BIJURALISM
IN CANADA
Department of Justice, Lunch and Learn Workshop
on Bijuralism and the Judicial Function
The Honourable Mr. Justice Michel Bastarache,
Supreme Court of Canada
Ottawa, Ontario
February 4, 2000
There
are relatively few countries in the world in which fundamentally different
legal regimes co-exist. Canada represents such a country. Bijuralism
or "bijuridisme" in Canada signifies the co-existence of the
English common law and the French civil law traditions, within a country
organized along federal lines.
While
we find the coexistence of these two legal systems and traditions in
Canada, I must profess that I do not consider it correct to speak of
a "common law" or a "civil law" per se. Rather, in my opinion,
there is one legal family in Canada which contains the common law systems
and another legal family which contains the civil law systems.
(i)
Common Law Tradition
The
common law tradition can be distinguished from the civil law tradition
essentially by its method, that is, its rules of interpretation, the
hierarchy of its sources and its inductive reasoning. The principal
characteristic of the common law is this inductive process, which consists
of generalizing from common points between distinct cases and then establishing
legal categories with vague foundations and flexible limits. The ratio
decidendi of a previous decision is ascertained, after which we
proceed by way of analogy. To practitioners, the common law means that
they have access to a fragmented law that they will discover incrementally
as needed. This leads to the legal fiction that a judge does not make
the law but discovers it, as a legal vacuum is impossible. Thus, there
is also intellectual uncertainty, as the law is in constant evolution.
Of course, this evolution is not anarchical. On the contrary, each development
must be justified by linking it to a principle drawn from the preceding
cases. According to Oliver Wendell Holmes, the law is only what the
judges say it is. Everyone is familiar with his famous assertion that:
"The life of the law has not been logic: it has been experience".
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(ii)
Civil Law Tradition
Perhaps
the most important feature of the civil law tradition differentiating
it from the common law tradition, is its emphasis on the primacy
of written laws. Rather than proceeding from the ratio decidendi
of previous judicial decisions, the emphasis in the civil law tradition
is on the written, or codified law, which is the primary source of law.
The civil law is therefore not "judge-made law" but codified law.
Another
defining characteristic of the civilian tradition is its conceptualism
as the civil law tradition is characterized by its emphasis on abstract
concepts. Flowing from this is the civil law deductive approach to legal
reasoning, proceeding from the general to the specific. The theory in
civil law drafting is therefore to enunciate general principles. Judges
therefore proceed from the general to the specific, deriving conclusions
through interpreting the rules set out.
The
second source of law in the civilian tradition is legal scholarship
"la doctrine" and the third source of law in the civil tradition
are prior judicial decisions. While prior decisions are sometimes a
source of law in the civil tradition, they are therefore never the source
of legal rules as in the common law tradition.
Language
One
integral issue relating to Canada's bijuralism is that of "language".
It is very important for me to stress that I consider language to play
a crucial role in the evolution of law. Linguistic duality has been
a constant concern in our country. Both the English and French languages
are solidly embedded in our history. I cannot stress enough the judiciary's
responsibility to protect language rights enshrined in the Canadian
Charter of Rights and Freedoms and to promote efforts toward true
bilingualism. This would help continue our path in Canada towards increasing
access to justice.
The
sources of the common law were established in the English language.
Translation often results in some very significant problems for the
practice of the common law in French. The same holds true for the practice
of civil law in English. Some concepts are quite hard to translate.
It is hard to avoid confusion when civil law terminology must be relied
on. It is also hard for lawyers to present their arguments in French
in courts where the judges are not fluent in that language. Fortunately,
this situation has improved significantly, especially in the Supreme
Court of Canada, the Federal Court and the courts of New Brunswick.
Nonetheless, to attain a high level of interaction between Canada's
two legal systems, a high degree of individual bilingualism must be
attained within the legal profession. Indeed, the history of Canadian
bijuralism supposes an ability to function in the two languages. At
present, there is still reason to fear that we are less than well equipped
to meet this challenge.
The
suitability of judges educated in the common law tradition hearing cases
involving civil law issues has been the subject of some debate in Quebec
and has even led to some opinion favouring a distinct Supreme Court
for Quebec or a separate civil law division within the existing Supreme
Court. There is also a perception that while Ontario courts often
serve as persuasive authority in other Canadian provinces, decisions
of Quebec courts that are rendered in French are not fully heeded in
other jurisdictions, undoubtedly due to the language barrier. Indeed,
much of Quebec civil law and Quebec French unilingual commentary or
decisions, even on non-civil law matters, "remains a closed book to
those outside Quebec". I do not think that any of you would contest
that the rest of Canada would only gain insight from their knowledge
of Quebec jurisprudence and doctrine.
One
question that often arises is whether the common law system is intimately
linked to the Anglo-Saxon mentality and language? Is the system of values
of Francophones inconsistent with the common law tradition? And if Francophones
integrate French into the practice of the common law, will they change
the course of development of the common law as a result of their French
influence? Likewise, the same questions can be asked of the civil law
tradition and whether it is intricately linked to the French language?
In
this regard, I cannot emphasize enough that my experience has taught
me that French is not the exclusive linguistic vehicle for the expression
of the civil law tradition nor is English the exclusive vehicle for
the expression of the common law. I highly doubt that there is any mystical
connection between the French language and the civil law tradition and
the English language and the common law tradition.
Today,
several law faculties have successfully undertaken multi-traditional
or multi-lingual legal training. In particular, the faculties of Ottawa
University and McGill University offer both civil and common law degrees.
The faculties of Moncton and Ottawa offer common law programmes in French
and McGill University offers the civil law programme in English. A number
of faculties have instituted student exchange programmes and the Federal
Government has sponsored an annual summer programme in which students
from both legal traditions undertake comparative legal studies.
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Bilingual
Legislation
It
is perhaps trite to state that federal legislation in Canada is intended
to apply consistently across the provinces and territories—that the
same federal law must apply in both Quebec and in Ontario. While this
may be the ultimate goal of federal legislation, in practice this goal
is not easily attained, since federal legislation must be drafted in
the English and French languages and in a manner which is compatible
with two legal systems. Canada is blessed with four different legal
languages and federal legislation must not only be bilingual but bijural. Indeed,
federal legislation must simultaneously address four different groups
of persons:
1.
anglophone common law lawyers;
2.
francophone common law lawyers;
3.
anglophone Quebec civilian lawyers; and
4.
francophone Quebec civilian lawyers.
It
is crucial that these four legal audiences in Canada be able to both
read federal statutes and regulations in the official language of their
choice and also be able to find in them terminology and wording that
are respectful of the concepts, notions and institutions proper to the
legal tradition of their particular province or territory. This task
is easier said than done and the courts should play a role in fostering
this task.
One
distinctive and often difficult feature of Canadian bijuralism is the
task of rendering the common law in French and the civil law in English.
More specifically, how legislative statutes and judicial decisions of
either legal tradition can be "transposed" into the language of the
other. With respect to the process of drafting federal legislation,
it is now readily recognized that this process should not rely upon
the technique of simply transposing the concepts of one legal tradition
into the corresponding functional equivalents of the other legal tradition.
In many areas, a new vocabulary must be forged.
Certain
problems arise where federal legislation is drafted on the basis of
the common law system alone, or based on rules or institutions that
exist only in the common law. This problem has now been addressed directly
through a project of which you have been informed.
Interpreting
Bilingual Legislation
In
their interpretation of bilingual legislation, Canadian courts should
and do play a role in fostering Canada's bijural legal system and in
avoiding the perpetuation of the inequalities referred to above.
The
requirement in Canada that legislation be enacted in both English and
French has important implications. It means that both language versions
of a bilingual statute are original, official and authoritative expressions
of the law. Neither version has the status of a copy or translation—and
neither has paramountcy over the other. Notwithstanding the repeal of
section 8 of the Official Languages Act in 1988, Canadian courts
have consistently affirmed that the English and French versions of a
statute are equally authentic and authoritative. This is known as the
"equal authenticity rule", which must be applied by courts in interpreting
federal bilingual legislation. This rule was first formulated in 1891
by the Supreme Court in C.P.R. v. Robinson wherein the
Court stated:
I
take it that whether the article was first written in French or in
English is immaterial . . . In the case of ambiguity, where
there is any possibility to reconcile the two, one must be interpreted
by the other. The English version cannot be read out of the law. It
was submitted to the legislature, enacted and sanctioned simultaneously
with the French one, and is law just as much as the French one is.
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By
virtue of the equal authenticity rule, therefore, the English and French
versions of statutes and regulations of Canada are equally authoritative.
Indeed, as professed by the Quebec Superior Court and confirmed by the
Court of Appeal in Mekies v. Directeur du Centre de détention
Parthenais, "le Tribunal canadien a non seulement le droit mais
aussi l'obligation de prendre connaissance des deux textes officiels
et de les interpréter l'un par l'autre." This means that to properly
interpret bilingual legislation of Canada, the English and French versions
must be read in light of each other, taking into account the context
of such legislation, including the intent of the legislature that each
provision of the act be read consistently with the others and that the
act as a whole be read in light of the legal family or system of law
applicable in the particular jurisdiction.
The
Policy on Legislative Bijuralism, adopted by the Department of Justice
in June of 1995, formally recognizes that when reading federal statutes
and regulations, the reader, regardless of his or her language or legal
system, 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 the relevant jurisdiction. This policy and approach is also
followed by judges in their interpretation of bilingual legislation.
A
case in point where one can see the importance of reconciling the French
and English versions of a provision within the specific context of the
applicable legal system is that of Gulf Oil Canada Ltd. v. Canadien
Pacifique Ltée. At issue in this case was a provision of the
Federal National Transportation Act wherein the English version
provided that carriers were not liable for loss caused by "acts of God"
while the French version provided non-liability for "cas fortuit"
or "force majeure". The Quebec Superior Court took into consideration
the civil law system in interpreting this provision, concluding that,
while the acts of third parties do not meet the definition of "acts
of God" in the common law system, they nevertheless may constitute "cas
fortuit" or "force majeure" in Quebec law. The Court in this case recognized
that, in its English and French versions of this provision, the legislature
sought to take into account the two legal systems in Canada.
The
rule of equal authenticity also requires the courts, in interpreting
bilingual legislation, to extract the "highest common meaning" from
the two versions that is consistent with the context of the provision. Where
there is a blatant conflict between the English and French versions,
courts must examine the legislative history of the two linguistic versions
of the provision, looking also to the purpose and object of the statute.
One must therefore go further than mere verbal comparisons, looking
to the highest common meaning of the two versions. This approach
can be seen in the Ontario Court of Appeal decision in Reference
re Education Act of Ontario and Minority Language Education Rights, wherein
the Court of Appeal dealt with the interpretation of subsection 23(3)
of the Canadian Charter on minority language rights. Specifically, the
English version of the section referred to "minority language educational
facilities" while the French version spoke of "établissements d'enseignement
de la minorité linguistique". While a common meaning of these terms
reduced to their lowest common meaning was equivalent to a guarantee
of classrooms, the Court of Appeal opted for the highest common meaning,
reading the two versions together, and accorded a guarantee of schools
managed by francophones—the linguistic minority, rather than mere physical
facilities within the language facilities of the majority.
In
a recent decision of the Supreme Court in Doré v. Verdun,
Justice Gonthier maintained that a court is free to reject a shared
meaning between the two versions of a statute if it appears contrary
to the intention of the legislature. Courts are therefore required to
interpret bilingual legislation in a manner that accords with the true
spirit, intent and meaning of an enactment and that best ensures the
attainment of its objectives.
Harmonization
The
interaction of law emanating from the federal and provincial levels
and the potential conflicts between them and possible harmonization
is a complex issue.
Over
the years, pursuant to the division of powers under the Constitution
Act, 1867, Parliament has enacted a considerable number of laws
aimed at regulating private law issues. These matters include, inter
alia, marriage and divorce, bankruptcy and insolvency, bills
of exchange and promissory notes, maritime law, and copyrights and patents
of inventions. For example, in order to have effect, legislation concerning
bankruptcy, bills of exchange or bank security depend on the existence
of contracts such as loans, sales and hypothecs. One can also look to
divorce and the extra-contractual liability of the Crown, or the Income
Tax Act, which determines the tax consequences of sales, assignments
of claims, gifts and legacies. These examples illustrate that certain
public law statutes, when applied in Quebec, require that recourse be
had to the Civil Code of Quebec to identify the precise nature
of the juridical act in question.
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The
Bankruptcy and Insolvency Act contains several provisions that
demonstrate the required reference to the Civil Code for its effect.
For example, s. 95 of the Bankruptcy and Insolvency Act allows
the trustee in bankruptcy to void a preferential payment made within
three months preceding the bankruptcy. However, s. 95 does not apply
where "a debtor-creditor legal relationship does not exist" between
the bankrupt and the third party. Thus, if no legal transaction exists
pursuant to the Civil Code of Quebec, the payment shall not be
voided. Similarly, s. 95 of the Bankruptcy and Insolvency Act
provides that preferential payments are nevertheless enforceable against
the trustee if the juridical act was agreed to prior to the three month
period, again, requiring the application of the Quebec Civil Code.
Section 136 of the Bankruptcy and Insolvency Act also requires
looking to the Civil Code to determine the status of creditors under
the Bankruptcy Act.
There
are therefore many examples where the Civil Code governs private
law relationships that come into contact with federal law which determines
the consequences of such relationships. There are also situations where
the civil law plays an active role, directly applying to private law
federal statutes. As such, civil law is called upon to fill the gaps
left by the federal law. Consequently, there are several areas of law
found in federal statutory enactments which require harmonization with
Quebec private law, expressed primarily in the Quebec Civil Code.
In
an effort at harmonization, the Supreme Court decided in 1977 in the
case of Quebec North Shore Paper Co. v. Canadian Pacific,
that there is no general "federal judicially-created common law" which
fills the gap where Parliament has not legislated on a certain matter.
In other words, the law of Quebec is called upon as the droit commun
even with respect to some matters within the federal competence when
that jurisdiction has not been exercised by the federal Parliament.
In so doing, the possibility of a further duality of common laws within
Quebec was avoided—namely, a judicially created one by the Federal Court
in addition to that already in place in Quebec by reason of French civil
law in matters of property and civil rights and English law in non-civil
matters.
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. Indeed, as professed by Jean-Maurice Brisson
and André Morel:
While
it is true that these laws "apply to the whole of Canada", as subsection
8(1) of the Interpretation Act states, it is nowhere stated that
they must apply uniformly in all places and in all respects. Does not
the division of powers between the federal and provincial governments
indicate the contrary? As one writer has pointed out, in addressing
this supposed uniformity: "If all aspects of the law should be exactly
the same across the country, why have a federal system?"
This
statement merits re-emphasis—If uniformity was our goal, what would
be the purpose of our federal system and bijural culture? The need to
recognize diversity should not, however, inhibit the need for coherence
and the need to reduce conceptual and linguistic incongruence.
Convergence
and Progress
There
is evidence of a certain convergence between the civil law and common
law traditions in Canada. While the common law and civil law families
share common origins, these legal systems have been moving farther and
farther from those origins. This move can be seen as the result of frequent
contact with other legal systems, the growth in the number of sources
of international law, the mobility of persons, the influence of the
media, the production of indigenous reference works and the growing
use of legislation, even in common law jurisdictions, to enable the
law to adapt quickly to societal change.
This
move may also result from the commercial activity of Quebec enterprises
outside of Quebec coupled with the desire to attract foreign investment
into Quebec. Such activity creates pressures to adopt commercial law
devices from Anglo-American jurisdictions. One often-cited example of
the convergence of the two legal traditions in Canada focuses on the
acceptance in Quebec of specific institutions of the common law tradition—namely,
the trust. In a number of celebrated decisions, the Supreme Court
forged a sui generis conception of ownership in the trustee,
nowhere envisaged in the Civil Code itself, in order to reconcile the
genius of this common law institution to the Quebec legal system whose
infrastructure with respect to the concept of ownership was entirely
different. The new Civil Code of Quebec later put in place the
idea of a trust upon the basis of the patrimony—a concept of civilian
derivation—in order to avoid importing the concepts upon which the common
law trust functions. This new formulation rejects the vision of the
Supreme Court in which the trustee was attributed a sui generis
title. In the spirit of this comparative technique, however, the goal
was to seize upon the experience gained from the common law tradition
with a view to adapting it to Quebec's own "pensée juridique".
The result can therefore be seen as the same, yet the principles adopted
remain consistent with Quebec's legal tradition.
Another
instance of this "rapprochement " of the two traditions can be discerned from the current situation
where common law courts are required to apply and interpret substantive
civil law. Consistent with civilian countries, statutes are at the apex
of the hierarchy of sources in Quebec. However, jurisprudence is no
longer so much of a secondary source in Quebec. No doubt, decisions
of the Supreme Court have had a profound effect on Quebec law. One can
also not deny that lawyers pleading in Quebec will invoke and abundantly
cite "la jurisprudence" to support their arguments.
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Throughout
its history, the Supreme Court of Canada has been preoccupied with the
reciprocal influences of the civil and common law traditions and has
demonstrated its willingness to contribute to a process of "cross-fertilization".
In a recent tort decision of the Supreme Court from British Columbia,
in Canadian National Railway Co. v. Norsk Pacific Steamship
Co. Ltd., the Court made extensive reference and resorted to civilian
authority for resolution of a common law tort case. Chief Justice McLachlin
stated that looking to how other courts in different jurisdictions deal
with this issue provides perspective both on the nature of the problem
and possible solutions.
Such
decisions demonstrate the utility that can be derived from our bijural
tradition. Constant change and evolving institution and concepts are
the essence of law. Bijuralism in Canada is more than the mere "co-existence"
of the two legal traditions. It involves the sharing of values and traditions.
Conclusions
It
is of course too soon to draw definite conclusions, but even so, I want
to mention some possible signs that things have improved as the last
century has ended. The basic question relates to the legitimacy of the
existing legal system. Our legal system must now incorporate the shared
values of society as a whole, without excluding or discriminating against
anyone. It must evolve in light of our background and needs. In the
Canadian context, it seems to me that a new analysis of the situation
is also needed. I feel that the inter-penetration of the two legal systems
is seriously flawed. It should give way to an exercise that would determine
how the concepts of the two systems can be reconciled. It is no longer
enough to compare them, or even to interpret one system for the purposes
of the other. In my opinion, comparative law must evolve to become a
true legal discipline and contribute directly to the development of
the law. Canada has the qualities to be a living model of comparative
law.
It
is true that things have already changed substantially. The codification
of the law is increasingly extensive in both systems. There are more
and more new sources of substantive law, including international law
and native law. Translation, language training for judges and jurists,
and exchanges between law schools are far more common. There is widespread
access to criminal justice in French at the trial level throughout the
country. Some universities offer a double law degree; others have organized
one-year work terms for students studying the other system. POLAJ is
doing important work. There is a summer exchange program for students
of the two legal systems. The development of multi-jurisdictional law
firms has also increased awareness of the important contributions of
both legal traditions to legal issues of national and inter-provincial
dimensions. The
equal authenticity of the two versions of the Canadian Charter of
Rights and Freedoms, a "first" in Canadian Constitutional law, should
encourage judges and jurists alike to draw from the best elements of
both traditions. The existence of a second authoritative version of
our Charter marks an important step in Canada which can only serve to
enrich its bilingualism, bijuralism and multiculturalism. It can also
be said that, as a result of the advent of the Canadian Charter of
Rights and Freedoms, and of the Charter's influence on all legal
fields, we are moving farther and farther from the traditional common
law method of interpretation and of application of precedents. The same
is true in England, where the case law on human rights has given the
House of Lords and the Privy Council much difficulty.
The
negative side is that French-language books, articles and cases from
Quebec continue to be inaccessible to the vast majority of practitioners
and judges in the common law provinces and territories. I have also
noticed that the bilingualism of many young Quebec jurists is insufficient
to give them full access to English-language legal sources. On the flip-side,
if French is not understood in most of English Canada, how can we be
expected to make use of the insights it offers in resolving legal disputes?
There are not enough points of contact between the two systems, which
is an obstacle to the harmonious development of the law in Canada. I
consider it to be so important to make an effort to bring the legal
community of Quebec closer to the communities of the common law provinces
and territories. A sense of belonging must be developed and a desire
to make a positive original contribution to the development of the system
must be instilled if we want to benefit fully from the extraordinary
treasure of "bijuralism" in Canada. Canada
is the only country in the world where the common law and civil law
systems co-exist as the two fully-fledged vibrant legal systems of a
sizeable population. Internationally, Canada is already a leader in
the well-balanced co-drafting of bilingual legislation. Jurisdictions
such as Switzerland, Belgium and Hong Kong consider our country as a
source of inspiration. Adding bijuralism to bilingualism only creates
increased interest within the European community, where common law English-speaking
countries, Great Britain and Ireland, are co-members with civil law
countries. However, as has been pointed out by the late René David,
"some are tempted to consider Canada as the promised land for comparative
law, but the pilgrims are still in the desert". Canada has not yet mined
the full potential of its bijuralism. No doubt, as our legal systems
continue to unfold to meet societal changes and needs, the need to harmonize
into a coherent whole will be ever-present. We must all recognize the
uniqueness of Canadian bijuralism. Canada's bijuralism is an integral
part of our legal heritage and identity and truly defines an important
aspect of our country's greatness.
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