Canadian Legislative Bijuralism:
An expression of Legal Duality

Footnotes

  • * This is an electronic version of the article "Canadian Legislative Bijuralism: An Expression of Legal Duality", published in the Commonwealth Law Bulletin, Vol. 32, No. 2, 205-219, June 2006 (Online sources have been updated as of January 2011). The opinions expressed in this article are those of the author and do not necessarily reflect those of the Department of Justice Canada. The author wishes to thank France Allard, General Counsel, Director and Comparative Law Specialist, Legislative Services Branch, Department of Justice Canada, for her contribution and invaluable comments.
  • [1] France Allard, "The Supreme Court of Canada and its Impact on the Expression of Bijuralism" in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism. Second Publication, Booklet 3, Ottawa, Department of Justice Canada, 2001, at p. 1.
  • [2] This is not to say that bijuralism excludes the possibility of multijuralism. Canadian bijuralism can and does take into account the relationship between civil law, common law and the various aboriginal laws.
  • [3] Subsection 35(1) of the Interpretation Act, R.S.C. 1985, c. I-21, provides that a reference to "province" also includes the territories. The same principle is followed in this article. However, it should be noted that the Canadian territories do not have the same constitutional status that the provinces have and thus have no exclusive jurisdiction over property and civil rights.
  • [4] In this article, the term "legislation" is used to refer to statutes and regulations.
  • [5] Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed., Vancouver, Butterworths, 2002, at p. 94-95.
  • [6] See Mario Dion, "Evolution of Legal Systems, Bijuralism and International Trade" in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism. Second Publication, Booklet 1, Ottawa, Department of Justice Canada, 2001, at p. 41; Michel Morin, "Introduction historique au droit civil québécois" in Louise Bélanger-Hardy & Aline Grenon, eds., éléments de common law et aperçu comparatif du droit civil québécois, Scarborough, Ont., Carswell, 1997, at p. 62.
  • [7] For a more detailed description of changes in legal systems since the Conquest in 1760, see Michel Morin, "Les changements de régimes juridiques consécutifs à la Conquête de 1760", Revue du Barreau, Vol. 57, No. 3, Sept.-Oct. 1997, 689-700.
  • [8] Royal Proclamation, October 7, 1763, reprinted at R.S.C. 1985, App. II, No. 1.
  • [9] Royal Proclamation, October 7, 1763, under "Fourthly"; See also Henri Pallard, "La common law et ses institutions 1066-1875" in Louise Bélanger-Hardy & Aline Grenon, eds., éléments de common law et aperçu comparatif du droit civil québécois, Scarborough, Ont., Carswell, 1997, at p. 52 and accompanying footnote number 43; Peter W. Hogg, Constitutional Law of Canada, Volume 1, Scarborough, Carswell. 1997, Loose-leaf Edition, p. 2-3 and 2-6 to 2-8.
  • [10] M. Morin, supra note 6 at 62; M. Morin, supra note 7 at p. 695-698; Mélanie Brunet, Out of the Shadows: The Civil Law Tradition in the Department of Justice Canada 1868-2000, Ottawa, Department of Justice Canada, 2000, at p. 6.
  • [11] Evelyn Kolish, Nationalismes et conflits de droits: le débat du droit privé au Québec (1760-1840), Cahiers du Québec, Collection Histoire, Ville LaSalle, HMH, 1994, at p. 29-32 and 45; F. Allard, supra note 1, at p. 2.
  • [12] Quebec Act, 1774, 14 George III, c. 83 (U.K.), reprinted at R.S.C. 1985, App. II, No. 2.
  • [13] One of these exceptions is the recognition in Article X of the Quebec Act, 1774 of unlimited testamentary freedom, which thus sets aside the "Laws of Canada" on the subject. The phrase "Laws of Canada" is used at the time in reference to the pre-conquest French-derived civil law rules and principles. See M. Morin, supra note 6, at p. 63. E. Kolish, supra note 11, at p. 45-46; P.W. Hogg, supra note 9, at p. 2-8 and p. 21-2 to 21-3; M. Dion, supra note 6, at p. 41.
  • [14] M. Morin, supra note 6, at p. 62; M. Morin, supra note 7, at p. 699.
  • [15] Constitutional Act, 1791, 31 George III, c. 31 (U.K.), reprinted at R.S.C. 1985, App. II, No. 3.
  • [16] "(…) in all matters of controversy relative to property and civil rights, resort shall be had to the laws of England, as the rule for the decision of the same", Statutes of Upper Canada, 1792 (32 Geo. III), c. 1. The main statement with regard to property and civil rights may now be found in the Property and Civil Rights Act, R.S.O. 1990, c. P. 29. See also Henry L. Molot, "Clause 8 of Bill S-4: Amending the Interpretation Act" in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism. Second Publication, Booklet 6, Ottawa, Department of Justice Canada, 2001, at p. 2; P.W. Hogg, supra note 9, at p. 2-8 to 2-9.
  • [17] The Union Act, 1840, 3-4 Victoria, c. 35 (U.K.), reprinted at R.S.C. 1985, App. II, No. 4.
  • [18] Article XLVI of The Union Act, 1840.
  • [19] S.C. 1865, c. 41. In force August 1, 1866.
  • [20] M. Morin, supra note 6, at p. 64. See also M. Brunet, supra note 10, at p. 9.
  • [21] Constitution Act, 1867 (British North America Act, 1867), (U.K.), 30 & 31 Vict., c. 3, reprinted at R.S.C. 1985, App. II, No. 5.
  • [22] P.W. Hogg, supra note 9, p. 5-1 to 5-2.
  • [23] P.W. Hogg, supra note 9, p. 5-2.
  • [24] P.W. Hogg, supra note 9, p. 21-2 to 21-3.
  • [25] Gérald-A. Beaudoin, La Constitution du Canada, 2nd impression, revised, La Collection Bleue, Montréal, Wilson & Lafleur, 1991, at p. 333-334; André Morel, "Harmonizing Federal Legislation with the Civil Code of Québec: Why and Wherefore?" in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism:Collection of Studies, Ottawa, Department of Justice Canada, 1997, 1-26, at p. 3. See also Stéphane Dion, "Symposium on the Harmonization of Federal Legislation with Quebec Civil Law" in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism. Second Publication, Booklet 1, Ottawa, Department of Justice Canada, 2001, at p. 1. M. Dion, supra note 6, at p. 41.
  • [26] Eugene A. Forsey, How Canadians Govern Themselves, 6th Edition, 2005, at p. 1 (7th Edition available online at < http://www2.parl.gc.ca/sites/lop/aboutparliament/forsey/index-e.asp >).
  • [27] Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.).
  • [28] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, constituting Schedule B of the Canada Act, 1982, R.S.C. 1985, App. II, No. 44.
  • [29] Lionel A. Levert, "Harmonization and Dissonance: Language and Law in Canada and Europe – The Cohabitation of Bilingualism and Bijuralism in Federal Legislation in Canada: Myth or Reality?" in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism. Second Publication, Booklet 1, Ottawa, Department of Justice Canada, 2001, at p. 5.
  • [30] It should also be noted that "private law concepts may appear interstitially and as elements or components of legislation that is unquestionably public law in nature such as in the area of criminal law." H.L. Molot, supra note 16, at p. 13.
  • [31] The expression "complementarity" is part of the terminology that was developed in context of Canadian bijuralism. In essence, the relationship of complementarity exists when federal legislation relies upon provincial private law concepts. Louise Maguire Wellington, "Bijuralism in Canada: Harmonization Methodology and Terminology" in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism. Second Publication, Booklet 4, Ottawa, Department of Justice Canada, 2001, at p. 4. This relationship finds its origins in the constitution: "By giving the provinces exclusive jurisdiction in relation to property and civil rights, subsection 92(13) of the Constitution Act, 1867 comprises the origin of the complementarity of federal law and provincial private law." in M. Dion, supra note 6, at p. 41. For a detailed discussion of this issue, see Jean-Maurice Brisson and André Morel, "Federal Law and Civil Law: Complementarity, Dissociation" in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism: Collection of Studies, Ottawa, Department of Justice Canada, 1997, at p. 215-264. With respect to taxation, see David Duff, "The Federal Income Tax Act and Private Law in Canada: Complementarity, Dissociation, and Canadian Bijuralism", Canadian Tax Journal / Revue fiscale canadienne (2003), Vol. 51, No. 1-63.
  • [32] This becomes more and more apparent in recent case law. For example, see Giffen (Re), [1998] 1 S.C.R. 91; Lefebvre (Trustee of); Tremblay (Trustee of), [2004] 3 S.C.R. 326; Peoples Department Stores Inc. (Trustee of) v. Wise, [2004] 3 S.C.R. 461; D.I.M.S. Construction inc. (Trustee of) v. Quebec (Attorney General), 2005 SCC 52; St-Hilaire v. Canada (Attorney General), 2001 4 F.C. 289 (C.A.). For a discussion of the case law concerning complementarity in a tax law context, see Benoit Mandeville, "L'harmonisation des lois fiscales: cas de complémentarité (Partie II)" (2002), Vol. 23, No. 3 Revue de planification fiscale et successorale 545-561. See also D. Duff, supra note 31, at p. 5-20.
  • [33] [1977] 2 S.C.R. 1054.
  • [34] [1977] 2 S.C.R. 654.
  • [35] [1980] 1 S.C.R. 695.
  • [36] F. Allard, supra note 1, at p. 22-26.
  • [37] A. Morel, supra note 25, at p. 4. See also H.L. Molot, supra note 16, at p. 1.
  • [38] Markevich v. Canada, [2003] 1 S.C.R. 94.
  • [39] The expression "dissociation" is part of the terminology that was developed in context of Canadian bijuralism. "Dissociation" occurs when a legal rule prohibits reference to provincial private law concepts within federal legislation. L. Maguire Wellington, supra note 31, at p. 5. For a detailed discussion of this issue, see J.-M. Brisson and A. Morel, supra note 31. In a tax law context, see Martin Lamoureux, "L'harmonisation des lois fiscales: La dissociation : un mécanisme d'exception (Partie III)" (2002-2003), Vol. 23, No. 4 Revue de planification fiscale et successorale 735-747. See also D. Duff, supra note 31, at p. 20-43.
  • [40] A. Morel, supra note 25, at p. 7.
  • [41] S.Q. 1991, c. 64.
  • [42] A. Morel, supra note 25, at p. 5.
  • [43] Adopted on June 7, 1993 by the Law and Policy Committee, Department of Justice Canada, excerpts reproduced in Appendix I to L. Maguire Wellington, supra note 31, at p. 16.
  • [44] Notes for a speech by the Honourable Anne McLellan, the then Minister of Justice of Canada, to the Conference on the Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism, Montreal, Quebec, November 24, 1997.
  • [45] It should be noted that, on a political level, the Canadian government recognized in 1995 that the distinct nature of Quebec includes its French language as well as its civil law tradition. See Government motion on the distinct society (1995), Hansard, House of Commons, tabled on November 29 and adopted on December 11, 1995:

    "That
    Whereas the people of Quebec have expressed the desire for recognition of Quebec's distinct society

    • (1) the House recognize that Quebec is a distinct society within Canada;
    • (2) the House recognize that Quebec's distinct society includes its French-speaking majority, unique culture and civil law tradition;
    • (3) the House undertake to be guided by this reality;
    • (4) the House encourage all components of the legislative and executive branches of government to take note of this recognition and be guided in their conduct accordingly."
  • [46] Reproduced in Appendix III to L. Maguire Wellington, supra note 31, at p. 22.
  • [47] Policy on Legislative Bijuralism, supra note 46.
  • [48] R. Sullivan, supra note 5, at p. 73.
  • [49] L.A. Levert, supra note 29, at p. 6. D. Duff, supra note 31, at p. 44-45.
  • [50] The technique of co-drafting "involves drafting the two versions of a bill together using a team of two drafters. One is responsible for the English version, while the other is responsible for the French." Government of Canada, Privy Council Office, Guide to Making Federal Acts and Regulations, 2nd ed., 2001, at p. 121. This document is also available online at <http://www.pco-bcp.gc.ca> [under Reports and Publications].
  • [51] L.A. Levert, supra note 29, at p. 6-7. R. Sullivan, supra note 5, at p. 73.
  • [52] The "bijural" cross-interpretation of a statute was described as follows in paragraph 8(2)(c) of the former Official Languages Act, R.S.C. (1970) c. O-2:

    In applying subsection (1) to the construction of an enactment, … (c) where a concept, matter or thing in its expression in one version of the enactment is incompatible with the legal system or institutions of a part of Canada in which the enactment is intended to apply but in its expression in the other version of the enactment is compatible therewith, a reference in the enactment to the concept, matter or thing shall, as the enactment applies to that part of Canada, be construed as a reference to the concept, matter or thing in its expression in that version of the enactment that is compatible therewith; …

  • In essence, this meant that where a term in one language version is incompatible with the legal system of a province in which the enactment is intended to apply, but its expression in the other language version is compatible, the term shall be construed as a reference to the legal system of that province with which it is compatible. One should note that the essence of the principle for cross-interpretation of a statute was reasserted in section 9 of the 1985 revised version of the Act (R.S.C. (1985) c. O-3). In 1988, this Act was however repealed (S.C. 1988, c. 38) and replaced by the current Official Languages Act, supra note 27, which does not carry forward these principles.
  • [53] Sections VIII, Quebec Act, 1774 and 92(13), Constitution Act, 1867.
  • [54] Privy Council Office, Government of Canada, available online at <www.pco-bcp.gc.ca> [under Reports and Publications].
  • [55] Cabinet Directive on Law-Making, supra note 54, at section "1. Introduction".
  • [56] Cabinet Directive on Law-Making, supra note 54, at section "2. Fundamentals of the Government's Law-Making Activity – Importance of bilingual and bijural drafting".
  • [57] Cabinet Directive on Law-Making, supra note 54, at section "8. Conclusion".
  • [58] The long title of this Act is 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, S.C. 2001, c. 4 (hereinafter referred to as the "Federal Law-Civil Law Harmonization Act, No. 1"). It is important to note that in context of Canadian bijuralism, the term "harmonization" is to be understood as a means of ensuring that federal legislation uses terminology that respects and reflects the specificity of each of Canada's legal systems and must not be understood as a way of merging civil law and common law into a uniform rule. On the specific bijural terminology, see L. Maguire Wellington, supra note 31.
  • [59] See the 1st, 3rd, 5th, 6th and 7th recitals of the preamble to the Federal Law-Civil Law Harmonization Act, No. 1. See also Marie-Noëlle Pourbaix, "S-4: A First Harmonization Bill" in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism. Second Publication, Booklet 6, Ottawa, Department of Justice Canada, 2001, at p. 4.
  • [60] S.C. 2004, c. 25.
  • [61] Income Tax Amendments Act, 2000, S.C. 2001, c. 17; Part 3 of the Legislative Proposals released on July 18, 2005 (Canada, Department of Finance, Legislative Proposals Relating to Income Tax, (July 18, 2005).
  • [62] The term "unijuralism" is used in context of Canadian bijuralism and may refer to legislation or legislative provisions the intended application of which is limited to the context of one legal tradition. Also refer to note 63 infra.
  • [63] A "situation that arises, for example, where a legislative provision is based on a concept or term specific only to the common law in both language versions" is also known, in context of Canadian bijuralism, as "unijuralism". L. Maguire Wellington, supra note 31, at p. 10. Also refer to note 62 supra.
  • [64] This approach is required in cases of "semi-bijuralism", also a specific term used in the context of Canadian bijuralism to refer to a "situation that arises, for example, where a legislative provision is based on concepts or terminology specific to the civil law in the French version and concepts or terminology specific to the common law in the English version"; L. Maguire Wellington, supra note 31, at p. 11. See also André Morel, "Drafting Bilingual Statutes Harmonized with the Civil Law" in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism. Collection of Studies, Ottawa, Department of Justice Canada, 1997, 305-345, at p. 310.
  • [65] L. Maguire Wellington, supra note 31, at p. 11-13.
  • [66] A. Morel, supra note 25, at p. 16.
  • [67] L. Maguire Wellington, supra note 31, at p. 9. A. Morel, supra note 25, at p. 17-18.
  • [68] L. Maguire Wellington, supra note 31, at p. 9.
  • [69] See the description of a double in Karlheinz Schreiber v. Canada (Attorney General), [2002] S.C.C. 62, paragraph 71. Also see L. Maguire Wellington, supra note 31, at p. 9-10; A. Morel, supra note 25, at p. 18-19.
  • [70] L. Maguire Wellington, supra note 31, at p. 10. A. Morel, supra note 25, at p. 19. It will be noted that this drafting technique, called the paragraphed double, is similar to that of the "Scottish clause" used in the United Kingdom to recognize the unique characteristics of Scottish law.
  • [71] For a discussion on the issues of highlighting terms in federal legislation and of creating a terminology lexicon see Canada, Senate, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Evidence, March 1, 2001, First Session, Thirty-Seventh Parliament, 2001, 1:26-29. These questions were given serious consideration by the Department of Justice Canada as well as by academics and practitioners. The conclusion reached was that the use of a system of terminological highlighting and the creation of a lexicon were not appropriate or even desirable approaches. From a legislative drafting point of view, the use of printing conventions in a statute to highlight civil law and common law terms would cause a number of inherent difficulties. These difficulties are set out in a letter from the Honourable Anne McLellan, the then Minister of Justice of Canada, which is reproduced in Canada, Senate, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Document 2, First Session, Thirty-Seventh Parliament, 2001, 3A:8-11 (original English version) and 3A:23-26 (French translation).
  • [72] The rules of bijural interpretation were introduced by section 8 of the Federal Law-Civil Law Harmonization Act, No. 1, supra, note 58. For a more complete analysis of the rules contained in sections 8.1 and 8.2 of the Interpretation Act, see H.L. Molot, supra note 16, especially at p. 12-19. For an indication of the impact of these rules in tax law, see D. Duff, supra note 31, at p. 47-50.
  • [73] M.-N. Pourbaix, supra note 59, at p. 7. This statement of the principle of complementarity of federal legislation and provincial private law is also set out in the preamble to the Federal Law-Civil Law Harmonization Act, No. 1.
  • [74] Canada, Senate, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Evidence, March 14, 2001, First Session, Thirty-Seventh Parliament, 2001, 2:26.
  • [75] These records are available online on the Department of Justice website at <http://www.justice.gc.ca/eng/pi/bj/harm/index.html> and will be updated as bijural amendments to legislation are enacted. They are also available online at <http://www.bijurilex.gc.ca>. The bijural terminology records were added to the Government of Canada's linguistic databank Termium and are also available in paper format (ISBN 0-662-66453-1).
  • [76] Schreiber, supra, note 69.
  • [77] R.S.C. 1985, c. S-18, as amended by the Federal Law-Civil Law Harmonization Act, No. 1.
  • [78] Schreiber, supra, note 69, paragraphs 66 et seq.
  • [79] See the short bibliography in the Appendix below.
  • [80] <http://www.bijurilex.gc.ca>.
  • [81] Marc Cuerrier, Sandra Hassan and Marie-Claude Gaudreault, "Canadian Bijuralism and Harmonization of Federal Tax Legislation," Canadian Tax Journal / Revue fiscale canadienne (2003), Vol. 51, No. 1, 133. To this end, it should be noted that one of the fundamental principles of tax law in Canada is to maintain horizontal equity in the taxation system in order to ensure that taxpayers enjoy the same treatment in the same situation, regardless of the province in which they reside. See in this regard Symes v. R., [1993] 4 S.C.R. 695, at p. 751-752.
  • [82] Quoted in A. Morel, supra note 25, at p. 24.
  • [83] Michel Bouchard, Preface to The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism – Second Collection of Studies in Tax Law (2005), Montréal, Association de planification fiscale et financière – Department of Justice Canada, 2005, p. VI.
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