Quebec civil law has the following objectives:

  1. to adapt federal laws and regulations that deal with private law or use its concepts to the new concepts, new institutions and new terminology of the Civil Code of Quebec;
  2. to allow Anglophone and Francophone common law jurists, as well as Francophone and Anglophone civil law jurists, to recognize their respective legal traditions;
  3. to guarantee better implementation of federal legislative policies in Quebec and, at the same time, minimize problems with the application and interpretation of federal laws that could arise from the coming into force of the Civil Code of Quebec.

Harmonization of federal laws and regulations also ensures that all citizens are treated equally before the federal law. Of course, harmonizing the laws and regulations is not equivalent to standardizing or amending the law. Rather, the harmonization procedure is concerned with ending any discrepancies in the application of federal laws.

The Department believes that these objectives may be achieved through systemic harmonization of the laws and regulations that interact with Quebec civil law; for example, it is estimated that approximately 60 new laws are passed each year by the House of Commons and that, of this number, roughly half are suitable for harmonization with Quebec civil law. As well, of the roughly 700 existing laws, over 300, including 120 that are extremely complex, are also suitable for harmonization with Quebec civil law.

The task of reviewing the federal laws, assigned to the Civil Code Section, has thus far focused on three major areas:

I. Relationship between Federal Law and Quebec Civil Law

The first job was to establish how and under what authority civil law interacts with federal law. Two studies were conducted: the first applied a constitutional perspective in dealing with the former and the new Civil Code as an expression of federal suppletive law[1]; the second analysed the basis of the complementarity between federal and the civil law[2].

II. Amendment of Federal Legislation on the Basis of the Quebec Civil Code Reform

In considering the various aspects of the issue of revising federal laws so as to take into account the nature and scope of the changes enshrined in the new Civil Code, the consultation committee developed a methodology and work plan[3]. Pilot studies were developed to establish the nature, variety and scope of the problems arising from the interaction between the federal law and the new Civil Code[4]; the studies, which focused on three federal laws chosen for their obvious connection to civil law, were then carried out; the laws in question were the Federal Real Property Act[5], the Crown Liability and Proceedings Act [6] and the Bankruptcy and Insolvency Act [7].

By examining amendments that could be made to those laws in order to harmonize them with civil law, these studies made it possible to conduct a critical analysis of the most appropriate means of making federal legislation relating to private law fully bijural in both language versions[8].

III. Survival of Provisions of the Civil Code of Lower Canada Relating to Matters under the Exclusive Jurisdiction of the Parliament of Canada since 1867

A third area that could not be ignored was the surviving provisions of the 1866 Civil Code that have related to matters under the exclusive jurisdiction of the Parliament of Canada since 1867 and that the provincial legislature could not repeal when the Civil Code of Quebec came into force. From this point of view, a series of special studies[9] were undertaken according to area of federal jurisdiction. These studies resulted in a summary report outlining the practical problems posed by the survival of pre-Confederation law and recommending ways of resolving them[10]. These studies made it possible not only to prepare the work plan, but also to make subtle distinctions in the statement of the harmonization mandate conferred on the Section.

B. Current Statement of Harmonization Mandate and Methodological Imperatives

The sole purpose of the initial work plan was to harmonize the existing laws. Currently, the Department is including in this process not only existing legislation, but also laws and regulations in the process of being adopted.

The mandate of the Civil Code Section is based on the principle that harmonious interaction between federal and provincial legislation is necessary and that it may be achieved by interpreting federal laws in a manner compatible with the legal system of the civil or common law, as appropriate, that is in force in the province of application. This mandate is composed of four elements:

  1. Harmonization of Federal Laws and Regulations
    • to implement the process of harmonizing federal laws and regulations, both those already in existence and those in the process of being adopted, with Quebec civil law, while respecting both its Anglophone and its Francophone legal audiences, by making recommendations for amendments to the laws and regulations:
    • to ensure, when making such recommendations, that the French-language common law provisions are improved;
    • to provide, on an ad hoc basis, specialized services relating to the harmonization of laws and regulations.
  2. Information Management
    • to create, operationalize, maintain and circulate a specialized computerized database on civil and comparative law;
    • to set up and manage a specialized documentation centre on civil and comparative law.
  3. Development of Expertise
    • as a corollary activity, to provide specialized services in the form of legal opinions on civil and comparative law;
    • as a corollary activity, to offer consulting, policy development and functional co-ordination services, having regard to the civil law and to the activities of the federal government in Quebec.
  4. Activities to Spread and Promote Bijuralism
    • to publish studies on civil law, comparative law and harmonization;
    • to participate in, support and ensure through action the spread and promotion of Canadian bijuralism.

The methodological imperatives relating to the uniqueness of the required interpretative work are subsumed in the mandate briefly described herein. In order to be consistent, legislative drafters are expected to respect the principle of uniformity of expression: each term should have only one meaning; each concept should have only one expression.

In this case, the principle of interpretation means that throughout the law, and beyond it in the corpus of laws, the same term has the same meaning. Yet our experience in bilingual legislative drafting has taught us that compliance with this principle is difficult to achieve, so that the drafter must make a number of assumptions of intention in cases of ambiguity. He may also resort to this when his efforts to establish a common meaning, in order to confirm the general purpose of the law that is being interpreted, is unsuccessful.

However, when faced with the even thornier problem both reconciling the two language versions and establishing the conceptual field of the terms of the law, the jurist's work becomes even more complicated. Of course, there is an assumption that, among the many laws passed by a single authority, there reigns the same harmony as that found among the various components of an individual law: as Professor Côté states, all legislation of one Parliament is deemed to make up a coherent system[11][TR].

The interpreter in us then sets out to promote the harmonization of laws among themselves, rather than the reverse, because, interpretations favouring harmony between statutes should prevail over discordant ones, because the former are presumed to better represent the thought of the legislator[12] [TR]. What, then, is the situation when harmonizing laws under different legislative jurisdictions?

To put it more concretely, and given the statement of mandate referred to supra, the issue of coherence between laws will arise even more clearly when the aforesaid laws relate to different concepts.

Where a federal law and the civil law turn out to be antinomial, this antinomy may be eliminated by applying an interpretive procedure to reconcile them. The contradiction or discrepancy may be eliminated even more effectively with the aid of a legislative drafting procedure, which, at a later date, will facilitate the application of federal law to Quebec. Is this a simple matter? There are a number of methodological implications arising from the achievement of harmonization.

An initial methodological implication arises from the analysis of the interaction between federal laws and civil law. The uniqueness of the harmonization process is a function of the nature of the relationship between federal law and Quebec civil law. One problem confronting the legal harmonizer is that of dissociation. In some cases, the concept of dissociation overrides the assumption of complementarity.

In a study published in 1996, professors Brisson and Morel describe the complementarity that, in Quebec, relates federal law to civil law, despite the tendency of some courts to attempt to supplement federal laws with rules from the common law tradition[13]. According to the authors, this complementarity originates in the distribution of legislative powers under the Constitution Act, 1867[14]: exclusive jurisdiction over property and civil rights having been vested in the provinces (subsection 92(13)), any standards subsequently adopted by the provinces would accordingly be the only ones capable of supplementing federal laws that are silent on an essential aspect of their application.

Thus, where parliamentary legislation relating to property and civil rights[15] remains silent and where recourse to secondary standards is necessary in order to ensure its application to Quebec, the civil law in effect in that province constitutes the suppletive law to which the interpreter must turn, unless otherwise indicated by the federal Parliament. As a result, civil law is applicable when the federal legislative mechanism fails to bring to bear all the necessary elements for its implementation, or when the concepts of private law used by the federal Parliament are not otherwise defined.

The rule of complementarity of federal and civil law is, however, subject to exceptions that professors Morel and Brisson refer to as dissociations. In such cases, a standard foreign to the private law of the province of application makes up for the incompleteness of the federal legislative standard, thereby ruling out any application, as a suppletive measure, of that province's law. Such standards will be said to have no complementarity with the provincial law. Consequently, an area of activity will be said to be subject to "independent" federal law where, taken as a whole, the legislative standards governing it support this dissociation.

We will therefore question sources of dissociation where, in choosing a law other than that of Quebec in order to make up for silences in its legislation, the federal Parliament rules out any application. Moreover, the degree of dissociation between federal and civil law varies. The dissociation may be absolute or relative.

A second methodological implication arises from the need to actualize the existence of bijuralism and lay down the rules of conduct with respect to legislative drafting, which are aimed at integrating Quebec civil law into federal legislation. Accordingly, we offer the following paragraphs as a guide to future legislative drafting and interpretation.

These methodological implications therefore cover a multitude of questions. At the very heart of the dynamic in which we would like to see Canadian bijuralism operate, are a number of issues in need the attention of an experienced hand. Harmonization of federal laws with Quebec civil law is not a simple undertaking. Because jurists in the Civil Code Section are concerned with harmonizing the law, both conceptually and formally, in both the English and French versions of the legislation and in both systems, a thorough study of the legislation is required. We must therefore ask ourselves a number of questions, including the following:

  1. What was the intention of the Parliament that presided over the introduction of the federal standard?
  2. How is this intention conveyed linguistically and conceptually?
  3. Which tradition—civil or common law—does it support, and to which of four audiences—Francophone civil law, Anglophone civil law, Francophone common law, or Anglophone common law—does it respond?
  4. Which process is capable of achieving bijuralism in the standard?
  5. Does the process chosen result in a change of language and/or concept?
  6. Which drafting procedure is most effective in achieving the objectives?
  7. Finally, what is the impact of the proposed changes?

We are aware that almost every time a federal law uses both a civil law and a common lawconcept together, the two concepts may be said to be incompatible since, generally, their meanings are slightly different. For example, consider the words "contrat" and "contract", "meubles" and "personal property", "hypothèque" and "mortgage".

Although both versions of the law carry equal authority, it is important to ensure that both the civil and common law concepts used or eventually proposed be given their own distinctive meaning in accordance with the legal system from which they are derived and which is in force in the province when the law is applied. While this goal is indeed laudable, it is never easy to recommend and draft amendments to the provisions in question when the issues are complex; the federal legislation must address four audiences simultaneously and, in so doing, be not only bilingual but also bijural. A number of concrete actions, to which we referred supra, have lent legitimacy and expediency to the harmonization process. But beyond the matter of the role of the State, the equally distinctive matter of the method remains to be settled.

Much has been made of neutrality, as may be seen from the work of Unidroit. Our job, of course, is to hope that it becomes a reality, but also to be suspicious when it reaches a dead end. It is not true that we have accepted a shift in meaning and the incompatibility of the legal systems, because one cardinal value endures, through the multiple manifestations of the harmonization process: unity and the henceforth declared right to achieve it.

The harmonizer's job, when faced with what he perceives to be incompleteness, and notwithstanding his inability to fully explain legal interpretive conduct, is to demonstrate how the production of laws is still governed by the rigid peculiarities of the two legal traditions, in which the balances may have become blurred. But is the search for neutrality more convergence-oriented? Frequently, it is the emergence of a new term that silences -perhaps not easily—the relations of power that presided over its creation. Rather, the harmonizer's job is to ensure harmonious cohabitation—of different conceptual worlds or in the wording of a single provision.

The additions to the Interpretation Act expressed in clause 8 of Bill C-50, A First Act to harmonize federal law with the civil law, spell out the concerns related to such cohabitation. A specific aim of the harmonization process is to prevent problems in applying federal legislation, whether an Act or a regulation, to Quebec and end a legal practice that sometimes goes against the complementarity of federal and civil law in principle.

From this point of view, the Civil Code Section deemed it advisable to recommend that the bijural nature of Canada be expressly acknowledge in the federal Interpretation Act. Furthermore, the Section considered it necessary to put in writing the complementary natures of federal law and Quebec civil law. For this reason, the Bill has included in the Interpretation Act a provision explicitly recognizing this relationship so as to avoid, whenever a federal law is applied to Quebec, the substitution of common law for suppletive law of the civil variety.

Because a rewriting of a number of federal laws was one harmonization method chosen by the Civil Code Section, a number of drafting techniques were proposed. In order to prevent any ambiguity as to the purpose of this undertaking, the Civil Code Section also decided that it would be advisable to include in the Interpretation Act guidelines on reading laws of this nature, for both civil law interpreters and common law jurists.

One such technique, the doublet, is an effective tool of cohabitation; it involves including in legislation relating to private law both a civil law term and a common law term. In this context, the interpreter of a federal law that contains a doublet will consider, for the purposes of its application, only the term or meaning that is compatible with the legal tradition of the province to which it applies.

The proposed clause is thus dependent on the implementation of legislative bijuralism via the terminological doublet and the use of terms common to civil and common law. Since it will only have a raison d'être after the new legislative drafting policy passed by the federal Parliament is applied, this clause is not expected to cause any substantive changes in the interpretation of federal law, other than to the extent required to fulfill the mandate to harmonize federal with the reformed Quebec civil law.

The amendments to the Interpretation Act constitute the cornerstone for the interpretation of Canadian bijuralism. The proposed clauses are a declaration directed at all those who will have to apply federal laws. After all, who are our interpreters? All those who must observe, apply, or study the laws; they are the individuals to whom we direct the rules of interpretation. As for the rules, Professor Côté notes the following:

Whether designed as guides or arguments, the rules of interpretation play an extremely important role in the world of law; their complex mechanisms are only now beginning to be explored by legal authorities (…)

When used as arguments, they promote judicial peace, acceptance of a decision that was made taking into account the claims of the parties and that appears reasonable and consistent with the law. When used as guides, they reduce the number of interpretation problems that may arise and encourage the parties in question to resolve them without the involvement of the courts[16]. [TR]

The uniqueness of the harmonization process lies in its changing nature and in the breadth and complexity of the procedures whose implementation it requires. This is borne out by the description of the issues related to the concepts of dissociation and complementarity.

Of course, a number of obvious difficulties stand in the way of achieving the goals of the harmonization process. These difficulties are the result of the independence of the legal systems concerned, the complexity of their concepts, the existence within a single system of a number of terms to convey the same meaning, the need to update the legislation and, last but most important, need to assess the advisability and appropriateness of certain conceptual changes. They are the road to harmonization. Do they lead to more questions and more concepts, or to the meaning of and respect for bijuralism? This is an urgent question for the harmonizer. Bijuralism is forged from federal law to provincial law, law by law, concept by concept, wherever complementarity allows it.


Footnotes

  • [1] Roderick A. MACDONALD, "The Constitutional Position of the Civil Code of Lower Canada and the Civil Code of Quebec as an Expression of Federal Suppletive Law", March 1996. Professor Macdonald also prepared a study entitled "Constitutional Implications of the Civil Code of Quebec", March 1995, which was revised and became "The Civil Code of Quebec and Section 129 of the Constitution Act, 1867", March 1996. A synopsis of this work appeared under the title "Encoding Canadian Civil Law", in Mélanges Paul-André Crépeau. Cowansville, Éditions Yvon Blais, 1997, p. 579.

  • [2] Jean-Maurice BRISSON and André MOREL, « Droit fédéral et droit civil : complémentarité, dissociation », March 1995; subsequently published under the same title in (1996) 75 R. du B. can. 197.

  • [3] André MOREL, « La révision de la législation fédérale à la lumière du Code civil du Québec, Méthodologie et plan de travail », March 1995.

  • [4] A pilot study was also conducted of the interpretation by Quebec courts of legislative provisions that are expressed exclusively in common law terms: Jean-Maurice BRISSON and André MOREL, « Les langues de la Loi sur les lettres de change et la common law au Québec, à travers le contentieux judiciaire », March 1996.

  • [5] S.C. 1991, c. 50. John E.C. BRIERLEY and Nicholas KASIRER, "Preliminary Report, Review of the Federal Real Property Act/Loi sur les immeubles fédéraux in light of the coming into force of the Civil Code of Quebec", April 1995.

  • [6] R.S.C. (1985), c. C-50. Gaspard CÔTÉ, « Révision de la Loi sur la responsabilité civile de l'État et le contentieux administratif eu égard aux dispositions du Code civil du Québec », March 1995.

  • [7] S.C. 1992, c. 27. Jacques DESLAURIERS, « Les points de contact entre la loi sur la faillite, les lois connexes et le Code civil du Québec », March 1995.

  • [8] This analysis was conducted in light of the work on bijuralism conducted within the Department of Justice, in particular the "Report of the Committee on Legislative Bijuralism", April 1996, of the Legislative Services Branch.

  • [9] Jacques AUGER, « Les créances de la Couronne », March 1996; Albert BOHÉMIER, « La faillite et l'insolvabilité, La réforme du Code civil du Québec et les dispositions préconfédérales », March 1996; André BRAËN, « Les dispositions maritimes du Code civil du Bas-Canada », March 1996; Gaspard CÔTÉ, « Étude portant sur les dispositions du Code civil du Bas-Canada d'origine préconfédérale concernant la Couronne et sur l'abrogation éventuelle de celles-ci dans la mesure où elles ont trait à des matières relevant de la compétence législative du Parlement du Canada », March 1996; Pierre-André CÔTÉ, « La survie du droit préconfédéral : le cas des dispositions relatives à l'interprétation et à l'application des lois du Code civil du Bas Canada », March 1996; Jean LECLAIR, « Étude de la légalité constitutionnelle de l'abrogation, par la Législature du Québec, des dispositions préconfédérales du Code civil du Bas Canada relatives aux lettres de change et à l'intérêt de l'argent », April 1996; André MOREL, « Les dispositions préconfédérales du Code civil du Bas Canada sur le mariage », March 1996.

  • [10] André MOREL, « Le droit civil préconfédéral et le rôle du Parlement après le nouveau Code civil », revised version, April 1997.

  • [11] Pierre André Côté, The Interpretation of legislation in Canada, 2nd ed. Cowansville, Editions Yvon Blais, 1990, p. 288.

  • [12] Ibid.

  • [13] J.-M. Brisson and A. Morel, « Droit fédéral et droit civil : complémentarité, dissociation » (1996) 75 R. du B. can. 297.

  • [14] Constitution Act, 1867, (U.K.), 30 & 31 Vict., c. 3 [hereinafter referred to as the Constitution Act, 1867].

  • [15] Although jurisdiction over property and civil rights rests principally with the provinces, Parliament retains certain special, limited powers in the matter (bills of exchange, marriage and divorce, bankruptcy and insolvency, for example).

  • [16] Pierre-André Côté, « Les règles d'interprétation des lois : des guides et des arguments », (1978) 13 R.J.T. no. 2-3, p. 302.

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