Canadian Legislative Bijuralism:
An expression of Legal Duality

Marie-Claude Gaudreault*, Notary, LL.M.
Legislative Services Branch,
Department of Justice Canada

Introduction

Be it legal duality, legal dualism or, as preferred in Canada, bijuralism, the idea captured is one of legal coexistence. Whether it is approached as "[t]he simple co-existence of two legal traditions, the interaction between two traditions, the formal integration of two traditions within a given context (…) or, on a more general level, the recognition of and respect for the cultures and identities of two legal traditions",[1] it describes, in all cases, a reality that finds echo in a Canadian context[2].

Legal duality is an essential feature of Canadian law as two different private law traditions coexist: the civil law in Quebec and the common law in the other provinces[3]. Inscribed in the Canadian constitutional structure, this duality of legal traditions, known as "Canadian bijuralism" becomes an important part of federal law which, from the resulting interaction, can be seen as a mixed legal system. Unavoidably, the recognition and respect of the bijural nature of the Canadian legal system, along with the obligations that derive from bilingualism, have an impact on the drafting of federal legislation.[4] In this context, federal legislation needs to take into account at least four legal audiences as the civil law and the common law in both English and French must be adequately addressed. In this regard, it often becomes necessary to build bridges between federal legislation, and rules, principles and institutions that are within the exclusive jurisdiction of each of the provincial legislatures, thus raising specific challenges:

Federal legislation in Canada is not only bilingual, but also bijural in the sense that it is applicable to persons, places and relations that are subject to the civil law in Quebec and to the common law in the rest of Canada. This wealth of possibility creates a difficult challenge for federal drafters, and for interpreters of federal legislation. Although Quebec is the only province with a civil law system, the French version of federal legislation is meant to operate in all the provinces. This makes it impossible simply to reserve the English version of legislation for application in the common law provinces and the French version for application in Quebec.[5]

Canadian legislative bijuralism is a means of acknowledging this legal dualism and is expressed notably in the relationship between federal legislative rules and the various provincial laws, rules and institutions that serve to govern private matters. Canadian legislative bijuralism is also a mode of expressing federal legislative intent in light of both the civil law and the common law as it develops and evolves in each of the provinces. As a result, Canadian legislative bijuralism is ultimately a way of ensuring a better application of federal legislation throughout Canada, from sea to sea… "A Mari usque ad Mare"…

I. Canadian Bijuralism: Historical and Constitutional Grounds of a Legal Duality

Canadian bijuralism, or the coexistence of the civil law and the common law in Canada, is first and foremost the result of history and a legacy left by the colonization of North America.

Following the founding of New France, the rules and principles of the civil law tradition – found mainly in the Coutume de Paris supplemented by governors' ordinances and royal edicts – became firmly rooted in the territory that would later become part of Canada.[6] After the political and military conquest of the French colonies in North America in 1760, New France, which had been under French rule for more than two hundred years, became a possession of Great Britain.[7] In the Royal Proclamation, 1763,[8] King George III exercised a prerogative power to legislate for the conquered colony. Pre-existing French law rules and principles were excluded in all matters, the rules and principles of the common law were imposed on this territory, then called the province of Quebec, and the courts were to determine "all Causes, as well Criminal as Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England".[9] This new order brought increased apprehension, and it led to a number of complaints and the residents of the former New France sought the restoration of the civil law tradition in the conquered colony.[10] These representations, combined with certain difficulties that had arisen in the justice system and the fact that the civil law tradition did survive through practice, led the British regime to backtrack.[11] The introduction of the Quebec Act, 1774[12] specifically Article VIII, expressly restored, with certain exceptions, the rules and principles of the law that had applied prior to the Conquest with respect to the "Property and Civil Rights" of the citizens.[13] This first use in Canadian constitutional documents of the phrase "property and civil rights" with respect to the private law of the colony then referred to the law applying to private subjects as between themselves. The rules and principles of the common law were, however, implicitly retained in the case of public law and the criminal law of England also continued to apply as a result of Article XI.[14] Officially, this is a first expression and development of a duality within the colony which then meant that civil law applied in private matters while common law applied in public matters.

The Constitutional Act, 1791[15] divided the territory of the then province of Quebec into two separate provinces to be respectively called Upper Canada and Lower Canada. As provided by section 33, the laws of the former province of Quebec were to continue in force until altered by the legislatures of the newly created provinces. In 1792, the legislature of the province of Upper Canada did restore the laws of England with regard to property and civil rights.[16] However, the legislature of Lower Canada did not alter the established law. As the two provinces of Upper and Lower Canada were reunited under the name of the province of Canada by The Union Act, 1840,[17] their respective existing laws, from either English or French origins, were maintained in force.[18] Both the common law and the civil law traditions were to apply within the same territory.

With regard to the territory now known as the province of Quebec, the provisions of the Quebec Act, 1774 relating to the source of the applicable private law have never been amended nor repealed by the subsequent constitutional documents; the civil law tradition remains the foundation of Quebec private law. The first codification of that private law came into force in 1866: the Civil Code of Lower Canada ("C.C.L.C."),[19] "[translation] faithfully reproduced the unique legal characteristics of Quebec at that time,"[20] and was, until 1994, the essential expression of the terminology, institutions, rules and principles of Quebec civil law.

The year 1867 brought about the union of four British North American colonies – Ontario, Quebec, New Brunswick and Nova Scotia – under the banner of Canada. Established as a federal state, Canada's constitutional framework – the Constitution Act, 1867[21] – provides for a distribution of governmental powers between a central authority, the government of Canada, and regional authorities, the provinces. While the power of the central government extends throughout the country, the power of each province remains within the confines of its own territory[22] One could thus say that on the one hand there is uniformity, while on the other lies diversity.

From a legislative point of view, this division of powers entails that every individual in Canada is subject to the laws of two authorities: the central or federal authority (Parliament of Canada) and a regional authority (provincial legislature).[23] However simple this scheme may appear, it has a far-reaching impact with regard to the jurisdiction over property and civil rights. This expression remains, within the limits drawn by the constitutional scheme, "a compendious description of the entire body of private law which governs the relationships between subject and subject, as opposed to the law which governs the relationship between the subject and the institutions of government".[24] By expressly providing at subsection 92(13) that, outside federal heads of power found under section 91, private law – property and civil rights – falls within the exclusive jurisdiction of the provinces, the Constitution Act, 1867 ultimately confirms the presence of both the common law and the civil law tradition in Canada.[25] The existing bodies of laws of each of the uniting provinces as well as their respective legal systems – common law or civil law – remain unchanged and still find application except insofar as the federal heads of powers are exercised by the central federal authority as provided under section 129 of the Constitution Act, 1867. As private law is determined by each provincial legislature it ensues that it will differ from province to province, but also that it will differ according to the legacy left by colonial times that now echoes as a duality of legal traditions.

Undoubtedly, it follows that the expression and development of legal duality is taken to a new level as the constitutional framework serves to determine the structural elements of the legal systems that coexist in the Canadian legal framework, including the legal system specific to federal law. Perhaps even more important is the fact that from this constitutional structure is defined when and where a legal system applies and serves to determine the choice of rules that supplement the federal rule. Finally, the further admission of new provinces and territories within the Canadian federation, which now consists of ten largely self-governing provinces and three territories under the administration of the federal government,[26] has not altered in any way that constitutional framework or the established legal relationship with regard to federal heads of power and suppletive law.

II. Legislative Bijuralism: The Development of a Policy

Beyond these historical and constitutional grounds, from which Canadian bijuralism originates, lies the development of a policy which must also be accounted for if one is to fully grasp the intricacies of Canadian bijuralism.

Section 133 of the Constitution Act, 1867 requires that Parliament use both official languages in all enactments – a principle repeated in section 6 of the Official Languages Act[27] – while section 18 of the Canadian Charter of Rights and Freedoms[28] and section 13 of the Official Languages Act provide that both versions of a statute are equally authoritative. There is no explicit obligation with respect to bijuralism, although it is taken into account by Parliament when it enacts private law rules or "when it sets out standards the application of which intersects with provincial private law."[29] Federal legislation can unquestionably rely on the rules and concepts of Quebec civil law and of the common law of each of the other provinces.[30] This relationship of complementarity[31] between federal legislation and the private law of the provinces has frequently been confirmed by the courts.[32] It was however through the decisions of the Supreme Court of Canada in Quebec North Shore Paper Co. v. Canadian Pacific Ltd.,[33] McNamara v. R.[34] and R. v. Thomas Fuller Construction Co. (1958) Ltd.[35] that the recognition of a true complementarity relationship between federal law and provincial law came with respect to the interpretation of federal law.[36] Federal legislation, although relatively comprehensive, is not a complete code insofar as private law rules are concerned.

However many they number, and however important they may be, these statutes do not form a self-contained legal system or an autonomous body of rules. In the absence of statutory authority to the contrary, they must be understood with reference to the basic law of each province; for that is the law they add to or derogate from, and that is the law that complements them and provides the "conceptual support" [soutien conceptuel] needed to both interpret and apply them.[37]

However, in some situations, the subjacent private law rule, although developed according to the spirit of one legal tradition, has been taken out of that context to live and grow within specific federal domains. Maritime law, aboriginal title as well as legal situations that arise "otherwise than in a province"[38] are all examples of situations where federal legislation will not rely on the principle of complementarity with provincial private law and will instead be dissociated[39] from such law. As well, Parliament may choose to enact its own private law rules and thus dissociate federal legislation from the private law of the provinces. In most cases, however, it is more practical to rely upon pre-existing provincial private law rules, from either the civil law or common law traditions, to act as a subjacent corpus of rules for federal legislation. Needless to say that by accepting complementarity, Parliament also accepts that the application of its laws will not necessarily be uniform in every respect across the country.[40] There is no doubt that private law differs from one province to another, not only because of the coexistence of civil law and common law in Canada, but also because of differences in the legislation and case law of each of the common law provinces.

As a result of the reliance on provincial private law, federal legislation must be adjusted to reflect developments and changes in this law. Although these changes do not alter the nature of the relationship of complementarity between federal legislation and provincial law, they necessarily have an impact on the application of federal legislation in provinces where changes occurred. This became particularly apparent following the enactment of the Civil Code of Québec ("C.C.Q." or "Civil Code"),[41] which came into force on January 1, 1994 and replaced the C.C.L.C. The reform and modernization of Quebec law, including its terminology and some of its institutions, necessarily had such an impact on the application of federal legislation in the province of Quebec.[42] The introduction of the C.C.Q. accordingly marked a turning point. A revision of federal legislation in light of the new terminology and the new rules of the civil law had to be undertaken.

The Policy for Applying the Civil Code of Quebec to Federal Government Activities,[43] adopted in 1993, recognized the need for measures ensuring that federal legislation be adapted to reflect the new codification and, on a more general note, to take into account the specific nature of Quebec civil law. This led to the more specific acknowledgement that although civil law has existed in English since at least the enactment of the C.C.L.C. in 1866 and although the development of the common law in French has been under way for twenty years or so, "[c]omparisons of the two official language versions of federal statutes revealed that civil law concepts were not adequately represented in English and that common law terms were not always correctly rendered in French."[44]

The adoption in 1995[45] by the Department of Justice Canada of the Policy on Legislative Bijuralism[46] confirms a formal commitment to bijural drafting of statutes and regulations involving private law. The policy formally recognizes that:

[I]t is imperative that the four Canadian legal audiences (Francophone civil law lawyers, Francophone common law lawyers, Anglophone civil law lawyers and Anglophone common law lawyers) may, on the one hand, read federal statutes and regulations in the official language of their choice and, on the other, be able to find in them terminology and wording that are respectful of the concepts, notions and institutions proper to the legal system (civil law or common law) of their province or territory.[47]

This formal recognition does not constitute a change of focus insofar as the policy on legislative drafting is concerned. Rather, it is the result of the evolution of this policy. It would thus be wrong to assume that all federal legislation drafted since 1867 and which refers to rules, principles and concepts of private law is somehow completely incompatible with the civil law environment in Quebec. Since 1867, unless otherwise provided, federal statutes and regulations have had a bijural application.[48] It could not have been otherwise as federal legislation is intended to find effect, regardless of whether it finds application in a common law or a civil law jurisdiction. However, bijural application does not necessarily equate with legislative bijuralism. As a matter of fact, from 1867 to the 1970s, federal legislation in Canada was drafted in English, generally with the terminology of the common law, and then translated into French. As a result, although the requirements for bilingualism were met, the expression of the interaction between federal law and private law was often approximate.[49] The intended effect was for a bijural application, but it was, in many aspects, somewhat hindered.

The introduction of co-drafting[50] in 1978 marks an important step in the development of the policy on legislative drafting with respect to bijuralism. By means of this drafting technique, both language versions of a statute are drafted at the same time and none is a translation of the other. Recourse to both legal traditions is further promoted since the English version of a statute is generally drafted by an Anglophone with a common law background and tends to reflect the terminology and the concepts of the common law. On the other hand, the French version is generally drafted by a Francophone with civil law training and expresses legislative intent using civil law language and concepts. However, this approach has drawbacks in that it disregards the existence of civil law in English and of common law in French[51] and requires a cross-interpretation of the texts.[52] Co-drafting was nevertheless a step in the direction of legislative bijuralism as we now understand this concept.

The Department of Justice Canada is responsible for drafting legislation and the Policy on Legislative Bijuralism constitutes a renewal of the commitment, in private law matters, to respect the laws of the provinces and, thus, thereby respect Canada's common law and civil law traditions. In recognition of this state of affairs which, it should be reminded, has a constitutional basis,[53] federal legislation will not only be written so as to reflect bijuralism, but will do so in both language versions. Since March 1999, this commitment to bilingual and bijural legislation is formally stated in the Cabinet Directive on Law-Making (the Directive).[54] The Directive sets out the expectations and objectives relating to the law-making activities of the government and defines the principles and framework governing such activities. Particularly, the Directive is firm on the necessity to ensure:

[T]hat proposed laws are properly drafted in both official languages and that they respect both the common law and civil law legal systems[55];

and

that bills and regulations respect both the common law and civil law legal systems since both systems operate in Canada and federal laws apply throughout the country. When concepts pertaining to these legal systems are used, they must be expressed in both languages and in ways that fit into both systems.[56]

Given the wording of the Directive and the fact that federal government officials are expected to follow it,[57] there can be no doubt that, unless otherwise provided, recourse must be had to a bijural expression of legislative intent in both language versions, when drafting federal legislation.

It is thus in keeping with the evolution of the legislative drafting policy as well as answering the imperatives posed by the reform and modernization of Quebec civil law that a thorough revision of federal legislation was undertaken to reaffirm, strengthen or actually introduce the bijural character within federal legislation. With the Federal Law-Civil Law Harmonization Act, No. 1[58] Parliament adopted important principles with regard to bijural legislative drafting. For instance, its preamble sets out and confirms the objectives of legislative measures relating to bijuralism: in order to be fully accessible, federal legislation must respect not only both official languages, but also, in the area of property and civil rights, both the common law and the civil law.[59] As well, it contains interpretation rules that specifically recognize and address the issue of legal duality of Canadian law in the federal context. This first enactment also makes bijural amendments to existing legislation and has been, on that chapter, followed by a second enactment, the Federal Law-Civil Law Harmonization Act, No. 2.[60] On another front, similar substantial and terminological bijural amendments were brought to many concepts found in tax legislation[61] and its bijural revision is still in progress. Finally, as required in the Cabinet Directive on Law-Making, draft bills and draft regulations are subject, within the actual drafting process, to a thorough bijural revision to ensure they respect both the common law and the civil law legal traditions when calling upon the principle of complementarity with provincial private law.