Bijuralism in Canada: Harmonization and Terminology

VI. Bijural terminology

The experience of harmonizing federal legislation with Quebec civil law led, not only to the development of innovative drafting techniques and methodology but also, quite naturally, to the development of new concepts and terminology. Under a memorandum of agreement with the Translation Bureau, the terminology resulting from the harmonization process in particular and bijuralism in Canada in general will be entered in TERMIUM®, the federal government's terminology bank.[32] Examples of bijural terminology to be found in TERMIUM® follow.

1. Bijural terminology records

Bijural terminology records are intended for the use of four groups: English-speaking common law audience; French-speaking common law audience; English-speaking civil law audience; and French-speaking civil law audience. The double technique is used to provide a specific term for each language group and law tradition, as in the following example.

English-language common law
real property

English-language civil law
Immovable

French-language common law
bien réel

French-language civil law
immeuble

It can happen that the double technique is used in only one language, while in the other language a common term (neutral, genericor general)is used for both law traditions, as in the following example.

English-language common law
mortgage

English-language civil law
hypothec

French-language common law
hypothèque

French-language civil law
hypothèque

If a common term is used in both languages, the terminology record will resemble the following example.

English-language common law
lease

English-language civil law
lease

French-language common law
bail

French-language civil law
bail

Each terminology record will include context, sources, and references to research reports as appropriate.

2. New terminology and official names

Not only the bijural terminology records, but also new terminology and official names resulting from harmonization, are to be distributed via TERMIUM®; some examples follow.

bijuralism

The co-existence of two legal systems within a state or international community.

Canadian bijuralism

The co-existence of the common law and the civil law in Canada.

bijural

Refers in particular to a legislative provision that incorporates civil law and common law terminology and concepts in each of its language versions.

legislative bijuralism

The co-existence of the terminology of two legal systems in legislative documents. In the Canadian context, the object of legislative bijuralism is to ensure that each of the versions of a statute, regulation, provision or part of a provision takes both common law and civil law into account when the enactment contains a point of contact with provincial private law.[33]

legal harmonizer

A jurist whose work involves the drafting of bijural texts. In the Canadian context jurists who implement the Program for the Harmonization of Federal Legislation with the Civil Law of the Province of Quebec.

Point of contact

A concept or term found in a federal enactment that refers to specific private law rules contained in provincial legislation, or in case law on property or civil law matters.

Policy for Applying the Civil Code of Quebec to Federal Government Activities[34]

A policy adopted on June 7, 1993 by the Law and Policy Committee of the Department of Justice Canada. Its purpose is to reflect the specificity of Quebec civil law in federal law.

Policy on Legislative Bijuralism

A policy adopted by the Department of Justice Canada in 1995. Its purpose is to produce federal legislation that reflects, in both language versions, the system of law in force in each province and territory.[35]

Program for the Harmonization of Federal Legislation with the Civil Law of the Province of Quebec

A program adopted by the Department of Justice Canada in 1997. Its purpose is to adapt federal legislation to the civil law concepts and institutions of the province of Quebec, having regard to the terminology specific to the common law.

VII. Conclusion

The methodology and drafting techniques used in harmonizing federal legislation with Quebec civil law are innovative and indeed unique worldwide. Although this methodology and these drafting techniques continue to evolve, Justice Canada wanted to communicate them to the general public and especially to the legal community because they shaped Bill S-4, Federal Law—Civil Law Harmonization Act, No. 1, tabled in the Senate on January 31, 2001.

As the harmonization process progresses and more experience is gained in applying harmonization legislation and regulations, Justice Canada will continue to share the results of its experience, in particular in the form of bijural terminology records and a harmonization guide. The Department will also publish the research carried out on its behalf by experts in the academic community and private practice; Justice Canada hopes that this expertise will provide valuable assistance to practitioners in bijural situations and will encourage them, in turn, to share the results of their own experience.

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