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



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Practical impact on federal legislation









To illustrate further the practical impact of bijuralism in the context of federal legislation in Canada, let us imagine a hypothetical provision that could be part of Canadian public law and that would read:
X.

(1)

The officer may seize any thing by means of or in relation to which the officer







believes on reasonable grounds that an offence under this Act is being or has been







committed.




(2)

The owner of the seized thing may apply to the court…




Having regard to the differences in the law of ownership between the Province of Quebec and the other Canadian jurisdictions, one might ask whether in Quebec a trustee or a beneficiary of trust property might be able to exercise the recourse in subsection (2). One might also enquire whether a mortgagee of a chattel and the mortgagor, including their equivalents in the civil law of Quebec, the hypothecary creditor and hypothecary debtor, could be regarded as owners for this purpose.

In a civil law trust neither the trustee nor the beneficiary owns the trust property. Under Quebec civil law, trust property is held in a separate patrimony distinct from the property of the trustee and of the beneficiary. The trustee is a mere manager of the trust property and has no “real right” or legal title to the property. There is no such thing as equity or equitable ownership and the beneficiary merely has a claim (a personal right not a right in rem) against the trustee for failure to enforce the trust. Thus, neither the trustee nor the beneficiary owns the trust property.70

More generally, since ownership in civil law is absolute, perpetual, exclusive and unitary, ownership cannot be fragmented into a bundle of rights and there is no such thing as concurrent ownership interests over the same land, exercised by different persons. Ownership is not flexible. Only one form exists in civil law: absolute ownership. If there is more than one owner of property, all the co-owners share the absolute ownership (an indivisible portion of the title to property). The meaning of owner is fixed and invariable. Unlike common law, ownership is not an economic network in relation to property but rather a symbol and an attribute of liberty.71

Under Quebec civil law, security interests do not involve actual ownership of property as is the case in a common law mortgage but rather, in rem rights as a creditor. Thus, the civilian equivalent of a mortgagor, the Quebec hypothecary creditor, never owns the property.72

By contrast, the common law definition of owner is wide and varies according to context; it includes mortgagors and mortgagees alike, trustees and beneficiaries.

The solution to the differences between the common law meaning of owner and the civil law meaning for the province of Quebec might be to extend the meaning of owner to hypothecary creditors and debtors, and to trustees and beneficiaries, for the purposes of this provision. It would be easy to do if one could use as a common denominator the concept of an interest in land but unfortunately this concept does not exist in civil law and resort must be had to more convoluted formulae.
70 See article 1260 - 1298 C.C.Q. supra note 3. 71 For more information on the differences in ownership at civil law and common law see Aline Grenon, “Reflections on the Civil Law and Common Law Concepts of Ownership, in the Context of Harmonization and of Integrated Economies” in The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism, Second Collection of Studies in Tax Law (2005), A.P.F.F. / Department of Justice Canada, 2005, doc. 1; France Allard, «Entre le droit civil et la common law: la propriété en quête de sens», dans J. C. Gémar and N. Kasirer (ed.), Jurilinguistics: Between Law and Language, Montréal, Éditions Thémis, 2005, p. 193 available at: www.bijurilex.gc.ca. 72 See articles 2660-2802 C.C.Q. supra note 3.


Drafting techniques of bijuralism73

We note above that bijuralism is deeply rooted in the Canadian constitution and that harmonization of federal legislation is now guided by a clear statutory duty of reference to provincial private law74 in the Interpretation Act. The new rules for the interpretation of federal bijural enactments have direct implications for the drafting of federal legislation. Federal legislation must be drafted harmoniously with the provincial private law of the provincial jurisdictions where it will apply. Federal legislation must “speak” to Canadians not only in English and French but also in legal terms that are relevant to the jurisdiction to which they belong and with which they are familiar. This is the best way of ensuring access to justice and equality before and under the law, to the end user.

Accordingly, drafting techniques used to implement bijuralism in federal legislation aim at 4 legal audiences in Canada: the Anglophone common law community, the Anglophone civil law community, the Francophone civil law community and the Francophone common law community.

A most natural technique used to harmonize federal legislation with provincial private law is neutral terminology. Following this approach, neutral or generic terms that apply both in common law and in civil law are used to express a private law concept or rule that is different in the provinces. An example of the technique of the neutral term might be the use of the single common term “loan/prêt” as a substitute for a reference to the phrase “mortgages and hypothecs/hypothèques”. Neutral or generic terminology may avoid some of the traps of specific legal terminology and may provide useful trans-systemic tools. Tax legislation often substitutes economic tests, generic, ordinary or non­legal terms to narrow legal terminology in order to enhance the scope of anti-avoidance rules.

Sometimes the underlying legal rules and principles are so different that even generic terms may not adequately capture the intended scope of a provision as is the case, for example, with the terms “lease/bail”. Such terms are neutral yet not adequate when a provision is intended to refer to an interest in land and its civil law equivalent real right/droit réel as the civil law lease does not encompass a leasehold interest but merely involves a purely personal right (not real property) that does not amount to an interest in land. The underlying law of property is so different between common law and civil law that the common denominator of an interest in land may not be used without adaptations to include civil law leases.75

The technique of the definition is also used to bridge gaps in the meaning of private law concepts that result from differences in provincial private law. A textbook example of the definition technique in Canada is the following definition of “common law partner/conjoint de fait” in the Income Tax Act:

248. (1) “common law partner”

"common-law partner", with respect to a taxpayer at any time, means a person who cohabits at that time in a conjugal relationship with the taxpayer and

(a) has so cohabited with the taxpayer for a continuous period of at least one year, or


(b) would be the parent of a child of whom the taxpayer is a parent, if this Act were read without reference to paragraphs 252(1)(c) and (e) and subparagraph 252(2)(a)(iii),




The Income Tax Act provides various benefits and obligations in relation to a taxpayer’s spouse or common law partner. In the late 1980s and early 1990s, the status of common law partner was
73 For more information and examples see Maguire Wellington, supra note 32 and Marie Claude Gaudreault, Canadian Legislative Bijuralism: An expression of legal duality, 2006 (to be published) will become available at www.bijurilex.gc.ca. 74 Not to mention: the Policy on Legislative Bijuralism, supra note 31; the Preamble to the First Harmonization Act, supra note 58; and the Cabinet Directive on Law Making, supra note 65. 75 Supra note 69 in reference to changes made to the definition of immovable in the Federal Real Property and Federal Immovables Act to include Quebec leases in the concept of immovable and to treat immovable in the same way as real property for the purposes of that Act.


considerably different from one province to the other. For example, in the Province of Quebec persons that were not married to each other did not enjoy any special rights or obligations for the support of each other nor over each other







s property, while in most common law jurisdictions, unmarried persons having cohabited for variable periods of 1 to 5 years or having a common child were treated as spouses (more particularly common law spouses) both for support and division of property obligations. One province had recognized same-sex partners living in a conjugal relationship and was treating them as spouses as well for civil obligations. The federal


Income Tax Act


introduced a definition of





common law partner







for tax purposes. This definition attempted to create a common denominator for what constituted a common law partner for federal tax purposes and bypassed the





balkanized







provincial definitions. Thus the definition technique is a useful tool for merging different provincial norms into a broader and more workable definition intended to apply to both the common law and the civil law audiences while respecting the specificity and autonomy of each legal system.







The scope of the definition technique for the resolution of systemic legal issues is very broad as it may address both differences in terminology as well as in the substantive private law rules themselves. Some definitions however can be problematic, for example in some federal provisions a short cut was attempted by defining real property as including an immovable in civil law. Such definition although it may technically bridge the bijural gap is inadequate in that it does not treat both legal systems as being equal; it could give the impression that common law is the dominant source of federal legislation and deny the equal status provided in section 8.1 of the Interpretation Act.

An innovative technique that seems particularly promising to resolve differences in terminology between the civil law and the common law is the technique called the double. By setting up the common law term and the civil law term side by side in the federal provision, the character and uniqueness of the concepts and principles of each legal system are respected and the bijural nature of federal legislation is emphasized and better reflected in keeping with the objectives of accessibility and equality.

Popular examples of the double technique might include the pairs “real property and immovable”, “personal property and movable”, as well as “mortgage or hypothec”. The mixing and matching of civil and common law terminology in a given provision should not pose any special problem as the new rule in section 8.2 of the Interpretation Act specifically requires that civil law terms and meanings apply in Quebec and common law terms and meanings apply in the other provinces.

The technique of the double is inspired by a similar approach used in Westminster to harmonize UK legislation that extends to Scotland and take into account Scots law by including Scottish provisions in a Westminster Bill to address Scots civil law and reflect the bijural nature of UK legislation.

Another form of the double involves setting up side by side the substantive private law rule (as opposed to the terminology only) for Quebec on the one hand and the rule for the other provinces on the other hand. Such division based on territorial lines or on legal systems is unambiguous and clearly sets out the scope or the effect of the federal provision at common law and under civil law. The drawbacks of the double technique are longer provisions and potentially poorer readability.

Conclusion

When federal legislation is being applied in any one of the 13 Canadian jurisdictions, provincial private law rules and concepts will be called upon to complete or supplement its application. When there are differences in the private laws of the provinces, whether they are systemic or merely due to differences in provincial legislative policies, federal legislation will apply differently in different provinces unless it is dissociated from divergent provincial private laws. Bijuralism challenges the assumption that all federal legislation is intended to apply uniformly across Canada. Material differences in the application of federal legislation in any province may sometimes result in unacceptable gaps and disparities in federal practices, policies and programs. While unacceptable



gaps and disparities need to be fixed, understandably, some degree of asymmetry is inevitable, having regard to the legal diversity inherent in Canadian federalism.76

Coherence in the application of policies and programs is, of course, an important objective but so is respect for diversity (fostering other important values of equality and access to justice) in our federal democracy. The goals of legal diversity and uniformity compete to create the right democratic balance between local and national interests. Bijuralism carries with it the need for a dynamic rebalancing of legal values.

While civil law and common law complement the private law provisions of federal legislation, at

the same time, federal legislation should not be applied uniformly throughout the country in every

respect. Our objective is legal duality, not necessarily to achieve one rule to be applied uniformly

across Canada; this requires respect for the character and uniqueness of the concepts and

principles of each legal system. The fact that provincial legislatures may pursue distinctive legal

policies which might each be different as well as different from those of Parliament, is a principal

justification for federalism.77

Unlike harmonization of laws in the European context, harmonization of federal legislation in Canada does not aim at a uniform and independent set of supra-national norms. Neither does it purport to iron out legal diversity. Harmonization of federal laws often serves the opposite purpose of acknowledging diversity of our legal traditions78 so that federal legislation may “speak” to both the civilian and the common law community in French and in English. The objective of harmonization in Canada is very different and yields a very different product: law that recognizes the unique character of the concepts and rules of each system. The Canadian experience is nonetheless relevant to those involved in unification of the law. In dealing with concepts and rules that are unique to each system such as the rules of equity or the concepts of interests in land or of beneficial ownership, for example, policy gaps and discrepancies need to be avoided. Where trans-systemic bridges are required between legal traditions or legal substitutes and equivalent rules or concepts must be created in the other legal system, Canada’s know-how in the field of building legal bridges, avoiding policy gaps, finding suitable substitutes and drafting against backgrounds of differing legal systems may be of assistance and I invite you to visit our website www.bijurilex.gc.ca for more information.

The debate will continue regarding the finality of harmonization as to whether harmonization should lead simply to the equal recognition of each legal system or whether it should lead to greater convergence and even the fusion of our common law and civil law systems.79 There are at least three proponents of the harmonization of laws in Canada: the federal Government, the judiciary, in particular the Supreme Court of Canada, and the provincial and territorial jurisdictions (acting with the Uniform Law Conference of Canada). Each group has different perspectives and purposes. The federal Government pursues national interests and unity and therefore is more focused on the dilemma of equality versus legal diversity. The Supreme Court of Canada in its final appellate role over private law matters has legal authority to promote the convergence of legal solutions; and, finally, legislatures hold the pen in private law matters and work with the Uniform Law Conference to reform and unify private law in Canada.

The idea that Canada offers prime testing ground for a dialogue between two different ways of thinking about law (through a civil and common law prism) is making headway. It feeds the ideal of convergence or “rapprochement” that occurs inevitably when legal cultures cohabit.
76 Peter W. Hogg, Constitutional Law of Canada, loose-leaf ed., (Toronto: Carswell 1997), at 2.4 (notes 38, 39) and at 17.3(b): “There is no constitutional requirement that federal laws be uniform across the country”. See also Perron-Malenfant v. Malenfant (trustee of), [1999] 2 R.C.S. 375, para. 56 where the court stated: “This Court cannot undo the Quebec legislature’s express choices and adopt the policy of the common law provinces, only because it is convenient to do so in a particular case. This is something to be left for the consideration of the legislature itself.”77 Bastarache, supra note 15 at p. 24. 78 “Our legal system must now incorporate the shared values of society as a whole, without excluding or discriminating against anyone”: Bastarache, supra note 15 at p. 25. 79 Lebel and Le Saunier, supra note 25 at p. 202; Sullivan, supra note 46, at p. 1043; Allard, supra note 71, at pp. 21 and 22.


There is evidence of convergence and cross-fertilization even in the UK. In the seminal case of


Donoghue v. Stevenson


, the House of Lords under the pen of Lord Atkin, a Scot,80 produced the idea of a general tort of negligence similar to what existed in the private laws of Scotland as a species of “culpa”.81 Convergence or harmonization of legal systems does not require that the specificity and autonomy of a legal system be lost; it may well suffice that similar solutions be sought within the rules and methods that are unique to each legal system. Legal traditions like languages can be opened to foreign influence without losing their originality and specificity.

In modern times, knowledge of different legal traditions, like knowledge of different languages, is an asset both nationally and internationally (dialogue of legal diversity). Canada and the UK have experienced the co-existence in their domestic laws of civil and common law as several other jurisdictions have and increasingly will. The ability to synthesise legal knowledge and conjugate it in another legal system is critical to the integration of the new pluralist legal culture that is emerging in the global village.
80 [According to the Dictionary of National Biography (1941-1950), Lord Atkin was in fact born in Australia and later moved to Wales to be with his mother’s family.] 81 [1932] A.C. 562, All E.R. 1 (H. of L.). Lord Atkin reconciled the civil law concept of fault with the common law tort of negligence by using the common idea of moral wrongdoing and extending the duty of care. He stated: “The liability for negligence, whether you style it such or treat it as in other systems as a species of ‘culpa’, is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”
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