Bijuralism and Harmonization: Genesis

EVOLUTION OF JUDICIAL SYSTEMS, BIJURALISM AND INTERNATIONAL TRADE (UNIVERSITY OF OTTAWA)

Canadian Bijuralism and Harmonization of the Law

Speaking Notes of Mario Dion, Associate Deputy Minister, Civil Law and Corporate Management, Department of Justice Canada

Ottawa, Ontario, October 20, 2000

Introduction

Madam Chairperson, Mr. Chairperson, distinguished guests:

In its broadest sense, bijuralism connotes a factual situation - the coexistence of two legal traditions. Eighty percent of the world's population is governed by either the common law or the civil law. Canada is one of only a few countries to be governed by both these systems. This is both a distinction and an advantage. It is also interesting to note that, in Canada, existing federal legislation contains no express reference to the coexistence of the common law and the civil law.

On the other hand, both the richness and amazing uniqueness of Canadian bijuralism are the product of our country's history, and as history evolved, so too did the complementary relationship that exists between the common law and the civil law.

By adapting methodologies and analytical frameworks from different legal systems, bijuralism offers innovative solutions that adapt themselves to the requirements of a constantly changing world. Through the prism of bijuralism, Canadian jurists have a broader perspective on the law, finding their place and their identity in the law as they practise it, whether in Vancouver, Winnipeg, Montreal or Halifax.

I was delighted to accept Dean Louis Perret's invitation to speak to you about Canadian bijuralism and harmonization of the law.

Bijuralism, as practised in Canada in general, and in the Department of Justice in particular, is first and foremost the interaction between the common law and the civil law. How has Canada given concrete expression to this reality? That will be the focus of my presentation. First, however, I want to discuss the distinguishing features of the two systems and review the highlights of the legal history of Canadian bijuralism.

The Distinguishing Features of the Civil Law and Common Law Systems and their Interaction

Given the nature of the differences between the civil law and the common law, and especially because of the similarities, the coexistence of these two legal traditions within a single country does not really pose a problem. As Deputy Minister Morris Rosenberg reminded us in this regard at the opening session, the notion of mixed law does not generate any difficulties at first glance: in his words, "it refers to a system of law whose institutions derive from different legal systems and result from the cumulative application or interaction of techniques that belong to or are associated with those systems".

The methods of production and interpretation of the systems and their interaction

From the standpoint of interpretation, the methods applied by the courts in civil law and statute law remain the same, both drawing on Western legal tradition. As authors point out, the principal objective, in both systems, is the same: to determine from a text, the intention of the legislature. In both systems, the court looks for this intention, having regard to the text, context, purpose, and history, making the assumption that the legislature does not contradict itself and is logical.

However, the two systems do differ somewhat in methods and attitude when it comes, for example, to legislation: in the common law countries, statute law has long been the exception, and this has given rise to certain rules of strict or narrow interpretation of statutes that are considered to be a departure from the common law. In contrast, the law that is based on the Civil Code of Quebec, for example, is general law and not exceptional law and is interpreted broadly.

Moreover, the method of reasoning in civil law is different from the method of reasoning in statute law: it is in fact deductive. The deductive method consists, as we know, in [Translation] "reaching a conclusion based on suppositions that are accepted as premises, using logical rules" [1]. Derived from Roman law, the civil law therefore stresses the values underlying the applicable rules.

The rule of precedent, which is specific to the common law, is analogical and inductive. General principles are enunciated from the particular examples that constitute past cases. Certainly, beginning in the 20th Century, the role of the common law as a method and the guiding role of the case law - and hence of judges - that it implies was superseded by the enactment of an ever-growing number of statutes. The common law, moreover, remains an entity that is coherent, but composed of particular judgments.

You can appreciate how interesting it can be to examine the coexistence of these two systems that have existed throughout history, influencing one another at times and interacting with one another at other times. We discovered, through the presentation of our American colleague, that even our neighbours to the South have been influence by them.

The interaction of these two legal systems can manifest itself in a variety of ways. But it is through the interaction of their respective rules or principles, in a way that sometimes results in the legislator or the interpreter of the law harmonizing them or in the need to coordinate the relationship between them, that we see the most interesting developments: the interaction of the two systems can influence the evolution of one or the other, or sometimes even the evolution of both systems.

Canada is not the only country to experience these developments. The United Kingdom, the United States and Europe offer specific illustrations of the possible forms of interaction between these legal systems.

Great Britain

As was alluded to by Dean Bridge this morning, the legal system of Great Britain is bijural: the English common law and the Scottish civil law exist side by side because the Act of Union provided that Scotland would retain its private law.

In 1998, Westminster adopted The Scotland Act 1998, which creates a Scottish parliament whose jurisdiction over certain fields is not exclusive: the Parliament of the United Kingdom retains its power to legislate.

We thus witnessed the introduction of a method of adapting laws through the incorporation of particular provisions. Today, there is a growing body of parallel legislation that applies exclusively to the territory concerned and the same statute often incorporates provisions specific to each system. Moreover, in keeping with the bijural nature of the legislation, language is sometimes used that reflects both realities, either by choosing neutral terms, or indicating the equivalents in Scottish law.

The United States

In the United States, when colonization began, the territory that would later become Louisiana was subject to French law, specifically the Coutume de Paris. In 1762, Spain acquired Louisiana and imposed its law in 1769. Spanish law had the greatest influence on Louisiana because, although Spain ceded the territory back to France in 1800, France allowed Spanish law to continue in force. Similarly, following the Louisiana Purchase of 1803, Congress did not impose the common law on this territory. As soon as Louisiana became a state in 1812, Congress lost the power to do so.

As soon as it entered the Union, the State of Louisiana therefore provided in its constitution that it would not be allowed to adopt unwritten law, thereby excluding the common law [2].

Europe

The European Community, for its part, is in the process of developing a general law in which the English common law and the French-based civil law are playing an important role. In economic matters, however, the European Community is establishing itself as a specific, autonomous source of law, with the hierarchy of its texts (regulations, directions, recommendations, notices, communications) and especially with the role of the Court of Justice of the European Communities, which has consistently affirmed the primacy of community law over national laws. The Community is also endeavouring to create conditions favourable to integrated development through harmonization of national legislation or the creation of a community law.

Canadian Bijuralism and Federal Legislation

Historical and legal background of the coexistence of the common law and the civil law in Canada

Canadians have experienced the establishment of two legal systems in Canada - one comes from the region of Paris, and has survived in what was New France at the time when sovereignty was transferred after the Conquest, while the law in effect in the other provinces originated in England.

Here in Canada, the preservation of this legal duality derives from the division of legislative powers set out in the Canadian Constitution: the provinces have the power to legislate in relation to property and civil rights under subsection 92(13) of the Constitution Act, 1867, that is, in relation to the essential subject-matter of private law. Nine of the ten Canadian provinces, along with the two territories and possibly the brand new one as well, apply the rules of the common law. Quebec, on the other hand, uses the civil law for its private law.

The Coutume de Paris, trough the royal edicts and the orders of the governors, was the main source of law in New France until the British conquest.

In 1763, under the Treaty of Paris, the King of England ordered, by royal proclamation, the creation of "Courts of Judicature and public Justice for hearing (...) all Causes (...) according to the Laws of England". But despite the attempt by the new mother country to impose its laws, the citizens continued to organize their private relationships outside the new courts, and where necessary sought a decision from the curate, the notary or the seigneur on whom they were dependent.

The inhabitants' determination to preserve their private law was a contributing factor in the compromise expressed in the Quebec Act, which was enacted by the Parliament in London in 1774. Section 8 restored the absolute authority of the French laws from before the conquest, with certain minor reservations, except in criminal and penal cases. This is the origin of the coexistence of French civil law and British law in Canada.

The Quebec Act has never been repealed, and today, despite the restrictions introduced by the Constitution Act, 1867, it is still the foundation of Quebec private law.

By giving the provinces exclusive jurisdiction in relation to property and civil rights, subsection 92(13) of the Constitution Act, 1867 comprises the origin of the complementarity of federal law and provincial private law. Only those rules that are enacted in accordance with that provision by the provincial legislatures are permitted to supplement federal enactments that are silent as to any aspect that falls within property and civil rights and that is essential for the purposes of those enactments.

Provincial private law will therefore apply only in relation to matters within the ancillary jurisdiction of Parliament, that is, to a field which is primarily within the jurisdiction of the provinces under subsection 92(13) of the Constitution Act, 1867, but which may be regulated by Parliament to the extent that is necessary for an objective that is itself within the exclusive jurisdiction of Parliament.

Starting from a single common foundation, Roman law, the two systems that Canadians have inherited must accordingly interact, and the need then arises for unique arrangements to enable that relationship to function, as well as the need to expand our horizons and, as the Deputy Minister, Morris Rosenberg, said in his inaugural address, to achieve a new synthesis of our contemporary values.

Let us now examine how federal legislation, which has its origins in the common law tradition, is harmonized with the civil law.

Harmonization of federal legislation with the civil law of the province of Quebec

Firmly committed to modernizing its legislative enactments, Canada's goal is to achieve a better linkage between federal Acts and regulations and the civil law of the province of Quebec.

Anxious that its legislation use concepts and vocabulary that are compatible with the revised civil law of Quebec resulting from the coming into force in 1994 of the new Civil Code of Quebec, the federal Parliament firmly committed itself to harmonizing federal legislation with the civil law of Quebec, without changing the common law. Its purpose is to ensure that civil law jurists can recognize in federal legislation their private law concepts and apply federal legislation more effectively in Quebec.

The harmonization project was launched thanks to the vision and efforts of the Honourable Anne-Marie Trahan. The initial work was a collaborative effort involving Quebec's Department of Justice, the Barreau du Québec and the Chambre des notaires, and received the crucial support of the academic community. This cooperation is continuing and law schools are today being asked to provide applicants who are law graduates, under the Research Contract Program in Canadian Bijuralism, interested in distinguishing themselves in the field of comparative law and advancing legal research through the vehicle of Canadian bijuralism.

The initial harmonization work produced Bill C-50, which was tabled in Parliament in June 1998, but which died on the Order Paper when the House of Commons was prorogued. Since then, additional legislation has been harmonized in the fields of property law, civil liability and securities.

Bill S-22, which was tabled in the Senate on May 11, 2000, brings together in a single piece of legislation these new proposed amendments and the provisions that were in Bill C-50. The purpose of this Bill is to harmonize forty-eight federal statutes. It also amends the Interpretation Act by including in it provisions designed to recognize the coexistence of Canada's two legal traditions, repeals the pre-Confederation provisions of the Civil Code of Lower Canada of 1866, which deals with subjects that have been under jurisdiction of the Parliament of Canada since 1867, and replaces the pre-Confederation provisions of the Civil Code of Lower Canada relating to marriage. That is all I will say concerning this Bill since the Honourable Senator Beaudoin intends to discuss it in greater detail this evening.

Bill S-22 is the first in a series of bills that will harmonize the complete body of federal legislation, both existing statutes and those in the process of being enacted. The regulations will also be harmonized.

Last June 5, for the first time, a notice of Ways and Means motion was also tabled in the House of Commons to amend the Income Tax Act, the income tax regulations and certain Acts relating to the Income Tax Act. This is the first time that we are partially harmonizing a proposed amendment to tax legislation. Tax law, moreover, has been identified as one of the new key fields to be harmonized, as have the fields of regulatory law and business law. In the coming years, the Department of Justice Canada intends to focus on harmonization of Acts and regulations in these fields. Besides the question of terminology, a number of substantive law questions will be examined as part of this review, all with a view to meeting the program's other objectives - more effective application of legislation in the province of Quebec and an eventual reduction in the amount of litigation arising from the interaction between federal law and the private law of the provinces.

The procedures for harmonizing federal legislation with the new terminology and concepts in the recent Civil Code of Quebec, and the techniques of bijural and bilingual legislative drafting are innovative and, needless to say, require refinement. Canada's experience in this field is unique and, in the words of the Honourable Senator Gérald-A. Beaudoin, "confers upon us a special place in the world". Senator Beaudoin was speaking in June of this year during debate on Bill S-22,[3] Federal Law-Civil Law Harmonization Act, No.1, which was tabled in the Senate on May 11, 2000.

This experience leads quite naturally to the creation of a number of neologisms, new concepts and the development of new research and harmonization procedures.

The Civil Code Section has in fact begun to systematize its harmonization procedures, given the multitude of methodological implications resulting from the harmonization work.

The methodological components of the harmonization initiative and tools of the trade

The first methodological implication is one that derives from an analysis of the interaction between federal statutes and the civil law. The unique aspect of the harmonization initiative stems from the linkages between federal law and the civil law of Quebec.

When legislation enacted by Parliament in relation to property and civil rights is silent and we must look to subsidiary rules in order for that legislation to be applied in Quebec, the civil law in effect in that province will be the suppletive law that must be used in interpreting the federal legislation, unless otherwise indicated by Parliament.

However, there are exceptions to the rule of the complementarity of federal law and the civil law, which Professors Morel and Brisson describe as "dissociations". In those cases, a rule that is foreign to the private law of the province where the legislation is to be applied is used to fill the void in the federal statutory rule, and this will rule out any application of the law of that province as the suppletive law.

A juridical situation will sometimes be said to be unijural when a statutory provision is based on a concept or on terminology that is unique to the common law in both the English and French versions:

For instance, the use of the expressions "special damages" in English and "dommages-intérêts spéciaux" in French in subsection 31(3) of the Crown Liability and Proceedings Act [4] is an example of a unijural situation: the expression "special damages" and the French equivalent "dommages-intérêts spéciaux" are expressions unique to the common law. In the civil law, the correct expression would be "pre-trial pecuniary loss" in English and "pertes pécuniaires antérieures au procès" in French.

Sometimes a legal situation will be characterized as semi-bijural where the French version of a legislative provision is based on notions or terminology specific to the civil law and the English version on notions or terminology specific to the common law:

The use, for example, of the terms "real property" in English and "immeuble" in French in section 20 of the Federal Real Property Act [5] is a case of semi-bijuralism. You will note that, in this case, the terminology specific to the civil law (immeuble) is used in the French version only, while the terminology specific to the common law (real property) is used in the English version only.

This provision becomes bijural by incorporating the terms "biens réels" in the French version to take into account the French common law and the word "immovable" in the English version to take into account the English civil law.

The preceding example has a second methodological implication: the need to develop rules of conduct for legislative drafting. This need therefore results in the production of manuals for drafting and interpreting future statutes.

Although both versions of the text are equally authoritative, it is important to ensure that the civil law concept and the common law concept are given the meaning that is specific to each, depending on the legal system from which they derive and which is in force in the province where the legislation applies. Certainly this is a laudable objective. However, as the legislative counsel present here and our Chief Legislative Counsel, Lionel Levert, know, recommending and drafting amendments to specific provisions is never easy where the issues to be resolved are complex, because federal legislation must target four audiences simultaneously, and in the process must be not only bilingual, but also bijural.

Concurrently with the creation of new terms and the development of new research procedures, we are thus also witnessing the development of new legislative drafting techniques. For example, sometimes the preferred technique will be the double, the simple double or the paragraphed double, which consists in expressing, through different terms, the legal rule applicable to each system. Sometimes the drafter will strive for terminological neutrality, a technique that consists in using a neutral term that has no connotation in either legal system.

As you can see, the use of the double has the advantage of limiting, in a given provision, the application of the legal rule to Quebec and the rest of Canada. On the other hand, the use of the neutral term technique promotes concision, thereby avoiding the use of unnecessary words.

Conclusion

In any study of legal systems, the process of reflection must, in our opinion, go beyond a comparative analysis to encompass an appreciation of the similarities of these systems and the advantages of their interaction. We have seen many illustrations - even in today's presentation - of the truth of this observation.

Today, the nature of the law must, as a matter of priority, adapt to the imperatives of globalization and the requirements of the national rule of law that is a participant in the phenomenon.

Our notion of the law has therefore evolved, and as a result, we must re-examine its foundations in a new context, characterized by the development of pluralism. I urge you to undertake this process of reflection and I look forward to pursuing the dialogue with all those for whom bijuralism means sharing and cooperation.

Thank you.


Footnotes

  • [1] Le Petit Robert, 1991, s.v. "déduire".

  • [2] See inter alia A. Levasseur, "La réception du système de la common law par le système législatif français en Louisiane", in M. Doucet and J. Vanderlinden, eds., La  réception des systèmes juridiques : implantation et destin. Textes présentés au premier colloque international du Centre international de la common law en français (CICLEF) (Brussels, Bruylant, 1994) at 381. A. Levasseur, "Le bijuridisme dans un système fédéral ou d'autonomie locale - États-Unis" (Rapport national, XIIIe Congrès international de droit comparé, Montréal, 1990).

  • [3]  Debates of the Senate (Hansard), 2nd Sess., 36th Parl., Vol. 138, Issue 58 (18 may 2000), Parliament of Canada

  • [4]  R.S.C. 1985, c. C-50.

  • [5]  L.C. 1991, c. 50.

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