Drafting against a background of differing legal systems: Canadian bijuralism Marc Cuerrier



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Drafting against a background of differing legal systems: Canadian bijuralism

Marc Cuerrier

Introduction

Canada’s colonial heritage has produced a unique legal landscape of mixed common law and civil law in Quebec and a coexistence of civil and common law at the federal level.1 Indeed, in Canada, federal legislation must adapt to and reflect the private law of 12 provincial common law jurisdictions and the private law of the province of Quebec, a civil law jurisdiction. This interaction defines Canadian federal law and produces a duality of sources known as Canadian bijuralism.2

Different as they may be, the common law and the civil law systems are not the only sources of diversity in federal legislation, since legal rules and concepts, particularly in relation to the law of property, the law of obligations, family law or the law of persons and even commercial law, may also vary significantly from province to province in Canada. Such differences are merely the reflection of the different legal choices and policies that provincial legislatures may pursue in a federal democracy.

The mixed legal background of civil and common law in our legal system is, like bilingualism, the direct result of political compromises following the British conquest and the cohabitation of English and French Canadians in history, but more recently as a result of the reform of the Civil Code of Québec.3 Flowing from national unity considerations, the federal Government has undertaken to revise the Canadian statute book and regulations as well as its policies and administrative practices to ensure that they are compatible with the private laws of the province of Quebec and more generally with provincial private laws. This initiative has been associated with the development of language rights in the federal Government and has proceeded in parallel with the development and fostering by the federal Government of French common law terminology4 and related minority language rights.

The process whereby federal legislation is revised gradually and systematically to ensure its compatibility with provincial private laws and in particular with Quebec civil laws has been referred to as the harmonization of federal legislation and this harmonization mandate has been assigned to the Department of Justice of Canada.

The harmonization initiative has produced new interpretation rules that clarify the interaction between federal legislation and provincial private laws. This article will examine these rules and discuss their impact but first, it would be useful to examine the definition of Canadian bijuralism and to outline important differences between the common law and the civil law systems. Some background will be provided on the development of bijuralism in Canada, before we examine the interaction between federal legislation and provincial private law in Canada. After a discussion of the new rules used to interpret bijural enactments, their impact will be illustrated with an example using the concept of ownership and with drafting techniques used to implement bijuralism.
1 For more details on the mixed character of Quebec law see John E.C. Brierley & Roderick A. Macdonald (eds.), Quebec Civil Law: An Introduction to Quebec Private Law (Toronto: Emond Montgomery, 1993)


p. 5-73. 2 Bijuralism is a term used to recognize the coexistence in federal legislation of Quebec civil law and common law with respect to matters of private law (property and civil rights). Bijuralism also refers to the mixed or hybrid system of civil law and common law (in public law matters) prevailing in the Province of Quebec as a result of the British conquest. Bijuralism does not deny the influence of native laws in Canadian law but for the purposes of this article we shall only consider the role of common law and civil law as complete systems of reference for federal legislation.3 S.Q. 1991, c. 64 (C.C.Q.). 4 See the dictionary developed under the Project for the integration of both Official Languages in the Administration of Justice (POLAJ) at http://www.pajlo.org/en/dictionary.php.



I will not attempt to refer to all the articles which have been written on this subject;5 my purpose is simply to raise awareness and perhaps to alert readers of federal legislation to the emergence of new bijural terminology as well as to new drafting techniques and interpretation rules for bijural enactments in federal legislation. The Canadian experience may also provide useful examples of how legislation of a state may integrate and harmonize different norms that are founded on different legal systems while respecting the character and uniqueness of the concepts and principles of each legal system.



Canadian bijuralism: What is it?

Canada is a federation of 10 provinces and 3 territories. The population in Canada reached 32.5 million in 2006 and some 7.6 million are from Quebec.6 The inter-provincial trade flow between Quebec and the rest of Canada amounted to over $51 billion [Canadian] in exports of goods and services and over $53 billion in imports of goods and services in 2004.7 Quebec exported over another $89 billion outside of Canada and imported almost $88 billion from outside of Canada in 2004. This compares to Canadian goods and services exported abroad ($443.1 billion) and those sold inter-provincially ($232.5 billion).8 Quebec, like the rest of the Canadian provinces, has an open economy that exports more than half of its gross domestic product ($52.7 billion) and that imports similar proportions of total goods and services used. In addition, more than 80% of those exports find their way to the U.S.9 (this is also the case of the other Canadian provinces where the U.S. is by far our principal business partner). Therefore the Quebec economy as well as its legal system is directly situated in the sea of North American common law.

The federal relationship in Canada is developing as a political, economic and social union between provinces and territories. Canada has a federal Government, a federal Crown and a federal Parliament with legislative powers and sovereignty that follow a model of a federal state. Canada also has 13 provincial or territorial governments, 13 provincial Crown representatives and 13 legislatures with their own set of powers and sovereignty that follow a model of federated provinces. The division of powers in our Constitution10 sets out the template for a dynamic federal relationship in pursuit of national unity and coherence in federal laws and programs while at the same time incorporating an equally strong desire to respect the autonomy and diversity of the constituent members.11 For example, the federal Government handles national and international matters including “trade and commerce”,12 bankruptcy, defence, banking, criminal law and maritime law. Provinces look after more local/social matters, such as hospitals, education, administration of justice and “property and civil rights”.13 Some powers, like immigration, agriculture, natural resources and taxation, are shared powers and the federal Parliament has power over a few private law matters (bankruptcy, marriage, divorce and letters of exchange). Thus, as a general rule, criminal law and matters of national
5 For a more complete bibliography see http://www.bijurilex.gc.ca. 6 Statistics Canada http://www.statcan.ca/Daily/English/060927/d060927a.htm. 7 Statistics Canada http://www.statcan.ca/english/research/11-621-MIE/11-621-MIE2004011.htm. 8 Statistics Canada http://www.statcan.ca/cgi-bin/downpub/listpub.cgi?catno=13-016-XIE2006001. 9 Quebec external trade, Facts and Figures, May 2005 Edition, http://www.mdeie.gouv.qc.ca/mdercontent/000021780000/upload/publications/pdf/Exportation/ calepin_anglais_mai05.pdf. 10 For more information on the division of powers in Canada see Peter W. Hogg, Constitutional Law of Canada (Scaborough, Carswell, 1997), part II. 11 For more information on the federal relationship in Canada see: C. Lloyd Brown-John, and Howard Pawley, “When Legal Systems Meet: Bijuralism in the Canadian Federal System”. www.recercat.net/bitstream/2072/1225/1/ICPS234.pdf#search=%22lloyd%20brown%20bijuralism%22 12 However encompassing “trade and commerce” may be in relation to private law matters, it has been interpreted rather narrowly as a result of early rulings by the British Judicial Committee of the Privy Council; see Hogg, supra note 10 at 20.1-20.3. 13 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3 reprinted in R.S.C. 1985, App. II, No. 5, sections 91 and 92. See also Hogg, supra note 10 at 21.1. Note also that the federal Government has power to legislate on all matters of private law incidentally to dealing with a federal head of jurisdiction.


importance are within federal jurisdiction and most private law matters (law of obligations, contracts, civil liability, estates and trusts, business and commercial law etc) are the provinces





responsibility.







It should be noted that the exclusive power of provinces to deal with “matters of property and civil rights” is the foundation of bijuralism in Canada. As a result of the Quebec Act 1774,14 the civil law tradition of French Canadians has benefited from constitutional protection. A similar concession had been made in the Treaty of Union between England and Scotland in 1707 which guaranteed the continuance of Scots private law.

Canadian federal bijuralism refers to the co-existence of two private law traditions in Canada, the British common law tradition of common law jurisdictions and the French civil law tradition of Quebec. The federal statute book is thus bijural in the sense that federal legislation applies in all provinces and frequently relies on underlying provincial law. For example, a reference to contracts in a federal law is a reference to contracts as understood in a provincial context. As a result, federal legislation must dovetail with both the civil and the common law traditions.

It is important to distinguish between the requirement that federal laws be printed and published in both official languages (bilingualism) and the requirement that federal laws be in keeping with both the civil law of the province of Quebec and the common law of the other provincial jurisdictions in Canada, when touching upon matters of property and civil rights (bijuralism). In addition, bijuralism protects the legal rights of an important Anglophone civil law community in Quebec and the Francophone common law community outside Quebec. Bijuralism, like bilingualism, provides increased access to justice but also crosses over the language barrier in Canada and reflects the different legal traditions that are now embraced by French and English-speaking citizens alike. Since legal traditions are territorial in nature, in Canada, federal legislation based on property and civil rights concepts draws upon civil law when it applies in Quebec and upon common law when it applies elsewhere in Canada.

[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.15

There is little doubt however that common law is strongly embedded in the English language in the same way that civil law is close to the French language. To translate some words, concepts or rules from one language to the other is often a daunting task. It is equally challenging to transpose these words, concepts or rules from one legal system to the other.

There are significant differences between our provincial private laws, mostly between common law provinces and Quebec, but also among common law provinces themselves. Different legislative policies in individual provinces may result in significant differences in the private law of common law provinces due to varying judicial decisions and numerous provincial statutory incursions into the common law. For example, although they all originate in the House of Lords definition of charity in the Pemsel case, important differences exist in the statutory definitions of charity for provincial law purposes; sports, culture and recreation are included in some jurisdictions and not in others.16
14 (U.K.) 14 George III, c. 83, reprinted in R.S.C. 1985, App. II. No. 2. 15 Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed., (Vancouver, Butterworths, 2002) (Sullivan, Driedger), at pp. 94-95. On the relationship of language and law see also Mr. Justice Michel Bastarache, “Bijuralism in Canada” in The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, 2nd publication, booklet 1, p. 24; also available online at www.bijurilex.gc.ca. 16A variety of cases are cited in David G. Duff, “The Federal Income Tax Act and Private Law in Canada: Complementarity, Dissociation and Canadian Bijuralism”, (2003) 51 Canadian Tax Journal at pp. 23-26 in particular his note 145 citing diverse provincial statutes; available online at: www.ctf.ca/pdf/ctjpdf/2003ctj1_duff-e.pdf.


Canadian private law is diverse and this diversity is an important constitutional value in our federation.







The development of bijuralism in Canada17

The battle for Quebec in 1759 and the Royal Proclamation18 of 1763 marked the end of the French rule and the passage to the English rule in Canada. The Treaty of Paris19 of 1763 established a global peace accord between France, England and Spain putting an end to the 7 years war and providing for the exchange of conquered territory. The treaty provided, among many other exchanges, for the transfer of Canadian colonies to England (including the freedom of its French population to retain its Roman Catholic religion). France regained its lucrative territories in the Caribbean (and its sugar trade) and England got most of continental North America with its natural resources and fur trade. While the objective of the Royal Proclamation had been assimilation, the growing population of French Canadians (over 75,000 at the Conquest and around 150,000 in 1774) combined with the limited number of British citizens (a few hundred mostly British troops) and the aspirations of independence in the 13 American colonies to the south (with a population of 1.5 million) resulted in the failure of the policy of assimilation. After little more than 10 years of British rule, the administration of justice in Canada was already moving towards bilingualism and bijuralism.

The formal recognition of Quebec civil laws began with the Quebec Act of 1774,20 a Westminster Statute passed after more than 10 years of military government. The Quebec Act restored civil law “in matters of property and civil rights”.21 This critical political development officially introduced bijuralism in Canada and informs to this day the interpretation of federal legislation. Conversely the Quebec Act provided that common law would govern in all but private law matters; this is the basis for the mixed civil and common law nature of Quebec law where common law and civil law apply respectively in public law matters such as administrative law, criminal law and other non-private law matters, and in private law matters.22

The recognition of Quebec civil law (made up, at that time, of the Coutume de Paris but later codified in the Civil Code of Lower Canada 1866) was later enshrined in the British North America Act of 1867. As a result, all the Provinces in Canada now have exclusive legislative authority over “matters of property and civil rights”, in essence, private law.23 Again this means that when federal legislation touches on questions of private law it must take account of the specificity of provincial Quebec private law, if it applies in Quebec. As the development of bijuralism in Canada is historically tied to bilingualism, equal recognition of the common law and civil law systems in federal legislation is accompanied by a requirement that federal legislation be printed and published in our two official languages24 (English and French).

Federally established courts have played a leading role in the development of Canadian bijuralism and in harmonizing federal legislation with provincial private law. In dealing with the interaction of federal and provincial laws and potential conflicts between them, the courts have gradually
17 For a more complete review of the historical context of Canadian bijuralism see Aline Grenon, “The Interpretation of Bijural or Harmonized Federal Legislation: Schreiber v. Canada (A.G.)” (2004) 83 Canadian Bar Review 131. 18 Royal Proclamation, October 7, 1763, reprinted in R.S.C. 1985, App. II, No. 1. 19 See http://www.thecanadianencyclopedia.com/index.cfm?PgNm=TCE&Params=A1ARTA0006083. 20 Supra note 14; it should be observed also that the Royal Proclamation and the Treaty of Paris, in not providing for the temporary continuance of the laws of a conquered territory, were inconsistent with common law, see A. Shortt. and A.G. Doughty, Documents relating to the Constitutional History of Canada 1759-91, vol. 1 (Ottawa 1907) p. 526. 21 The Treaty of Union between England and Scotland had similarly recognized and guaranteed the continuance of Scots private laws in 1707.22 St Hilaire v. Canada (Attorney General), (2001) F.C.A. no 444, [2001] 4 F.C. 289 per J. Decary at para 26-28 (St Hilaire): http://recueil.cmf.gc.ca/en/2001/2001fca63/2001fca63.html; see also Brierley & MacDonald, supra note 1. 23 Constitution Act, supra note 13, subsection 92(13). 24 Ibid section 133.


recognized the bijural stream that runs through federal law.25 In the seminal decision of Quebec North Shore Paper Co. v. Canadian Pacific,26 the Supreme Court of Canada rejected the notion of a general “federal judicially-created common law” applicable throughout the country for all matters falling within the jurisdiction of the Federal Court. This decision and others that followed clearly set the stage for the recognition of the complementarity relationship between federal law and provincial law. Gradually also the autonomy and the specificity of the civil law came to be recognized and it is now accepted that the private law of Quebec supplements the application of federal laws in Quebec, much in the same way as the common law is called upon to supplement federal legislation in common law provinces.27 The courts held that federal legislation often depended on provincial private law, either civil or common law, as the case may be, for much of its content and meaning; moreover, they are moving to accept that civil law and common law are separate and independent legal systems and that common law could not force its way into the Province of Quebec through the application of case law from other provinces28 even though differences or asymmetry might result from the application of the federal provision.29

It must be acknowledged, however, that courts have also carved out several pockets of autonomous federal law like maritime law, native law or Crown law that do not depend on private law to the same extent and that may be dissociated from it. These pockets of federal common law are treated as independent from provincial private law. As well, it is accepted that the federal legislator may set out its own private law rules in any federal enactment as a complete federal code, should it be rationally connected with a federal head of jurisdiction and necessary to have a uniform federal norm that applies across the board over and above the divergent provincial private law.30

Similarly the development of bijuralism in drafting has been incremental. First implemented by translating legislation from English to French, it was subsequently carried out in the co-drafting method where Anglophone and Francophone drafters worked side by side to produce a French version for civil law and an English version for common law. Now the policy on legislative bijuralism31 mandates that federal legislation must speak to the 4 legal audiences: English and French common law community and English and French civil law community. As a result of this policy and in response to the reform of the Quebec Civil Code of 1994, the Program for the Harmonization of
25 See the analysis of: Justice Louis Lebel and Pierre-Louis Le Saunier, “L’interaction du droit civil et de la common law à la Cour suprême du Canada (2006) 47 Les Cahiers de Droit 179; see also Bastarache, supra note 15, pp. 23-26; France Allard, “The Supreme Court of Canada and its Impact on the Expression of Bijuralism”, The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, 2nd publication, booklet 3, pp. 1-26 and Louise Lavallée, “Bijuralism in Supreme Court of Canada judgments since the Enactment of the Civil Code of Quebec” The Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism, 2nd, booklet 3 pp. 1-30. These papers are available online at the Canadian Legislative Bijuralism Site: www.bijurilex.gc.ca. 26 [1977] 2 S.C.R. 1085. See discussion in Allard, ibid., pp 22-26. 27 Peoples Department Stores Inc. (trustee of) v. Wise [2004] 3 S.C.R. 461 (Peoples); St Hilaire, supra note 22; 9041-6868 Quebec Inc v. M.N.R., 2005 F.C.A. 334 (9041-6868 Quebec Inc.); D.I.M.S. Construction Inc. (Trustee of) [2005] 2 S.C.R. 564 (D.I.M.S. Construction Inc); see also David Duff, supra note 16 at pp. 6-20 for tax cases where complementarity was recognized; and case comment by Philippe Denault, « D.I.M.S. Construction Inc. (Syndic de) c. Québec (Procureur général): La fin d'une controverse—Mise en oeuvre du principe de complémentarité par la Cour suprême du Canada », (2006) 27 Revue de planification fiscale et successorale 235. 28 Pierre Archambault, “Contract of Employment: Why Wiebe Door Services Ltd. Does Not Apply in Quebec and What Should Replace It” in The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism—Second Collection of Studies in Tax Law (2005) Association de planification fiscale et financière, Department of Justice Canada at 2:1 also available online at: http://www.apff.org/_site/DOCUMENTS/PDF/HARMONISATION_RECUEIL-2005/ ANGLAIS/t-2_pierre_archambault_eng.pdf. See also the cases discussed by France Allard, supra note 25 pp. 15-18.29 D.I.M.S. Construction Inc., supra note 27. Also Décary J.A. in St Hilaire, supra note 22[, para] 10. 30 Hogg, supra note 10 at 15.9. 31 See the Policy on Legislative Bijuralism available at: http://jusnet.justice.gc.ca/lsb_e/Direction/politique.htm.


Federal Legislation with the Civil Law of the Province of Quebec32 was implemented to revise systematically all new federal legislation and to revise gradually our 600+ federal Statutes and 3000+ federal regulations and new rules of interpretation were adopted to interpret bijural enactments.

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