Bijuralism and Harmonization: Genesis
HARMONIZATION AND DISSONANCE: LANGUAGE AND LAW IN CANADA AND EUROPE
The Cohabitation of Bilingualism and Bijuralism in Federal Legislation in Canada: Myth or Reality?
Lionel A. Levert, Q.C., Special Advisor, Legislative Drafting - The International Cooperation Group, Department of Justice Canada
Moncton, N.B. May 7, 1999
1. Constitutional framework
The Parliament of Canada is required by the Constitution to use both English and French in its proceedings and publications. This constitutional requirement, which dates back to Confederation (s. 133 of the Constitution Act, 1867), was later strengthened and defined, notably in the Canadian Charter of Rights and Freedoms (Constitution Act, 1982), section 18 of which provides that both versions of the statutes "are equally authoritative".
In the case of bijuralism, Parliament's obligations are not as clear. Since the Quebec Act of 1774, two systems of law have coexisted in Canada: French civil law in Quebec and the common law of England in the rest of the country. In fact, shortly after the victory of the English a few years earlier, the Quebec Act allowed Quebec to base its private law on the civil law of France, although its public law continued to be based on the common law of England.
This situation was indirectly embodied in the Constitution Act, 1867, which gives the provinces exclusive legislative jurisdiction over property and civil rights. This Quebec is subject to both the civil law in the case of its private law and the common law in the case of its public law. Everywhere else in the country the common law holds sway in both private and public law.
This does not mean that Parliament has to express itself bijurally. However, given the coexistence of the common law and the civil law in Canadian private law, Parliament feels that it has at least a moral duty to take the two systems of law into account in its legislation when it enacts rules of private law, which happens very rarely, or when it sets out standards the application of which intersects with provincial private law, which is much more often the case.
2. Legislative bilingualism and bijuralism
2.1 Legislative bilingualism
Until the 1970s, all acts were drafted in English and then translated into French by translators who were not recognized as having any particular skills in law and who were usually forced as a result to convey the message of the English version very slavishly.
Since they did not have any current resources concerning the common law in French or the civil law in English, the expression of the interaction between federal law and private law was based on makeshift equivalents that they devised on the basis of the available resources and without concern for the problems of interpretation that could result in some parts of the country. The requirements of bilingualism were met, at least formally, but legislative bijuralism was, so to speak, non-existent.
2.1.1 Legislative co-drafting
Consequently, in 1978, the federal Department of Justice made a major change of direction when it put in place a method of legislative drafting that was unique of its kind: codrafting.
Since that time, in fact, all bills for which the Legislative Services Branch of the federal Department of Justice is responsible are prepared by a team of two drafters: one Francophone, who has usually been trained in civil law, and one Anglophone, who has usually been trained in the common law. As a rule, the same is true of regulations. Some aspects of bijuralism are already present in codrafting.
2.1.2 The Jurilinguistic Service
The drafters of statutes and regulations are supported in their work by specialists in the language of the law called "jurilinguists". They are responsible for ensuring not only that the meaning of both versions of a piece of legislation is the same but also they are perfectly equivalent from a cultural point of view. They also advise the drafters concerning the choice of wording to be used, especially when the drafters are dealing with an interaction between federal law and the private law applicable to a particular person or part of the country.
Exactly one year ago, the Legislative Services Branch created a new unit, the Jurilinguistic Service, to bring together all the jurilinguists who had hitherto reported to the Legislation and Regulations Section of the Branch. The purpose of this was first to pool rare and valuable resources to ensure better management during the peak periods. It was also an expression of the desire to consolidate the linguistic support on which drafters of statutes and regulations, especially Francophones, need to have at their disposal in order to prepare legislation that meets the requirements of the Department of Justice in language of a very high standard. The jurilinguists are there to ensure that the solutions adopted are linguistically correct.
2.2 Legislative bijuralism
2.2.1 The four audiences for the law
Because of the official bilingualism within the federal jurisdiction and the coexistence of two legal systems in the country, there are four audiences for the law in Canada (at least in terms of private law): Anglophones and Francophones subject to the civil law, on the one hand, and Anglophones and Francophones subject to the common law, on the other hand. Until recently, the English version of the federal statutes tended to reproduce the terminology and concepts of the common law while the French version derived its terminology from civil law sources. Unfortunately, this approach meant that two of the four audiences mentioned above were ignored, namely Francophones living outside Quebec who are subject to the common law and Quebec Anglophones who are subject to the civil law.
2.2.2 The Policy on Legislative Bijuralism
The federal Department of Justice accordingly adopted a policy on legislative bijuralism in 1995, the basis for which was respect by Parliament for the four audiences for the law in this country and recognition that all Canadians have a right to understand the meaning of the federal legislation applying to them. This presupposes that Canadians are able to read federal legislation in the official language of their choice and that the language version they choose to read is harmonized with the legal system that applies to the province or territory in which they live.
In adopting its policy on legislative bijuralism, the federal Department of Justice formally acknowledged the existence in Canada of four "legal" audiences and their right to read federal legislation in the official language of their choice and to find in that legislation terminology and wording that are consistent with the system of private law in effect in their province or territory. Furthermore, whenever a federal bill or regulations interacts with the private law of a province or territory, the Department also undertakes to draft each version of the legislation using the proper terminology, concepts, notions and institutions of the two systems of private law in Canada.
This policy is a response to one of the objectives that the Department of Justice has made a priority, namely access to justice. In fact, the Department's commitment to a more accessible system of justice for all Canadians is reflected in the production of legislation that respects the two systems of private law that apply in this country. Moreover, this policy is clearly part of a series of measures to support the official language minority communities.
2.2.3 Techniques of bijural legislative drafting
In order to ensure that both official versions of legislation reflect both the civil law and the common law in their references to provincial or territorial private law, Parliament makes use of a wide range of drafting techniques. The most frequently used techniques are the so-called "neutrality" technique and the doublet.
Whenever possible, Parliament prefers to use "neutral" terms or phrases, that is those that have no particular connection to either of the two legal systems in Canada. If necessary, it is possible to use neologisms in this situation.
Whenever necessary, the neutrality technique can take the form of definitions in which Parliament defines civil law or common law concepts and notions to which it wishes to refer by using the neutral terms in question.
This technique has the enormous advantage that it avoids lists or repetitions of a host of terms that belong to the civil law and the common law. It also makes it possible to limit the number of amendments that need to be made to federal legislation as a result of changes made to provincial or territorial law.
18.104.22.168 The doublet
However, it is not always possible to use the technique of neutrality if there is no neutral term capable of encompassing the various civil law and common law concepts to which Parliament wishes to refer. In those cases, therefore, a doublet will be used.
The doublet is a drafting technique that involves stating the as it exists in each of Canada's two legal systems. In the case of the doublet with paragraphs, the technique is used to make up for the lack of a single expression expressing both the civil law and common law concepts and to ensure that both versions of the legislation retain their separate identities. It is then a question of setting out in separate paragraphs the different forms that a rule of law may take as it is applied in different regions of the country.
As for the simple doublet, it involves expressing a given legal concept through the terminology of each separate legal system. Both expressions (the civil law terms and the common law term) will then appear one after the other in each language version.
2.2.4 The Interpretation Act
The provisions that make use of a simple doublet can sometimes cause problems of interpretation since civil law terms are juxtaposed with common law expressions in those provisions. Thus, Parliament is currently considering a Bill (Bill C-50, 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), section 8 of which amends the federal Interpretation Act to include a provision that will serve as a guide to the interpretation of such provisions.
The proposed provision states that legislation that used both terms belonging to the civil law of Quebec and terms belonging to the common law of the other provinces or that uses expressions that have a different meaning in each of the two systems, must be interpreted in a way that is consistent with the legal system of the province in which the provision is being applied. This is an attempt to avoid the situation, for example, where courts interpreting legislation that uses simple doublets might be tempted to apply the common law terms used in this legislation to Quebec, since Parliament is deemed not to speak to no purpose.
2.2.5 Basic tools
The Department of Justice of Canada could not have made this major change in the area of legislative bijuralism without the remarkable work that has been done in Canada in the field of common law terminology in French and civil law terminology in English and the pioneering work done by the Universities of Ottawa and Moncton in teaching the common law in French.
The bilingual and bijural tools now available to drafters of statues and regulations and jurilinguists are the product of work done by POLAJ - the Program for the Integration of Both Official Languages in the Administration of Justice, the objectives of which are essentially to improve access to justice in both official languages by promoting, among other things, the creation of tools for the people who draft legislation in this country.
This network involves most of the organizations involved in the administration of justice in both of Canada's official languages. It brings together the centres for jurilinguistics, the associations of French-speaking lawyers and their national organization, government institutions and the universities active in training lawyers either in the common law in French or in the civil law in English.
Perhaps I might be allowed, by way of conclusion, to note that the Legislative Services Branch, which is responsible for implementing the Department's policy on legislative bijuralism, must increasingly make room for the discipline of comparative law. How would it be possible otherwise to make the necessary distinctions and comparisons between the two systems of law in this country that must cohabit in both language versions of federal legislation?
Thus, the Legislative Services Branch has recently decided to hire a specialist in comparative law (common law/civil law, of course). This person will guide and advise drafters on the subject of legislative bijuralism and will also be responsible for ensuring close communication with the Department's Civil Code Section, which has the task of steering the federal government along the path toward harmonization of federal legislation with the new Civil Code of Quebec and which is accordingly an important partner of the Legislative Services Branch with respect to legislative bijuralism.
However, the principles of bijural legislative drafting must not be implemented at the expense of the clarity and readability of the legislation in question. Parliament will not wish, on the pretext of clearly reflecting this country's legal duality, to enact legislation that is difficult to read on account of the presence in this country's acts and regulations of lists or terminological repetitions that are unusually cumbersome. Ensuring that federal legislation is readable remains a major goal of the federal Department of Justice. Achieving a reasonable balance between the requirements of bijuralism and those of readability is still the order of the day.
In conclusion, I should like to point out that the expertise and know-how developed in Canada in the fields of bilingualism and bijuralism make a valuable contribution to improving access to justice in both official languages. Moreover, it is against this background that future lawyers in this country will be able to receive training in the legal system and the official language of their choice. As a result of the efforts made by the Universities of Ottawa and Moncton and of McGill University in Montreal, languages and law are a unique and integrated concept that makes it possible to train lawyers to serve the people of Canada in both official languages and in both of this country's legal systems.
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