Second reading 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

By: The Hon. Pierre Dalphond

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Hon. Pierre J. Dalphond: Honourable senators, I am pleased to rise today in support of adopting the principle of Bill S-11, which is entitled 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.

A bill with such a long title was bound to contain at least a few hundred clauses, 642 to be exact, making it a 224-page bill, not counting the additional 161 pages of explanatory notes.

On a more serious note, I want to congratulate Senator Clement, the bill’s sponsor, who highlighted the bill’s objectives and also held our colleagues’ attention with much appreciated quips during her presentation.

As she pointed out, this is the fourth such bill, which incorporates the results of a meticulous review of another set of federal statutes that was completed in 2017. A total of 52 statutes were reviewed, adding to the other 90 statutes that were reviewed for the first three harmonization acts.

The work done to date is impressive and reflects the federal government’s commitment to delivering on its responsibility to draft the legislation brought before the Parliament of Canada. As you know, under the Constitution Act, 1867, federal legislation must be drafted in French and English in order to be understood by most Canadian citizens. In short, it is a matter of access to justice, to reflect this country’s linguistic duality.

On this point, I think it is important to remind you that the fundamental law of the land, the Constitution Act, 1867, officially exists for the most part in English only. In fact, so far, only seven sections in total, namely sections 1, 29, 51, 90Q.1, 90Q.2, 92A and 93A, have been adopted in English and French and have the force of law in both languages. In other words, practically every section of this country’s fundamental constitutional law has official value in English only.

This is a terrible situation in a country that calls itself officially bilingual, and it persists despite the promise that was made to the francophones of this country in 1982, when the Constitution was repatriated. Despite section 55 of the Constitution Act, 1982, this promise still has not been kept 40 years later, and the current government is refusing to lift a finger to finally honour it.

When the Official Languages Act is modernized, we will have to ensure that it contains provisions that will force the government to stop ignoring its constitutional obligation to give the country a bilingual Constitution so that francophones finally have access to a version of the country’s most important law in their own language.

Similarly, I encourage Indigenous people to once again become proficient in their traditional languages, and I urge the Government of Canada to ensure that our most important laws are made available in those languages. Again, it is a matter of equal access.

To reflect the reality of our country, it is not enough to just have laws in both official languages. We need to go further, as Senator Dupuis so eloquently reminded us while laying out the historical context last week. We need laws that respect the fact that, in Quebec, as was the case in Lower Canada before Confederation, private law stems from a system based not on the British common law, but on a civil law whose origins date back to the Coutume de Paris, French customary law. That was followed in 1866 by the coming into force of the Civil Code of Lower Canada, which itself was derived from the French civil code that was adopted in 1804 following the French Revolution led by Emperor Napoleon. After falling from power and being exiled to Saint Helena, Bonaparte allegedly commented:

My real glory is not to have won forty battles, for Waterloo’s defeat will destroy the memory of as many victories. But what nothing will destroy, what will live eternally, is my Civil Code.

He was right, because the revolutionary civil code, later called the Napoleonic Code, is the source of private law in most of Europe. For Quebec, the passage of the Civil Code of Lower Canada in 1865 reflected a desire to ensure that Quebec private law would continue to be connected to the Napoleonic Code, even as Confederation loomed.

Since 1978, in order to take into account Quebec’s unique legal system, federal bills and regulations have been drafted by a team of two drafters consisting of an anglophone jurist, who is an expert in common law, and a francophone jurist, usually a civil law specialist. The final product of this codrafting process reflects the two Canadian legal systems.

In 1991, after decades of discussion and drafting, the National Assembly of Quebec adopted a new civil code, which replaced the Civil Code of Lower Canada as of January 1, 1994. The Civil Code of Quebec uses a structure and principles that originated in revolutionary France, but adapts them to the new reality, particularly in terms of trade.

This code is so modern that it has inspired many civil lawyers in other countries. It even served as a model for the civil codes of Argentina and Romania and inspired new chapters in the existing civil codes of Belgium, France and the Czech Republic.

When Quebec adopted a new civil code, that forced the federal government to update its statutes in 1993 and harmonize them with the new code.

I also want to point out that, after the 1995 referendum, Prime Minister Chrétien tabled a motion in the House of Commons in which he proposed that “the House recognize that Quebec’s distinct society includes its French-speaking majority, unique culture and civil law tradition.”

Later that same year, the Department of Justice Canada adopted the policy on legislative bijuralism, the goal of which is to provide Canadians with federal legislative texts that reflect, in each linguistic version, the legal system in use in their province.

Since then, we have had not only bilingual laws, but bijural laws, laws that use concepts from both of Canada’s legal systems. As Minister of Justice Anne McLellan said when the first harmonization act was passed in 2001:

Federal laws are uniform in the sense that they apply a single rule throughout Canada. They are also harmonized in that federal statutes, in relation to matters of property and civil rights, respect the particularities of the civil law or common law as it applies in a given jurisdiction.

In other words, federal laws do not seek to ensure uniformity in every detail across the country, but rather harmonization with the private law that applies in the relevant province.

The result is federal legislation that actually has four dimensions: an English version applicable in the provinces that practise common law; a French version applicable in those same provinces but drafted using French-language common law terminology, which is an innovation that did not exist anywhere else in the world; a version using civil law concepts specific to Quebec; and a fourth version using English-language civil law terminology, applicable in Quebec.

The implementation of this important policy resulted in the passage of Harmonization Act, No. 1, in 2001. That legislation affected nearly 50 statutes and, importantly, added two sections to the Interpretation Act, sections 8.1 and 8.2, which affirm bijuralism as an interpretive principle for all federal statutes.

Commenting on the bijuralism that underpins the drafting of federal laws, my friend, the Honourable Jacques Dufresne, a recently retired judge, wrote the following in the unanimous 2014 Quebec Court of Appeal ruling in Salaberry-de-Valleyfield (Ville de) c. Lavigne:

The drafting technique used by the legislator to harmonize . . . with both Quebec’s civil law and the common law, which consists of rendering in different terms the rule of law applicable to each system of law, is a powerful indicator that applicable legal concepts can have nuances or distinctions that may even be significant.

Colleagues, there is more than what meets the eye with this bill. Beyond the long list of laws that are amended in a very technical way, the bill acknowledges one of the distinctive features of Quebec: its Civil Code and civil law tradition. It also shows that our federation is able to respect this distinction.

As said by Senator Joyal in 2004, while he was speaking to a previous harmonization bill:

Essentially, that is in keeping with the philosophy of this country, that is, we maintain our identity while we move forward together.

This is also the reason why there are, by law, three judges from Quebec sitting on the Supreme Court of Canada, and the need for a chief justice and a deputy chief justice of a different legal tradition at the helm of the Federal Court of Appeal, the Federal Court and the Tax Court.

In conclusion, colleagues, I invite you to adopt this bill in principle in order to reaffirm the importance of the bijural nature of Canada. It could then be sent to the Standing Senate Committee on Legal and Constitutional Affairs for careful review of its contents, including the technical aspects.

Thank you, Meegwetch.

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