LEGISLATIVE BIJURALISM:
ITS FOUNDATIONS AND ITS APPLICATION (continued)

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III. Bijuralism Through Harmonisation: Why and How

Legislative bijuralism is designed to ensure the application and unfettered accessibility of federal legislation in a country in which two official languages and two distinct traditions of private law serve as a backdrop.[45] The goal of legislative bijuralism is to ensure respect for the essence of each legal tradition in both language versions of the Act.

Why Should We Harmonize?

Since 1867, the application of federal legislation in Quebec has given rise to certain problems, which have increased with the coming into force of the C.C.Q. Although the C.C.Q. has not completely overturned prior law, it has certainly brought about enough changes to create major discrepancies with federal legislation. The latter no longer uses the precise language of civil law.[46] The harmonization process was initially put in place in order to rebuild bridges between Quebec private law and federal legislation. In short, harmonization is a review exercise designed to address problems caused by fundamental differences between the two Canadian legal systems of private law as well as those created by the reform of Quebec civil law.

On the one hand, the harmonization process is intended to ensure that the text of all federal legislation that applies in Quebec and in one or more of the common law provinces is bijural. This does not mean that the concepts of one legal system are to be artificially applied to the other system. It is instead an attempt to express in the language of both systems, norms that have often been drafted only in terms of the common law, in order to eliminate situations of unijuralism[47] within federal legislation. Similarly, in order to remedy situations of semi-bijuralism[48] and thus fully respect legislative bijuralism, it may be necessary to rewrite the English and French versions of a statute in order to include the English vocabulary for civil law in the former and the French vocabulary for common law in the latter.[49]

On the other hand, harmonization seeks to restore connections that were broken following the reform of Quebec civil law and to adapt federal legislation to the new terminology and the current institutions and norms of the civil law. In the process, various problems are resolved; for example, obsolete terminology is deleted, compatibility with civil law institutions or rules is restored and inadequate terminology is corrected.[50]

Harmonization is often a question of terminology. As such, it is not intended to change the scope of legislation and it must remain faithful to the legislative intent underlying the statute or regulations. Within these limits, it may nevertheless have an impact on substantive law because the reform of Quebec private law involved not only terminology but also the very foundations of some institutions, rules and principles.[51]

How Do We Harmonize?

As stated earlier, federal legislation must be both bijural and bilingual. This four-pronged approach requires a certain element of innovation in terms of legislative drafting. Recourse must be had to certain techniques in order to promote, insofar as this is possible, both a bijural statement and a bijural understanding of the legal norm. In doing so, it is necessary to avoid confusion and discordance.

A primary drafting technique involves the use of a neutral term.[52] In a bijural situation, the goal is to express a private law norm through the use of a common term which applies in both the civil law and the common law of the provinces. This neutral language can be either the ordinary meaning of a term or a neutral legal term which refers to concepts or institutions belonging to both legal systems. In the latter case, the specific meaning will be determined by the relevant private law. Since it refers to both civil law and common law concepts and institutions, the neutral term is to this extent bijural.

The use of a definition[53] is another bijural drafting technique. A particular term is given a specific meaning understandable in both a common law and civil law context. In a given statute, the definition has the effect of neutralizing the vocabulary chosen to express the norm for both the common law and the civil law audiences. This technique seeks to express the norm in a bijural manner which reflects the objectives of Parliament.

Another technique developed through the harmonization process is known as the double.[54] This technique reflects the specificity of each legal system by expressly referring in a legislative provision, to the private law rules, principles and institutions applicable to each. As a rule, the civil law term is followed by the common law term in the French version whereas the common law term is followed by the civil law term in the English version of the provision.[55] This technique, which expressly includes in a legislative provision the specific terms used by each legal system, can render the text more cumbersome. In particular, members of each audience must recognize the terminology that applies to them and disregard the terminology of the other legal system. On the other hand, the double has the advantage of being unambiguous with respect to the concept or institution referred to in a given provision.

Finally, in certain circumstances, the private law rule will have to be clearly delineated in territorial and legal terms. This technique is known as the paragraphed double.[56] It involves setting out the norm in light of the terminology, rules, principles and institutions of a specific private law tradition. However, both expressions of the norm are limited in their application by phrases such as "in the province of Quebec", "in the other provinces" or "elsewhere in Canada". This technique falls within the exception to the general rule set out in subsection 8(1) of the Interpretation Act, which deals with the territorial operation of a statute:[57] "[e]very enactment applies to the whole of Canada, unless a contrary intention is expressed in the enactment." Needless to say, the use of this technique is designed to meet specific needs, which make it necessary to limit the application of the legal norm to a specific part of the country.

No to Highlighting!

These are the different drafting techniques that have been used to date to meet the requirements of legislative bijuralism. The preferred approach is technical in nature, requiring no typographical highlighting and generally asking the audience to identify the terms that apply to its system of law. Some will criticize this approach and claim that the emergence of new bijural terminology can only cause a certain amount of confusion in the interpretation of the statute. How is it possible to separate the civil law terminology from that of the common law without being well versed in the two legal traditions? Not to mention the fact that some terms are used by both legal systems in one or the other of the official languages but not necessarily in both![58] Would it not have been possible to make bijural provisions easier to read by clearly identifying by means of a predetermined typographical convention such as italics or underlining, those terms that belong to the civil law and those that belong to the common law? Is it not possible, at the very least, to create a lexicon of the bilingual terminology of private law terms used in bijural federal legislation?[59]

These questions have given rise to serious reflection by the Department of Justice Canada as well as by academics and practitioners. The conclusion reached was that the use of a system of terminological highlighting and the creation of a lexicon were not appropriate or even desirable approaches.[60] From a legislative drafting point of view, the use of printing conventions in a statute to highlight civil law and common law terms would cause a number of inherent difficulties.[61] First of all, the symbolic aspect of the form of the statute would be affected. The legislature always speaks with one voice, thus, both language versions of an Act must be in the same form. This uniform appearance of the Act is an important symbol.[62] Neither language version nor legal concept may take precedence over another; they are equal and neither may be singled out. It would accordingly be inappropriate to distinguish between the terms of either system of private law or between the language versions of the statute by using different typographic characters. Furthermore, a number of technical difficulties are linked to a system of highlighting. In order to be fully effective, the highlighting must be uniform and any failure to highlight a concept might lead to an erroneous conclusion. In addition, it may sometimes be difficult to determine whether a term or concept must be highlighted or not. Finally, what is to be done about terms having a meaning in both systems of law? In short, as Professor Bisson has pointed out, a system of highlighting would certainly result in making the legislation more complex.[63]

Bijural Interpretation Tools

The fact that federal legislation must now speak explicitly to the four legal audiences inCanada could give rise to fears relating to the proper comprehension and interpretation of bijural texts. Tools are now available to help in the incorporation of this new approach, including new rules of bijural interpretation in the Interpretation Act[64].

On the one hand, these rules formally recognize Canadian bijuralism in a legislative context as well as the principle of complementarity between federal legislation and the private law of the provinces in the areas of property and civil rights.[65]

8.1 Duality of legal traditions and application of provincial law

Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a province's rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.

Section 8.1 of the Interpretation Act addresses the following question: "where does one find the law of property and civil rights in Canada'?"[66] In this respect, both the common law and the civil law are authoritative sources of law. Section 8.1 also confirms the ambulatory nature of the reference to provincial private law. Thus, unless otherwise provided by law, the rules, principles and concepts in effect in the province at the relevant time serve as a backdrop to the federal legislation.

On the other hand, these rules of interpretation also establish certain parameters for the bijural interpretation of a statute in matters of property and civil rights:

8.2 Terminology

Unless otherwise provided by law, when an enactment contains both civil law and common law terminology, or terminology that has a different meaning in the civil law and the common law, the civil law terminology or meaning is to be adopted in the Province of Quebec and the common law terminology or meaning is to be adopted in the other provinces.

Section 8.2 of the Interpretation Act focuses on the terminology used in a federal statute to describe a private law norm. The objective is to facilitate the understanding of federal statutes in a bijural context. Unless otherwise provided, such statutes must be consistent with the private law of the province in which they are applied. Only terminology or a connotation consistent with the civil law will find application in Quebec and conversely, only terminology or a connotation consistent with the common law will be considered in the other provinces.

In effect, sections 8.1 and 8.2 of the Interpretation Act constitute a guide to bijural interpretation, their main purpose being to simplify the application and understanding of federal legislation.

Furthermore, in response to concerns relating to the order of priority to be given to the civil law and the common law in the drafting of bijural provisions,[67] the summary of the Federal Law-Civil Law Harmonization Act, No. 1 states that:

Generally, in provisions that describe a legal concept by using a common law term and a civil law term, the common law term appears first in the English version and the civil law term appears first in the French version. Examples of this are "real property and immovables" in the English version and "immeuble et bien réels" [sic] in the French version.

By analogy with the approach followed in the context of bilingualism, this reverse order of precedence takes into consideration the primary legal audience to which each language version is addressed.[68] There is, however, an exception to this rule. The Department of Finance, responsible for drafting harmonized tax law provisions, does not use the reverse order of precedence. Rather, the terms are listed in the same order in both the English and French versions of the provisions. In addition, tax law drafters rely on explanatory notes in order to expressly identify the harmonization changes introduced in a statute and thus alert the reader to the purposes of the amendments.

It is important to effectively communicate bijural drafting techniques to the legal community and the general public. In response to concerns raised with respect to the readability and comprehension of harmonized provisions, the Department of Justice Canada has, in accordance with a commitment made before the Standing Senate Committee on Legal and Constitutional Affairs,[69] created bijural terminology records as an administrative tool to facilitate the interpretation and application of harmonized legislation.[70] These records briefly explain harmonization problems encountered in the legislative provisions amended by the Federal Law-Civil Law Harmonization Act, No. 1 and by the Income Tax Amendments Act, 2000, describe the solutions adopted to correct the problem and identify the civil law and common law terminology in both French and English used for this purpose. These records are now available on the Department of Justice web site and will be updated as harmonization amendments are enacted.[71] The relevance of these records has already been established in the Schreiber case, a unanimous decision by the Supreme Court of Canada[72] In that case, the Court relied upon the bijural records to confirm that the harmonization amendment made to paragraph 6(a) of the State Immunity Act[73] was designed to include civil law terminology and not to amend the substance of the provision.[74]

There is no doubt that these administrative tools are a major aspect of legislative bijuralism. Not only is it important to adequately address the four legal audiences, it is even more important for these audiences to understand the approach and techniques used for this purpose. The creation of this supporting material is an important step in this direction.

Conclusion

In Canada, federal legislation clearly applies in both civil law and common law jurisdictions. It is also clear that bijuralism is a distinctive feature which Parliament has undertaken to respect, in addition to the constitutional duty of legislative bilingualism. Federal legislation must be accessible, comprehensible and applicable everywhere inCanada: in English and French in common law jurisdictions and in French and English in the civil law jurisdiction of Quebec. This constitutes a major challenge!

In order to adequately speak to the four legal audiences, the appropriate vocabulary must be used when federal legislation refers to provincial private law rules. This is where the reform of Quebec civil law has had the greatest impact on federal legislation: it has emphasized the need to review and harmonize the legislation in order to reduce the number of discrepancies with the vocabulary and the institutions of the civil law. Federal legislation must also take into account the continuing linguistic development of the common law in French.

Finally, it bears repeating that bijuralism and harmonization are not designed to change the structure of a statute, the substantive law or, in the case of tax legislation, the principles of horizontal[75] and vertical equity. Rather, unless there is a clear intention to standardize the norm, bijuralism and harmonization seek to ensure that the norm referred to in federal legislation relies upon the appropriate private law rules applicable in any given province. In this regard, the following statement by Professor André Tunc seems to summarize the situation accurately: "[translation] [t]he objective is not to disrupt, but rather, to review everything!"[76]

Footnotes