What we do
Federal legislation is intended to have effect regardless of whether it finds application in a common law or a civil law jurisdiction. To that effect, legislative bijuralism implies that to be fully accessible and for its rules to be fully applicable in any province or territory, federal legislation must respect in its expression not only both official languages, but also, in the field of property and civil rights, both the common law and the civil law.
The Department of Justice Canada is responsible for drafting legislation and therefore undertakes to fulfill the federal legislator’s commitment to bijural drafting of federal legislation with regard to private law matters. From a practical viewpoint, this commitment unfolds in two ways: the revision of the current legislative corpus and the revision of draft bills and regulations.
The objective behind the revision of the current legislative corpus is to make, when necessary, federal legislation bijural to ensure its application in the civil law jurisdiction of Quebec and in one or more of the common law jurisdictions. 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. Often called “harmonization of federal legislation”, this process does not aim to make the applicable private law rule uniform throughout Canada but rather to call on the relevant provincial or territorial private law rule to express and implement legislative intent in a given jurisdiction. From a substantive viewpoint, this process is not intended to change the scope of legislative texts and any amendments that are introduced respect the policy behind the legislative provision. The Federal Law-Civil Law Harmonization Act, No. 1, the Federal Law-Civil Law Harmonization Act, No. 2 (S.C. 2004, c. 25) and the Income Tax Amendments Act, 2000 (S.C. 2001, c. 17) are examples of this process.
As required by the Cabinet Directive on Law-Making, bills and regulations are subject, within the actual drafting process, to a bijural revision. The purpose of this revision is to identify potential problems that could arise with regard to terminology or the scope of application of a provision when federal legislation calls on the private law of the provinces or territories and propose potential solutions.
That being said, legislative drafting does not sum up bijuralism. Rather, bijuralism must be taken into account in many spheres of governmental activity.
For instance, specialized consultative services are offered to the Government of Canada with regard to bijuralism issues. The resulting legal advice may focus on substantive issues of comparative law, tax law or the construction of statutes from the viewpoint of bijuralism and the relationship between federal legislation and the private law of the provinces and territories. It may also focus on concepts and institutions of civil law or common law or on any question relating to the implementation of bijuralism in the context of legislative drafting or in the context of the implementation of a legislative measure or its interpretation.
Needless to say that a sound understanding of the issues at play goes hand in hand with the development of knowledge in bijuralism and comparative law, particularly, in the context of legislative drafting with regard to the following concerns: the relationship between federal law and the law of the provinces and territories, between the common law and civil law legal traditions and between those legal traditions and Aboriginal law. The publication of texts and articles in various law reviews, taking part in training courses and conferences to discuss the issues and challenges raised by Canadian bijuralism are significant aspects of the work we do and these various initiatives serve to promote Canadian legislative bijuralism.
The development of training courses on bijuralism and comparative law for Justice Canada’s legislative drafters along with the development of various tools in support of legislative drafting, more particularly bijural drafting notes and course material for the training on bijuralism, are but a few examples of the work involved in order to better delineate the issues and challenges of legislative bijuralism.
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