Bijuralism: A Timeline

Bijuralism: A Timeline 1608 1763 1774 1791 1840 1866 1867 1994 1995 1999 2001


Following the founding of New France, the laws, customs and usages of the civil law tradition, found mainly in the Coutume de Paris supplemented by governors’ ordinances and royal edicts, becomes rooted in the territory.
After the Treaty of Paris, the French colonies in America fall under British control. King George III exercises a prerogative power to legislate for the conquered colony. Pre-existing French laws, customs and usages are excluded in all matters, the rules and principles of the common law are imposed on this territory then called the province of Quebec.
The introduction of the Quebec Act, 1774, specifically Article VIII, expressly restores, with certain exceptions, the rules and principles of the law that had applied prior to the Conquest with respect to the “Property and Civil Rights” of the citizens. This first use in Canadian constitutional documents of the phrase “property and civil rights” with respect to the private law of the colony then referred to the law applying to private subjects as between themselves. The rules and principles of the common law are however implicitly retained in matters of public law. The criminal law of England also continues to apply as a result of Article XI. From that point on, two legal traditions apply on the colony’s territory: civil law in matters of private law, common law in matters of public law.
The territory of the then province of Quebec is divided into two separate provinces to be called, respectively, Upper Canada and Lower Canada. As provided by section XXXIII of the Constitutional Act, 1791, the laws, statutes and ordinances of the former province of Quebec are to continue in force until altered by the legislatures of the newly created provinces. In 1792, the legislature of the province of Upper Canada restores the laws of England with regard to property and civil rights (Statutes of Upper Canada (34 George III), c. 1). The main statement with regard to property and civil rights for the province of Ontario is still found in the Property and Civil Rights Act (R.S.O. 1990, c. P. 29).
As the two provinces of Upper and Lower Canada are reunited under the name of the province of Canada by the Union Act, 1840, their respective existing laws, from either English or French origins, are maintained in force.
In Lower Canada, a first codification of the private law – the Civil Code of Lower Canada – comes into force and remains until 1994, the essential expression of the terminology, institutions, rules and principles of Quebec civil law.
The Constitution Act, 1867 provides for a division of legislative powers between the Parliament of Canada and the Legislative Assemblies of the provinces. By expressly providing at subsection 92(13) that, outside federal heads of power found under section 91, property and civil rights in the province fall within the exclusive jurisdiction of the provinces, the Constitution Act, 1867 ultimately confirms the presence of both the common law and civil law traditions in Canada.
The Civil Code of Québec is enacted and replaces the Civil Code of Lower Canada, which, in continuity with the former law, modernizes and renews the law of general application in Quebec, including its terminology and some of its institutions.
The Policy on Legislative Bijuralism is adopted by the Department of Justice Canada. The main objective of the policy is the formal recognition of the obligation to make federal legislative texts accessible to the various legal audiences of federal law in Canada, notably civil law and common law jurists, in both English and French.
The Cabinet Directive on Law-Making is amended. The directive is a document that sets out the expectations and objectives relating to the law-making activities of the government and defines the principles and framework governing such activities. The amendment imposes legislative bijuralism, in both linguistic versions, as an obligatory drafting norm for all federal legislative texts.
The Federal Law-Civil Law Harmonization Act, No. 1 (S.C. 2001, c. 4) is adopted by Parliament and comes into force. That Act amends a number of federal statutes, including the Interpretation Act by enacting sections 8.1 and 8.2 which set out bijural rules of interpretation. Other harmonization Acts follow and, in the general process of drafting laws and regulations, the practice of revising government draft bills and regulations is implemented.