Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 18 - Evidence, June 14, 2000
OTTAWA, Wednesday, June 14, 2000
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-22, to harmonize federal law with the civil law of the Province 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, Bill C-445, to change the name of the electoral district of Rimouski--Mitis, and Bill C-473, to change the names of certain electoral districts, met this day at 3:36 p.m. to give consideration to the bills.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: This meeting is now in session. We have a number of bills for consideration today; we will begin with consideration of Bill S-22.
We have with us today the Honourable Anne MacLellan. Welcome, minister, once again, to this table. Please proceed.
[Translation]
Ms Anne McLellan, P.C., member of Parliament, Minister of Justice and Attorney General of Canada: I am pleased to speak to you today about Bill S-22, an Act to harmonize federal law with the civil law of the province 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. Before inviting you to ask your questions, I would like to talk about the harmonization program and the origins of Bill S-22.
Bill S-22 is the result of the program to harmonize federal law with Quebec civil law. The purpose of this program is to ensure that the reality of Canadian bijuralism is reflected in federal legislation, in statutes as well as in regulations. This bill was preceded by Bill C-50 which was introduced in the other Chamber in June 1998, and died on the Order Paper during the last session of Parliament.
[English]
Bill S-22, which you now have before you, is essentially an enriched and augmented version of Bill C-50. It includes much of what was in Bill C-50, as well as amendments to 25 additional statutes.
Canada is more than a bilingual country. It is a bijural country. We have the unique opportunity of having inherited two major legal traditions in matters of private law. The Province of Quebec benefits from a civil law system, while the other provinces and territories benefit from common law systems.
The coexistence of the world's two great legal traditions in Canada strengthens our legal system. Having two legal traditions is an undeniable asset for all Canadians, enabling them to better understand the legal systems of many other countries. Over 80 per cent of countries around the world have legal systems based on either civil law or common law.
Honourable senators, we have a map available for you. I thought it would benefit you to see the definition and location of the world's legal systems. This is courtesy of my friend, Mr. Louis Perret, the dean at the University of Ottawa law school, civil side. This gives you a clear indication of how important both the common law and the civil law systems are in the world and why, in fact, we are so lucky as a nation to have both these systems and feel comfortable working in both of them.
During his speech at second reading, your colleague Senator Beaudoin eloquently explained the historical setting that resulted in Canada being a bijural country. Therefore, I will simply add that, since federal legislation interacts extensively with provincial legislation, efficient interaction must be ensured.
This is the ultimate goal of the harmonization work being done by my department with the cooperation of many from the public and private sectors.
[Translation]
I would like to take this opportunity to thank our colleagues at the Quebec Ministry of Justice, the Barreau du Québec, the Chambre des notaires du Québec and the Canadian Bar Association, especially the Quebec section.
Finally, I would also like to express special thanks to numerous professors and experts in civil law and comparative law from the following universities: Moncton, Montreal, McGill, Ottawa and Sherbrooke. Their expertise contributed to the harmonization work which has produced Bill S-22.
[English]
Before I continue, I wish to thank not only all of those people, but also all of the people behind me, who come from the Department of Justice and Intergovernmental Affairs. On your behalf, I wish to thank them all very much. They have worked hard on this project and are hard at work on the next phase of this project. I wanted to acknowledge all of them here today.
We all share a common goal, to improve and reinforce our legal system. It is because of this teamwork that you have before you a bill that I consider to be of high quality and which, I hope, will find your support.
Bill S-22 is the result of a long process that I officially launched in Montreal in the fall of 1997 at the Conference on Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism. As several of the panellists then pointed out, a comparison of the two official language versions of statutes revealed that the English version of federal statutes does not always adequately reflect civil law concepts. Similarly, the French version does not always adequately render common law concepts.
Technical studies commissioned by my department also showed that resolving questions of interpretation is key to the success of legislative harmonization.
Bijuralism requires the drafting of federal legislation in harmony with provincial private law, whether it be the civil law of the Province of Quebec or the common law of the other provinces and territories. This approach ensures that all federal legislation is harmonized and applies equally and clearly to all Canadian citizens, regardless of their different legal cultures and heritage.
The Civil Code of Lower Canada was, from 1866 on, the foundation and the expression of civil law in the Province of Quebec. When it was replaced by the Civil Code of Quebec, which came into force on January 1, 1994, the terminology, concepts and institutions of civil law were reformed. All of these changes had a profound effect on the application of federal legislation that interacts with civil law. It quickly became clear that amendments to federal statutes and regulations would be necessary and the Civil Code Section was created by my department to deal with this new reality.
The Civil Code Section was given the mandate to implement the harmonization of federal legislation with the civil law of the Province of Quebec. The four main objectives of the harmonization program are: first, to adapt federal legislation that deals with private law or uses its concepts to the new concepts, institutions and terminology of the Civil Code of Quebec; second, to assure that civil law and common law users are able to relate to federal statutes and regulations irrespective of their official language; third, to ensure the smoother implementation of federal legislative policies and limit application and interpretation problems of federal statutes and regulations throughout Canada; and fourth, to make the application of federal statutes more efficient and thereby reduce unnecessary litigation and costs associated with the administration of justice.
As we had anticipated, the harmonization process created a number of challenges. We had to develop a methodology to guide us in reviewing federal legislation. The novelty of the work also required the creation of new terminology to classify harmonization problems and their solutions.
All of these innovations and creations are allowing my department to gradually establish a solid basis in the field of harmonization. This will be useful in future projects and will also allow Canada to play a leading role in legal harmonization work taking place in international organizations and in the course of negotiations on international agreements.
As I have attended international meetings of justice ministers <#0107> with the OAS, where the vast majority of the nations are based on the civil system, or with the G-8 ministers, the majority of which are European countries that reflect the civil system -- it is interesting and beyond that, actually gratifying, to see our officials, regardless of the subject, able to work across the lines of two of the great legal systems of the world. It provides us with an enormous value-added, in terms of what we bring to the table -- in crossing those lines and being able to bring people together and to work together, not only in the languages of French and English, but with a degree of confidence and assurance with both common law and civil law principles. That facilitates our ability to understand why, perhaps, our friends in France or Germany might have a problem with some of the things that Ms Reno or I might suggest in terms of privacy principles, property principles and dealing with transnational organized crime.
While this is a small diversion from my prepared text, I want to underscore for people how important I think it is and how lucky we are, as a country, to have two of the great legal systems of the world represented and to have more and more people who are able to and feel comfortable working and advising in both systems. That is true not only here but in terms of our work in the international milieu in particular.
At this point, I should like to briefly highlight the key elements of Bill S-22.
Given the innovative character of the harmonization program, it was felt that it would be useful to put the bill in context. That is why we have a preamble. We do not intend to include a preamble with future omnibus bills, because this is an ongoing project. There will be more legislation, we hope, on an annual basis, dealing with harmonization. We did, however, think it was important to include a preamble in the first of these pieces of legislation, to set the context and to explain to people what we are about and why we, as a government, believe that this initiative is important.
When the Civil Code of Quebec was adopted in 1991, the provincial legislature did not have the necessary authority to repeal the hundreds of provisions that, since Confederation, fell within the jurisdiction of Parliament. Bill S-22 repeals all of these provisions.
The only area in relation to which it is necessary to create new provisions to replace those that exist are the provisions relating to marriage. Several of our partners were preoccupied that, without such replacement provisions, a legal vacuum would exist.
Bill S-22 also amends the Interpretation Act. The first provision being added is clause 8.1. It clearly sets out that, in the absence of applicable federal rules and unless otherwise stated, the applicable law for overcoming any gap in federal statutes and regulations is that of the province. The addition of the second provision, clause 8.2, will facilitate the understanding of new drafting techniques meant to support and promote the implementation of bijuralism in federal legislation. These additions to the Interpretation Act give a legislative foundation to bijuralism and to the drafting techniques we are using.
The work done by the Civil Code Section also revealed the necessity to amend certain other statutes in the areas of civil liability, security and property law.
New drafting techniques were used to amend the wording of provisions in some federal statutes in order to adapt them to the new institutions, concepts and terminology of Quebec civil law. This is the case, for example, in the Federal Real Property Act, the Bankruptcy and Insolvency Act, and the Crown Liability and Proceedings Act.
For example, in the Bankruptcy and Insolvency Act, an update of the legislation was required in order to take into account major changes that were made to matters relating to security law in the Province of Quebec in the new Civil Code of 1994. This is why the new definition of "secured creditor" is now necessary.
As I mentioned, Bill S-22 is the first in a series of bills intended to harmonize federal statutes and regulations. Work is underway to bring forward additional bills over the coming years until all federal legislation has been harmonized. This will allow all Canadians to have access to federal laws and regulations that take into consideration their legal traditions.
The Civil Code Section has also set out as a priority the harmonization of bills while they are being drafted. As you understand, much of the legislation you have before you is playing catch-up. We are dealing with legislation that has been enacted and we need to go in and change that. However, we are hoping to have as a priority our harmonization goals while legislation is being drafted.
In fact, on June 5, a ways and means motion to amend the Income Tax Act, the income tax application rules and certain acts related to the Income Tax Act was introduced in the other chamber. It is the first time that proposed tax legislation is being partially harmonized.
In closing, I should like to publicly thank and congratulate all those who have contributed to the success of the harmonization program. As I hope you have understood from my comments, this project has come as far as it has as the result of a very hard-working team. It is an innovative activity without precedent anywhere in the world. It will allow Canada to play a leading role in an increasingly globalized world.
[Translation]
I ask you to support Bill S-22 and encourage you to take advantage of the presence of bijuralism and harmonization experts in order to fully understand the specifics of Bill S-22 and the methodologies used.
[English]
I look forward to your questions and comments.
[Translation]
Senator Beaudoin: It is unusual to have before us a bill based on the distinct nature of our country, that is a place where there are two legal traditions. They are without a doubt the two best systems in the Western world, if not in the entire world, even if there are other types of legal systems. You should be congratulated because this was a herculean task. The proof of that is in the document. The bill is being introduced at an interesting point in our history because there has been a great deal of discussion lately about bilingualism, bijuralism, et cetera. This forms an integral part of our laws and I am grateful for it.
Did you say that the Barreau du Québec, the Chambre des notaires and the Canadian Bar Association had been consulted and do they agree with the principles of this bill?
[English]
Ms McLellan: Yes, they were very much involved. In fact, we worked very closely with them, as we did with the Department of Justice in the Province of Quebec. Certainly, le Barreau and le Chambre des notaires are very much our partners in this project. It is fair to say that they are strong supporters of what we are doing here. It will facilitate the practice of law, the understanding of law and the interpretation of law in the Province of Quebec.
[Translation]
Senator Beaudoin: It is about the preamble. I do not think we should apologize, because in such an important piece of legislation, there should be a preamble. It is a unique type of act. The fact that Canadians must have access to federal legislation that takes into account the traditions of civil and common law is fundamental in our country.
I have a question about clause 8, as well as other clauses. The text amends the Interpretation Act to recognize Canadian bijuralism and to indicate that the legislation supplements the provincial rules of law for property and civil law. I remember my first years at the Justice Department. We often wondered to what extent, if we had to sign a contract, the Civil Code would apply to Quebec and common law to Ontario or another province. I would like an explanation. If the federal government legislates in its own jurisdiction, then of course its legislation would be overriding. If its legislation does not cover the entire area under consideration, must I then understand that if no law is applicable, the Civil Code in Quebec and common law elsewhere would then apply? In other words, if there is no overriding legislation, we would use the Civil Code.
Mr. Mario Dion, Assistant Deputy Minister: A great deal of research was done on this. For reasons of clarity, it was decided that when there is an interaction between the federal and provincial laws in areas involving property and civil law, it would be advantageous to have a clause that would remove any doubt. There are many types of federal provisions: silent provisions -- as you mentioned -- as well as provisions that invoke the concepts of institutions covered by provincial law, or civil law in the case of Quebec.
The best example is the Bankruptcy Act which uses a series of concepts -- for example the secured creditor -- according to which we must refer to the law that applies in the province in order to understand the scope of the terms. This rule is in the Interpretation Act so that it will be clearly understood that, in such circumstances, provincial law is suppletive in the interpretation of any federal acts and regulations.
Senator Beaudoin: The Civil Code came into force a year after Confederation, that is, on August 1, 1866, when we added, to clause 92(13), "property" and "civil law." As the Privy Council rightly said, it has the same meaning as that which can be found in the Quebec Act, 1774. At that time we had the Canadian legislature and, after that, we had legislatures in Ontario, Quebec, and other provinces.
For a while, the federal government enacted very little legislation in areas such as marriage; however, you felt the need to revoke the federal provisions enacted before Confederation, such as, for example, those involving marriage and divorce. That is a good thing. For many years we wondered if certain provisions of the new Civil Code from January 1, 1994 respected the division of powers. Because there had been intrusions. Is that why there was a wholesale repealing of the pre-Confederation provisions?
Mr. Dion: Based upon in-depth research, it was recommended that the Minister start from scratch by repealing all of the provisions of the Lower Canada Civil Code that involved the federal jurisdiction, beginning with the Constitution Act, 1867. Provisions for replacing legislation can be found in only three places, that is, in clauses 5, 6 and 7 of the bill. Everything is repealed and only one section is replaced.
Senator Beaudoin: If I understand correctly, other omnibus bills will follow for other sectors?
Ms McLellan: Yes
Senator Beaudoin: I am in total agreement with this principle and I have no problem with the harmonization.
[English]
We will have one or two experts in the academic field.
Senator Cools: Quite a few. This is a complex field.
Senator Beaudoin: This will need to be attested by one or two experts. I understand that the Bar of Quebec and the Canadian Bar do not wish to attend. Is it because they agree entirely?
The Chairman: We have approached both groups and both have said that they agree with the bill and do not wish to come.
Ms McLellan: Yes, that is right.
The Chairman: Barreau du Québec is writing a letter to that effect. They have both declined to appear before us. At this point, we are searching for witnesses. Having heard the list of people with whom you have consulted when you were drawing up the bill, I can understand why we are searching so hard for witnesses.
Since some of the members of the committee arrived after you had indicated the people with whom you consulted, it might be of value to repeat the names of those who you consulted with.
Ms McLellan: We worked closely with the Barreau du Québec, le Chambre de notaires du Québec, and we worked very closely as well with the Department of Justice, le ministre de la Justice and la procureure générale au Quebec. We also worked with a wide range of legal experts from universities that have expertise in this area. An example is the University of Ottawa, the senator's former university, which has obviously a large number of world-renowned experts in this area, but also at universities such as Laval, Sherbrooke, McGill, Montrèal, Moncton. I do not want to leave anyone out. In addition, in dealing with the Civil Code, the Canadian Bar section from Quebec were also helpful.
Senator Beaudoin: We are on solid ground.
The Chairman: Judging by the number of people who have refused to appear before us, no doubt that is correct.
[Translation]
Senator Joyal: You mentioned that out of a total of 700 federal acts that were considered, the Justice Department had identified 300 acts to be harmonized. I believe your intention was to harmonize these acts at the rate of one bill per year over a nine-year period; is that correct?
[English]
Ms McLellan: Yes, eight or nine years. Obviously, if one could do the work more quickly, or if we discover that the work is more complex in certain areas, it might take a little longer. Our goal is to have this work completed and then keep up with new legislation over the next eight years. We would like to see the process of going back and ensuring that existing legislation is in keeping with the principles of the Civil Code over the next eight years.
[Translation]
Senator Joyal: I would like some information on this. There are two simultaneous operations taking place. On the one hand, you are playing catch-up on an annual basis, while on the other hand, you are applying the same criteria for the legislation that is being continuously drafted by Parliament.
Ms McLellan: Yes.
Senator Joyal: We can therefore conclude that the harmonization of a bill is finished when it is tabled and when it has the consent of the Minister of Justice, as is provided for in the Standing Orders of the House. Before the tabling of the bill, the Minister of Justice must certify that it is in compliance with the provisions of the Charter. Once it is signed, we must assume that the bill has met the harmonization requirements; is that right?
[English]
Ms McLellan: I will let Mr. Bisson answer this. While your goal is to keep up with all legislation, Mr. Bisson can explain the pressures under which we operate in terms of the nature of the task.
[Translation]
Mr. Bisson: We are being innovative. For the first bill, in referring to three books of the Civil Code, we concentrated on three areas, that is, property, security and civil liability. We must now develop an expertise within our Civil Code section for the other books in the Civil Code. In the second phase, we will harmonize the acts that you have before you in their entirety with all of the books in the Civil Code. The same applies to the regulations.
While doing this work, thanks to the inventory of case law that we have established, we have determined that there are conflicts between the Federal Income Tax Act and the civil law in Quebec in the application of new tax legislation.
We work closely with Revenue Quebec, Revenue Canada, the Department of Finance, the Barreau du Québec, as well as with l'Association de planification financière et fiscale. For the year 2000, we will, on the one hand, rework existing legislation and develop an expertise with the ten books that make up the Civil Code and, on the other hand, work with the new tax laws.
Senator Joyal: You have developed an expertise in a certain number of areas of the Civil Code. For some chapters of the Civil Code, bills for which an expertise has not yet been developed could be introduced by the Minister of Justice. These acts would eventually be added to those that have been harmonized once the corresponding expertise has been developed. Is that not correct?
Mr. Bisson: Yes, that is true.
Senator Joyal: You say that there are conflicts between civil law and the present Federal Income Tax Act. When this type of conflict exists, what principle is applied to settle the discrepancies in the interpretation?
Usually, when we have the French and English versions of an act, the original version applies or the English text takes precedence.
In the case of private law, there is always a way to settle the problem. If a conflict arises, how do you deal with it? What criteria have been developed?
Mr. Bisson: Federal legislation is based on common law concepts. Therefore, the first step would be to determine if there is an equivalent concept in civil law in Quebec. If not, we will attempt to develop a consensus. For example, for taxation, we would attempt to establish a consensus between Revenue Quebec, Revenue Canada and the experts in the field to see if we should create a new institution or if we should use a neutral term that would not be offensive to civil or common law. We explore various techniques so as to arrive at a consensus that respects the two legal traditions. There is no magic formula.
Senator Joyal: Do you arbitrate this consensus?
Mr. Bisson: So far, we have not proceeded until there has been a consensus. We wait. We do exhaustive research. We have already held two public consultations: the first was Bill C-50 and the second was Bill S-22. Therefore the Barreau, the Chambre des notaires, academics and attorneys general for the provinces have already been consulted twice on the essential points of Bill S-22. If something remains controversial, we wait before proceeding.
Senator Joyal: You leave the matter in abeyance?
Mr. Bisson: We wait until we find a solution that everyone will accept.
[English]
Ms McLellan: It is important for senators to appreciate the precedential value of the task that we are about. No one else in the world has tried to do what we are doing. Therefore, no one should be surprised or put off unduly by the fact that there will be areas where it will take longer, in some cases, to even develop the language that will accurately express the concept. That is why we worked so closely with professors and with le Barreau and la Chambre des notaires and others. This is not an easy task, as Senator Beaudoin and Senator Joyal know. We are in the business of creating new dictionaries and a new lexicon.
Senator Joyal: That is why I raised the issue. I can imagine the difficulty that is involved. That is why I asked how you do the arbitration when you are confronted with a situation that does not give you the answers.
Ms McLellan: It is not a science.
Senator Joyal: No, it is not an exact science.
Ms McLellan: I was thinking it was more of an art, senator, but it is certainly not an exact science.
This project is so important, yet so groundbreaking, in terms of what we are actually trying to do here, working with both systems of law. It is not easy. These people have laboured long and hard with outside experts to come to the conclusions that you see here. That work will continue.
On behalf of the Government of Canada, I am here to say that we view this work as very important. It is groundbreaking, and it provides an acknowledgement and makes concrete the existence of the two great legal systems in our nation in a way that has not been done before in our country and has never been done anywhere else in the world. We will be able to make a singular contribution to other countries that have both systems, in one way or another, at work in their countries. There are other examples, but our contribution will go well beyond that. That is part of what we are doing here.
Senator Joyal: My other question concerns the second "whereas" clause in the bill.
[Translation]
I will read it in French and in English:
[...] whereas the civil law tradition of the province of Quebec, which finds its principal expression in the Civil Code of Quebec, reflects the unique character of Quebec society;
And in English it says:
[English]
Whereas the civil law tradition of the Province of Quebec, which finds its principal expression in the Civil Code of Québec, reflects the unique character of Quebec society;
I do not like the word "society" in that context.
Senator Cools: Very good.
Senator Joyal: To me, it should be "reflects the unique character." The word "society" is not a legal concept. "Province of Quebec," according to the Constitution, is a legal concept and the context to which it is referred in the Constitution Act. To introduce the concept of society into a discussion like this is not proper. It should say:
[Translation]
Where as the civil law tradition of the province of Quebec, which finds its principal expression in the Civil code of Quebec, reflects the unique character of Quebec society.
[English]
Period. I would much prefer that than trying to debate the distinctiveness of Quebec society. It would be more appropriate and in line with the legal text of the present Constitution.
[Translation]
Mr. Yves DeMontigny, Senior Advisor to the Senior Assistant Deputy Minister, Department of Justice: A preamble has no legal weight as such. The reason why we used the "unique character of Quebec society" was to refer to certain debates that took place during the past years, especially regarding the Calgary Declaration. This text is, in fact, almost a replica of the Declaration of Calgary text. We also find the same concepts in the resolution adopted by Parliament in 1995, where we were dealing with the very fact that the House should recognize that Quebec constitutes a distinct society within Canada. Then we deal with the distinct society comprising a majority of Francophone citizens, a unique culture and a tradition of civil law. We all agree that law applies to a society and not to something abstract. This is simply what we wanted to convey in this text, neither more or less.
Senator Joyal: No, but words are there to express something. I am well aware of the resolution that was passed. There is something fundamental in recognizing in the Canadian Constitution that the province of Quebec, under constitutional law, has a legal system based on civil law, and this is not merely a distinct feature of Quebec, but also a distinct feature of Canada. This is the reason why you have committed yourselves to this most praiseworthy initiative that I can only support. This is part of the whole context of the Canadian legal system.
[English]
The Chairman: Senator Joyal, we have a problem. We were warned that the minister could not be here for longer than three quarters of an hour.
Ms McLellan: I can stay until 4:30.
Senator Joyal: I will stop here, to allow others to ask their questions.
Senator Cools: With all due respect, perhaps the minister could return, because the questions that Senator Joyal was asking with respect to Quebec's society and distinct society, that whole set of related issues, are extremely political questions.
Ms McLellan: If Senator Joyal would like to continue his discussion with the officials, that is fine. I would be willing to take under advisement the issue that he has raised. We can perhaps get back to him and to the committee. Perhaps he might like to put in writing for us his concerns, and then we can work on those together.
Senator Joyal: That is fine with me.
Senator Pearson: This is rather complex for me because I am not a lawyer.
Ms McLellan: Even for those of us who are lawyers, this is very complex.
Senator Pearson: I am particularly interested in what you say about the international side, because it is fascinating that we have two legal systems within this country. In my travels, particularly in Latin America, I have been struck with the differing ways in which international treaties are treated depending on whether you have a civil law tradition or a common law tradition.
Our current procedure, if we sign an international treaty, is to ask the provinces to send us letters stating that their legislation is in accordance.
Ms McLellan: When it is within their jurisdiction, yes.
Senator Pearson: My favourite example is the Convention of the Rights of the Child. Will you be working on international treaties in respect to this? Will some work be done that will facilitate that process so that people from one tradition understand what is happening in the other tradition? I think people do not understand the differences.
Ms McLellan: Not in relation to the precise task at hand, which is the harmonization of the private law concepts in the Civil Code with relevant federal law. That is an enormous yet discrete task.
The issue you raise is an important one. We are trying, more and more, as we work in the international community, to have people from all traditions understand. You raise the whole question of international treaties and jurisdiction over implementation, and so on. We must explain all that and our somewhat unique constitutional position to our friends in the United States, which is a common law jurisdiction but a different kind of constitutional federation. We have to explain all of that to them, as well as to our colleagues from other legal systems.
It is very important as we, a responsible member of the international community, move forward and undertake commitments through international convention not only that people in other legal systems understand what that means for us but also that we understand what they are taking on when they enter into various conventions. There have been misunderstandings as to what ratification by us as a federal government means and as to implementation by the provinces. We need to ensure that we are always attempting to clarify those issues, whether the country we are dealing with is one that has a civil legal system or a Muslim legal system or some combination thereof.
Senator Pearson: I see this arising in particular in cases of custody and access, abduction, and all those kind of things that are covered by The Hague Conventions that we have ratified, more than the broader human rights conventions.
Ms McLellan: Right. It is a challenge.
Senator Pearson: Yes.
Senator Fraser: I have two observations. Despite my very great respect for the views of my colleague Senator Joyal, I am delighted to see the second "whereas." I do note that it does refer to the Province of Quebec.
My second observation is that obviously, on a high level, this is a monumental achievement and goes to the nature of the country, and it is wonderful. However, on a more practical level, I suspect that it will be a great help immediately to minority language communities and, in particular, to anglophone lawyers in Quebec and to francophone lawyers in the other provinces. Since I think I am the only member of a language minority here, I wanted to say, on their behalf, "Good on you!"
Ms McLellan: Thank you.
I wish to follow up on the practicalities of this. Senator Beaudoin, I think sometimes those of us who are former academics get lost -- if I can say that on our behalf -- in terms of the larger, abstract issues.
Senator Beaudoin: That is it not a mistake.
Ms McLellan: No. In fact, it is important work before we move on. This has significant practical application for, for example, those who practise law in Quebec or les notaires who are responsible for dealing with house transactions and dealing with what we call mortgages in English, and in terms of bankruptcy and insolvency. This is, perhaps, not glamorous, but it is the bread and butter of a lot of practising lawyers and notaries. They will be able to serve their clients better and, therefore, the residents of Quebec better when our federal laws that apply in Quebec reflect the principles, the concepts and the language of the civil law. I do not want people to think that this is some erudite exercise that we are embarking on only because all these good people need a job. In fact, we have lots of work to do in the Department of Justice. This is actually about facilitating lawyers and notaries and the people of Quebec in understanding their rights and obligations and exercising them in areas where we, the federal government, touch upon the private law of Quebec.
Senator Cools: I have many questions and there is so little time, so I will put out some hints of my concerns.
Before we can even move to the provisions of the bill, I find a lot of aspects of the preamble very troubling. I am very aware of the traditional tensions in the Department of Justice and Privy Council between the civil law traditions and the common law traditions. I am also very aware of the ascendancy in recent years of the civil law tradition. I am curious as to why now, after some years, there is a need to harmonize, when I was under the impression that a part of the distinctiveness of Quebec was the Civil Code. I was under the impression that, in the conveyance of the Civil Code by all the different instruments by which it was conveyed, it was intended to avoid assimilation into the rest of the legal traditions of Canada. That was my understanding of the history. Perhaps yours is different. Because of my own understanding of history and the existence of the Civil Code in Quebec and the strong defence that Quebecers have maintained to sustain the Civil Code of Quebec, this initiative naturally greets me with many questions and a small degree of suspicion, which may either grow or shrink in the next several weeks as we study this bill.
I should like to begin by, perhaps, looking at the preamble.
Let us go to the second paragraph in reference to Senator Joyal's concern about the use of the word "society." There has been much concern in this chamber about the use of the words "distinct society," because, as reflected in the debates of this place, it was the position of some very erudite senators that the term "society" was chosen over "distinct society" for political and legal reasons. That term did not sit well with some senators then, and it still does not.
I have listened to the explanation of Mr. DeMontigny on the deployment of the language of the Calgary Declaration. However, the Calgary Declaration was largely a political statement. I always wonder when political statements show up in legislation. I have a healthy skepticism.
Many of these techniques set off alarms for me, particularly as this bill comes forth at a time when I believe that a stage has been set for what I would consider to be the illegal separation of Quebec from Canada. I view the development of the legislation in a composite way.
I wanted to let you know that I have some concerns about this bill. As it is complex, I am sure that it will be with us for many weeks yet, so there will be ample time to get clarification.
Ms McLellan: I wish to respond to something you said at the beginning, although there are lawyers here from the Province of Quebec who could speak to this better than I. However, what we are about here is not assimilative in any way. This is a clear acknowledgement that we have two great legal traditions within our country. Unfortunately, for many years our federal law did not adequately reflect the presence of civil law concepts as they touched on private law issues in the provinces.
We are trying to acknowledge that the civil system in the Province of Quebec is a key component of that province's uniqueness. It is the only province in Canada that has a civil law system. Since this is an important part of what Canada is, we want to ensure that our federal statutes reflect civil law principles and concepts where it is relevant for them to do so.
I want to make it absolutely clear that this bill is the reverse of assimilation. For example, we have passed federal bankruptcy and insolvency legislation in the past that reflected common law principles only. One might argue that that was assimilative, in that we did not acknowledge principles such as surety and others on bankruptcy and insolvency as expressed in the Civil Code and the civil law.
We want this proposed legislation to reflect the principles and the concepts of both of our great legal traditions, where relevant. I hope that we are providing, in some small way, further roots for the civil law system in our country, acknowledging that that system stands on an equal footing with the common law system as far as the federal government is concerned in its legislation.
Senator Cools: I am happy that you have offered those words by way of consolation. I am curious. Will the provincial government then amend its civil laws and Civil Code to follow the set of principles you just outlined, including the acknowledgement of the greatness of the common law tradition, as well as the value of harmonizing? In other words, will your initiative be accompanied by an equivalent set of provincial amendments that will uphold the greatness of the common law tradition and the bijural nature of the country in Quebec civil law?
Ms McLellan: Keep in mind that we are dealing here with the private law of the common law provinces or the Province of Quebec. The private law is governed by the civil law, and therefore by the Civil Code, in the Province of Quebec, and by the common law in nine provinces and the territories. Quebec does not need to do anything. They have modernized their Civil Code, which was a monumental task. Other countries are trying to do that and have had to go back to the beginning. I met with the Minister of Justice from Slovakia, where they tried to modernize their Civil Code, but were so dissatisfied with the results that they began the process over again, based on advice of experts from Quebec and the federal Department of Justice who have participated in the experience here in Quebec and Canada.
It is absolutely important to understand our starting point. Private law rights and obligations are governed by the Civil Code in Quebec. The other nine provinces and the territories are governed by the common law. The federal government is making an effort to better acknowledge the Civil Code and civil law principles as they relate to private law in our federal laws. We have acknowledged the common law. As I have said, I think that too often our federal statutes have only reflected the language and principles of the common law. We are now saying that there is another system and we want it reflected here as well.
The Chairman: Senator Cools, since we are 10 minutes over time, I would encourage you to do as Senator Joyal has done and submit some written questions.
Senator Cools: No, I would prefer to talk to the minister. I am sure the minister can come here another time. Why do I have to come to committee at all then? I could write to the minister at any time and ask any number of questions.
The Chairman: I encourage you to do so.
Senator Cools: The whole point of being on a committee is to be able to dialogue and have a debate.
Ms McLellan: My officials are more than willing to stay. I have attempted to establish the broad parameters of what the government is attempting to achieve, why we are attempting to do this, and what we think is important about the project in which we are engaged. In terms of technicalities in relation to particular provisions and why we chose a certain word rather than another word, my officials, who have lived and breathed this, are the people to talk to because they are the experts in that area. If you want to talk about the broader policy issues and why the government views this as important, I am the person to talk to.
Senator Cools: We are very well aware of what we should talk to you about and what we can talk to the officials about. I am interested in some of the broader policy questions.
For example, you talk about "window on the world" in paragraph 4 of the preamble. Why would such a preamble be included with amendments to legislation? It would seem to me to be largely domestic.
Ms McLellan: Yes, in the sense that the federal legislation dealt with here has application only within Canada.
However, as I mentioned at the beginning of my remarks, one thing I have come to realize as I have gone around the world to various justice ministers' meetings is that we in Canada have an exceptional situation, where both systems live side by side and are vibrant and fully operational.
That gives us the ability to talk to lawyers and to understand. It is an amazing thing, Senator Cools, when you are sitting at a meeting of OAS or G-8 justice ministers and you are working on difficult issues surrounding the right of privacy, to have a lawyer or a policy person with you who is trained in both the civil law and the common-law system, is fluently bilingual -- or trilingual, when we go to the OAS, in French, Spanish and English -- and is able to understand the concerns.
I wish I could express this properly. They live this. This is their training. It is bred in their bones to understand how this other system works and its emanating influences. They also have within their souls the emanating influences of the common-law system. They can bring them together and talk and share and explain in ways that are truly remarkable. Many of us do not understand how important this is in bridging gaps and building bridges to other countries and working with them.
When you see these officials work -- and I am not often there, as they work long after the ministers have had their photo opportunity and gone home -- it is amazing what value they can add because they are trained in both systems and are able to work in more than one language, often in three.
I do not apologize for including that in the preamble to this bill. It is important to remind people that this is another blessing we share as Canadians that most other people in the world do not have.
Senator Cools: I thank you. I know a little about the civil law because I grew up in Quebec.
The Chairman: Senator Cools, the minister has been more than generous with her time. She has been here for an hour and a quarter, and was waiting quite a while for us to arrive.
Thank you very much for appearing before us.
Ms McLellan: It is my pleasure. It is always a pleasure to be here. I love our engagements and look forward to returning.
My officials will stay here and engage you further.
The Chairman: Have we any questions now of the officials?
[Translation]
Senator Nolin: I have begun looking through the French text. There are English and French versions of the Quebec Civil Code. In the English version, we find English neologisms to reflect corresponding French words. In the English version of Bill S-22, I find the word "resiliation". Does this word mean the same thing in both languages?
Mr. Vauclair: When we compare both versions of Bill S-22, on page 12a (2)d), in the English version, we deal with the concept of "surrender of leases" whereas, in the French version, we deal with "rétrocession de baux."
First we note that from the civil law point of view, neither of these terms corresponds to a known institution or concept. The concept of "surrender," in the English version, reflects the influence of common law whereas the concept of "rétrocession," in the French version, does not reflect the intent of the text. Thus, we must seek out an adequate concept for the purposes of civil law. The concepts of "resiliation" in English and "résiliation" in French are appropriate to a civil law context. Thus you have common law in English for "surrender" and civil law in English for "resiliation". You also find the term "résiliation," which was added for the purposes of civil law in French and the term "résignation," which was also added for the purposes of French-language common law. Thus we have covered four audiences: civil law in English and in French, and common law, present in the English version and added to the French version.
After this illustration, the answer to your questions is: yes, "résiliation," or "resiliation," is meant for anglophone civil law in the English version.
Senator Nolin: I took an example at random, but I presume that if I looked more closely at the text, I would find others. Have you applied this formula to the four legal communities?
Mr. Bisson: Yes, to the four legal communities.
Senator Nolin: Will this procedure that you applied also apply to the entire harmonization program?
Mr. Bisson: Yes.
Mr. Dion: The intent is to allow all Canadians, in all provinces or territories, to understand, in either official language, what the federal law says on the matter. Thus, a civil law practitioner, or an anglophone resident of Quebec, can find their way around federal legislation, just as a British Columbia francophone will find common law notions in French in the federal texts where they apply.
[English]
Senator Andreychuk: I have a follow-up question. When you use the term "résiliation," is there such a word in English? In other words, can I find it in a dictionary?
You can always find another group of words to get close to a concept, but it would be difficult to find the actual words if they are not used.
Senator Fraser: I think that word exists in the English version as well.
Senator Andreychuk: That is what I want to know. You would then try to find the identical or approximate word to the French?
Mr. Vauclair: We try to find the appropriate word. We try not to be approximate if possible.
We do use other techniques. There is a technique we refer to as a "simple double," meaning that we have the four audiences, French and English common law, and French and English civil law, as I mentioned earlier, reflected in the text.
We have other techniques where we try to use a neutral term that would apply and have a meaning for civil law and common law in both official languages. The techniques may vary, depending on what is available from the standpoint of legal concepts and terminology.
As the minister stated, we have some interpretation rules that will help common law and civil law practitioners find their way into this new way of rendering federal legislation.
The Chairman: Are the interpretation rules included here?
Mr. Vauclair: Yes.
The Chairman: Have you added definitions? You are certainly coming up with words that I have not heard before.
Senator Andreychuk: I was concerned that the creativity is within the body of the law and within the existing language base of both French and English. Your answer is yes?
Mr. Vauclair: Yes, absolutely.
Mr. Dion: It would be fair to say that except where there is a reason not to do so, we have essentially aspired to the English version of the Civil Code, as imperfect as it might be according to some. However, this is still one of the best sources that we have.
Senator Nolin: It should be made known to our colleagues who are not from Quebec that Quebec lawyers are used to this. The English versions of our French laws are not in perfect English.
The Chairman: You are accustomed to interpreting.
Senator Nolin: English-speaking lawyers who practise in Quebec will tell you that there are some words that they use only in Quebec courts. Those words are not used anywhere else in the world.
Senator Fraser: That is the point I wanted to make. There is an English version of the Civil Code.
Senator Nolin: Yes.
Senator Beaudoin: I should like to return to the question raised by Senator Pearson. I think you will probably respond either yes or no. It concerns the fourth "whereas", which states:
WHEREAS the full development of our two major legal traditions gives Canadians a window on the world and facilitates exchanges with the vast majority of other countries;
I like that very, very much.
[Translation]
I always say that we have a great advantage in having two sounding boards in Canada: one in the anglophone world and the other the francophone world. This is not only a linguistic advantage but also one for the legal profession because we have both a Civil Code and common law. I do not know whether this is unique, but it is certainly very rare.
When you drafted the fourth paragraph, were you thinking of, or were guided, by the issue of implementation of treaties? In Canada, the federal government can sign a treaty, but in order to implement it, it must respect the balance of powers. In Quebec, the civil tradition is prevalent and in other provinces common law prevails. This is very important when drafting a treaty about labour rights, because we know very well that civil law plays a great role in this area. Is that what you wanted to preserve in the fourth whereas? I imagine that you will probably come back to the issue of treaties.
Mr. Dion: What we had uppermost in our minds was globalization and the fact that two legal traditions exist in Canada. Canada is in a very favourable position to deal with 80 per cent of the countries in the world that practice civil law, common law, or both. This represents more than 65 per cent of the world population, a substantial factor. We had this very favourable situation for Canada in mind, especially during this time of globalization and growth in communications. Think of South America, Latin America and Europe where the existence of civil law and common law is a true advantage.
Mr. DeMontigny: The aim is to facilitate exchanges in trade, culture and other sectors. This has an impact on treaties. Nonetheless, in provincial jurisdictions, the laws governing implementation are provincial. This will not really affect Parliament, except, once again, in cases where it must be ensured that applicable federal legislation has taken both traditions into account.
Senator Beaudoin: However, this favours the Civil Code and common law internationally. This is quite the contrary to assimilation. This gives a higher profile to our duel Canadian system.
Mr. DeMontigny: Yes.
Senator Beaudoin: Therefore, this is an improvement.
[English]
The Chairman: We are unique. I suggest that if we have any further questions of the officials, we can certainly have them back. Quite frankly, we have exhausted our list of witnesses. There has been so much input into this bill that when we contacted potential witnesses, we were told, "We agree with the bill." If anyone can come up with further witnesses, let us have the names before the end of the week.
Senator Joyal: Since our witnesses are still here, would it be possible to get the following from them?
[Translation]
You have studied three chapters of the Civil Code, goods, securities and civil liability. What do you intend to do with the seven remaining chapters of the Civil Code? What program have you planned for the seven, eight or nine coming years? It would be important to know that.
[English]
The Chairman: When the minister was here, she first spoke of this being a nine-year process.
Senator Joyal: I should like to know about the other chapters. That would be helpful to all of us.
[Translation]
Mr. Bisson: We are currently harmonizing the entirety of federal law with all the books of the Civil Code. At the same time, we are harmonizing laws and by-laws. Moreover, we are working on the first group of laws, and there are 49 of them, contained in Bill S-22. We will finish the work already started on all the books of the Civil Code. Then, regarding new laws, a third of our troops will be working on fiscal legislation.
We will be opening other areas, one of them being intellectual property, which is a priority. Finalizing bankruptcy is also a priority. That will contribute to a better positioning for us in the context of international agreements.
We have to review our legislation in the area of bills of exchange and business corporations. We will establish framework legislation allowing us to negotiate international bijural conventions more efficaciously. We want to avoid dealing again with 22 departments to push a bill forward. We will target our interventions. We also have identified the areas of agrifood and environment. Henceforth, we shall proceed in this manner.
[English]
The Chairman: Thank you very much for coming. We may well be calling you back later.
Senators, we will now turn our attention to Bill C-445 and Bill C-473. Together, these bills affect 13 ridings in Canada.
We have with us once again Mr. Jean-Pierre Kingsley, the Chief Electoral Officer of Canada, accompanied by Herschell Sax, Senior Policy Adviser.
Tomorrow we will begin consideration of these two bills. We have asked the members of Parliament affected by these changes to appear before us to answer any questions we may have. Unfortunately, not all will be able to come. However, I suspect that the ones in whom we may be most interested will come. I will announce at the end of the meeting those who have indicated their intention to attend.
Mr. Kingsley, now is the time to voice your opinion on these two bills.
Mr. Jean-Pierre Kingsley, Chief Electoral Officer, Elections Canada: Honourable senators, it is always a pleasure to appear before this committee.
Instead of rereading the statement that I tabled more than a year ago on similar bills, we are just re-circulating it in the official language of a senator's choice.
I also brought with me, in case it was needed, a copy of my letter to you of June 7 dealing with electronic voting. It is not directly related to this and I do not want to deflect from the intention of the meeting, but if all members have not received a copy, I have copies here and I can answer questions.
The Chairman: Those have been circulated.
Mr. Kingsley: The essential points that I made in the previous presentation are as follows. First, it is not too late for name changes. Second, there is a commission on geographic names in Canada that reviewed and pronounced on all 301 names.
The Chairman: Those are the present names?
Mr. Kingsley: Right. It also includes the names that preceded the 44 that were previously changed. That commission had recommended that compound designations not exceed three geographic names. That has been put aside and it is now up to Parliament to make that determination.
The one essential feature that I must bring to your attention is the fact that everything is computerized now at Elections Canada, except the act of voting, on which I wrote to you last week. Our computer program allows for 50 characters. That limit includes blanks, hyphens and dashes. One of the names before you today has 53 characters; that is Verdun--Saint-Henri--Saint-Paul--Pointe Saint-Charles.
We have a solution for this. We change the dash to a hyphen. That is not entirely in keeping with respecting the norms; however, the cost to rewrite the computer programs is a half-million dollars. Some programs deal with geography and other programs contain the permanent lists of electors, which include the names of ridings. All software programs that contain the riding names are limited to 50 characters.
We determined 50 characters at the time by looking at the average name length then, which was about 35 characters. We thought that 50 would not pose a problem.
[Translation]
Of course, it is up to the committee to make the decision it wants and I will be very pleased to answer any questions you would have for me.
[English]
The Chairman: In Verdun--Saint-Henri--Saint-Paul--Pointe Saint-Charles, if you take out the hyphens and surrounding spaces, replaced by three apostrophes, you save six spaces.
Mr. Kingsley: We have our solution by replacing the dashes with hyphens.
The Chairman: Will we require an amendment to do so?
Mr. Kingsley: No. You do not need to amend the bill before you. We can handle this administratively within Elections Canada. It is straightforward. I am just telling you our administrative solution on this issue.
Senator Fraser: You have answered my question about dashes and spaces versus hyphens and no spaces.
As a senator, I am reluctant to interfere in something that is so clearly in the purview of the House of Commons as the names of ridings. I do not have to run for election. Fortunately, I do not live in one of these ridings.
Have you appeared before a committee of the other place to explain not only the 50-character limit, but also some of the material that was included in your submission about a year ago on the commission's guidelines? For example, they suggested that district names comprising four or more geographical names should be avoided. Have you made that point to them?
Mr. Kingsley: Yes, I have.
Senator Nolin: That is why he must come here.
Mr. Kingsley: I have written and spoken to the Chair. These comments have been made before.
To complete the picture for you, at the next redistribution, I intend to ensure that every sitting MP appreciates that the time to revise a riding name is when the House committee is looking at it and sending its view to the provincial commissions. In my view, the commissions should be making the absolutely final decisions, as they do on the limits. That riding name would then abide until the next redistribution.
That would allow sitting MPs an opportunity to influence the commissions to change the names. The geographic names are important. We must take this body that Canada has set up to ensure consistency in the naming of ridings into account. That is what I will be striving to do, namely, to avoid this perceived necessity.
Senator Andreychuk: If it is in the hands of the commission, would that also address the concerns about which I have received letters; namely, that members of Parliament did not consult their own constituencies, be it their riding associations or members at large?
Mr. Kingsley: The answer is yes, but it is also important to remember that during the last redistribution, there was before the House, and particularly before the Senate, a bill that would have done away with the exercise. That bill did not pass, although it was expected to, and I suspect that it dampened the ardour of many people, including members of Parliament, for interesting themselves in the prospect of redistribution. It certainly had some impact, because we have heard more of that kind of complaint.
The Chairman: The public does appear before the commission, because I have done so myself and unsuccessfully argued a name change.
Senator Beaudoin: I always thought that the question of the spelling or the designation --
[Translation]
The designation of a riding must rest on history and geography. I am always scandalized when I see that that is not the case in a good number of ridings. Are history and geography criteria that the county or the riding must respect before anything else that has nothing to do with it? Maybe that is asking too much, but a country is based on its history and geography.
Mr. Kingsley: You are right. The Commission in charge of geographic names is also very mindful of this need to reflect history. Actually, many place names are based on history. The commissioners, in their recommendations, are conscious of the fact that the names must also reflect history. The problem arises when you try to do too much. By trying to incorporate more information, there is never an end to it. We are sensitive to the country's history and that is what we want to reflect in the names we choose.
Senator Beaudoin: When we want to change a name, do we inherit the burden of proof
Mr. Kingsley: This determination is entirely yours and not mine. That is why you have this bill before you.
Senator Beaudoin: In other words, if we want to change the name of a riding based on geography, we must establish that geographically, the name is not correct. If we want to change the name of a riding based on history, for example, Laurier or Cartier, which are historical names, I can understand that, except that at some point we add or decrease the number of votes. Does the fundamental principle not remain history and geography?
Mr. Kingsley: It is a principle that should remain.
Senator Nolin: As for the length of the name, administratively speaking, without needing an amendment, will you be able to compress Verdun and company without this misrepresenting Parliament's decision?
Mr. Kingsley: Yes.
Senator Nolin: The system being what it is, if the commission were the body everyone had to address, including those members who want to change the name of their riding, maybe that would solve some of the concerns Senator Beaudoin and others have raised.
Parliament being sovereign, we must find a way to settle all that. We should ask that the Geographic Names Commission or its representative together with the Chief Electoral Officer be consulted to inform us as to whether they support, or not, one change or another. That might influence Parliament's decision.
Now, the Ontario ridings use the same boundaries as the federal ridings.
Mr. Kingsley: That is it.
Senator Nolin: The major neighbourhoods in Toronto also use the same geography as the federal and provincial ridings.
Mr. Kingsley: I have heard that.
Senator Nolin: As there is already harmonization between you and those who implement electoral legislation, with all that means federally as well as provincially, is there not a need then also to harmonize this work with the parliamentarians of those ridings who are important players in this system?
Mr. Kingsley: During the next redistribution attempt, in Ontario in particular, it will be important for the commission to be sensitive to the representations Ontario politicians may make and listen to their point of view and make a determination based on their federal mandate. Listening to those people will not cost anything. I will organize awareness sessions before the redistribution begins with the commissions. My intention is to meet here, in Ottawa, with the members of the commission, who are judges, to explain exactly the working of the commissions and what their mandates will be.
To come back to your other idea, on the heels of the next exercise, name changes, in Ontario or elsewhere, although it does have a double impact in Ontario, should be formally approved.
Senator Nolin: A kind of certification?
Mr. Kingsley: Exactly, through this commission, which made the effort to review the 301 names initially and pronounced in favour of those 301 names. To see if the addition respects the standards. I have already shared a whole series of standards with the committee. It is important for us to respect the work of these commissions in so far as the parliamentarians believe it is important to respect it. It is possible to accommodate both these things and my objective is to make the commissions aware of these needs.
Senator Nolin: Unfortunately, we often get these bills at the last minute and they are introduced in the House of Commons pretty well in the same way also. It is often the result of a "negotiation."
In some cases, there has been a vast consultation. A Quebec MP used the householder to poll the electorate. A member in the Ottawa area also undertook a broad consultation but others did nothing.
I got a lot of mail from people in one of those ridings telling me they had found out about the name change in the newspaper. They do not accept not having been consulted and wonder why they were not.
Unfortunately, we shall not be able to do very much. We shall have to find an acceptable solution so that people do not get the impression, once again, that the huge parliamentary machine is crushing them down and imposing a decision which, logically, could reasonably have been consulted on.
Mr. Kingsley: I agree with you.
Senator Nolin: The Senate, during the last series of revisions concerning riding boundaries, took an active part in this work in the interests of Canadians. We managed to set partisanship aside and keep the interests of Canadians in mind. The process begins with the consultation of the population. The commissioners hear the representations of those who wish to appear. According to the present parliamentary system, bills often are tabled during the last days of the session. All of a sudden, a bill shows up and we have 12 ridings to change. After this bill, there will be 57 needing to be changed.
Mr. Kingsley: With that one we have a total of 57. So 57 out of 301. We must remember that the elector does not follow the changes in riding names on a daily basis. We should not confuse the voter who does not refer to the name of his riding on a daily basis. It is not like the name of his city or province. That is an element we must remember.
[English]
The Chairman: These name changes involve a triple impact in the City of Toronto because there are also the municipal ridings.
[Translation]
Senator Joyal: I would like to point out our concern with these bills. The essential function of the Senate is to review bills passed by the House of Commons. When we take on that responsibility, we want to do it in a general manner, based on specific objectives, considering the principles of the Charter of Rights and Freedoms or re-evaluating the objectives of the policies set out in the bill. We try to define rational approaches and objective criteria to arrive at conclusions that are justified in the eyes of the Parliament of Canada during our review.
When we examine bills that change the names of ridings, we find it hard to determine the criteria. You are giving us some that reassure us, in a way, but those criteria do not seem to have been elaborated consistently in a regulation binding the Electoral Boundaries Commission. If you eventually consider the amendments that should be made to the legislation governing Canada's electoral system, I think it would be advantageous to establish a certain number of criteria, even though the list may not be exhaustive, just so there is some sort of consistency in the amendments. What is going to happen -- and I can see this in looking at the names -- is that a member will represent a riding including a lot of neighbourhoods such as, for example, Verdun-Saint-Henri-Saint Paul-Pointe Saint-Charles. At some point, you get to have a kind of local rivalry. If Pointe Saint-Charles is mentioned then Saint-Henri must also be mentioned because they are two neighbourhoods sitting side by side, each one jealous of its own identity. Of course, they will lobby the member to be added.
I have no objection to that. However, should not the Commission develop criteria -- as my colleagues were pointing out previously -- either as a reference to a historical and geographical characteristic, or as some sort of popular support? If we include the names of all the municipalities in the ridings, a whole page will not be enough to identify the ridings on a ballot.
Concerning historical references, if you take the riding of Marguerite-Bourgeoys, for example, what you have here is an important historical character who may never have set foot in the riding. In practical terms, there is no relation between the character and the region. It is different if we give the name of the tourist or administrative region. There you do have some kind of relation. Would it not be possible to recommend to the Parliament of Canada to use a rational approach? This way, when called upon to re-evaluate these bills, we could have minimal criteria to avoid looking capricious or as though a discretionary decision not based on real elements was being taken.
As Senator Fraser was saying before, if we refuse a bill like this one, we must have very good reasons. Where can we find them? Our role is to review. If we review, as though on appeal, we must be sure that we have reasons for refusing whatever we refuse. We must verify criteria that more or less exist in political reality. You who are responsible for advising the Commission in its work, you could help it doubly if the criteria were part of the regulations the Commission must approve.
Mr. Kingsley: The criteria established by the Geographic Names Commission are shared by the different commissions who do the redistribution of the ridings. There are some criteria I have elaborated upon. They are to be found in a specific document that we give these commissions and I can send you a copy of it.
Senator Joyal: Are they circulated to members when a member suggests a name change for a riding? Must a member consult the commission beforehand or get an opinion from a relatively responsible committee on the basis of the application of those criteria?
Mr. Kingsley: Neither the commission nor the Chief Electoral Officer need be consulted by a member or the government before suggesting any name changes. Nothing is required under the Act nor are there any customs that apply.
Senator Joyal: Should we perhaps propose this when we amend the Act further?
Mr. Kingsley: Possibly, in the Act on redistribution. However, administratively speaking, I'd rather try to make parliamentarians more aware of the role of the commissions concerning the naming of ridings as well as the time frame they have to appeal. After that, and if ever any names were put forward, I would try to make the House of Commons committee in charge of examining them aware of these criteria.
Senator Joyal: When I was a member of Parliament, I changed the name of my electoral district of Hochelaga to Hochelaga- Maisonneuve because that brought together the two neighbourhoods. Other members of Parliament have found themselves in exactly the same situation. The residents of the Maisonneuve neighbourhood said: "We are not in Hochelaga, we are in Maisonneuve, and so we want to be identified by where we actually live." At the time, I was not aware of the criteria put forward by the Commission. I think it is essential to make members of Parliament aware of them at the proper time in order to avoid a proliferation of names. In my view, if we at least have objective criteria that are already in effect, we have a basis for making a reasonable decision on what we are being asked to approve.
[English]
Senator Pearson: I have a couple of technical questions. We are all looking forward to asking questions tomorrow of our next witnesses.
First, these are private members' bills, are they not?
Herschell Sax, Senior Policy Advisor, Register and Geography Directorate, Elections Canada: No, I believe they have been rolled up. They were initiated as private members' bills, but I believe they are government bills now.
Senator Pearson: So the question is, are they private members' public bills?
The Chairman: Private members' public bills.
Senator Pearson: The question is, how did they manage to even get on the Order Paper? I have received my answer, which is that there is no specific process.
My second question has already been partly but not totally answered, in my own mind. Do any of these bills deal with ridings in Ontario?
Mr. Kingsley: There are four from Ontario.
The Chairman: Ovid Jackson's riding, Dennis Mills's riding, Eugène Bellemare's riding, and John Bryden's riding.
Senator Pearson: Dennis Mills is in Toronto. If that name changes, does that affect the name that is used in the Ontario election?
Mr. Kingsley: Yes.
Senator Pearson: Also the name that is used municipally?
Mr. Kingsley: Yes.
Senator Pearson: We need to make some comments somewhere in our reporting back on this bill. We will probably not amend these, but somewhere we must put some comments on the record in order to help rationalize the process for the future. Would that be helpful?
Mr. Kingsley: Yes.
The Chairman: When we are talking about elections within Ontario, ridings are listed as Toronto-Greenwood, and so on. Mr. Mills's will be listed as Toronto-Danforth.
Senator Fraser: Going back to your point about the poor voters, you run elections, so you and your staff have more to do with voters across the country than anyone else. Is there any practical experience or any research connected with specific names in Canada to suggest that voters become unhappy or confused when too many geographic names are piled onto their riding names?
Mr. Kingsley: No research has been done on this.
Senator Fraser: Could you do some?
Mr. Kingsley: I suppose we could. However, as I said in the earlier part of my testimony, I would much prefer to work much harder to avoid those changes next time around. I am sure they are viewed as necessary by certain people, but they all consume a lot of energy. We have not looked at whether or not they lead to confusion, but it is fair to assume that there will be some element of confusion on the part of some of the electorate when the name has been changed between elections but there has been no redistribution.
Senator Fraser: Yes, and you get these long, long names. After you were here last time, I made several speeches about the glories of the Senate and the fascinating work we do, and I would cite some of your remarks about names and the 50 characters, and so on. I would read off the riding names. I went through this exercise several times within a fairly short space of time. Still, by the end, I could not remember the wretched names. I had to have them written down. Despite having delivered the speech a number of times, I could not remember the riding name of Musquodoboit, even though I know that part of the world; it is not foreign territory to me. I am wondering whether the voters in those districts are starting to find it as ridiculous -- forgive me -- as my audiences unanimously did.
Mr. Kingsley: You might want to ask the Speaker of the House of Commons to testify about name changes, because he must call on the MP from such and such and such.
Senator Nolin: That shortens Question Period!
Senator Fraser: Seriously, I suggest that you do some research as we move through the next electoral period, because you will be stuck with the names. Perhaps you could ask your staff to keep notes on whether there is any voter confusion or resistance.
Mr. Kingsley: Or comments that we receive.
Senator Fraser: Yes. That might be useful to the MPs.
Mr. Kingsley: Yes. That is easy to do. Thank you for that suggestion.
The Chairman: Thank you very much.
The committee adjourned.