Some thoughts on bijuralism
in Canada and the world

Endnotes

  • [1] By defining bijuralism as meaning the coexistence of two systems of law, we limit its scope to the major contemporary legal systems. Out of a concern to provide a more accurate description of the legal landscape, some authors believe instead that the terms "plurijuridalism" or "legal pluralism" should be used to describe the Canadian situation in order to accommodate Aboriginal rights and the specific characteristics of each common law province (see inter alia J.E.C. Brierley, "Bijuridism in Canada", in Contemporary Law, National Reports to the 1990 International Congress of Comparative Law, Montreal, 1990, (Cowansville, Que.: Yvon Blais, 1992) 22, note 9, at 25).

  • [2] Michel Bastarache, "Le bijuridisme au Canada" (luncheon on bijuralism and the judiciary, Department of Justice, Ottawa, 4 February 2000).

  • [3] P. Viau, "Quelques considérations sur la langue, le droit, le bilinguisme et le bijuriidisme au Canada", in E. Gayme, Langue et Droit, XVth International Congress on Comparative Law, Bristol 1998, collection of reports (Brussels: Bruyant, 1999) at 142-143.

  • [4] See on the subject J.E.C. Brierley, supra note 1, at 23ff.

  • [5] By the Royal Proclamation of the Treaty of Paris, the King of England prescribed the formation of courts of judicature and public justice to hear all cases in accordance with the laws of England.

  • [6] (U.K.) 14 Geo. III, c. 83.

  • [7] U.K. 1867, 30-31 Victoria, c. 3 (since 1982, Canada Act 1982 (U.K.), 1982, c. 11).

  • [8] The official title of this statute is An Act for making more effectual Provision for the Government of the Province of Quebec in North America.

  • [9] Supra note 7.

  • [10] The expression "property and civil rights" has been interpreted as generally including relations in civil society, including those relating to property and contracts.

  • [11] There is nevertheless a notable exception to this rule. Under the general theory of the division of powers, provincial private law may not apply on a supplementary basis to offset Parliament's failure to exercise its primary power over a matter. (Union Colliery v. Bryden, (1899), A.C. 580, at 588 [hereinafter Union Colliery].)

  • [12] The division of powers has moreover confirmed the role of the common law in public and criminal law.

  • [13] For example, the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3; Family Orders and Agreements Enforcement Assistance Act, R.S.C. 1985 (2nd Supp.), c. 4, and Marriage (Prohibited Degrees) Act, R.S.C. 1990, c. 46.

  • [14] P. Viau, supra note 3, who cites L.P. Pigeon, Rédaction et interprétation des lois (Government of Quebec) 1065, at 5-6.

  • [15] See R. David cited in P. A. Crépeau, "Préface", in Office de révision du Code civil, Rapport sur le Code civil du Québec, Vol. 1, Projet de Code civil (Quebec: Éditeur officiel du Québec, 1978) at XXIX.

  • [16] Ibid.

  • [17] P.-A. Côté, Interpretation of Legislation in Canada, 3rd ed. (Montreal: Thémis, 1999) at 644.

  • [18] See R. David, René, Le droit anglais, (Paris: Presses universitaires de France, 1975); J.E.C. Brierley, Major Legal Systems in the World Today (London: Stevens, 1985); A.R. Hogue, Origins of the Common Law, (Indianapolis: Liberty Press Edition, 1966); M. Bastarache, "Les défis nouveaux du bijuridisme", (1998) 29 R.G.D. 241, at 243; M. Dion, "Le bijuridisme canadien : perspective du ministère de la Justice", (1998) 29 R.G.D. 253, at 254ff.

  • [19] J.M. Brisson and A. Morel, "Droit fédéral et droit civil : complémentarité, dissociation", The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism (Ottawa: Department of Justice, 1997) 213, at 231.

  • [20] J.M. Brisson, "Le Code civil, droit commun?", in Le nouveau Code civil, interprétation et application, Les journées Maximilien Caron —1992 (Montreal: Thémis, 1993) 292, at 296.

  • [21] Dictionnaire de droit privé, 3rd ed., forthcoming, s.v. "droit commun".

  • [22] J.A. Clarence Smith and Jean Kerby, Private Law in Canada, A Comparative Study (Ottawa: University of Ottawa Press, 1987) at 12ff.

  • [23] Ibid.

  • [24] Union Colliery, supra note 11, at 588.

  • [25] Hogg, Peter W., Constitutional Law of Canada, 4th Edition, Carswell, Toronto, 1997, at page 547.

  • [26] R.S.C. 1985, c. F-7.

  • [27] [1986] 1 S.C.R. 752 [hereinafter International Terminal Operators].

  • [28] In the traditional approach of the general theory of the division of powers, a problem regarding the constitutionality of a statutory provision is resolved first by considering the definition of the powers which the Constitution, not the legislation, confers on an order of legislative power. The legislation cannot meet the definition of the scope of those powers. See on the general theory of the division of powers F. Chevrette and H. Marx, Droit constitutionnel (Montreal: Presses de l'Université de Montréal, 1982) at 271 273.

  • [29] International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, at pp. 774 779. In this judgment, the point for determination was whether there was a body of federal law on which the Federal Court could decide a case involving the extracontractual civil liability of a stevadoring business. In excluding application of the rules stated in the C.C.L.C., McIntyre J. held as follows at p. 779: "It is my view […] that Canadian maritime law is a body of federal law encompassing the common law principles of tort, contract and bailment. I am also of the opinion that Canadian maritime law is uniform throughout Canada […] Canadian maritime law is that body of law defined in s. 2 of the Federal Court Act. That law was the maritime law of England as it has been incorporated into Canadian law and it is not the law of any province of Canada." See on the subject G. Lefebvre, L'uniformisation du droit maritime canadien aux dépens du droit civil québécois : lorsque l'infidélité se propage de la Cour suprême à la Cour d'appel du Québec (1997) 31 R.J.T. 577.

  • [30] Debates of the Senate (Hansard) 2nd Sess., 36th Parl., Volume 138, Issue 58, (18 May 2000), online: Parliament of Canada, http://www2.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=36&Ses=2&DocId=2332222.

  • [31] See L. Maguire Wellington, Bijuralism in Canada: Harmonization Methodology and Terminology, in Harmonization of Federal Legislation with the Civil Law of the Province of Quebec and Canadian Bijuralism: Second Publication, Booklet 4 (Ottawa: Department of Justice Canada 2001).

  • [32] Ibid.

  • [33] The following examples were given to us by our colleague, Me Elise Charpentier, during her time at the Department of Justice.

  • [34] Great Britain includes England, Wales and Scotland, whereas the United Kingdom refers to Great Britain and Northern Ireland.

  • [35] For example, health, local communities, education, housing, transportation, sports, law and order, agriculture, fisheries and forests, the arts, etc.

  • [36] Income Tax Commissioners v. Pemsel, (1891) A.C. 531.

  • [37] However, the courts recognize the particular nature of Scottish law in determining the applicable rules of law. Thus it was held (Levy v. Jackson, (1903) 5 F. 1170) that an act drafted without reference to Scottish institutions, the terminology of which was English and which reflected only English procedure and English public officers did not apply to Scotland, despite the presumption that Scotland is subject to statutes containing no express limitation.

  • [38] See http://www.gpoaccess.gov/constitution/browse.html.

  • [39] Ibid.

  • [40] See inter alia A.A. Levasseur, "La réception du système de la common law par le système législatif français en Louisiane", La réception des systèmes juridiques : implantation et destin. Textes présentés au premier colloque international du Centre international de la common law en français (CICLEF), Doucet, M. and Vanderlinden, J., Ed., Bruxelles, Bruylant, 1994, 381; id., "Le bijuridisme dans un système fédéral ou d'autonomie locale — États-Unis", Contemporary Law, National Reports to the 1990 International Congress of Comparative Law, Montreal, 1990; R.A. Pascal, note 41.

  • [41] These amendments, among others, were necessary in order to facilitate the work of jurists who always had to consult Spanish law since the text of 1808 had not had the effect of repealing it. See R.A. Pascal, "Louisiana's Mixed Legal System", (1984) 15 R.G.D. 341, p. 342.

  • [42] See N. Yiannopoulos, "The Civil Codes of Louisiana", Louisiana Civil Code 1993, St. Paul, Minn., Wets Pub. Co., 1993.

  • [43] However certain matters are under the exclusive jurisdiction of the federal courts. See A. Levasseur, Droit des États-Unis, 2nd ed. (Paris: Dalloz, 1994) at 30 36.

  • [44] Ibid., p. 36, A.R. von Mehren, Law in the United States, A General and Comparative View (New York: Kluwer, 1988) at 39ff.

  • [45] 304 U.S. 64 (S.Ct., 1937).

  • [46] See R.A. Pascal, supra, note 41, pp. 345 ff.

  • [47] Dedon v. Dedon, 404 So. 2d 904 (1981), cited by R.A. Pascal, supra, note 41, p. 346 (note 33).

  • [48] Entered into effect on July 25, 1952.

  • [49] Signed on March 25, 1957, entered into effect on January 1, 1958.

  • [50] Ss. 38 43.

  • [51] Ss. 74 75.

  • [52] Ss. 110 113.

  • [53] Signed on February 17, entered into effect on July 1, 1987.

  • [54] See articles 11 to 45 of the Treaty of the Union.

  • [55] That is to say asylum, immigration, visas and judicial cooperation in civil matters.

  • [56] See ss. 61 69, Treaty Establishing the European Communities (former articles 73 I-73 Q, EC Treaty). Since May 1999, three initiatives have already been completed: Regulation on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters; Regulation on insolvency proceedings; Regulation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (Brussels II).

  • [57] As the presentations made at the Evolution of Legal Systems, Bijuralism and International Trade conference in Ottawa in October 2000 will attest, we should note that the term "harmonization" is used in the European experience to describe a very different situation from that addressed by the harmonization work under way at the Department of Justice. The drafters of European law have a more marked preference for neutrality and even the creation of new terms which have gained the approval of various legal stakeholders. The results of the harmonization work done at the Department suggest a greater likelihood of cohabitation (Marie Claude Gervais, Moncton article) of the two traditions in a given provision through use of the double and territorial limitation.

  • [58] Council Regulation (EEC) No. 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG), for example, affords the corporations of the member state the opportunity to cooperate in a common purpose with corporations or individuals of other member states.

  • [59] See EC Treaty, art. 10(5).

  • [60] P. Viau, supra note 3, at 144, which cites A. Morel, "Harmonizing Federal Legislation with the Civil Code of Quebec: Why? and Wherefore?" in The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism—Collection of Studies (Ottawa: Department of Justice Canada, 1999) at 15.

  • [61] P. Viau, supra note 3, at 145.

  • [62] L. Maguire Wellington, supra note 31, in appendix 3.

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