Bijuralism and Harmonization: Genesis

BIJURALISM IN CANADA

Department of Justice, Lunch and Learn Workshop on Bijuralism and the Judicial Function

The Honourable Mr. Justice Michel Bastarache, Supreme Court of Canada

Ottawa, Ontario, February 4, 2000

There are relatively few countries in the world in which fundamentally different legal regimes co-exist. Canada represents such a country. Bijuralism or "bijuridisme" in Canada signifies the co-existence of the English common law and the French civil law traditions, within a country organized along federal lines.

While we find the coexistence of these two legal systems and traditions in Canada, I must profess that I do not consider it correct to speak of a "common law" or a "civil law" per se. Rather, in my opinion, there is one legal family in Canada which contains the common law systems and another legal family which contains the civil law systems.

(i) Common Law Tradition

The common law tradition can be distinguished from the civil law tradition essentially by its method, that is, its rules of interpretation, the hierarchy of its sources and its inductive reasoning. The principal characteristic of the common law is this inductive process, which consists of generalizing from common points between distinct cases and then establishing legal categories with vague foundations and flexible limits. The ratio decidendi of a previous decision is ascertained, after which we proceed by way of analogy. To practitioners, the common law means that they have access to a fragmented law that they will discover incrementally as needed. This leads to the legal fiction that a judge does not make the law but discovers it, as a legal vacuum is impossible. Thus, there is also intellectual uncertainty, as the law is in constant evolution. Of course, this evolution is not anarchical. On the contrary, each development must be justified by linking it to a principle drawn from the preceding cases. According to Oliver Wendell Holmes, the law is only what the judges say it is. Everyone is familiar with his famous assertion that: "The life of the law has not been logic: it has been experience".

(ii) Civil Law Tradition

Perhaps the most important feature of the civil law tradition differentiating it from the common law tradition, is its emphasis on the primacy of written laws. Rather than proceeding from the ratio decidendi of previous judicial decisions, the emphasis in the civil law tradition is on the written, or codified law, which is the primary source of law. The civil law is therefore not "judge-made law" but codified law.

Another defining characteristic of the civilian tradition is its conceptualism as the civil law tradition is characterized by its emphasis on abstract concepts. Flowing from this is the civil law deductive approach to legal reasoning, proceeding from the general to the specific. The theory in civil law drafting is therefore to enunciate general principles. Judges therefore proceed from the general to the specific, deriving conclusions through interpreting the rules set out.

The second source of law in the civilian tradition is legal scholarship "la doctrine" and the third source of law in the civil tradition are prior judicial decisions. While prior decisions are sometimes a source of law in the civil tradition, they are therefore never the source of legal rules as in the common law tradition.

Language

One integral issue relating to Canada's bijuralism is that of "language". It is very important for me to stress that I consider language to play a crucial role in the evolution of law. Linguistic duality has been a constant concern in our country. Both the English and French languages are solidly embedded in our history. I cannot stress enough the judiciary's responsibility to protect language rights enshrined in the Canadian Charter of Rights and Freedoms and to promote efforts toward true bilingualism. This would help continue our path in Canada towards increasing access to justice.

The sources of the common law were established in the English language. Translation often results in some very significant problems for the practice of the common law in French. The same holds true for the practice of civil law in English. Some concepts are quite hard to translate. It is hard to avoid confusion when civil law terminology must be relied on. It is also hard for lawyers to present their arguments in French in courts where the judges are not fluent in that language. Fortunately, this situation has improved significantly, especially in the Supreme Court of Canada, the Federal Court and the courts of New Brunswick. Nonetheless, to attain a high level of interaction between Canada's two legal systems, a high degree of individual bilingualism must be attained within the legal profession. Indeed, the history of Canadian bijuralism supposes an ability to function in the two languages. At present, there is still reason to fear that we are less than well equipped to meet this challenge.

The suitability of judges educated in the common law tradition hearing cases involving civil law issues has been the subject of some debate in Quebec and has even led to some opinion favouring a distinct Supreme Court for Quebec or a separate civil law division within the existing Supreme Court. There is also a perception that while Ontario courts often serve as persuasive authority in other Canadian provinces, decisions of Quebec courts that are rendered in French are not fully heeded in other jurisdictions, undoubtedly due to the language barrier. Indeed, much of Quebec civil law and Quebec French unilingual commentary or decisions, even on non-civil law matters, "remains a closed book to those outside Quebec". I do not think that any of you would contest that the rest of Canada would only gain insight from their knowledge of Quebec jurisprudence and doctrine.

One question that often arises is whether the common law system is intimately linked to the Anglo-Saxon mentality and language? Is the system of values of Francophones inconsistent with the common law tradition? And if Francophones integrate French into the practice of the common law, will they change the course of development of the common law as a result of their French influence? Likewise, the same questions can be asked of the civil law tradition and whether it is intricately linked to the French language?

In this regard, I cannot emphasize enough that my experience has taught me that French is not the exclusive linguistic vehicle for the expression of the civil law tradition nor is English the exclusive vehicle for the expression of the common law. I highly doubt that there is any mystical connection between the French language and the civil law tradition and the English language and the common law tradition.

Today, several law faculties have successfully undertaken multi-traditional or multi-lingual legal training. In particular, the faculties of Ottawa University and McGill University offer both civil and common law degrees. The faculties of Moncton and Ottawa offer common law programmes in French and McGill University offers the civil law programme in English. A number of faculties have instituted student exchange programmes and the Federal Government has sponsored an annual summer programme in which students from both legal traditions undertake comparative legal studies.

Bilingual Legislation

It is perhaps trite to state that federal legislation in Canada is intended to apply consistently across the provinces and territories—that the same federal law must apply in both Quebec and in Ontario. While this may be the ultimate goal of federal legislation, in practice this goal is not easily attained, since federal legislation must be drafted in the English and French languages and in a manner which is compatible with two legal systems. Canada is blessed with four different legal languages and federal legislation must not only be bilingual but bijural. Indeed, federal legislation must simultaneously address four different groups of persons:

  1. anglophone common law lawyers;
  2. francophone common law lawyers;
  3. anglophone Quebec civilian lawyers; and
  4. francophone Quebec civilian lawyers.

It is crucial that these four legal audiences in Canada be able to both read federal statutes and regulations in the official language of their choice and also be able to find in them terminology and wording that are respectful of the concepts, notions and institutions proper to the legal tradition of their particular province or territory. This task is easier said than done and the courts should play a role in fostering this task.

One distinctive and often difficult feature of Canadian bijuralism is the task of rendering the common law in French and the civil law in English. More specifically, how legislative statutes and judicial decisions of either legal tradition can be "transposed" into the language of the other. With respect to the process of drafting federal legislation, it is now readily recognized that this process should not rely upon the technique of simply transposing the concepts of one legal tradition into the corresponding functional equivalents of the other legal tradition. In many areas, a new vocabulary must be forged.

Certain problems arise where federal legislation is drafted on the basis of the common law system alone, or based on rules or institutions that exist only in the common law. This problem has now been addressed directly through a project of which you have been informed.

Interpreting Bilingual Legislation

In their interpretation of bilingual legislation, Canadian courts should and do play a role in fostering Canada's bijural legal system and in avoiding the perpetuation of the inequalities referred to above.

The requirement in Canada that legislation be enacted in both English and French has important implications. It means that both language versions of a bilingual statute are original, official and authoritative expressions of the law. Neither version has the status of a copy or translation—and neither has paramountcy over the other. Notwithstanding the repeal of section 8 of the Official Languages Act in 1988, Canadian courts have consistently affirmed that the English and French versions of a statute are equally authentic and authoritative. This is known as the "equal authenticity rule", which must be applied by courts in interpreting federal bilingual legislation. This rule was first formulated in 1891 by the Supreme Court in C.P.R. v. Robinson wherein the Court stated:

I take it that whether the article was first written in French or in English is immaterial . . . In the case of ambiguity, where there is any possibility to reconcile the two, one must be interpreted by the other. The English version cannot be read out of the law. It was submitted to the legislature, enacted and sanctioned simultaneously with the French one, and is law just as much as the French one is.

By virtue of the equal authenticity rule, therefore, the English and French versions of statutes and regulations of Canada are equally authoritative. Indeed, as professed by the Quebec Superior Court and confirmed by the Court of Appeal in Mekies v. Directeur du Centre de détention Parthenais, "le Tribunal canadien a non seulement le droit mais aussi l'obligation de prendre connaissance des deux textes officiels et de les interpréter l'un par l'autre." This means that to properly interpret bilingual legislation of Canada, the English and French versions must be read in light of each other, taking into account the context of such legislation, including the intent of the legislature that each provision of the act be read consistently with the others and that the act as a whole be read in light of the legal family or system of law applicable in the particular jurisdiction.

The Policy on Legislative Bijuralism, adopted by the Department of Justice in June of 1995, formally recognizes that when reading federal statutes and regulations, the reader, regardless of his or her language or legal system, must be able to find the terminology and wording that are respectful of the concepts and institutions proper to the legal system in effect in the relevant jurisdiction. This policy and approach is also followed by judges in their interpretation of bilingual legislation.

A case in point where one can see the importance of reconciling the French and English versions of a provision within the specific context of the applicable legal system is that of Gulf Oil Canada Ltd. v. Canadien Pacifique Ltée. At issue in this case was a provision of the Federal National Transportation Act wherein the English version provided that carriers were not liable for loss caused by "acts of God" while the French version provided non-liability for "cas fortuit" or "force majeure". The Quebec Superior Court took into consideration the civil law system in interpreting this provision, concluding that, while the acts of third parties do not meet the definition of "acts of God" in the common law system, they nevertheless may constitute "cas fortuit" or "force majeure" in Quebec law. The Court in this case recognized that, in its English and French versions of this provision, the legislature sought to take into account the two legal systems in Canada.

The rule of equal authenticity also requires the courts, in interpreting bilingual legislation, to extract the "highest common meaning" from the two versions that is consistent with the context of the provision. Where there is a blatant conflict between the English and French versions, courts must examine the legislative history of the two linguistic versions of the provision, looking also to the purpose and object of the statute. One must therefore go further than mere verbal comparisons, looking to the highest common meaning of the two versions. This approach can be seen in the Ontario Court of Appeal decision in Reference re Education Act of Ontario and Minority Language Education Rights, wherein the Court of Appeal dealt with the interpretation of subsection 23(3) of the Canadian Charter on minority language rights. Specifically, the English version of the section referred to "minority language educational facilities" while the French version spoke of "établissements d'enseignement de la minorité linguistique". While a common meaning of these terms reduced to their lowest common meaning was equivalent to a guarantee of classrooms, the Court of Appeal opted for the highest common meaning, reading the two versions together, and accorded a guarantee of schools managed by francophones—the linguistic minority, rather than mere physical facilities within the language facilities of the majority.

In a recent decision of the Supreme Court in Doré v. Verdun, Justice Gonthier maintained that a court is free to reject a shared meaning between the two versions of a statute if it appears contrary to the intention of the legislature. Courts are therefore required to interpret bilingual legislation in a manner that accords with the true spirit, intent and meaning of an enactment and that best ensures the attainment of its objectives.

Harmonization

The interaction of law emanating from the federal and provincial levels and the potential conflicts between them and possible harmonization is a complex issue.

Over the years, pursuant to the division of powers under the Constitution Act, 1867, Parliament has enacted a considerable number of laws aimed at regulating private law issues. These matters include, inter alia, marriage and divorce, bankruptcy and insolvency, bills of exchange and promissory notes, maritime law, and copyrights and patents of inventions. For example, in order to have effect, legislation concerning bankruptcy, bills of exchange or bank security depend on the existence of contracts such as loans, sales and hypothecs. One can also look to divorce and the extra-contractual liability of the Crown, or the Income Tax Act, which determines the tax consequences of sales, assignments of claims, gifts and legacies. These examples illustrate that certain public law statutes, when applied in Quebec, require that recourse be had to the Civil Code of Quebec to identify the precise nature of the juridical act in question.

The Bankruptcy and Insolvency Act contains several provisions that demonstrate the required reference to the Civil Code for its effect. For example, s. 95 of the Bankruptcy and Insolvency Act allows the trustee in bankruptcy to void a preferential payment made within three months preceding the bankruptcy. However, s. 95 does not apply where "a debtor-creditor legal relationship does not exist" between the bankrupt and the third party. Thus, if no legal transaction exists pursuant to the Civil Code of Quebec, the payment shall not be voided. Similarly, s. 95 of the Bankruptcy and Insolvency Act provides that preferential payments are nevertheless enforceable against the trustee if the juridical act was agreed to prior to the three month period, again, requiring the application of the Quebec Civil Code. Section 136 of the Bankruptcy and Insolvency Act also requires looking to the Civil Code to determine the status of creditors under the Bankruptcy Act.

There are therefore many examples where the Civil Code governs private law relationships that come into contact with federal law which determines the consequences of such relationships. There are also situations where the civil law plays an active role, directly applying to private law federal statutes. As such, civil law is called upon to fill the gaps left by the federal law. Consequently, there are several areas of law found in federal statutory enactments which require harmonization with Quebec private law, expressed primarily in the Quebec Civil Code.

In an effort at harmonization, the Supreme Court decided in 1977 in the case of Quebec North Shore Paper Co. v. Canadian Pacific, that there is no general "federal judicially-created common law" which fills the gap where Parliament has not legislated on a certain matter. In other words, the law of Quebec is called upon as the droit commun even with respect to some matters within the federal competence when that jurisdiction has not been exercised by the federal Parliament. In so doing, the possibility of a further duality of common laws within Quebec was avoided—namely, a judicially created one by the Federal Court in addition to that already in place in Quebec by reason of French civil law in matters of property and civil rights and English law in non-civil matters.

While civil law and common law complement the private law provisions of federal legislation, at the same time, federal legislation should not be applied uniformly throughout the country in every respect. Our objective is legal duality, not necessarily to achieve one rule to be applied uniformly across Canada; this requires respect for the character and uniqueness of the concepts and principles of each legal system. The fact that provincial legislatures may pursue distinctive legal policies which might each be different as well as different from those of Parliament, is a principal justification for federalism. Indeed, as professed by Jean-Maurice Brisson and André Morel:

While it is true that these laws "apply to the whole of Canada", as subsection 8(1) of the Interpretation Act states, it is nowhere stated that they must apply uniformly in all places and in all respects. Does not the division of powers between the federal and provincial governments indicate the contrary? As one writer has pointed out, in addressing this supposed uniformity: "If all aspects of the law should be exactly the same across the country, why have a federal system?"

This statement merits re-emphasis—If uniformity was our goal, what would be the purpose of our federal system and bijural culture? The need to recognize diversity should not, however, inhibit the need for coherence and the need to reduce conceptual and linguistic incongruence.

Convergence and Progress

There is evidence of a certain convergence between the civil law and common law traditions in Canada. While the common law and civil law families share common origins, these legal systems have been moving farther and farther from those origins. This move can be seen as the result of frequent contact with other legal systems, the growth in the number of sources of international law, the mobility of persons, the influence of the media, the production of indigenous reference works and the growing use of legislation, even in common law jurisdictions, to enable the law to adapt quickly to societal change.

This move may also result from the commercial activity of Quebec enterprises outside of Quebec coupled with the desire to attract foreign investment into Quebec. Such activity creates pressures to adopt commercial law devices from Anglo-American jurisdictions. One often-cited example of the convergence of the two legal traditions in Canada focuses on the acceptance in Quebec of specific institutions of the common law tradition—namely, the trust. In a number of celebrated decisions, the Supreme Court forged a sui generis conception of ownership in the trustee, nowhere envisaged in the Civil Code itself, in order to reconcile the genius of this common law institution to the Quebec legal system whose infrastructure with respect to the concept of ownership was entirely different. The new Civil Code of Quebec later put in place the idea of a trust upon the basis of the patrimony—a concept of civilian derivation—in order to avoid importing the concepts upon which the common law trust functions. This new formulation rejects the vision of the Supreme Court in which the trustee was attributed a sui generis title. In the spirit of this comparative technique, however, the goal was to seize upon the experience gained from the common law tradition with a view to adapting it to Quebec's own "pensée juridique". The result can therefore be seen as the same, yet the principles adopted remain consistent with Quebec's legal tradition.

Another instance of this "rapprochement " of the two traditions can be discerned from the current situation where common law courts are required to apply and interpret substantive civil law. Consistent with civilian countries, statutes are at the apex of the hierarchy of sources in Quebec. However, jurisprudence is no longer so much of a secondary source in Quebec. No doubt, decisions of the Supreme Court have had a profound effect on Quebec law. One can also not deny that lawyers pleading in Quebec will invoke and abundantly cite "la jurisprudence" to support their arguments.

Throughout its history, the Supreme Court of Canada has been preoccupied with the reciprocal influences of the civil and common law traditions and has demonstrated its willingness to contribute to a process of "cross-fertilization". In a recent tort decision of the Supreme Court from British Columbia, in Canadian National Railway Co. v. Norsk Pacific Steamship Co. Ltd., the Court made extensive reference and resorted to civilian authority for resolution of a common law tort case. Chief Justice McLachlin stated that looking to how other courts in different jurisdictions deal with this issue provides perspective both on the nature of the problem and possible solutions.

Such decisions demonstrate the utility that can be derived from our bijural tradition. Constant change and evolving institution and concepts are the essence of law. Bijuralism in Canada is more than the mere "co-existence" of the two legal traditions. It involves the sharing of values and traditions.

Conclusions

It is of course too soon to draw definite conclusions, but even so, I want to mention some possible signs that things have improved as the last century has ended. The basic question relates to the legitimacy of the existing legal system. Our legal system must now incorporate the shared values of society as a whole, without excluding or discriminating against anyone. It must evolve in light of our background and needs. In the Canadian context, it seems to me that a new analysis of the situation is also needed. I feel that the inter-penetration of the two legal systems is seriously flawed. It should give way to an exercise that would determine how the concepts of the two systems can be reconciled. It is no longer enough to compare them, or even to interpret one system for the purposes of the other. In my opinion, comparative law must evolve to become a true legal discipline and contribute directly to the development of the law. Canada has the qualities to be a living model of comparative law.

It is true that things have already changed substantially. The codification of the law is increasingly extensive in both systems. There are more and more new sources of substantive law, including international law and native law. Translation, language training for judges and jurists, and exchanges between law schools are far more common. There is widespread access to criminal justice in French at the trial level throughout the country. Some universities offer a double law degree; others have organized one-year work terms for students studying the other system. POLAJ is doing important work. There is a summer exchange program for students of the two legal systems. The development of multi-jurisdictional law firms has also increased awareness of the important contributions of both legal traditions to legal issues of national and inter-provincial dimensions.

The equal authenticity of the two versions of the Canadian Charter of Rights and Freedoms, a "first" in Canadian Constitutional law, should encourage judges and jurists alike to draw from the best elements of both traditions. The existence of a second authoritative version of our Charter marks an important step in Canada which can only serve to enrich its bilingualism, bijuralism and multiculturalism. It can also be said that, as a result of the advent of the Canadian Charter of Rights and Freedoms, and of the Charter's influence on all legal fields, we are moving farther and farther from the traditional common law method of interpretation and of application of precedents. The same is true in England, where the case law on human rights has given the House of Lords and the Privy Council much difficulty.

The negative side is that French-language books, articles and cases from Quebec continue to be inaccessible to the vast majority of practitioners and judges in the common law provinces and territories. I have also noticed that the bilingualism of many young Quebec jurists is insufficient to give them full access to English-language legal sources. On the flip-side, if French is not understood in most of English Canada, how can we be expected to make use of the insights it offers in resolving legal disputes? There are not enough points of contact between the two systems, which is an obstacle to the harmonious development of the law in Canada. I consider it to be so important to make an effort to bring the legal community of Quebec closer to the communities of the common law provinces and territories. A sense of belonging must be developed and a desire to make a positive original contribution to the development of the system must be instilled if we want to benefit fully from the extraordinary treasure of "bijuralism" in Canada.

Canada is the only country in the world where the common law and civil law systems co-exist as the two fully-fledged vibrant legal systems of a sizeable population. Internationally, Canada is already a leader in the well-balanced co-drafting of bilingual legislation. Jurisdictions such as Switzerland, Belgium and Hong Kong consider our country as a source of inspiration. Adding bijuralism to bilingualism only creates increased interest within the European community, where common law English-speaking countries, Great Britain and Ireland, are co-members with civil law countries. However, as has been pointed out by the late René David, "some are tempted to consider Canada as the promised land for comparative law, but the pilgrims are still in the desert". Canada has not yet mined the full potential of its bijuralism. No doubt, as our legal systems continue to unfold to meet societal changes and needs, the need to harmonize into a coherent whole will be ever-present. We must all recognize the uniqueness of Canadian bijuralism. Canada's bijuralism is an integral part of our legal heritage and identity and truly defines an important aspect of our country's greatness.

Date modified: