S-4: A FIRST HARMONIZATION BILL

Endnotes

  • [1] This paper contains the ideas of a number of jurists who are presently with the Civil Code Section or who were previously with that Section. The author wishes to thank all those who have contributed directly or indirectly to its preparation.

  • [2] Bill S-4, 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., 37th Parl., 2001. Hereinafter "Bill S-4". At the time of writing of this article, the bill is at 2nd reading and has been referred for review to the Standing Senate Committee on Legal and Constitutional Affairs.

  • [3] Predecessor of Bill S-4, bearing the same name and having been tabled in the Senate on May 11, 2000.

  • [4] Standing Senate Committee on Legal and Constitutional Affairs, June 14, 2000.

  • [5] The Civil Code Section has since developed a Harmonization Manual, which is not commercially available, although a summary is published in this collection. See L. Maguire Wellington: Bijuralism in Canada: Harmonization Methodology and Terminology, The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Booklet 4, Department of Justice Canada, May 2001.

  • [6] All regulations will also be fully harmonized.

  • [7] Some of their papers may be consulted in The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism, Ottawa, Department of Justice, 1997.

  • [8] Interpretation Act, R.S.C. 1985, c. I‑21.

  • [9] Federal Real Property Act, S.C. 1991, c. 50.

  • [10] Bankruptcy and Insolvency Act, R.S.C. 1985, c. B‑3.

  • [11] Civil Liability and Proceedings Act, R.S.C., c. C‑50.

  • [12] This second public consultation round was held prior to the bill's tabling.

  • [13] Introduction into the Code of prior claims constituting real rights (art. 2654.1 C.C.Q.). This new feature has had an impact on the harmonized definition of "secured creditor" in the Bankruptcy and Insolvency Act.

  • [14] One of the bill's most ardent supporters is Senator Gérald‑A. Beaudoin. See his speeches on second reading of Bill S-22 in Debates of the Senate (May 18, 2000) at p. 1640 and on second reading of Bill S-4 in Debates of the Senate (February 7, 2001) at page 1530.

  • [15] Bill S-4 is essentially identical to Bill S-22, except for some technical adjustments which were caused by legislative evolution.

  • [16] See clause 8 of the bill.

  • [17] First recital.

  • [18] Second recital.

  • [19] Third recital.

  • [20] Fifth recital.

  • [21] Sixth recital.

  • [22] Fourth recital.

  • [23] Seventh recital.

  • [24] Title of Part 1, as found in clause 2 of the bill: Federal Law and Civil Law of the Province of Quebec Act.

  • [25] Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3.

  • [26] This is the effect of s. 129 of the Constitution Act, 1867.

  • [27] A. Morel, "Pre-Confederation Civil Law and the Role of Parliament after the New Civil Code" in The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism, Ottawa, Department of Justice Canada, 1997, pp. 120 ff.

  • [28] Clause 3(2) of the bill, which renders the Interpretation Act applicable to this repeal, is intended to protect acquired rights.

  • [29] Subs. 91(26), Constitution Act, 1867.

  • [30] For an explanation of why jurisdiction over marriage is vested in the Canadian Parliament, see namely F. Chevrette and H. Marx, Droit constitutionnel (Montreal, Les Presses de l'Université de Montréal, 1982 at p. 656); S.I. Bushnell, "Family Law and the Constitution" (1978) 1 R.C.D.F. 202 at pages 204-205, citing the Honorable Hector Louis Langevin (Confederation Debates at p. 388):

    " The word "Mariage" has been placed in the draft of the proposed Constitution to invest the Federal Parliament with the right of declaring what marriages shall be held and deemed to be valid throughout the whole extent of the Confederacy, without, however, interfering in any particular with the doctrines or rites of the religious creeds to which the contracting parties may belong."

  • [31] Examples of such provisions are: sections 115 (requirement of spouses being of a certain age and, according to some, being of different sex), 116 and 148 (necessity of spouses giving a free and enlightened consent), 117 (physical capacity to have sexual relations), 118 (condition of monogamy), etc.

  • [32] Subs. 92(12), Constitution Act, 1867.

  • [33] The legitimacy of overlapping is considered in accordance to the theory of the double aspect. See Hodge v. The Queen, [1833] 9 App. Cas. 117; P. Hogg, Constitutionnal Law of Canada, 3rd ed., Toronto, Carswell, 1992 at pages 381-383. In the event of conflict, federal rules prevail over those of the provinces due to the principle of supremacy of the laws of Parliament: P. Hogg, ibid., at pages 418, 419 and 434.

  • [34] For example, the requirements respecting consent and spouses being of different genders (art. 365, C.C.Q.), age, consent of the parents or tutor, monogamy and prohibited degrees (art. 373, paragraph 2, subparagraphs 1 and 3). See Droit de la famille 2063, [1994] R.J.Q. 2631 (S.C.).

  • [35] For instance, Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46; Annulment of Marriages Act (Ontario), R.S.C. 1970, c. A-14.

  • [36] See in particular Hyde v. Hyde & Woodmansee (1866) L.R. 1 P. & D. 130, at page 133.

  • [37] S. 8, Quebec Act, 1774.

  • [38] Modernization of Benefits and Obligations Act, S.C. 2000, c. 12 (known before as Bill C-23).

  • [39] S. 1.1, ibid.

  • [40] Art. 373(1), C.C.Q.

  • [41] Art. 373(3), C.C.Q.

  • [42] The following paragraphs provide an overview of the objectives pursued by proposed sections 8.1 and 8.2. Another writer, Henri Molot, has conducted a more thorough analysis of these proposals in the context of this collection. See Henry Molot: Clause 8 of Bill S-4: Amending the Interpretation Act,  The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Booklet 6, Department of Justice Canada, May 2001.

  • [43] For an overview of these techniques, see L. Maguire Wellington, supra, note 5.

  • [44] See L. Maguire Wellington, supra, note 5 at p. 9.

  • [45] Source: National Program for the Integration of Both Official Languages in the Administration of Justice (POLAJ).

  • [46] See L. Maguire Wellington, supra, note 5 at p. 11.

  • [47] For a more thorough analysis of certain amendments to the Bankruptcy and Insolvency Act, see A. Vauclair and M.-F. Parent: Harmonization of Federal Legislation with the Civil Law of the Province of Quebec: Some examples from the Bankruptcy and Insolvency Act, The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, Second Publication, Booklet 8, Department of Justice Canada, May 2001.

  • [48] Articles 2650 ff., C.C.Q.

  • [49] See Château d'Amos Ltée, [ 1999 ] R.J.Q. 2612 (C.A.Q.).

  • [50] Art. 2654.1, C.C.Q.

  • [51] Art. 1457, C.C.Q.

  • [52] See L. Maguire Wellington, supra, note 5.

  • [53] Ibid.

  • [54] Their harmonized regulations would be included in a schedule.

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