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Canadian Bijuralism: Harmonization Issues

Me Louise Maguire Wellington
(Terminology Update, Volume 33, Number 2, 2000, page 5)

This article was prepared with the assistance of Marie-Thérèse Mocanu, terminologist, Translation Bureau, Public Works and Government Services Canada.

Bijural and bilingual legislative drafting techniques, and in particular the harmonization of federal legislation with the new terminology and the new concepts of the recently revised Civil Code of Québec, are in their infancy. But experience in this field is unique to Canada and "confers upon us a special place in the world," as senator Gérald-A. Beaudoin remarked during the debate on Bill S-22, Federal Law—Civil Law Harmonization Act, No (number). 1, which was tabled in the Senate on May 11, 2000.1

This experience resulted quite naturally in the development of a number of neologisms and new concepts described in this article.

The first of various comments on "bijuralism" appeared in Terminology Update in 1983.2 Since then, this concept has made its way into legal circles and has, as it were, gained legitimacy. In a presentation entitled Le bijuridisme au Canada, the Honourable Mr. Justice Michel Bastarache of the Supreme Court of Canada had the following to say [translation]: "There are relatively few countries where two fundamentally different legal systems co-exist. Canada is one of these countries. Bijuralism in Canada refers to the co-existence of English common law and French civil law traditions, within a federal state."3

Background

Canada has maintained its legal duality because, historically, the common law and the civil law have complemented one another, and this relationship was enshrined in the Quebec Act of 1774 and later, through the division of legislative powers, in the Canadian constitution. Section 92(13) of the Constitution Act, 1867 gives the provincial legislatures the power to legislate in private law matters, i.e., matters relating to property and civil rights in the province. The private law of Quebec derives from the civil law, whereas the private law system of Canada’s other provinces and territories derives from the common law.

Harmonization of federal legislation with the civil law of Quebec has long been an issue. Drafting of federal Acts and regulations used to be based essentially on the common law. In 1978, the federal government began drafting its bills and regulations using a team of two drafters generally composed of a Francophone jurist (usually a civil law drafter) and an Anglophone jurist (usually a common law drafter). Co-drafting thus produces a final product that better reflects Canada’s two legal systems. However, the coming into force of the new Civil Code of Québec on January 1, 1994 (following its adoption on December 18, 1991) resulted in significant changes to the terminology and substance of the civil law. This meant a significant increase in the harmonization work already under way. In 1993, in anticipation of this reform, the federal Department of Justice adopted a Policy for Applying the Civil Code of Québec to Federal Government Activities. The same year, it created the Civil Code Section and gave it the mandate of implementing this policy in cooperation with the Legislative Services Branch. The Civil Code Section is not only responsible for harmonization, but will also serve as the centre of expertise in civil law within the federal government, and will also assume the task of preparing bijural terminological records to which the legal profession as a whole, and other interested parties at the international level, will have access.

In 1995, the Department of Justice approved its Policy on Legislative Bijuralism, implementation of which is the responsibility of the Legislative Services Branch, working in conjunction with the Civil Code Section. The policy is designed to ensure that each language version of acts and regulations reflects the system of law in force in each province and territory. This policy led to the establishment in 1997, by the Department of Justice, of the Program for the Harmonization of Federal Legislation with the Civil Law of the Province of Quebec.

The advent of the global economy and the growing interdependence of national legal systems has generated interest in the work that the Department of Justice is doing in the field of bijuralism, particularly among international bodies and organizations that use both the common law and the civil law.

As far back as 1984, there was reference to bijuralism in Terminology Update, as evidenced by the following comments [translation]: "It is to be hoped that the effects of the development of Canadian jurilinguism will be felt in Europe and will result in productive exchanges, given that the European Economic Community’s legal translators are also looking for language solutions to the problem of the co-existence of French, the language of the civil law, and English, the language of the Common Law."4

Canada is recognized internationally as a living laboratory for harmonizing two legal systems, the civil law and the common law. The process and methodology of harmonizing federal legislation with civil law notions and terminology remain to be developed and refined. With a view to standardizing and optimizing its work methods, the Civil Code Section developed a Harmonization Manual in December 1999. Once it has been tested and revised, this manual will be accessible on the Department of Justice’s Internet site.5

Bijural terminology

Under a memorandum of agreement concluded with the Translation Bureau, the Department of Justice’s Civil Code Section will develop a series of terminological records that will enable it to share the results of its harmonization work, as harmonization bills are adopted. These bijural records are intended for the use of four audiences: French civil law jurists, English civil law jurists, French common law jurists, and English common law jurists. They will be entered in the Translation Bureau’s TERMIUM Plus® terminology bank6 in a special compartment entitled "bijuralism: civil law/common law."

Example:

Real property
(English common law)

Bien réel
(French common law)

Immovable
(English civil law)

Immeuble
(French civil law)

General terms and official names

bijuralism
The co-existence of two legal systems within a state or international community.

Canadian bijuralism
The co-existence of the common law and the civil law in Canada.

bijural
Refers in particular to a legislative provision that incorporates civil law and common law terminology and concepts in each of its language versions.

legislative bijuralism
The co-existence of the terminology of two legal systems in legislative documents. In the Canadian context, the object of legislative bijuralism is to ensure that each of the versions of a statute, regulation, provision or part of a provision takes both common law and civil law into account when the enactment contains a point of contact with provincial private law.7

legal harmonizer
A jurist whose work involves the drafting of bijural texts. In the Canadian context, jurists who implement the Program for the Harmonization of Federal Legislation with the Civil Law of the Province of Quebec.

Policy for Applying the Civil Code of Québec to Federal Government Activities
A policy adopted on June 7, 1993 by the Law and Policy Committee (Comité du droit et des orientations) of the Department of Justice Canada. This policy is designed to reflect the specificity of Quebec civil law in federal law.

Policy on Legislative Bijuralism
A policy adopted by the Department of Justice Canada in 1995. The purpose of this policy is to produce federal legislation that reflects, in both language versions, the system of law in force in each province and territory.

Program for the Harmonization of Federal Legislation with the Civil Law of the Province of Quebec
A program adopted by the Department of Justice Canada in 1997. The purpose of this program is to adapt federal legislation to the civil law concepts and institutions of the province of Quebec, having regard to the terminology specific to the common law.

Drafting techniques that apply in a bijural context8

definition
A legislative drafting technique that, in the context of legislative bijuralism, consists in giving a term a meaning specific to both the civil law and the common law.

double
A drafting technique that consists in expressing, through different terms, the legal rule applicable to each legal system. This technique is particularly useful where it is necessary to clearly define the application of the legal rule in Quebec and elsewhere in Canada. The double can be simple or paragraphed.

  • simple double
    A drafting technique that consists in presenting the terms or concepts specific to each legal system one after the other.
  • paragraphed double
    A drafting technique that consists in presenting the concepts specific to each legal system in separate paragraphs.

Generic or neutral term
A drafting technique that consists in using a neutral term that has no meaning in either legal system. The generic term encompasses a number of legal concepts under one term that is specific to the legal system in question.

Legislative drafting problems in the context of Canadian bijuralism and possible solutions

1. unijuralism

A situation that arises, for example, where a legislative provision is based on a concept or term specific only to the common law in both language versions.

Example: "dommages-intérêts spéciaux"/special damages, subsection 31(3) of the Crown Liability and Proceedings Act9.

The expression "dommages-intérêts spéciaux" and the English equivalent special damages are expressions specific to the common law. The correct civil law equivalent is "pertes pécuniaires antérieures au procès"/pre-trial pecuniary loss.

To solve the unijuralism problem, the simple double technique is used by clearly defining the application of the legal rule in Quebec and elsewhere in Canada:

When an order referred to in subsection (2) includes an amount for, in the Province of Quebec, pre-trial pecuniary loss or, in any other province, special damages . . .

Si l’ordonnance de paiement accorde une somme, dans la province de Québec, à titre de perte pécuniaire antérieure au procès ou, dans les autres provinces, à titre de dommages-intérêts spéciaux …

See Bill S-22, subsection 51(2).

2. semi-bijuralism

A situation that arises, for example, where a legislative provision is based on concepts or terminology specific to the civil law in the French version and concepts or terminology specific to the common law in the English version.

Example: real property/"immeuble," section 20 of the Federal Real Property Act.10

This is a problem of semi-bijuralism caused by the use of terminology specific to the civil law in the French version only (immeuble) and the use of terminology specific to the common law in the English version only (real property).

To solve this problem, the French terms "biens réels" are added to the French version in order to take account of the French common law and the term "immovable" is added to the English version in order to take account of the English civil law. These changes can be made using the simple double technique:

A Crown grant that is issued to or in the name of a person who is deceased is not for that reason null or void, but the title to the real property or immovable intended to be granted . . .

La concession de l’État octroyée à une personne décédée ou à son nom n’est pas nulle de ce fait; toutefois, le titre sur l’immeuble ou le bien réel est dévolu …

See Bill S-22, section 22.

3. apparent bijuralism

A situation that arises where a legislative provision contains civil law terms that are not appropriate in the context for any of the following reasons:

(a) obsolete terminology

Example: "délit civil," "délit" and "quasi-délit," section 2 of the Crown Liability and Proceedings Act11.

The terms "délit civil," "délit" and "quasi-délit" used to exist in Quebec civil law. The concepts designated by these terms, which are based on the existence of "fault," remained unchanged in the new Civil Code of Québec, but are now identified by the expression "responsabilité civile extracontractuelle."

By combining the techniques of definition, the neutral terms "responsabilité"/liability, and the paragraphed double, the problem of obsolete terminology can be solved as follows:

"liability" means

(a) in the Province of Quebec extracontractual civil liability, and

(b) in any other province, liability in tort;

« responsabilité »

a) dans la province de Québec, la responsabilité civile extracontractuelle;

b) dans les autres provinces, la responsabilité délictuelle.

See Bill S-22, subsection 34(2).

(b) inadequate terminology

Example: surrender/"rétrocession," paragraph 16(1)(d) of the Federal Real Property Act.12

The term "rétrocession" exists in civil law, but in this case it does not reflect Parliament’s intent. It is, in the context, inadequate terminology that results in a disparity of content. "Résiliation" of a lease is the civil law concept applicable in this context and "résignation" is the correct French common law term.

This problem of apparent bijuralism is solved by using the simple double technique:

(d) authorize, on behalf of Her Majesty, a surrender or resiliation of any lease . . .

d) autoriser, au nom de Sa Majesté, soit la résiliation ou la résignation d’un bail . . .

See Bill S-22, subsection 18(1).

(c) incompatibility with a new principle of civil law

Example: "privilège," section 20 of the Defence Production Act.13

The word "privilege" poses a problem of incompatibility with a new civil law principle because "privileges" were eliminated and replaced in part by "prior claims and hypothecs" in the new Civil Code of Québec. While the word "privilège" has been retained for the French common law audience, the expression "priorités"/prior claims must be added for Quebec’s civil law audience.

Using the simple double technique, a clause specific to the civil law is created to make the provision compatible with the new rule in the Civil Code of Québec:

. . . clear of all claims, liens, prior claims or rights of retention within the meaning of the Civil Code of Québec or any other statute of the Province of Quebec, charges . . .

. . . libre de toute priorité ou droit de rétention selon le Code civil du Québec ou les autres lois de la province de Québec, ainsi que de tout privilège ou de toute réclamation, charge …

See Bill S-22, section 72.

The methods for harmonizing federal legislation with the civil law of Quebec continue to evolve. The Civil Code Section is involved in implementing work tools such as bijural terminology records and the Harmonization Manual, which are designed to provide the greatest assistance possible for all those who work in the field of bijuralism, thereby giving them the opportunity to share the results of their own experiences.

  • Back to the note1 Debates of the Senate (Hansard), 2nd Session, 36th Parliament,
    Volume 138, Issue 58, Thursday, May 18, 2000,
    http://parl.gc.ca/36/2/parlbus/chambus/senate/deb-e/58db_2000-05-18-e.htm.
  • Back to the note2 Terminology Update, vol. 16, no. 9, 1983; vol. 19, no. 1, 1986; vol. 19, no. 3, 1986.
  • Back to the note3 Speech delivered at a luncheon presentation on bijuralism and the judiciary, Department of Justice, Ottawa, February 4, 2000.
  • Back to the note4 Article by Nicole-Marie Fernbach, then a legal reviser, Montreal Division, Translation Bureau, Terminology Update, vol. 17, nos. 7 and 8, 1984.
  • Back to the note5 http://canada.justice.gc.ca/en/index.html.
  • Back to the note6 Translation Bureau’s Web site: http://btb.gc.ca.
  • Back to the note7 Report of the Legislative Bijuralism Committee published on April 4, 1996 by the Legislative Services Branch of the Department of Justice Canada.
  • Back to the note8 The following techniques are based on the Policy for Applying the Civil Code of Québec to Federal Government Activities adopted by the Department of Justice in 1993 and the Report of the Legislative Bijuralism Committee referred to in footnote 7. The Committee’s mandate was to identify the problems raised by the application of legislative bijuralism and to propose solutions to these problems.
  • Back to the note9 R.S.C. 1985, ch. C-50.
  • Back to the note10 C.S. 1991, ch. 50.
  • Back to the note11 See supra, note 9.
  • Back to the note12 See supra, note 10.
  • Back to the note13 R.S.C. 1985, ch. D-1.