Backgrounder

Bill to harmonize federal laws with Quebec civil law

Canadian Bijuralism

Canada boasts not only two official languages but also two legal systems: civil law in Quebec and common law in the other provinces. Drawing on the advantages of each of these legal systems, Canada is a country that is rich in legal innovations and able to respond effectively to the complex problems of modern society. It is one of only a handful of "bijural" countries in the world where two legal systems co-exist.

In an era of market globalization, bijuralism also provides a substantial competitive edge. Eighty percent of the world's countries are governed by legislation derived from either common law or civil law. Our practical knowledge of both legal systems helps Canada understand and interact effectively with the legal standards, laws and institutions of countries as different from ours as Chile, Japan and France.

The Harmonization Program

The coming into force of the Civil Code of Quebec in 1994, which replaced the Civil Code of Lower Canada, 1866, had major repercussions on the application of federal statutes and regulations that refer to the province's private law. The program to harmonize federal legislation with Quebec civil law was created in order to prevent difficulties in applying federal legislation in Quebec arising from the reform of the Civil Code.

The Harmonization Program involves reviewing all federal laws that deal with private law to ensure that they take into consideration the terminology, concepts and institutions of Quebec civil law. The harmonization of federal legislation will not only improve the application of federal laws in Quebec, but will also increase the effectiveness of the courts and the public administration responsible for their application. Parliament's intention will be clearer and problems in interpreting federal legislation as it applies in Quebec will be reduced. In doing so, harmonization will make justice more accessible to all Quebecers.

The Government of Canada has taken the following measures to improve the application of federal legislation in Quebec following the reform of the Civil Code of Quebec:

• In 1993, the Department of Justice created the Civil Code Section to study the impact of the Civil Code of Quebec on federal legislation;
• In 1993, the Department also adopted the Policy on the Application of the Civil Code of Quebec to the Federal Government, which recognized the interdependence of federal law and the civil law and the need to adapt federal legislation to the new Code;
• In 1995, the Department adopted a Policy on Legislative Bijuralism, which requires the federal government to draft federal legislation so that the language of both versions is faithful to the common law and the civil law;
• In 1995, both Houses of Parliament adopted a resolution recognizing the province of Quebec as a distinct society, one of whose characteristics is its civil law tradition;
• In 1997, the Department created the Program to Harmonize Federal Legislation with the Civil Code of Quebec.

The Harmonization Bill

On January 31, 2001, the harmonization Bill, entitled A First Act to harmonize federal law with the civil law of the province of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law, was tabled in the Senate.

The preamble to the harmonization Bill recognizes Quebec's civil law tradition, which reflects the unique character of Quebec society. It also acknowledges that all Canadians are entitled to access to federal laws in keeping with their legal tradition.

This bill's main components include:

• repeal of the pre-confederation provisions of the Civil Code of Lower Canada, pertaining with subjects within the legislative competence of the Parliament of Canada since 1867 and the replacement of certain of its provisions dealing with marriage;
• amendments to the Federal Real Property Act, the Bankruptcy and Insolvency Act, the Crown Liability and Proceedings Act; and
• amendments to the Interpretation Act to add provisions that recognize the coexistence of two Canadian legal traditions and confirm the need to refer to provincial law when applying a federal statute that has private law aspects;
• amendments designed to harmonize 45 other statutes with the Civil Code of Quebec in the fields of property, civil liability and security law.

Examples of harmonization

The Harmonization Bill is technical in nature and seeks to ensure that each linguistic version of federal statutes equally reflects civil law and common law systems.

For example, in the common law, the expression "mortgage" is rendered in French by the term ‘hypothèque". In the civil law, the term "hypothec" is used in English and "hypothèque" in French. Harmonization requires that federal statutes and regulations contain the terms used in both legal systems and in both language versions.

Next Steps

Tax law, regulatory law and trade law have been identified as key areas requiring harmonization. Over the next few years, the Department of Justice will concentrate on harmonizing laws in those areas.

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Department of Justice Canada
January 31, 2001