Hon. Céline Hervieux-Payette:

Honourable senators, I am pleased to speak to a matter which may be technical but, in the end, reflects the soul of our country and its ability to integrate rather than exclude, to harmonize rather than divide, to respect rather than despise.

Bill S-12 is the third bill to harmonize federal law with the civil law of Quebec. It clearly shows the openness of our confederation with respect to the two founding peoples, the anglophones and the francophones. This is an important bill that will protect the values and interests of Quebec within the Canadian confederation.

Canada has the advantage of being one of the few countries in the world, if not the only one, to preserve a bijural and bilingual system. In a presentation entitled "Bijuralism in Canada," the Honourable Michel Bastarache, a Supreme Court Judge at the time, had this to say:

There are relatively few countries where two fundamentally different legal systems co-exist. Canada is one of these countries. Canadian "bijuralism" refers to the co-existence of English common law and French civil law traditions within a federal state.

This legal and linguistic duality is evident primarily at the Supreme Court of Canada where three of the nine judges must be members of the Barreau du Québec. The bijural nature of our legal system is therefore ensconced in our fundamental law and I would add that the bilingual nature is at the very heart of the spirit of this law.

The coexistence in Canada of two major western legal traditions, civil law and common law, is the expression of our history and the will of our founding fathers. In 1774, the Quebec Act upheld French laws and customs with regard to property and civil rights in the province. Neither the Constitution Act, 1791, nor the Act of Union of 1840 amended the rights recognized in 1774. And when Canada's federal union was created, this bijuralism was enshrined.

Under the Constitution Act, 1867, private law became an exclusive jurisdiction of the provinces, which allowed Quebec to build its civil law on the Civil Code of Lower Canada — based on the Napoleonic Code — whereas the other provinces could continue to be governed by common law.

As Senator Gérald-A. Beaudoin said:

In 1867, Westminster recognized the right of Canadian provinces to legislate property and civil rights. This was the most important power to be given provincial legislatures and it later formed the foundation for provincial autonomy. The original four provinces were joined by six others. Only the Province of Quebec is governed by a private law regime of French origin. The other provinces are governed by the common law system. Eugene Forsey was quite right when he wrote: Quebec is not, has never been, and will never be a province like the others; it is the citadel of French Canada.

In 1995, Justice Canada approved its policy on legislative bijuralism. The policy is designed to ensure that each language version of legislation and regulations reflects the legal system used in each province and territory. In 1997, Justice Canada established the Program for the Harmonization of Federal Legislation with the Civil Law of the Province of Quebec. However, harmonization of federal legislation with the civil law of Quebec has been an issue for a long time, since federal legislation and regulations used to be drafted essentially on the basis of common law.

In 1978, the federal government began drafting its bills and regulations using a team of two drafters — generally an anglophone jurist, usually a common law drafter, and a francophone jurist, usually a civil law drafter. However, the switch from the Civil Code of Lower Canada to the Civil Code of Quebec on January 1, 1994 — a major overhaul for the province — is what prompted changes of all types, resulting in serious gaps in the connections between federal and civil law. Changes in terminology, formulation of new concepts, establishment of new institutions and reformation of the existing rules all had the effect of separating the two systems.

This bijural and bilingual system is both a challenge and an asset for Canada. It is a challenge because the federal law maintains complementary ties with civil law, and therefore it is important to re-establish harmonization where there are gaps and to rectify contradictions.

Bijuralism is an asset because it requires us to become experts in solving problems arising from the juxtaposition of legal rules stemming from two different traditions.

It is also an asset because we are better able to understand the laws in effect in countries we interact with. In fact, common law and French civil law prevail in nearly 80 per cent of the world's countries. As Senator Beaudoin said:

In this era of the globalization of markets and the internationalization of individual rights and freedoms, our two legal traditions of common law and civil law lend weight to us on the international scene.

Canada is internationally recognized as a living laboratory for the harmonization of these two legal systems.

Honourable senators, Bill S-12 gives us the opportunity to show our commitment to a bijural system, to show our commitment to two official languages and to show our respect for Quebecers.

The problem of harmonization existed long before the Civil Code of Quebec came into force. Parliament has not always adequately included the civil law system and its language when establishing any new private law standards.

Furthermore, there were occasions in which a provision in the legislation was only drafted in terms of the common law. In other cases, the legislator may have taken the civil law system into account in the French version of the legislation but not in the English version.

Bill S-2 will help correct these imperfect situations, and that is why this bill is so important to ensure the quality of Canadian bijuralism and defend bilingualism in our country. This bilingualism, which we inherited from our founding peoples, allows Canada to belong to both the Commonwealth and La Francophonie.

As André Morel, a professor of law at the Université de Montréal, said, in order to respect these cultures, it is imperative that:

. . .everyone, regardless of his or her language and of the legal system of his or her province or territory, must be able to find the terminology and wording that are respectful of the concepts and institutions proper to the legal system in effect in his or her jurisdiction.

The policy of legislative bijuralism involves the need to rewrite the French versions of the legislation in order to reflect the common law, to ensure that the statues can be applied in true harmony with the civil law tradition in Quebec.

Professor Morel added:

. . . [T]he complementarity of federal law and the civil law, natural as it may be, . . . must constantly be maintained and re-affirmed, if not reinvented, if it is to continue to thrive.

I would add that Justice Canada, which is responsible for the quality of our laws, has two divisions and two deputy ministers that look after legislation: one from the civil law tradition and one from the common law tradition. But the objective is even more ambitious because, although the harmonization initiative aims primarily to enable Quebecers to identify more with federal legislation, it is also an opportunity to ensure that there are no major discrepancies between the common law of the various provinces and federal laws.

So all Canadians benefit from the harmonization of federal legislation with the civil law of Quebec. This is a necessary, unavoidable process that enriches both our legal systems and helps strengthen Canadian unity while respecting each province's cultures and institutions.

That is why, honourable senators, I am pleased to recommend that you give your unqualified support to Bill S-12 introduced by our colleagues.

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