1. Opening Remarks

Opening Remarks

Bill S-11, Federal Law–Civil Law Harmonization Act, No. 4

Standing Senate Committee on Legal and Constitutional Affairs

December 2022

Ladies, gentlemen and Honourable Senators, it is a pleasure to be here before this committee as part of the study of Bill S-11, A fourth Act to harmonize federal law with the civil law 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.

This fourth harmonization bill supports our commitment to facilitate access to justice, by providing Canadians with access to legislative texts that are respectful, in both official languages, of the civil law or common law tradition that governs them in private law matters.

As some of you know, I was a professor of law at McGill University for almost 20 years and one of the courses I taught was on legal traditions. I can speak to the importance of harmonization and this Bill.

As the title of the Bill indicates, this is not the first bill of its kind, but the fourth. S-11 is also the most substantial of the harmonization bills to date. The purpose of the Bill is to amend a total of 51 statutes under the jurisdiction of nine departments. A significant portion of this Bill deals with the statutes governing financial institutions.

The nine departments responsible for these statutes have worked with the Department of Justice to develop the harmonization amendments proposed in Bill S-11. The proposed amendments are technical and non-controversial. The changes resulting from the harmonization are terminological and are not intended to alter the legislative policy underlying the provisions concerned.

While the interventions are only terminological, the harmonization work requires an in-depth analysis of the legislative texts in terms of substance. This analysis consists of reviewing all federal statutes and regulations, the application of which requires recourse to provincial or territorial private law, and then reconciling, where necessary, the content so that it incorporates both Quebec civil law and common law notions, principles and concepts.

As you know, in the province of Quebec, private law rights and obligations are generally governed by the Civil Code of Quebec, which came into force in 1994, while the other provinces and territories are governed by the common law.

The purpose of the harmonization initiative is to ensure that each linguistic version of federal statutes and regulations takes into account the civil law and common law traditions. The coexistence and interaction is these two traditions is referred to as bijuralism. This characteristic is a reflection of Canada’s history and its legal and constitutional structure.

The Canadian legal system is a mixed system of law defined in part by its legal pluralism. This pluralism reflects the diversity of multiple sources of law and multiple legal systems that coexist and interact with each other. This includes Aboriginal traditions, orders and legal systems, whether they are Inuit, Métis or First Nations. Bijuralism, which underlies the harmonization initiative, is one manifestation of this pluralism.

To understand the origins of harmonization and bijuralism, let’s try to remember our history classes. In 1774, with the Quebec Act, the British authorities recognized the right of the French-speaking population, living mainly in what is now the province of Quebec, to have a French-inspired regime. The Fathers of Canadian Confederation reiterated this historical reality in the British North America Act of 1867. Even today, the Constitution Act maintains this reality in Canada by giving the provinces exclusive jurisdiction over property and civil rights. Thus, since the Quebec Act of 1774, civil law and common law have coexisted formally in Canada. As for the territories, their jurisdiction in matters of property and civil rights is derived from a legislative devolution from Parliament.

In matters of private law, it is generally provincial or territorial law that determines the concepts to be used. When the federal Parliament adopts legislation that refers to private law concepts, it does so with the knowledge that it is relying on existing provincial and territorial law.

Therefore, where necessary, our understanding of federal legislation is supplemented by the private law of the province or territory in which the federal legislation is applied.

I am accompanied here today by some of my officials from the Legislative Services Branch, who will be able to answer technical questions about the Bill. This branch of the Department of Justice has the mandate to harmonize federal legislation. It is responsible for carrying out the work necessary for the purposes of harmonization, in collaboration with the departments responsible for the administration of the statutes and regulations affected by the proposed amendments. Once this first phase is completed, proposed amendments to the statutes and regulations are developed and then submitted for public consultation.

It is important to note that harmonization Acts are introduced in Parliament after they have been reviewed and commented on by members of the legal community and stakeholders.

The purpose of this Bill, which continues the implementation of Canadian bijuralism, is in line with previous harmonization bills.

All Canadians benefit from the fact that federal legislation is consistent with the private law of all provinces and territories. This ensures an effective and efficient administration of justice across Canada. In doing so, harmonization clarifies the application of federal legislation and reduces the risk and number of unnecessary court actions and, at the same time, the costs of administering justice for all Canadians.

I want to emphasize the value of bijuralism as an asset to Canada. I would like to conclude by thanking this committee for the opportunity to speak to Bill S-11.