Hon. Céline Hervieux-Payette:

Honourable senators, I would like to give a little background on how this bijural system came to be.

Since its creation in 1867, Canada is founded on a political compromise between two founding nations that gave an equal status to distinct legal traditions both expressed in two official languages. In order to fulfill these ideals, however, Canadian jurists must assimilate two legal cultures and languages, an expertise far from reach for everyday citizens, and probably even for a majority of jurists themselves who work in provinces that are not necessarily bilingual.

We may recall the witticism of George Bernard Shaw:

England and America are two countries separated by a common language.

When it comes to Canada, I do not think that I need to mention our two languages and the problems they cause us. What may one say, then, justly asked the Honourable Pierre Viau, Justice of the Superior Court of Quebec, of our situation in Canada and more specifically in Quebec, where, within the course of one hearing, we switch from one language to another, from public law to private law, from Quebec legislation to federal legislation, and from civil law to common law.

Canada is a bijural country because it applies two bodies of common law in the private sphere; common law and civil law. The existence of two common laws may be explained by history and by the colonization of America by the English and the French. The colony was first subject to French law, then, following the British victory, of which we speak more often, to the English common law. The preservation of this legal duality in Canada resulted from the historical relationship of complementarity within which the common law and civil law continued and which was entrenched by the Quebec Act of 1774 and later on by the division of legislative powers provided for by the Canadian Constitution of 1867.

The Quebec Act specifically provided that French law applied to matters of property and civil rights and English law to matters of public and criminal law. The British North America Act divided legislative powers between the federal government and those of the provinces. Subsection 92(13) allowed for continued national legal duality by providing that property and civil rights would be under provincial jurisdiction. Quebec was thus able to preserve its civil law and the other provinces their common law.

By conferring on the provinces exclusive authority over property and civil rights, subsection 92(13) forms the basis of the complementary relationship between federal law and provincial private law.

However, legal drafting in these fields follows different fundamental structures. Moreover, as the Honourable Justice Viau maintains:

Two languages mean, first of all, two styles, at least as regards drafting. And more than that also. French law and English law are conceived differently. The same ideas are not concealed in the same fashion within words whose meaning and import are sometimes difficult to discern.

In this regard, he cites Louis-Phillipe Pigeon, who later on became Justice of the Supreme Court of Canada, and who describes this situation particularly well:

English legal style subordinates every consideration to the search for precision. It attempts to say all, define all, to intimate nothing, and to never assume the intelligence of the reader.

That is why French texts are generally longer than the English version, and why, in English style, concision is a primary goal. That being said, an attempt is made to formulate a general rule instead of enumerating multiple instances; specific instances are listed later, in the regulations.

In harmonizing federal legislation in light of the Civil Code of Quebec, the Department of Justice also noted that a harmonization of federal legislation was necessary, not only with just the new features of the Civil Code, but also with the Quebec Civil Code as a whole.

It is difficult enough to draft legislation in two official versions in a country that has only one legal system. But responding to the imperatives of institutional bilingualism and drafting bilingual legislation in a bijural context constitutes a real challenge.

In fact, adds the Honourable Justice Viau, it is easier:

. . . to discuss these questions in the abstract than it is to draft laws that exactly respect stated principles. The ideal system would have been to adopt not less than four official versions: a civil law version in French and in English, and two others based on common law. The cost would be prohibitive, given the number of laws affected.

I would only add how difficult it must be for judges to enforce the law with all these versions.

It was in this context that in June 1995, the Department of Justice adopted a policy on legislative bijuralism in which it has undertaken, whenever a federal bill or regulation concerns provincial or territorial private law, to draft each of the two versions of that legislation in a way that reflects the terminology, concepts and institutions specific to the two Canadian systems of private law.

The Standing Joint Committee for the Scrutiny of Regulations of the Senate and the House of Commons, which studies regulations, corrects either version when the spirit of the law is not upheld.

The Policy on Legislative Bijuralism thus acknowledges that the four Canadian audiences — civil law francophones, common law francophones, civil law anglophones and common law anglophones — must be able to read federal legislation in the official language of their choice and find its terminology and phrasing consistent with the legal system in effect in their province or territory.

Thus, Bill S-3 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. It is not just a matter of sentiment, but of fundamental rights. This is an important bill that protects the values and interests of Quebec and of other francophones throughout Canada and within the 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. 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, as the Quebec Civil Code is used by those who appeal to the Supreme Court. 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.

Honourable senators, I must stress that bilingualism is just as important as bijuralism in our legal system. Right now, there is no requirement, other than perhaps a moral one, for the nine judges sitting on the Supreme Court of Canada to be fluent in both of our country's official languages. Thus, we have had a number of unilingual anglophone judges.

According to the Young Bar Association of Montreal, which has spoken out in favour of having bilingual judges on the Supreme Court:

The judges in the highest court of the country must be able to consider both official versions when interpreting legislation and to issue rulings based on direct understanding of the documents and testimony before them . . .

According to the association, simultaneous interpretation does not provide enough reaction time to interrupt and ask questions, neither for the judges nor for the lawyers nor even for the defendants, who are entitled to grasp all the nuances and subtleties of each official language being used. Furthermore, the process becomes even longer when we factor in the translation of various documents, arguments and judges' opinions that are exchanged within the framework of preparing rulings.

Let us not forget that our Supreme Court justices are at the service of Canadian citizens first and that francophones and anglophones have to be equal before the bench, just as they are in our legal system.

Despite this flaw, Bill S-3 gives us the opportunity to show our attachment to a bijural system and our attachment to both our official languages and to express our respect for Quebecers and all other francophones across the country.

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.

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.

That is why, honourable senators, I am asking you to support Bill S-3.

Recent Statements from Liberal Senators