Some thoughts on bijuralism
in Canada and the world
What happens when a Federal legislator, working in his field of competence, calls into play private law that is within the provincial sphere in virtue of subsection 92(13) of the Constitution Act of 1867? We know that the domains of marriage and divorce, bankruptcy and insolvency, and intellectual property are obvious examples. Moreover, in many laws that pertain principally to public law matters we find the presence of dispositions that call for private law concepts that regulate privates law relationships. In fact, more that 300 (three hundred) federal laws in effect contain clauses that relate to provincial competency in private law. Even though Parliament is not legally required to express itself in a bijural fashion, these laws must integrate, in their two linguistic versions, the civil law of Quebec and the common law of the other provinces. The Honourable Justice Viau has stated that this is how Canadian courts conceive of and interpret them. The task become more difficult, he also states, when, the Federal legislator uses vague terms instead of the more precise ones of the Civil Code or when it gives priority to the common law in both linguistic versions. He justly cites Professor Morel:
[translation] "This clearly happens when federal legal rules are phrased exclusively in common law terms, or where they reflect notions particular to the common law, making reconciliation with the civil law system difficult. It also occurs when a statute artificially equates civil law concepts with common law concepts through definitions or interpretative provisions." We know to what point the situation has become more complicated since the coming into effect, in 1994, of the Civil Code of Quebec, which made substantial changes to certain concepts, ideas, and institutions.
Because of this interaction of rules originating from different sources which is a phenomenon which cannot be separated from Canadian law, the department of Justice Canada adopted the Policy on Legislative Bijuralism, implemented a Program to Harmonize Federal Legislation with the Civil Law of Quebec, and established a Committee on Bilingualism and Bijuralism
However, the harmonization of federal legislation with Quebec civil law has long been an issue because, prior to the 1970s, federal statutes and regulations were essentially based on common law. They were drafted in English and translated into French by translators who had no particular legal background. As the Department did not have the French common law and English civil law resources it currently has, the requirements of bilingualism were met, but those of bijuralism had yet to be clarified. Since 1978, federal bills and regulations have been drafted by teams of two jurists, one Anglophone (usually a common law lawyer), the other Francophone (most often a civil law lawyer).
The comments made during the consultation conducted by the Department between 1988 and 1991 on the French version of federal legislation helped gain an understanding of how important it is that both versions faithfully reflect Canada's two legal systems. Many Francophones outside Quebec and Quebec Anglophones have lamented the fact that the French version of federal legislation is too heavily based on the civil law and the English version too dependent on the common law.
In harmonizing federal legislation in light of the Civil Code of Quebec, the Department of Justice also noted that a harmonization of federal legislation was necessary, not only with just the new features of the Civil Code, but also with the Quebec Civil Code as a whole.
It is difficult enough to draft legislation in two official versions in a country that has only one legal system. But responding to the imperatives of institutional bilingualism and drafting bilingual legislation in a bijural context constitutes a real challenge. In fact, adds the Honourable Justice Viau, it is easier,
[translation] "to discuss these questions in the abstract than it is to draft laws that exactly respect stated principles. The ideal system would have been to adopt not less than four official versions: a civil law version in French and in English, and two others based on common law. The cost would be prohibitive, given the number of laws affected."
It is in this context that in June 1995, the Department of Justice adopted a policy on legislative bijuralism in which it undertakes, whenever a federal bill or regulation concerns provincial or territorial private law, to draft each of the two versions of that legislation in a way that reflects the terminology, concepts and institutions specific to the two Canadian systems of private law.
The Policy on Legislative Bijuralism thus acknowledges that the four Canadian audiences—common law Anglophones, civil law Anglophones, common law Francophones and civil law Francophones—must be able to read federal legislation in the official language of their choice and find its terminology and phrasing consistent with the legal system in effect in their province or territory.
The Department of Justice Canada is thus an organization that believes in bijuralism and its advantages, as attested to by its modernization work. The putting into effect of bijuralism by the Department of Canadian Bijuralism has no counterpart or precedent in the world, linked as it is to Canadian legal history.
By lending strength and substance to bijuralism, the Department better reflects Canadian reality and ensures that Canada continuously develops its legal system both on a national level and as regards the challenges of globalization. Other countries, by virtue of their internal structure or commercial necessity, face similar challenges. This article has dealt briefly with these.
The diversification and complexity of legal instruments has placed the law in a new dynamic that is not unfamiliar to these countries, especially Canada with its history of the coexistence of two legal systems. The mandates given to our Department on the national and international level attest to this, as do the steps undertaken by the Department to promote Canadian bijuralism with the Department's partners.
The comparative analysis of common law and civil law that is necessary as a result allows one to identify each system's values and limitations. The analysis also contributes to an improvement and a rationalization of the law in Canada and elsewhere in the world. Finally, it also contributes to a questioning of our methods of legal interpretation and of the underlying values in the development of our legal norms. In other words, the coexistence of legal systems and their practical realization leads to other, even more remarkable discussions.
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