The Fundamentals of Bijuralism

Bijuralism – more than a coexistence

The Canadian legal system is defined by its legal pluralism. This pluralism reflects the diversity of the multiple sources of law and legal systems that coexist and interact with each other.

Bijuralism is one form of Canadian legal pluralism, where common law and civil law are found within the same legislative framework.

Bijuralism does not exclude:

The history of common law and civil law in Canada

Canada’s history is key to understanding the foundations of bijuralism in Canada.

The founding of New France introduced the laws, customs, and usages of the civil law tradition on the territory. From 1664, the Coutume de Paris, a consolidation of civil law rules, was officially the governing law of New France.

After the 1760 British Conquest and the 1763 Treaty of Paris, the common law of England became the law of reference on the territory of New France that is known today as the Province of Quebec.

In 1774, the Quebec Act restored, with certain exceptions, the rules and principles of civil law in matters of property and civil rights. It also formalized the coexistence of common law and civil law within a single territory in Canada for the first time. Civil law was used in private law matters and common law was used in public law matters.

A question of property and civil rights

The Constitution Act, 1867 divides legislative powers between the Parliament of Canada and provinces. It is the modern foundation for the coexistence of common law and civil law in Canada.

Subsection 92(13) of the Act states that matters relating to property and civil rights are within the legislative jurisdiction of the provinces. Property and civil rights include provincial private law matters such as civil liability or torts, property, securities and contracts. In the province of Quebec, this broad power is exercised in a civil law environment. However, this power is exercised in a common law environment in the rest of Canada.

Through federal legislation, the three Canadian territories have legislative jurisdiction in all matters relating to property and civil rights.

A legislative policy

In the 1990s, the Department of Justice introduced an important bijuralism initiative. This ongoing initiative recognizes the Department’s commitment to bijuralism, and its promotion and integration in all areas of practice.

Bijural Acts and regulations

Federal legislation must be bilingual and bijural to be effective and understood across Canada.

As the legislative drafter for the Government of Canada, the Department of Justice is responsible for meeting Cabinet’s objectives and expectations for lawmaking activities.

The bijural drafting of Acts and regulations and the harmonization of existing federal legislative texts help meet these objectives and expectations.

Bijuralism and access to justice

The Department of Justice is responsible for an accessible justice system that is supported by Acts and regulations that, when dealing with private law matters, reflect the common law of the provinces and territories and the civil law of Quebec, in English and French, where necessary. Bijural Acts and regulations directly contribute to access to justice, a fundamental value of the Canadian justice system.

Bijural interpretation rules

Sections 8.1 and 8.2 of the Interpretation Act are important tools in the interpretation of legislation and the interaction of federal law with the private law of the provinces and territories.

The bijural interpretation rules set out the relevant principles and parameters for the bijural interpretation of legislative text. In particular, these rules confirm that civil law and common law are equally authoritative and are both sources of law in the context of property and civil rights in Canada.

Sections 8.1 and 8.2 of that Act reflect the impact of Canadian constitutional history, the coexistence of legal sources, languages, and their interaction in the same legislative framework.

Harmonization Acts

Harmonization Acts are passed by the Parliament of Canada to ensure that existing federal statutes take into account the private law of the provinces and territories, in both official languages.