A Second Bill to Harmonize Federal Law with the Civil Law of the Province of Quebec

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 and territories. Drawing on the advantages of each of these legal systems, Canada 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 of the world's most important legal systems co-exist, the civil law and the common law.

In an era of market globalization, bijuralism also provides a substantial competitive edge. Approximately 75 per cent of the world's countries are governed by legal systems derived from either common law or civil law. Our practical knowledge of both legal systems helps Canada understand the legal standards, laws and institutions of countries as different from ours as Chile , Japan and France .

Harmonization

The coming into force in 1994 of the Civil Code of Québec , 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. Harmonization of federal legislation with the civil law of the Province of Quebec was undertaken in order to prevent difficulties in applying federal legislation in Quebec arising from the reform of the Civil Code .

Harmonization involves reviewing all federal legislation that deals with provincial private law to ensure that it integrates the terminology, concepts and institutions of Quebec civil law. Harmonization will not only improve the application of federal legislation in Quebec, but also increase the effectiveness of the courts and the public administration responsible for their application by making Parliament's intention clearer and reducing problems in interpreting federal legislation as it applies in Quebec. In doing so, harmonization will make justice more accessible to all Quebeckers. Also, particular care is taken to ensure respect for the common law in French.

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 Québec :

• From 1993, the Department of Justice began to study the impact of the Civil Code of Québec on federal legislation; it also adopted the Policy on the Application of the Civil Code of Québec 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 drafting of federal legislation so that the language of both versions is faithful to the common law and the civil law; legislative bijuralism is also a requirement set out in the Cabinet Directive on Law-Making;

• In 1997, systematic harmonization of federal legislation with the civil law of the Province of Quebec was undertaken by the Department of Justice;

• On January 31, 2001, the first harmonization bill (S-4), 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 introduced in the Senate;

• The Federal Law - Civil Law Harmonization Act, No. 1 came into force on June 1, 2001 (S.C. 2001, c.4); following which Bijural Terminology Records were published on the Justice Canada Website (http://canada.justice.gc.ca/en/ps/bj/harm/Index.html);

• Harmonization changes have been made in several tax bills assented to since 2000 (S.C. 2001, c. 17, c. 25, S.C. 2002, c. 22).

Examples of harmonization

A 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 thus entails that, where necessary, federal statutes and regulations contain the terms used in both legal systems and in both languages.

The harmonization bill

This bill amends 26 statutes and contains consequential and coordinating amendments.

The changes arising from harmonization are terminological. They do not change Parliament's intent. The addition of civil law terms in matters pertaining to property law, security law and civil liability are typical harmonization changes.

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Department of Justice Canada
October 2004