Canadian Legislative Bijuralism:
An expression of Legal Duality

III. Legislative Bijuralism: The "Why" and the "How"

Although federal legislation is usually intended to operate throughout Canada, it does not necessarily mean that it always operates within the confines of the relationship of complementarity with provincial private law. Federal legislation may in fact stand alone and thus be dissociated from private law or be intended for a limited unijural[62] application. By no means should this be seen as a denial of the very existence of the requirement for legislative bijuralism. Yet, the reality established in the Canadian constitutional framework dictates that legislative bijuralism is required only when federal legislation is meant to operate in both common law and civil law contexts and intends to rely on the rules, concepts and institutions of provincial private law. In such cases, legislative bijuralism is designed to ensure the application of federal legislation in a country in which two official languages coexist and both the common law and the civil law are recognized sources of the law of property and civil rights. Within the established relationship of complementarity, the goal of legislative bijuralism is to ensure respect for the essence of each legal tradition in both language versions of the Act. Thus, the following discussion will only consider situations where federal legislation is meant to operate in the bijural context of provincial private law.

The "why"

Undeniably, one major concern of legislative bijuralism in the Canadian context pertains to the proper application and interpretation of federal legislative rules in a civil law context. Since 1867, the application of federal legislation in Quebec has indeed given rise to certain difficulties, which have increased with the coming into force of the C.C.Q. in 1994. Although the C.C.Q. has not completely overturned prior law, it has certainly brought about enough changes from a terminological and substantial point of view to create major discrepancies with federal legislation. Consequently, in some instances, federal legislation may find itself referring to concepts and institutions that no longer exist in civil law or that have seen their legal regime completely reorganized. Such is the case, for example, for the law of security and the law of trust. In those instances, bridges between Quebec private law and federal legislation must thus be rebuilt. With that in mind, a revision exercise designed to address problems caused by fundamental differences between the common law and the civil law, as well as those created by the reform of Quebec civil law, was put into place.

This revision is intended to ensure that the text of all federal legislation that applies in the civil law jurisdiction of Quebec and in one or more of the common law jurisdictions is bijural. Consequently, federal legislative intent must be expressed in a language understandable to both legal traditions rather than only in terms of the common law as it was often previously done.[63] However, care must be exercised as the intent may have been for an enactment to apply solely to a specific province. In such cases, the federal legislative norm should not find a bijural expression, but rather be established according to the legal tradition of the province of application. Further, in some circumstances the policy or rule, although intended for a bijural application, may intentionally have been based on the rules, concepts or institutions specific to a legal tradition and should thus be adapted to work into the other legal tradition rather than be artificially applied or transplanted.

Similarly, to fully respect legislative bijuralism, it may be necessary, with regard to the current corpus, to rewrite the English and French versions of a statute, or regulations, in order to include vocabulary respectful of both common law and civil law in English and in French.[64] In doing so, it may be necessary to restore connections that were broken following the reform of Quebec civil law and to adapt federal legislation to the new terminology and the current institutions and norms of the civil law. In the process, various problems are resolved: for example, obsolete terminology is deleted, compatibility with civil law institutions or rules is restored and inadequate terminology is corrected.[65]

Often a question of terminology, the bijural revision is not intended to change the scope of current legislation and, as such, seeks to respect fully the legislative intent underlying the statute or regulations. Within these limits, it may nevertheless have an impact on substantive law as the reform of Quebec private law involved not only terminology, but also the very foundations of some institutions, rules and principles.[66]

The "how"?

As stated earlier, in cases where it does rely upon property and civil rights, federal legislation must usually be both bijural and bilingual. This four-pronged approach requires a certain element of innovation in terms of legislative drafting. As the use of a descriptive, generic-type language may not always be sufficient, recourse must be had to certain techniques in order to promote, in so far as this is possible, both a bijural statement and a bijural understanding of the legal norm. In doing so, it is necessary to avoid confusion, ambiguity and discordance.

A primary drafting technique involves the use of a neutral term.[67] In a bijural situation, the goal is to express a private law norm in a manner which applies in both the civil law and the common law jurisdictions. The neutral term may thus correspond to a neutral description of the policy behind or of the objective of the legislative provision without relying on technical legal terminology. As well, this neutral language may also refer to either the ordinary meaning of a term or a neutral legal term which refers to concepts or institutions belonging to both legal systems. In the latter case, the specific meaning will be determined by the relevant private law. Since it refers to both civil law and common law concepts and institutions, the neutral term is to this extent bijural.

The definition[68] is also a technique that may be used in context of bijural drafting. By giving a specific meaning to a term in a given statute, the definition has the effect of neutralizing the vocabulary chosen to express the norm for both the common law and the civil law audiences. This technique seeks to express the norm in a bijural manner which reflects the objectives of Parliament.

Another technique developed to meet the challenges of legislative bijuralism is known as "the double". This technique reflects the specificity of each legal system by expressly referring in a legislative provision to the private law rules, principles and institutions applicable to each.[69] However, what is gained on precision may be lost on concision as this technique, which expressly includes in a legislative provision the specific terms used by each legal system, can render the text more cumbersome. Members of each audience are expected to recognize the terminology that applies to them and disregard the terminology of the other legal system. On the other hand, the double has the advantage of being unambiguous with respect to the concept or institution referred to in a given provision, for a given legal system.

Finally, in certain circumstances, the private law rule will have to be clearly delineated following a systemic or territorial approach.[70] This technique involves setting out the norm in light of the terminology, rules, principles and institutions of a specific private law tradition. However, both expressions of the norm are circumscribed in their application by phrases such as "in the province of Quebec", "in the other provinces", "elsewhere in Canada" or "for civil law". This technique falls within the exception to the general rule set out in subsection 8(1) of the Interpretation Act, which deals with the territorial operation of a statute: "Every enactment applies to the whole of Canada, unless a contrary intention is expressed in the enactment." Needless to say, the use of this technique is designed to meet specific needs, which make it necessary to limit the application of the legal norm to a specific part of the country whether through a territorial or systemic delimitation. Furthermore, to meet specific requirements of tax legislation, the technique has also been used to open the application of a rule to a legal system, regardless of the country of origin.

These are the different drafting techniques that have been used to date to meet the requirements of legislative bijuralism. The preferred approach is technical in nature, requires no typographical highlighting[71] and generally asks the audience to identify the terms that apply to its system of law.

Bijural interpretation rules

The fact that private law rules within federal legislation are to be drafted so as to now speak more explicitly to four legal audiences could give rise to fears relating to the proper comprehension and interpretation of bijural texts. The introduction by Parliament of rules of bijural interpretation, in the Interpretation Act, [72] aims to simplify the interpretation, application and understanding of federal legislation. The rules set out a number of principles and, as such, constitute a guide to bijural interpretation.

On the one hand, these rules formally recognize Canadian bijuralism in a legislative context, as well as recognising the principle of complementarity between federal legislation and the private law of the provinces in the areas of property and civil rights.[73]

8.1    Duality of legal traditions and application of provincial law

Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a province's rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.

Under section 8.1 of the Interpretation Act, both the common law and the civil law are authoritative sources of law. Section 8.1 also confirms the ambulatory nature of the reference to provincial private law. Thus, unless otherwise provided by law, the rules, principles and concepts in force in the province at the relevant time apply to complete the meaning and interpretation of federal legislation.

On the other hand, these rules of interpretation also establish certain parameters for the bijural interpretation of a statute in matters of property and civil rights:

8.2    Terminology

Unless otherwise provided by law, when an enactment contains both civil law and common law terminology, or terminology that has a different meaning in the civil law and the common law, the civil law terminology or meaning is to be adopted in the Province of Quebec and the common law terminology or meaning is to be adopted in the other provinces.

Section 8.2 of the Interpretation Act focuses on the terminology used in a federal statute to describe a private law norm. The objective is to facilitate the understanding of federal statutes in a bijural context. Unless otherwise provided, such statutes must be consistent with the private law of the province in which they are applied. Only terminology or a connotation consistent with the civil law should find application in Quebec and conversely, only terminology or a connotation consistent with the common law should be considered in the other provinces.

In the context of the interpretation of federal legislation, sections 8.1 and 8.2 of the Interpretation Act ensure that the legal duality of Canadian law is expressly recognized along with the possibility that the same legislative provision be applied in different ways depending on the place of application.

Administrative tools

The effective communication of bijural drafting techniques to the legal community and the general public is an important aspect of Canadian legislative bijuralism as the incorporation into federal legislation of terminology taken from four languages of law – the civil law and the common law in both French and English – cannot go without notice. It is well understood that the legislative bijuralism drafting approach may be surprising at times. To help in the incorporation of the bijural approach, as well as to ensure its effectiveness, tools of a more administrative nature have been made available.

For example, in response to concerns raised with respect to the readability and comprehension of bijural provisions, the Department of Justice Canada has, in accordance with a commitment made before the Standing Senate Committee on Legal and Constitutional Affairs, created bijural terminology records as an administrative tool to facilitate the interpretation and application of bijural amendments to legislation.[74] These records briefly explain the problems encountered with regard to legislative bijuralism in the amended legislative provisions, describe the solutions adopted to correct the problem and identify the civil law and common law terminology in both French and English used for this purpose.[75] The relevance of these records has already been established in the Schreiber case, a unanimous decision by the Supreme Court of Canada.[76] In that case, the Supreme Court relied upon the bijural records to confirm that the amendment made to paragraph 6(a) of the State Immunity Act[77] was designed to include civil law terminology and not to amend the substance of the provision.[78]

In addition to the bijural records, tax law drafters also rely on explanatory notes in order to expressly identify the changes introduced in a statute as a result of legislative bijuralism and thus alert the reader to the purposes of the amendments.

Finally, to further the dissemination of information to the public, the Department of Justice Canada has put forward, on its own or in collaboration, a number of publications[79] dedicated to legislative bijuralism, most of which are also available on the Department's website as well as on the recently launched Canadian Legislative Bijuralism Site.[80]

There is no doubt that these administrative tools are a major aspect of legislative bijuralism. Not only is it important to adequately address four legal audiences, it is as important for these audiences to understand the approach and techniques used for this purpose. The creation of this supporting material is a key step in this direction.

Conclusion

In Canada, federal legislation clearly applies in both civil law and common law jurisdictions. It is also clear that bijuralism is a distinctive feature of the Canadian federation which Parliament has undertaken to respect, in addition to the constitutional duty of legislative bilingualism. Federal legislation must be accessible, comprehensible and applicable everywhere in Canada: in English and French in common law jurisdictions and in French and English in the civil law jurisdiction of Quebec. This constitutes a major challenge!

In order to adequately speak to those four legal audiences, the appropriate vocabulary must be used when federal legislation refers to provincial private law rules. This is where the reform of Quebec civil law has had the greatest impact on federal legislation as it has emphasized the need to revise the federal legislative corpus in order to reduce the number of discrepancies with the vocabulary and the institutions of the civil law. Federal legislation must also take into account the continuing linguistic development of the common law in French as well as the ongoing development of the common law of each of the provinces as it evolves through case law and changing legislation.

Finally, it bears repeating that amendments made to better reflect legislative bijuralism are not designed to change the substantive law or, in the case of tax legislation, the principles of horizontal[81] and vertical equity. Rather, unless there is a clear intention to standardize the norm, the intent is to ensure that the norm referred to in federal legislation relies upon the appropriate private law rules applicable in any given province. In this regard, the following statement by Professor André Tunc seems to summarize the situation accurately: "[translation] The objective is not to disrupt, but rather, to review everything"![82] With that in mind, legislative bijuralism ultimately "aims to clarify federal legislation, reduce interpretation problems and facilitate the application of federal enactments throughout the country".[83]

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