LEGISLATIVE BIJURALISM:
ITS FOUNDATIONS AND ITS APPLICATION

Marie-Claude Gaudreault, Notary, LL.M.
Legislative Services Branch
Department of Justice Canada

• Introduction
• I. Canadian Bijuralism: Its Origins
• II. Legislative Bijuralism: The Development of a Policy
• III. Bijuralism through Harmonisation: Why and How
  • Why Should We Harmonize?
  • How do We Harmonize?
  • No to Highlighting!
  • Bijural Interpretation Tools
• Conclusion

Introduction^*

Two different private law traditions coexist in Canada: the civil law in Quebec and the common law in the other provinces.^[1] The bijural nature of the Canadian legal system has an impact on the drafting of federal legislation, which must adequately address four legal audiences, namely the civil law and the common law in both English and French. In this regard, it often becomes necessary to build bridges between federal legislation and these two systems of law whose rules, principles and institutions are often different. This gives rise to specific challenges, described as follows by Professor Ruth Sullivan:

[f]ederal legislation in Canada is not only bilingual, but also bijural in the sense that it is applicable to persons, places and relations that are subject to the civil law in Quebec and to the common law in the rest of Canada. This wealth of possibility creates a difficult challenge for federal drafters, and for interpreters of federal legislation. Although Quebec is the only province with a civil law system, the French version of federal legislation is meant to operate in all the provinces. This makes it impossible simply to reserve the English version of legislation for application in the common law provinces and the French version for application in Quebec.^[2]

The Program for the Harmonization of Federal Legislation with the Civil Law of the Province of Quebec was established in 1999. Its objectives are to respond to the imperatives of legislative bijuralism and to continue with the federal government's ongoing harmonization process. Since then, the Federal Law-Civil Law Harmonization Act, No. 1,^[3] which contains the first harmonization amendments to federal legislation, has come into force, amendments to harmonize tax legislation have been introduced^[4] and the Supreme Court of Canada has expressed its opinion on the consequences of harmonization amendments introduced in a statute.^[5] Nevertheless, a number of concerns remain relating to the impact of legislative bijuralism in the application and interpretation of statutes. It is therefore appropriate to examine the ins and outs of the harmonization process. In addition to providing an overview of the origins of Canadian bijuralism and its impact in legislative terms, this article also provides an update concerning rules of interpretation, techniques of bijural drafting and administrative tools available to facilitate the bijural interpretation of a statute.

I. Canadian Bijuralism: Its origins

Canadian bijuralism refers to the coexistence of the civil law and the common law inCanada. This coexistence is first and foremost the result of history, specifically the colonization ofNorth America. Following the founding of New France, the rules and principles of the civil law tradition became firmly rooted in the territory that would later become part of Canada.^[6] After the Conquest in 1760,New France became a possession of Great Britain.^[7] In the Royal Proclamation of 1763,^[8] King George III imposed the rules and principles of the common law on this territory, which was from then on called Quebec.^[9] However, this new legal system led to a number of complaints and the residents of New France sought the restoration of the civil law tradition.^[10] These representations, combined with certain problems that had arisen in the justice system,^[11] led the British regime to backtrack. The introduction of the Quebec Act of 1774,^[12] specifically Article VIII, expressly restored 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 of Quebec.^[13] The rules and principles of the common law were, however, implicitly retained in the case of public law and the criminal law of England also continued to apply as a result of Article XI.^[14] This is the origin of Canadian bijuralism.

Since the provision of the Quebec Act of 1774 relating to the source of the applicable private law has never been amended nor repealed, the civil law tradition remains the foundation of Quebec private law. In its division of legislative powers, the Constitution Act, 1867^[15] confirms Canada's legal duality by expressly providing that private law - property and civil rights - falls within the exclusive jurisdiction of the provinces.^[16] Shortly before the Constitution Act, 1867 was passed, the Civil Code of Lower Canada ("C.C.L.C."),^[17] which "faithfully reproduced the unique legal characteristics of Quebec at that time,"^[18] [translation] came into force. Until 1994, this code was the major reference point for the terminology, institutions, rules and principles of Quebec civil law.

II. legislative Bijuralism: The Development of a Policy

Section 133 of the Constitution Act, 1867 requires that Parliament use both official languages in all enactments - a principle repeated in section 6 of the Official Languages Act^[19] - while section 18 of the Canadian Charter of Rights and Freedoms^[20] and section 13 of the Official Languages Act provide that both versions of a statute are equally authoritative.^[21] There is no explicit obligation with respect to bijuralism, although it is taken into account by Parliament when it enacts private law rules or "when it sets out standards the application of which intersects with provincial private law."^[22] Federal legislation can unquestionably rely on the rules and concepts of Quebec civil law and of the common law of the other provinces.^[23] This relationship of complementarity^[24] between federal legislation and the private law of the provinces, has frequently been confirmed by the courts.^[25] Federal legislation, although relatively comprehensive, is not a complete code insofar as private law rules are concerned.

However many they number, and however important they may be, these statutes do not form a self-contained legal system or an autonomous body of rules. In the absence of statutory authority to the contrary, they must be understood with reference to the basic law of each province; for that is the law they add to or derogate from, and that is the law that complements them and provides the "conceptual support" [soutien conceptuel] needed to both interpret and apply them.^[26]

Needless to say, it is possible for Parliament to enact its own private law rules and thus dissociate^[27] federal legislation from the private law of the provinces. In most cases, however, it is more practical to use pre-existing provincial private law rules, from either the civil law or common law traditions, as a backdrop to or infrastructure for federal legislation. By accepting complementarity, Parliament also accepts that the application of its laws will not necessarily be uniform in every respect across the country.^[28] There is no doubt that private law differs from one province to another, not only because of the coexistence of civil law and common law in Canada, but also because of differences in the legislation and jurisprudence of the common law provinces.

As a result of its reliance on provincial private law, federal legislation must be adjusted to reflect developments and changes in this law. This became particularly important following the enactment of the Civil Code of Québec ("C.C.Q." or "Civil Code"),^[29] which came into force on January 1, 1994 and which replaces the C.C.L.C. Given the concept of complementarity, the reform and modernization of Quebec law, including its terminology and some of its institutions, necessarily had an impact on federal legislation.^[30] The introduction of the C.C.Q. accordingly marked a turning point. A review of federal legislation in light of the new terminology and the new rules of the civil law had to be undertaken.

The Policy for Applying the Civil Code of Quebec to Federal Government Activities,^[31] adopted in 1993, recognized the need for measures ensuring that federal legislation reflect the new Civil Code and the specific nature of Quebec civil law. Although civil law has existed in English since at least the enactment of the C.C.L.C. in 1866 and although the development of the common law in French has been under way for twenty years or so, "[c]omparisons of the two official language versions of federal statutes revealed that civil law concepts were not adequately represented in English and that common law terms were not always correctly rendered in French."^[32]

This observation paved the way for the adoption in 1995,^[33] by the Department of Justice Canada, of the Policy on Legislative Bijuralism^[34], which describes a formal commitment to bijural drafting of statutes and regulations involving private law. The policy formally recognizes that:

it is imperative that the four Canadian legal audiences (Francophone civil law lawyers, Francophone common law lawyers, Anglophone civil law lawyers and Anglophone common law lawyers) may, on the one hand, read federal statutes and regulations in the official language of their choice and, on the other, be able to find in them terminology and wording that are respectful of the concepts, notions and institutions proper to the legal system (civil law or common law) of their province or territory.

This formal recognition does not constitute a change of focus insofar as the policy on legislative drafting is concerned. Rather, it is the result of the evolution of this policy. It would be wrong to assume that all federal legislation drafted since 1867 and which refers to private law matters is somehow completely incompatible with the civil law environment in Quebec. Since 1867, federal statutes have had a bijural application.^[35] The introduction of co-drafting^[36] in 1978 constituted an important step in the development of the policy on legislative drafting with respect to bijuralism. By means of this drafting technique, both language versions of a statute are original. Recourse to both legal traditions is further promoted since the English version of a statute is generally drafted by an Anglophone with a common law background and tends to reflect the terminology and the concepts of the common law. On the other hand, the French version is generally drafted by a Francophone with civil law training and expresses legislative intent using civil law language and concepts. However, this approach has drawbacks in that it disregards the existence of civil law in English and of common law in French^[37] and requires a cross-interpretation of the texts.^[38] Co-drafting was nevertheless a step in the direction of legislative bijuralism as we now understand this concept.

The Department of Justice Canada is responsible for drafting legislation and the Policy on Legislative Bijuralism constitutes a renewal of the commitment, in private law matters, to respect the laws of the provinces and thus by Canada's legal duality. In recognition of this state of affairs which, it should be noted, has a constitutional basis,^[39] federal legislation will not only use language that reflects bijuralism but will do so in both language versions. This commitment to bilingual and bijural legislation was formally stated in the Cabinet Directive on Law-Making,^[40] approved by Cabinet in March 1999. The Directive sets out the expectations and objectives relating to the law-making activities of the government and defines the principles and framework governing such activities. In particular, it is necessary to ensure:

that proposed laws are properly drafted in both official languages and that they respect both the common law and civil law legal systems^[41]

and

that bills and regulations respect both the common law and civil law legal systems since both systems operate inCanada and federal laws apply throughout the country. When concepts pertaining to these legal systems are used, they must be expressed in both languages and in ways that fit into both systems.^[42]

Given the wording of the Directive and the fact that federal government officials are expected to follow it,^[43] there can be no doubt that legislative bijuralism, in both language versions, is now the norm.

The first major step in this direction was the adoption of the Federal Law-Civil Law Harmonization Act, No. 1.Its preamble sets out and confirms the objectives of legislative measures relating to harmonization and bijuralism: in order to be fully accessible, federal legislation must respect not only both official languages but also, in the area of property and civil rights, both the common law and the civil law.^[44] This first harmonization enactment deals with existing legislation. In the context of new legislation, however, all draft bills are subject to systematic bijural review, in order to achieve the same objective.

Footnotes

• ^*This paper is a revised, translated and corrected version of the article originally published in the Revue de planification fiscale et successorale, 2003, Vol. 24, No. 3. The author wishes to thank Aline Grenon as well as all the members of the Tax Law Team in the Bijuralism and Drafting Support Services Group in the Legislative Services Branch of the Department of Justice Canada for their valuable comments and their assistance in revising the text. The opinions expressed in this paper are those of the author and do not necessarily reflect those of the Department of Justice Canada.

• ^[1] Any reference to the provinces in this document includes the territories, pursuant to subsection 35(1) of the Interpretation Act, R.S.C. 1985, c. I-21.

• ^[2] Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed., Vancouver, Butterworths, 2002, at p. 94-95.

• ^[3] 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 "Federal Law-Civil Law Harmonization Act, No. 1").

• ^[4] Income Tax Amendments Act, 2000, S.C. 2001, c. 17; Customs Act, R.S.C. 1985, 2nd Supp., c. 1; Excise Act, 2001, S.C. 2002, c. 22.

• ^[5] Karlheinz Schreiber v. Canada (Attorney General), 2002 S.C.C. 62.

• ^[6] The private law ofNew France was essentially the Coutume de Paris supplemented by governors' ordinances and royal edicts. 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] From that time on, courts were required to apply the rules of common law and equity in hearing and deciding all criminal and civil cases. M. Morin, supra note 6 at p. 62. See also M. Morin, supra note 7 at p. 695; Henri Pallard, "La common law et ses institutions 1066-1875", in Éléments de common law et aperçu comparatif du droit civil québécois, Louise Bélanger-Hardy & Aline Grenon, eds., (Scarborough, Ont. : Carswell, 1997) at p. 52 and accompanying footnote number 43. Lionel A. Levert, "Harmonization and Dissonance: Language and Law in Canada andEurope - The Cohabitation of Bilingualism and Bijuralism in Federal Legislation inCanada: 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. Peter W. Hogg, Constitutional Law of Canada, Student Edition (Toronto: Carswell, 1999) at p. 33-34.

• ^[10] M. Morin, supra note 6 at 62; M. Morin, supra note 7 at p. 697-698; 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. 6-7.

• ^[11] Henri Brun, "Le territoire du Québec: à la jonction de l'histoire et du droit constitutionnel" (1992) 33 Les Cahiers de Droit, 927 at p. 930; 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.

• ^[12] Quebec Act of 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 section X of the Quebec Act of 1774, of unlimited testamentary freedom, which thus sets aside the laws ofNew France on the subject. 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. 34 and 494; 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] 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.

• ^[16] Subsection 92(13) of the Constitution Act, 1867. Gérald-A. Beaudoin, La Constitution du Canada, 2^nd 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. Collection of Studies, Ottawa, Department of Justice Canada, 2001, at p. 1. M. Dion, supra note 6, at p. 41.

• ^[17] In forceAugust 1, 1866.

• ^[18] M. Morin, supra note 6, at p. 64.

• ^[19] Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.).

• ^[20] 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.

• ^[21] L.A. Levert, supra note 9, at p. 5.

• ^[22] Id.

• ^[23] It will 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." See 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. 13.

• ^[24]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 inCanada: Complementarity, Dissociation, and Canadian Bijuralism", Report submitted to the Department of Justice ofCanada,October 11, 2002.

• ^[25] For example, see St-Hilaire v. Canada (Attorney General), 2001 4 F.C. 289 (C.A.). For a more detailed analysis of the questions raised by St-Hilaire, see Sandra Hassan, "Jurisprudence administrative récente - Bijuridisme", in Congrès 2002, Montréal, Association de planification fiscale et financière, 2002, at p. 52: 39-45. See also 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 at p. 136-137 & 154-156. For a more detailed 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 24, at p. 5-20.

• ^[26] A. Morel, supra note 16, at p. 4. See also H. L. Molot, supra note 23, at p. 1.

• ^[27] The concept of dissociation occurs when a legal rule prohibits reference to provincial private law concepts as a backdrop to federal legislation. L. Maguire Wellington, supra note 24, at p. 5. For a detailed discussion of this issue, see J.-M. Brisson and A. Morel, supra note 24. 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 24, at p. 20-43.

• ^[28] A. Morel, supra note 16, at p. 7.

• ^[29] S.Q. 1991, c. 64.

• ^[30] A. Morel, supra note 16, at p. 5.

• ^[31] Adopted onJune 7, 1993 by the Law and Policy Committee, Department of Justice Canada.

• ^[32] 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.

• ^[33] 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 thatQuebec is a distinct society withinCanada;
  (2) the House recognize thatQuebec'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."

• ^[34] Reproduced in Appendix III to L. Maguire Wellington, supra note 24, at p. 22.

• ^[35] R. Sullivan, supra note 2, at p. 73. At the time, federal legislation was drafted in English, generally with the terminology of the common law, and then translated into French. L.A. Levert, supra note 9, at p. 6. D. Duff, supra note 24, at p. 44-45.

• ^[36] The so-called co-drafting technique of drafting legislation "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 (also available on the Internet at www.pco-bcp.gc.ca).

• ^[37] L.A. Levert, supra note 9, at p. 6-7. Lionel A. Levert, "Canadian Bijuralism : The View from the Department of Justice - One Particular Aspect : Legislative Bijuralism", a speech given on the occasion of The Great Homecoming of the Graduates of the National Program - University of Ottawa, September 26, 1998. R. Sullivan, supra note 2, at p. 73.

• ^[38] The "bijural" cross-interpretation of a statute was described as follows in the 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. In 1988, this Act was, however, repealed (S.C. 1988, c. 38) and replaced by the current Official Languages Act, supra note 19, which does not carry forward these principles.

• ^[39] Sections VIII, Quebec Act of 1774 and 92(13), Constitution Act, 1867.

• ^[40] Cabinet Directive on Law-Making, Privy Council Office, Government of Canada, available on the Internet at http://www.pco-bcp.gc.ca.

• ^[41] Cabinet Directive on Law-Making, supra note 40, at section "1. Introduction".

• ^[42] Cabinet Directive on Law-Making, supra note 40, at section "2. Fundamentals of the Government's Law-Making Activity - Importance of bilingual and bijural drafting".

• ^[43] Cabinet Directive on Law-Making, supra note 40, at section "8. Conclusion".

• ^[44] See the 1st, 3rd, 5th, 6th and 7th recitals of the preamble to the Federal Law-Civil Law Harmonization Act, No. 1. 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.

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