MONTREAL, QUEBEC
NOVEMBER 24, 1997

AS DELIVERED

Introduction

Thank you, Mario. I am honoured to have been invited to speak to this distinguished group as we launch the public consultation phase of such an important project.

My colleagues and I at the Department of Justice thank you for your support of this initiative since it began. I am especially grateful to the many academics from Quebec's faculties of law and the Civil Law section of the University of Ottawa, the experts in comparative and civil law whose scholarship has given this project the profile and pedigree it deserves.

Thank you also to our colleagues in the National Assembly and in the Ministère de la Justice du Québec for your cooperation. This project is indeed what it appears - a tangible expression of our respect for Canada's dual legal heritage and, in particular, for the civil law tradition that characterizes Quebec within Canada.

I also thank the Barreau du Québec for your commitment to our work, and the Chambre des notaires du Québec, for your cooperation and your moral support. Together, I know we share a common commitment to strengthening and supporting our justice system.

Since I began my mandate as Justice Minister, I have sought to address public concerns about Canada's justice system by focusing the Department's efforts on crime prevention, the concerns of victims, and youth justice. But raising public confidence has a more subtle side. It requires that the administration of justice be more accessible, more understandable and more effective; and it demands a justice system that is cohesive and coherent.

Canada is more than a bilingual country: it is bijural, a fundamental, though sometimes hidden element in our identity as Canadians. Our rich legal heritage is rooted in two legal traditions, one which finds its origins in Great Britain after the Norman Conquest, and the other derived from France's Code Napoléon, which in turn is based upon Roman law as established by the Emperor Justinian. The harmonious coexistence of two great legal traditions in one country is a remarkable and defining feature which should inspire all Canadians, not just those of us interested in the law.

As a bijural nation, Canada is one of a select group of jurisdictions in which the Western world's two major systems of law exist side by side. This unique coexistence of civil law and common law is at the core of Canadian federalism. But any marriage counsellor will tell you that 130 years of cohabitation does have its challenges. And federalism, too, must be constantly rejuvenated. The project to harmonize federal legislation with the private law of Quebec is an important part of that renewal, and that will be the main focus of my remarks this morning.

Two Other Examples of Legislative Cooperation

Before I describe it, I would like to stress that this initiative is just one of the legislative projects on which the federal and provincial governments are working.

Earlier this year, when violence in Quebec and other provinces signalled the need for anti-gang legislation, the federal government responded quickly. Similarly, the work on the constitutional amendments to allow linguistically based school boards in Quebec is proceeding rapidly, due in large part to the good work of my colleague Stéphane Dion. And this work respects the consensus that exists in Quebec for this important change. Both examples show how our legal system, like our federal system, is always ready to evolve, responding to the needs of Canadians in a changing society.

Overview of the Harmonization Project

It is in this spirit that I want to talk about the legislative harmonization project - what its goals are, how the project worked, and what we've learned so far - and I want to tell you why I think it matters not only in Quebec but throughout Canada.

A. Goals of Legislative Harmonization

The legislative harmonization project has three goals. The first two are of a general nature, while the third is specific to the changes in Quebec private law resulting from the renewal of the province's Civil Code.

The first goal is to reaffirm the unique bijural character of Canadian federalism by making the expression of that character explicit and visible in both official language versions of federal legislation.

The second goal of the project is to strengthen civil law's rightful place beside the common law in the statute books of Canada. Despite the historical coexistence in Canada of two major western legal traditions, federal legislation has tended to make civil law, at least at times, an orphan. At times, it created statutes whose very concepts were unique or peculiar to the common law; at times it used terms that had no civil law equivalent or no technical meaning in civil law; and at times it used terms whose meanings were so different in civil and common law that Quebec's courts tended to favour the common law interpretation as a better reflection of Parliament's intent.

The harmonization project therefore represents an opportunity to correct previous oversights, omissions and unijural constructions in existing federal legislation, and to replace them with wording that accurately reflects the vocabulary, concepts, norms and institutions of Quebec's civil law.

Finally, in undertaking to harmonize federal legislation with the private law of Quebec, the Government of Canada seeks to ensure that federal legislation continues to have its intended effect in Quebec. That means providing the courts with clearer guidance in matters of interpretation and making the legislators' intent more understandable to citizens. The harmonization of federal legislation with the Quebec Civil Code will improve the administration of federal law in Quebec and increase the effectiveness of the courts charged with applying it. Fewer problems of interpretation will mean savings of time and money for litigants and for both the federal and Quebec governments.

B. How the Project Worked

The fact that these goals run the gamut from the pragmatic to the symbolic illustrates how much has been learned in the four-year course of this project.

The process began in 1993 with a series of consultations with leaders from Quebec's faculties of law.

Although initiated as a study of the impact of impending legislative changes in Quebec on federal public administration, the project rapidly turned into something much bigger. Comparisons of the two official language versions of federal statutes revealed that civil law concepts were not adequately represented in English and that common law terms were not always correctly rendered in French.

So in June of 1995, my predecessor, the Honourable Allan Rock, established a legislative drafting policy by which every new federal statute that touched on private law matters was to be drafted with deliberate attention to the terminology, concepts, norms and institutions of both of Canada's systems of private law.

At the same time, the Department commissioned numerous technical studies by respected legal scholars from Quebec's law faculties, who looked at the interplay between federal and provincial private law. At the same time, the Department of Justice reviewed some 700 federal statutes to determine which of them would be most affected by the formal and substantive changes in Quebec private law. Selecting a few statutes for in-depth study by academic experts, we then commissioned work to develop legislative drafting methods that would address the problems identified in the course of this research.

A compendium of this research is now available, and you will find a summary of our process to date and of our consultations in the consultation document, which I believe everybody had the opportunity to pick up this morning. We are making that document public for the first time. I think you will all agree it is a rather weighty tome and reflects the large amount of concerted work on the part of a large number of very talented and dedicated people. The next steps will be to engage public debate and then to get on with the systematic revision of federal legislation by order of priority, beginning with amendments to the Interpretation Act.

C. What We Learned

Resolving questions of interpretation is key to the success of the legislative harmonization. All our research spoke to the urgency of making explicit the role of civil law as the reference system for federal legislation in Quebec. Some studies raised as many questions as they answered; but on the whole, the research gave us sound advice that we have begun to test. Perhaps most important, the work of the past four years has made us realize that harmonizing federal legislation with civil law will be no easy matter. In fact, it will present a major challenge.

D. Importance of the Project

But, it is clear to me that meeting this challenge will pay off in many ways. As a minister from western Canada, as a former law professor, and now as Minister of Justice, I see this project from three points of view, and each adds up to something of great value.

As a minister from Alberta, part of my challenge is to help western Canadians understand the need to recognize Quebec within the federation. Part of my job is to champion the principles of equality and diversity and to help ensure the people in the rest of Canada understand and respect the unique character of Quebec, characterized in part by its system of private law.

As a former law professor, I have an appreciation for the quality and scope of the scholarship that has gone into this project. The research and early consultation phases have forged stronger ties between lawyers in the Department of Justice and our colleagues in the universities. And I must say, on a personal note, I am glad to see so many of my former colleagues here this morning. Some, from places like the University of Ottawa, I have not seen for some years, not since my involvement with the Canadian Association of Law Teachers. But it is nice that this occasion has brought many of my old friends back together. It is a pleasure to see so many of you this morning.

My Department has gained a clearer understanding of the similarities and differences between Canada's two legal systems, an understanding that will improve our approach to drafting legislation. We have also strengthened our collective capacity to think like civil lawyers. And our appreciation for the other has deepened.

As Minister of Justice, I am proud of the continuing growth in expertise in comparative law in my Department. This expertise is much sought after by other government departments. The Department of Justice, which is often called the government's law firm, provides advice to the rest of government in matters ranging from Canada's international obligations to its domestic civil liability.

Our dexterity in both systems of Western legal thought is all the more valuable to Canada in a period when relations between states are becoming increasingly subject to rules-based regimes that regulate everything from trade to climate change. Our dexterity in comparative law gives us an edge in a world where governments are actively seeking to harmonize their regulatory frameworks to participate more effectively in a globalized economy. Our bijural expertise gives us insight into the norms and legal institutions of countries as different from ours and from each other as Chile, Japan and France. And our bilingual bijuralism helps us understand the legal and cultural matrix that underpins the European Union. Other nations look to our experience.

But the greatest value of this project is in how it affects Canadians in Quebec and throughout Canada. Bilingual and bijural drafting of federal laws allows all Canadians, in the course of their dealings with the federal justice system, to see themselves, because our hybrid legislative infrastructure will reflect the norms and institutions of both Canadian legal traditions.

Conclusion

In essence, this reform of federal legislation is a kind of heritage restoration project. It is an attempt to restore Canada's unique legal architecture to landmark status. As anyone who has ever done home renovations knows, the project always gets bigger as you get into it. And that, too, has been our experience.

But unlike most home renovation projects, this one is destined to make us richer rather than poorer. Already the Department of Justice is becoming a centre of excellence in comparative law. Already, we can see that the effect of our collective effort will be greater than the sum of its parts. Like any major restoration project, the work takes much planning, many hands and much patience from the neighbours. As we launch this next phase of our project I ask for your continued accommodation, but most of all, I call on your collective wisdom, experience and insight to help us in this most important task.

During the past three years, we have benefited from the work of some of the most distinguished legal scholars in Canada. Among them, Professors Roderick Macdonald, André Morel, Jean-Maurice Brisson, Jean Leclair, Pierre-André Coté, Nicholas Kasirer, Albert Bohémier and Jacques Auger, as well as practitioner Gaspard Côté, are here today to share their analyses and engage your intellect. Your presence here and your continuing support will contribute much to the success of an ambitious project. Together we will make good on Canada's commitment to Canadian bijuralism and in so doing strengthen the federation. I wish you well in your work.

Let me say that, from the Prime Minister on down, as I think Stéphane indicated this morning, we view this as a very important project for our Department, for the federal government and for our country. I wish you all the best for your deliberations this morning, and I look forward to hearing from my Departmental officials who are here today on the success of this gathering, and on how we will move forward on this important project over the coming months and years.

Thank you.