Bill S-11: A fourth Act to harmonize federal law with the civil law of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law

Tabled in the Senate, November 17, 2022

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill S-11, A fourth Act to harmonize federal law with the civil law of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.

What follows is a non-exhaustive discussion of the ways in which the Bill potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.

Overview

This Bill is the fourth bill in a series of bills to harmonize federal legislation with the private law of the provinces and territories, and in particular the civil law in Quebec. Private law refers to the set of rules that governs relationships between persons, for example rules dealing with property and civil liability in a province or territory. Harmonization ensures that the French and English versions of federal statutes requiring the use of provincial private law are adapted to both the civil law tradition of Quebec and the common law tradition in the other provinces and territories, in order to address four legal audiences: civil law in French, civil law in English, common law in English and common law in French. Harmonization amendments consist of adjustments or additions of technical legal terms when dealing with private law issues, such as property, security and civil liability.

This Bill would amend fifty-one federal statutes to ensure that they reflect the private law concepts and institutions specific to both civil and common law legal traditions. Part I of the Bill would amend federal statutes dealing with financial institutions, such as the Bank Act and the Insurance Companies Act. Part II would amend a series of other Acts, including the Access to Information Act, the Privacy Act, the Canada Evidence Act, and the Canadian Human Rights Act. For example, the French version of a provision of the Canadian Human Rights Act would be amended to better reflect the law of evidence in civil law.

The amendments proposed in the Bill are technical in nature, and are not intended to affect the legal scope of the provisions or their underlying policy objectives. They are intended to ensure that the amended statutes accurately reflect the terminology of the civil law and common law legal traditions, in both official languages.

Contributing to the respect of Canada’s official languages and facilitating access to justice

This Bill would contribute to the respect of the principles and values underlying sections 16(1) and 18(1) of the Charter. Section 16(1) of the Charter provides that English and French are the official languages of Canada, and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. Section 18(1) of the Charter provides that the statutes, records and journals of Parliament shall be printed and published in English and French, and that both versions have equal authority in law.

This Bill contributes to the respect of the equal use of both official languages by seeking to ensure that federal laws are equally understandable in both English and French from a provincial and territorial private law perspective. It also facilitates access to justice by making legislation more accessible for all Canadians, whether they are English-speakers or French-speakers, and whether they belong to the common law or the civil law legal tradition.