"Bijuralism can be approached from several angles. The 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."
France Allard, “The Supreme Court of Canada and its Impact on the Expression of Bijuralism”, 2001, p. 1.
As a legacy left by the colonisation of North America by France and Great Britain, Canadian bijuralism is an expression of the coexistence of the civil law and common law legal traditions in Canada. This coexistence found its first formal expression in the Quebec Act, 1774. The division of powers found in the Constitution Act, 1867 confirmed this coexistence by expressly providing at subsection 92(13) that, outside the federal heads of power found under section 91, “Property and Civil Rights in the Province” fall within the exclusive jurisdiction of the provinces. This broad residuary power over property and civil rights in the province is exercised in Quebec in a civil law environment whereas, elsewhere in Canada, this power is set in a common law environment.
Although they are not party to the division of powers established by the Constitution Act, 1867, the Canadian territories nonetheless have legislative jurisdiction in all matters relating to property and civil rights. This jurisdiction is conferred on the territories through federal legislation, Parliament having by statute devolved some of its constitutional powers to the territorial administrations. Although founded on a different basis than for the provinces, the relationship between the law of the territories and federal law is established according to the same federal rules of interpretation adopted by Parliament.
While the constitutional framework provides for exclusive federal heads of power, federal law, although relatively comprehensive, is not complete insofar as private law rules are concerned. For federal law to apply within a province or a territory, it must often call on provincial or territorial law, notably in matters relating to property and civil rights. Unless otherwise provided by law or unless the context excludes recourse to provincial or territorial private law, both the common law and the civil law coexist as authoritative sources of Canadian federal law.
The bijural nature of the Canadian legal system, along with the obligations that derive from bilingualism, has an unquestionable impact on the drafting of federal legislation. In that respect, federal legislation needs to speak to Canadian citizens in a language that acknowledges, in both English and French, the common law and civil law legal traditions.
Taking into account and respecting each legal tradition is a challenge to which the federal legislator is committed as federal legislation must be accessible, comprehensible and applicable everywhere in Canada. The Department of Justice Canada’s Policy on Legislative Bijuralism and the Cabinet Directive on Law-Making both reflect this commitment.
Bijuralism reflects a commitment to common law and civil law in the federal context, more particularly when it comes to legislative drafting and interpretation. This is not to say that bijuralism excludes the recognition of other rules that are specific to federal law, the integration of other sources of law, for instance in the context of international law, or the respect of other legal cultures, more particularly with regard to Aboriginal cultures.
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