Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 3 - Evidence for March 22, 2001

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-4, a First 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, met this day at 10:50 a.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, before we begin with our witnesses on Bill S-4, I have a statement that I would like to read to the committee.

Honourable senators, yesterday afternoon, the Honourable Senator Fraser requested that two witnesses, Professors Nemni and Behiels, withdraw certain implications made by them with regard to the government's motives for including certain wording in the preamble of Bill S-4. Honourable Senator Cools then raised a point of order. Debate ensued and the witnesses eventually responded to Senator Fraser's statement.

I had the benefit of discussing yesterday's exchange with procedural staff, so I would like to take this opportunity, not to rule on yesterday's exchange, but to shed what, hopefully, will be some light for our future reference.

The Honourable Senator Cools was quite right to raise a point of order from the perspective that the Honourable Senator Fraser, having taken offence at the implications made by the witnesses, should more properly have raised her concern as a point of order herself before suggesting that the witnesses withdraw the statements.

Under such a point of order raised with the Chair, would Senator Fraser have been correct in requesting that they withdraw their statement?

Witnesses before parliamentary committees, like theparliamentarians themselves, are protected by privilege and cannot be held accountable for their statements in a court of law. For this reason, several norms of conduct exist in Parliament, some of which prohibit, for example, using unparliamentary language or impugning motives of parties. Witnesses who benefit from the protection of parliamentary privilege must adhere to these principles because, in making accusatory statements in a public proceeding of Parliament, those against whom their accusations are made will, at the end of the day, have no recourse to respond. Had Senator Fraser raised her concern as a point of order and, after hearing debate, had I been required to rule on it, I feel that the most appropriate action would have been to request that the witnesses refrain from impugning the motives of the government.

We also have before us, honourable senators, a letter from the Honourable Anne McLellan. It is included within a package that we have received in response to some of our questions from the department. I certainly will not read the package. It is here in both English and French and we will distribute it to all the senators, but I would like to read the letter into the record. The letter states:

The Honourable Lorna Milne, Chair
Senate Committee on Legal and Constitutional Affairs
Senate of Canada
Dear Senator:

At my appearance before your Committee on Wednesday, March 14, 2001, I undertook to respond to a question posed by Senator Fraser regarding the marking of legislation to reflect whether a term is a common law term or a civil law term.

 

On March 1, 2001, before the Committee Professor Claude Fabien from the Law Faculty of the Université de Montréal suggested the idea of marking legislation to reflect bijural terms. More specifically, Professor Fabien suggested that:

[Translation]

Civil law terms in English and common law terms in French should be marked according to a convention of some sort.

[English]

My officials from the Civil Code Section at the Department of Justice as well as the drafters from the Legislative Services have carefully reviewed the issue and are of the view that there would be inherent difficulties in any such practice.

The first difficulty to consider relates to the symbolic aspect of the form in which legislation is presented. The legislature has always spoken in one form with respect to language - one official language version is not printed in a different typeface than the other. Similarly here, with the movement to ensure the law speaks to all legal communities, it would be inconsistent to distinguish one legal concept from another by different typefaces or other form of marking. The legislature should speak in one form, not only with respect to language, but also with respect to legal concepts. The symbolism of the uniform appearance of the statute books is important - no language or legal concept is more or less important. They are equal in all respects and none is singled out.

 

I note Professor Nicholas Kasirer's comments on March 14, 2001: "... back to the symbolic appearance of the law - its pristine and uniform shape, being itself a value and holding some of the authority of the law is borne in its very feature. It is not an accident that the typeface of the Statutes of Canada is always the same because of the idea the legislature speaks in a voice. Messing around with that comes at a price."

 

Secondly, there are several technical difficulties with a marking system. To be effective, a marking system would have to be applied consistently. Failure to mark a legal concept in a system where marking was mandatory would be worse than having no marking at all because it could lead to erroneous conclusions such as one that an unmarked legal concept is in fact not a legal concept at all. As well, there would be serious difficulties in determining whether some thing should be marked or not. By way of one example only, should a term such as "security/securité," which is the same term, but has different meanings in the two legal systems, be marked or not? As Professor Alain-François Bisson, from the University of Ottawa, commented before your committee on March 1, 2001,...

 

[Translation]

marking would add to the complexity of statutes that are already quite complex. My preference would be for a briefing or "post-briefing" document.

[English]

I do not dispute that what we are proposing is new and innovative and may cause difficulties for some at least initially. That is why clause 8 of the Bill proposes to add new provisions to the Interpretation Act to facilitate a better understanding of the new drafting techniques, which are designed to reflect the Canadian bijural tradition in federal legislation.

 

As well, in response to concerns expressed in this regard, Justice legislative drafters are proposing to incorporate a note in the summary of Bill S-4 to explain the order of priority of common law and civil law as follows:

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

The summary will continue and be part of the printed text when the bill is printed in "as passed" form. In addition, tax legislation, which is harmonized in separate tax bills, will contain explanatory notes relating to the new harmonized terminology.

In addition to these interpretive aids, I agree entirely thatthe new techniques of bijural legislation need to be communicated effectively to the legal community and to the population in general. Professor Fabien himself suggested alternatives if marking is not an option such as developing a lexicon of common law and civil law terms or investing in research.

 

I would like to underscore that the Department of Justice has already undertaken several initiatives to raise legal aware ness in this regard. We are developing a lexicon and bijural records in cooperation with the Translation Bureau of the government of Canada. These tools will be published when the Act comes into force as reference material on the Justice Internet website and Justice CD as well as on Termium, the federal government's terminology reference, and will be distributed in print form in libraries throughout the country.

 

In order to raise legal awareness, presentations have been given by Justice legal counsel on the harmonization process and bijural drafting in several Canadian faculties of law and to members of the legal community. We have also published articles on harmonization and bijural drafting and we will continue to do so. In particular, we will publish a collection of texts in May 2001 on the subject matter, including the methodology and terminology of harmonization.

 

I trust the above comments will assist you in your consideration of Bill S-4.

Yours sincerely,
A. Anne McLellan

A French version of the letter is also included in the handout.

Senator Cools: Madam Chairman, there is a document attached to it. Perhaps we could append that to the record of today's proceedings. Perhaps it is already part of the record.

The Chairman: All of this has now been tabled and handed out to every senator.

Senator Cools: I am aware of that. I was talking about the whole package being appended to the record.

Senator Beaudoin: That is what I understood.

The Chairman: This has been tabled.

Senator Cools: It takes a motion here or a decision here to append it to the record. It does not happen automatically.

The Chairman: Do the members of the committee want this material to be appended to the minutes of this meeting?

I have just been informed that about 10 years ago, apparently, Internal Economy asked committees to refrain from this practice because it is extremely costly. However, if it is the decision of this committee to do so, we will.

Senator Beaudoin: We are dealing with a very special bill here. The documents are of the greatest importance.

Senator Joyal: It is only two pages more in the record.

Senator Cools: The intention of Internal Economy with regard to costliness did not really speak to this sort of situation. This is a statement from a minister and the record should show it as fully as possible.

Senator Beaudoin: I agree with that.

The Chairman: Is it agreed that the whole package be appended to the minutes of the meeting?

Hon. Senators: Agreed.

(For text of document, see Appendix, p. 3A:1)

The Chairman: We have now before us as witnesses from the Department of Justice Canada, Alain Bisson, Senior General Counsel, Civil Code Section, and Yves DeMontigny, Special Adviser to the Senior Assistant Deputy Minister, Public Law.

Welcome, gentlemen.

Mr. Alain Bisson, Senior General Counsel, Civil Code Section, Department of Justice Canada: Madam Chairman, the last time we appeared we gave a general overview of the bill. We would be glad to come back to that. If not, we are ready to take questions on any aspect of the bill that members of the committee may wish to raise.

[Translation]

Senator Beaudoin: We had a lengthy discussion about the meaning of harmonization. I have always been of the view that for the last 200 years, we have had two systems of law here in Canada. Had we only had one, perhaps Bill S-4 would not have been needed. We would have been like the Americans or the British - the Americans, because it is a federation, and the common law would have applied at large. But that does not reflect our history and thus we have two systems of law here. I do not want to re-open yesterday's discussion about the second"whereas," but I do think it is consistent with the guiding principle of Bill S-4, since it clearly states that we have two systems of law.

[English]

I would like to have your views on whether this is the exact objective of the bill, but in my opinion that is what harmonization means. However, I would like to know if you agree or disagree with that, and why.

[Translation]

Mr. Bisson: We agree with your interpretation of what the phrase "reflects the unique character of Quebec society" means in the context of harmonization. In our remarks last week, the Minister and myself did not explain the genesis of this Bill. It takes us back to the 1970s. Following passage of the new Civil Code by the government of Quebec in 1990, four years passed before the new Code came into force in late 1994.

During that period, the Department of Justice played a leadership role and made the decision to assess the potential implications of the coming into force of the new Code for the federal government. It was at that time that we reviewed a whole series of standard forms and contracts then in use within the federal administration. Concepts such as "delict" and"quasi-delict" were replaced by the concept of "extracontractual liability." This had an impact on standard contracts used by the federal government and we therefore had to amend them. As our work progressed, we realized that we had to amend not only standard forms and contracts, but also all the regulations and statutes related to those standard forms and contracts.

As a result, the Department of Justice proposed this initiative in the mid-1990s. As a general rule, civil law concepts did not have the same prominence in federal legislation as did common law concepts.

Senator Beaudoin: I see.

So, the impetus for this harmonization program was Quebec's adoption of a new Civil Code. Indeed, it should be said that the government of Quebec had to systematically review all public legislation in that province to replace terms that had become obsolete under the new Code.

Indeed, they gave us access to a list of approximately 150 terms that they systematically replaced in all of their legislation. We are using them in those rare cases where our statutes deal with civil law and also to modernize the body of law at the federal level. The process involves reviewing a federal statute and asking ourselves whether it applies in Quebec. If the answer is yes, we then must determine whether that statute contains common law concepts that are poorly or inadequately expressed under the civil law in Quebec. That is how the process works.

Senator Beaudoin: I consider this to be a very important event. That can be seen in the fact that they asked all lawyers called to the Quebec Bar to take courses. The courses we took went on for hours and hours. The civil law in Quebec has changed considerably.

As I understand it, you are saying that because of that, we want to harmonize federal legislation and ensure that it is consistent with the genius of the civil law in Quebec and the genius of the common law in the other provinces. Is that the idea?

Mr. Bisson: Yes, exactly.

Mr. Yves DeMontigny, Special Advisor to the Senior Assistant Deputy Minister, Public Law, Department of Justice Canada: This exercise was carried out in cooperation both with the Bar, the Chamber of Notaries and the Quebec Ministry of Justice, which is a clear illustration of the magnitude of the problems encountered. You are absolutely right when you describe the purpose of a preamble. Not all statutes have one. But in this case, we are dealing with very innovative legislation that will be dealt with over a number of years. That is why it was deemed important to explain the context in which this work will be carried out. You have described that context; it is the constitutional context as we know it - in other words, a system of civil law and private law in Quebec, whereas the common law represents the private law in the other provinces of Canada. That is clearly reflected in the Constitution Act, 1867 and many different provisions, including the Supreme Court Act, which provides that three judges must be members of the Quebec Bar. This bill only reflects what already exists in the Canadian Constitution.

Senator Beaudoin: Even before the Constitution.

Mr. DeMontigny: Yes, even before.

Senator Beaudoin: Would you say it even goes as far back as 1864?

Mr. DeMontigny: Yes, absolutely.

[English]

Senator Fraser: I bow to the minister's reasoning on the idea by which I have been so seduced. I really do take the point that it is important for the law not to seem to distinguish in any way between different portions of the text, so they all have equal weight and value. That is a high goal.

Still, I remain a little puzzled. I think you gentlemen were here last night when Professor Gaudreault-DesBiens was testifying. He spoke quite eloquently for the text of the law to be accessible and for words to mean what they mean on their plain face, so that ordinary citizens, to the extent possible, may understand what the law says.

We will still have some difficulties. I was just looking through the bill and I came to this, which may or may not be the best example. I looked at clause 67, on page 32, which says that a document issued by the Federal Court, et cetera, "may be recorded for the purpose of creating security, or a charge, lien or legal hypothec."..

Since "security" is underlined here, I am assuming that is the word that is taken from the Civil Code vocabulary. Is that right?

Mr. Bisson: I wish to ask my colleague who is responsible for this to respond. Alain Vauclair is responsible for this part of the bill.

The Chairman: Please join us.

Mr. Alain Vauclair, Senior Counsel, Civil Code Section, Department of Justice Canada: We already discussed this at an earlier session.

Senator Fraser: I am sorry.

Mr. Vauclair: That is fine, I was just referring back to it. The term "security" is the proper translation of the term "sûreté," which we already have in the French version. "Security" and "sûreté" are neutral or generic terms that, as was mentioned earlier, perhaps have a different meaning under the common law system or the civil law system, but one of the reasons we included it in the English version is that it simply is not there, whereas we have it in the French version. We have done the same thing for the term "charge." We had the term "charge" in the English version, whereas we did not have it in the French. It is a question of having all audiences properly addressed by each linguistic version of the text.

Senator Fraser: I understand that. I want to be sure that what we are doing here is what we want to do, which is clarify and harmonize the law in a form that will be as accessible as possible. I grant you that the Canada Pension Plan is perhaps not an act that will be consulted every day by ordinary citizens. Still, once it is not underlined anymore, when I look at this word "security," will it mean what I, as an ordinary citizen whose mother tongue is English, think it means, or does it have a technical meaning that I would not ordinarily understand?

Mr. Vauclair: There is an ordinary meaning. If you look in ordinary dictionaries, you will find a meaning.

Senator Fraser: It means "security for a loan."

Mr. Vauclair: Yes. That is exactly what it means. If you start asking specialists what are the institutions or concepts, they will also see that meaning and read it into the act.

Senator Fraser: No, I am not going that far.

Mr. Vauclair: You are absolutely correct in saying that it means "security for a loan" in this context - that is, security for debt, security for an obligation.

Mr. Bisson: Senator Fraser, we have with us our colleagues from the legislation services branch. Ms France Allard is an expert in comparative law. She is also involved in a project of the branch that involves making legislation more readable. Maybe she could say a few words.

Senator Fraser: That is a noble goal.

Mr. Bisson: Yes, it is quite a challenge.

Ms France Allard, General Counsel, Comparative Law, Director, Legislation Services Branch, Department of Justice Canada: If you look at the provision to which you were referring, namely, clause 67, it is already a technical provision. The whole body of federal legislation is very technical and there are various projects underway within the department. One is to improve the language and render it more accessible, which is the plain language project. There is also the bijuralism project. Both projects seek to make the law understandable to those who can read it.

There is a limit to who can read these provisions and there is a limit to amending existing legislation. To render these provisions more accessible is to speak to all audiences. As written now, the idea is that if one audience does not understand what is in there, it is not accessible. The whole idea of harmonization and recognizing the audiences of law in Canada is to speak to all of them in terms they can understand.

People already do that. For example, a lawyer in Quebec who is reading this same provision should understand the words. That is to say, it should mean something in law. "Security" is not only a technical word in law, it is also a technical word that is used in common language.

Senator Fraser: In several different ways.

Ms Allard: In several different ways. With a term like this, its meaning is already technical. Unless you start describing the contents of all these notions or institutions, you will end up with almost a dictionary within a provision.

In other cases where there is no enumeration, the idea is to try to describe the function of the provision or make it more accessible, because it is not a technical provision in itself, seeking to describe different types of security, or "charge" in French, or the "sûreté." People reading this will know that it is security law pertaining to an interest in property, like in Quebec a "hypothèque," or just your mortgage in common law.

People will read it with their own words. The word can mean different things to a common-law lawyer or to a civil lawyer, but the security word, even though the consequences are not the same, does not matter because the federal rule will take into account the various meanings. Harmonization does not necessar ily mean that it is will be applied in the same manner in Quebec and in the common-law provinces. Sometimes it can mean that we want it to be applied the same way. In those cases, we will have to address how these rules are applied differently, to ensure that they are applied the same way.

If you open a dictionary, you will find a general meaning for security. If you open a dictionary to look up "charge," you will find it also to mean what is meant here. It is only to make sure that the holes are filled. When you are reading the French, like Mr. Vauclair was saying, there is something missing. If you read the English, there is also something missing.

The language of the Employment Insurance Act is being revised with a plain-language purpose in mind. It is a very long process. It is a step-by-step thing. First, we try to give to all audiences access to the law. Then, for specific projects, we try to make them more accessible with plainer, understandable language to make it more intelligible. It is giving access. It sounds complicated. Try reading it without the underlining.

Senator Fraser: That was my point. The point raised by the witness who originally produced this whole thing was that once you take out the underlining, you really want to be sure that everyone will understand it. I guess the minister has said in her letter that "security" is an example of a word with two different meanings. When I fell upon this, I found myself asking, without the underlining, will I be misled? You are telling me I will not be misled.

Ms Allard: No. If you have to apply it in Ontario, you will read "security" to mean what it means in Ontario. If you read "security" and have to apply it in Quebec, you will read it in terms of what it means in Quebec, using different institutions that constitute security. They are not necessarily the same because the categories are not the same. The purpose is to regulate whatever is characterized as a security, even though the meaning is different.

Senator Fraser: Thank you so much for being so patient with my layperson's lack of understanding.

The Chairman: As a layperson, I must say reading this particular clause, I am not nearly so much concerned about the meaning of the word "security" as I am about the meaning of the words "legal hypothèque."

Senator Fraser: There is a difference, I gather, between hypothèque and mortgage. If we have time, is there a one-sentence explanation of the difference?

Mr. Vauclair: If I may, the legal hypothèque here is a civil-law concept. The concept of "hypothèque" is not known in common law. They would have security interests, pledges and mortgages, as Ms Allard mentioned. Here we have a specific institution.

Senator Fraser: What is a hypothèque?

Mr. Vauclair: It is a charge on a movable or an immovable in Quebec. It was important to say it in here.

[Translation]

Senator Joyal: I want to take advantage of Mr. Bisson's presence here to return for a moment to Ms McLellan's letter, and specifically the paragraph at the bottom of page 2, where she refers to the terminology bank, known as Termium. I was Secretary of State when that bank was set up some...

[English]

- I think 22 years or so ago. At that time, it was seen as a revolutionary tool to help not only Canadians, but anybody around the world, to gain access to the definition, the legal definition, of a concept that would help to bring the two systems together. A terminology bank is not just a mere tool, like a dictionary. If you have a dictionary, you have one meaning, you read it and that is it. A terminology bank is much more complex. A terminology bank, as I understood it when we put it together - and I was instrumental in pushing for the development of it because I believed that in the years to come it would be an essential tool - has to understand the philosophy that permeates a system that you are trying to describe.

When I read -

[Translation]

the bijural record that was attached to Minister McLellan's letter. As regards the problem of semi-bijuralism, it is extremely important that the means chosen to express the concept be as close as possible to the fundamental values of the system involved. That is the essential problem posed by bijuralism. In some cases, you exercise your own discretion. In your presenta tion, for example, you yourself referred to the fact that some terms may not always be perfect substitutes one for the other.

My question is a purely technical one. How can you justify decisions you made where you exercised your own discretion in cases where the term does not really exist in the other system?

Mr. Bisson: I would like to ask my colleague, Louise Maguire-Wellington, who works with terminologists at the Bureau, to explain exactly how the record system will work.

First of all, we try to reach a consensus. We have to find a common law term that corresponds to a civil law term in terms of the concepts involved. We make a recommendation to the department responsible for that statute and give our rationale for the recommendation. If there is no institution in civil law comparable to a common law concept, we may consider using a neutral term that would satisfy both audiences - in other words, both common law and civil law practitioners. Finally, we will consider developing our own definition, ensuring that it offends neither the common law nor the civil law traditions.

This is a monumental task which is still in its infancy. To say that we have found solutions or a way of getting around all the problems we will be presented with is certainly not true. I can tell you right now that that is not the case. We currently have about 200 terms that are included in this bill and have been successfully harmonized. A variety of techniques were used, for example, what we call the Quebec clause, when the term only means something in Quebec. That is one of the techniques we have used. We have also relied on definitions, doubles and four-term frames. The model we have presented has four separate boxes or sections for the French and English civil law and common law terms for the four audiences. So, we experiment as we go along. Of course, we are guided and attempt, wherever possible, to find a correct equivalent in civil law for the common law concept.

Ms Louise Maguire-Wellington, Legal Counsel, Civil Code Section: I think you have provided a good summary of the various techniques that we are using. The record gives an example of what is called a double, where a different term is given for each audience - in other words, the civil law term in French, the civil law term in English, the common law term in French and the common law term in English. Sometimes we choose a general, neutral term, such as "prêt" and "loan" which is the same in English or French and, for example, terms like "buy" and "lease." To make things clear, you will see four separate sections on the record. The common law audience will know that "buy" is for both the common law and civil law audience, and that "lease" is aimed at the common law and civil law audience.

There is a variety of techniques. As Mr. Bisson explained, these techniques include providing a definition, a defining context and a description, if we do not have a specific term. Sometimes we use a definition, and sometimes we may use a double with a paragraph where it is explained that the situation is such and such in Quebec and something different in other provinces. There are a number of different techniques that can be used, depending on the context and the imperatives of the legislation.

Senator Joyal: Thank you very much. I will try and review some of the records in the bank, because it is still an essential tool for conveying the goals of harmonization.

I would like to come back to the preamble, because it seems clear to me that this preamble has some legal implications that should be considered by the Department of Justice.

My comments are addressed primarily to Mr. DeMontigny. I imagine the Department of Justice is well aware of the rulings handed down by the Supreme Court and other Canadian courts with respect to interpreting the Canadian duality, that is to say Quebec or French Canadians - to put it in even broader terms - and the English-speaking community in Canada.

What is your interpretation of the position Canadian courts have taken in that regard? You may find this question surprising, but I imagine that when you drafted the preamble, since it does refer to a political concept that will be given a legal meaning, the Department of Justice surely gave some thought to the matter of how Canadian courts have traditionally interpreted that duality.

Mr. DeMontigny: I must say that I wasn't expecting that question. I do not know which ruling you are referring to. In the Ford case specifically, the Supreme Court made reference to notions such as duality and unique character, without necessarily using those terms, to recognize under section 1 of the Charter that given the country's demographics and the French fact in North America, it was legitimate - and the Court even went beyond what one would normally have expected from a court in relation to section 1 - because of Quebec's particular circumstances in North America, to allow French to dominate in signage. The Court has already taken note of that, at least in that ruling. The late Justice Dickson, at a lecture he gave in 1996 after leaving the Court, said - and I would like to quote a brief excerpt of his address at that time, which was reported in the newspapers for reference purposes, and specifically in La Presse on July 27, page B-2. I just want to quote a brief excerpt from that address. Justice Dickson was talking about Quebec's unique or distinct character:

I know that this is still a somewhat controversial matter in Western Canada. But allow me to say straight out that I am very comfortable with the concept. In fact, the courts have already considered Quebec's specific role with respect to the protection and promotion of its Francophone culture when interpreting the Charter of Rights and Freedoms and the Constitution. Consequently, in practice, entrenchment of formal recognition of Quebec's distinct character in the Constitution would not be very different from many of our courts' current practices.

I would also like to refer to the comments made by one of your witnesses, Professor Jean-François Gaudreault-DesBiens, who said that here, we're talking about a preamble, not constitutional wording. This preamble could be used to interpret legislation if there were any ambiguity. Like Mr. Gaudreault-DesBiens, I really can't see what kind of ambiguity in the current wording would make it necessary to refer back to the concept of a unique society or one having a unique character.

I would also add that unlike the proposed Meech Lake Accord or Charlottetown Agreement - which, I would point out, involved not only introducing this concept into the Constitution, but also laying down very specific consequences - this is the preamble of an ordinary act of Parliament. Thus there are no legal consequences.

If you do not mind, I would like to make one last point in response to your question. The word "society" from a strictly legal standpoint - and I do not intend to engage in a political debate here, since you are in a much better position than I to do that - has no specific connotation. That may not be the case with the word "nation." When someone talks about a nation state, we know what that word refers to. Of course, the word "people" may also have one, and the Supreme Court reference on secession basically dealt with the right of a people to determine their own destiny. This is a well-known concept in international law. However, the word "society" is a term that only describes a sociological reality and therefore has no legal consequence or implication.

The word "society" is in itself a general term. I may talk about the Quebec Writers' Society. Such a group exists; it is a non-profit organization of writers. I could also use the example of the Society of Ornithologists or any other type of society - in other words, a group of people who share the same interest. I am sure you are aware, Mr. DeMontigny, that the expression "distinct society" has generated a tremendous amount of debate in Canada over the past 20 years - indeed, ever since this resolution became part of the political vocabulary. If I put the adjective "distinct" next to the word "society" - just to try and simulate a psychological analysis, when I show you these words, what comes to mind? Well, it is the same thing here. This is what you could call a "loaded" word; it is anything but neutral. The term itself is a collective noun that refers back to a general concept that can include just about anything, but taken in the Canadian political context, we automatically know what it refers to. No one could pretend not to know.

In my view, this very point was brought home in a statement by Minister Dion. Barely a month ago, on February 14, 2001, Minister Dion, during a speech he gave in Toronto, the text of which was distributed to all Parliamentarians, said, and I quote:

I am not saying that our Senate is perfect or that an interpretive clause recognizing Quebec's unique character would not be useful.

If I put the words of Minister Dion - who would like to see an interpretive clause in the Canadian Constitution based on Quebec's unique character, and Minister Dion could not be said to be a minister with no interest in the political debate in Quebec - next to the words of the preamble that appear in section 2, would you not say we are doing something in a statute we should more properly be doing in a constitutional enactment?

Whether or not we want this paragraph - which, as you know, relies on a political concept that has prompted very significant debate in Canada over the last 20 years - to be an interpretive clause is a matter to be debated in another forum.

I agree with Senator Beaudoin that we should recognize the Quebec Civil Code as reflecting the character of Quebec, because it was in 1991, 1992 and 1993 that Quebec developed this Civil Code - and I have no problem with that; on the contrary, I think it should be mentioned - and yet in order to provide this recognition of the presence in Quebec of the civil law tradition, we are using a political concept that harkens back to a previous political debate that Minister Dion himself referred to barely a month ago. I am sure you can understand that some may be reluctant to do that in a bill of a completely different nature, which I completely support - other than clause 5, but for very different reasons - in light of the comprehensive initiative that is to follow.

The Department of Justice simply cannot ignore the rulings of a number of our highest courts, particularly those of Justice Laskin in the 1981 reference on patriation of the Constitution, and of Justice Turgeon in the 1982 reference on the Quebec veto, which were both extremely clear as regards the theory of a compact between the two groups or communities - and I quote:

[English]

Theories, whether of a full compact theory or of a modified compact theory, as urged by some of the provinces, operate in the political realm. In political science studies, they do not engage the law.

[Translation]

Similarly, Justice Turgeon wrote in 1982, again in the two rulings you are familiar with:

[English]

However, these distinctions do not confer on the Quebec legislature more extensive powers than those given to the others rejecting the principle of duality.

[Translation]

My problem is not that these matters should be debated in a political sphere. In my view, Mr. Dion may have very good reasons to want to promote the idea of an interpretive clause in the Constitution. What I cannot subscribe to, however, is that in attempting to recognize the fact that Quebec's civil law system is codified - something that should be recognized, in my view - we would rely on a political concept that has generated much debate and will continue to do so.

I would not like us to find ourselves in a situation where people would be saying that the Parliament of Canada passed a resolution in 1995 that was harmless, but that since it has been entrenched in this Bill, Parliament has somehow spoken. I do not agree with your suggestion that a preamble doesn't mean anything. If it did not mean anything, I would suggest it be removed. I believe a preamble plays a useful role in a statute. It sets out the objectives of the legislation, the specific legislative environment, the context and the genesis of the bill.

In my view, the words of the preamble are important. I do not think it is possible to remove the word "society," in the second "whereas" from the entire political debate that has taken place in Canada in this regard. There is no point in trying to make us believe that this word is somehow neutral. No one could possibly be unaware of all the debate it has generated and will continue to generate in the years to come. I believe this bill is very worthwhile and that we need to support it, because it speaks to the very essence of Canada as a nation, in terms of the coexistence of two traditions that each finds expression in both languages, just as one of our goals is two official languages existing on an equal basis in Canadian institutions. That is very much the federal approach. Why try now to introduce this concept when there is no agreement on it among the majority of Canadians? It is not yet part of the Constitution Act, although it may be one day. I may have another opinion on that when the time comes, and Minister Dion has already said he would like to discuss it.

At this stage, however, it seems to me we could convey exactly the same meaning as the second "whereas" now expresses by simply saying...

[English]

WHEREAS the civil law tradition of the Province of Quebec finds its principle expression in the civil code of the province and characterizes that province.

[Translation]

I have no problem with that, but when we put the work "distinct" or "unique" next to the word "society," we are automatically in the realm of political debate. In my view, when the Department of Justice drafts legislation, it must do so in full recognition of the legal context in which Canadian constitutional law is evolving.

I would emphasize that there can be a constitutional debate at other stages in the process. That is why I agree with the idea of recognizing that the Civil Code is a fundamental characteristic of the Quebec legal system. I think that has to be said. My own reservations and my desire to amend this are directly related to what I see as a need to remove this contentious wording based on a clear legal position, in terms of the courts' interpretation.

Mr. DeMontigny: There are several comments I would like to make in response to what you have said. From the perspective of the Department of Justice, there is no doubt that the goal was not and is not to reopen a strictly political debate on the "distinct society" concept, such as the ones we have had previously.

The principal reason for this "whereas" appearing in the preamble, as you yourself said and as the minister pointed out when she appeared before the committee, is to explain the context in which this bill is being enacted.

Part of that concept includes resolutions passed by both Houses of Parliament in 1995. Again, you are very familiar with those resolutions, but I would like to re-read part of the resolution proposing the following:

WHEREAS the People of Quebec have expressed their desire for recognition of Quebec's distinct society,

1) The House recognizes that Quebec is a distinct society within Canada;

 

2) The House recognizes that Quebec's distinct society includes its [...] civil law tradition.

No one disagrees with that. But what is even more important in our case is this:

4) The House encourage all components of the legislative and executive branches of government to take note of this recognition and be guided in their conduct accordingly.

The department's view is that we are only abiding by this resolution that was passed by both Houses of Parliament in 1995.

You also referred to the "distinct society" concept as being loaded.

I have no intention of going back over the origins of this concept; others have already done that better than I could. This is a concept that goes back to the 1967 Laurendeau-Dunton Commission report. I would like to quote from that report:

[...] and we have recognized in Quebec the main elements of a distinct Francophone society [...]

We find the same thing, as Mr. Beaudoin can attest to, in 1979, in the Pepin-Robarts Commission report, where they went even further in recommending that the preamble of the Constitution recognize the historic association between French-speaking and English-speaking Canadians and Quebec's specificity.

In the Ford case, the Supreme Court explicitly referred to Quebec society. It is perfectly true - and it is not my role to enter into a political debate here - that the distinct society concept has been used with a very specific agenda in mind at certain times and for certain purposes. That is a fact that everyone can observe. That is not necessarily the case anymore, as you know. I will spare you the political debates, but you know as well as I do that this term does not necessarily carry with it the same baggage it did at one time. The "whereas" that appears in the preamble only repeats the words of the Calgary declaration, which was endorsed by a broad proportion of Canadians.

I would add that the word "unique society" or "unique character of Quebec society" are not used here in an abstract fashion. They do not appear as part of a constitutional reform proposal. This is not what the Department of Justice is trying to do through the back door. These words are used in a preamble that twice mentions the province of Quebec. The whole genius of this Bill is such that it is inconceivable the second "whereas" could be interpreted as leaning towards a political agenda, since it talks about harmonizing federal law with the civil law of Quebec.

So, this bill is essentially federal in nature. I agree that the preamble has a certain significance. We do not put a preamble in a bill just for fun; it is there to give the context of the legislation. At the same time, it does not attach any legal consequences to the use of the words "Quebec society," because it is definitely not a constitutional bill. Its only purpose - and it is with this in mind that the Department of Justice put it in - is to describe a sociological reality that, as far as the government is concerned, is a fact accepted by everyone - namely that Quebec, because of its language, culture and civil law tradition, is a different, indeed unique society within Canada.

[English]

Senator Joyal: On the statement by Mr. Laurendeau, in the blue pages of its report, which serves as the basis of the decision by the Canadian government - and I was part of the Canadian government at the time -

[Translation]

The Laurendeau-Dunton Commission was a commission on bilingualism and biculturalism. The government acted on its recommendations with respect to bilingualism, but rejected those dealing with biculturalism. That is what gave rise to the policy of multiculturalism. When the Laurendeau-Dunton report is cited to support the validity of this concept, I have to say that is not the correct context in which to place it. Professor Léon Dion, writing about his memories of André Laurendeau on pages 49 and 51, explained what Mr. Laurendeau had in mind when he wrote that part of the report, and here I am quoting Professor Léon Dion:

The starting point for André Laurendeau was the need to give Quebec a very special constitutional status. That province was the cornerstone and guarantor of the French language for the entire country. In his mind (André Laurendeau), the condition for their continued existence as French Canadians was the protection of the society they had shaped. If French had managed to survive in Canada, it was because of Quebec and also because Quebec was endowed with a sense of political decision-making.

In other words, the theory Mr. Laurendeau developed in the blue pages of the report was that of special status for Quebec based on his observation that it was a distinct society, as he described it at the time. Again, I am quoting Mr. Laurendeau:

We have already said [...] that the word "society" designates the types of organization and the institutions that a rather large population, inspired by a common culture, has created for itself or has received, and which it freely manages over quite a vast territory, where it lives as a homogeneous group according to common standards and rules of conduct. We recognized the main elements of a distinct French-speaking society in Quebec.

The reason why the Canadian government refused this interpretation of Mr. Laurendeau's findings is that it wanted to establish a bilingualism policy for all French-speaking Canadians in Canada, and fulfill all of its specific responsibilities with respect to promoting the French fact in Canada, in full recognition of the institutions Quebec had developed since 1774, 1867 and the Quiet Revolution - particularly since at every stage, the Canadian government had supported Quebec's decision to create these institutions. Some deny that now, but the facts prove otherwise.

When quoting Mr. M. Laurendeau's comments from the blue pages of the Laurendeau-Dunton Commission report, it is important that he be quoted in the context of that report's findings. I respectfully submit that if the December 1995 resolution were applied to the letter, the outcome would be one of considerable consequence for the Canadian reality.

I would like to re-read the passage you quoted earlier from the resolution:

The House encourage all components of the legislative and executive branches of government to take note of this recognition and be guided in their conduct accordingly.

The House of Commons will soon bring before the Senate a bill dealing with immigration. Because immigration is a rather touchy issue in Quebec - the government of Canada signed an agreement which I myself was a party to; it is recognized as being an essential component of the demographic and linguistic balance between Quebec and Canada - there will be a need to recognize in the preamble of the Immigration Act that for all intents and purposes, Quebec has a unique character; that will have to be noted in the Immigration Act. Under our current chair, we spent several weeks debating the Citizenship Act. Professor Gaudreault- DesBiens appeared before us yesterday and stated that he had no objection to dual citizenship, that it was something that existed in certain countries and did not pose a problem, and that these countries remained united.

In the Citizenship Act, as you may realize, Quebec's unique character could prompt that province to adopt the concept of dual citizenship. All bills will eventually be passed with that in them, if we officially recognize the principle set out in the last paragraph.

We have one conception of our country and that conception will remain as long as the Constitution Act has not been changed. We can have a public debate. That is the whole reason why we have Parliament and public forums. However, when we bring in legislation of a legal nature, such as this, and introduce a political concept that has not yet been accepted by all Canadians, that is quite a different matter, in my view. As you say, the Calgary declaration was endorsed by Canadians. The Parliament of Canada has never voted on the Calgary declaration. It was a public declaration made by ten premiers.

[English]

Among the 10 premiers who signed it, 3 have left office. It is a political document open to discussion in Canada. It has never been the object of a referendum or resolution in a provincial Parliament. It does not have any legally binding effect, either.

If we are drafting legislation that deals with such an incredible objective of harmonizing the two legal systems in both languages, we should refrain at this stage from introducing a concept that we know has been debated, that we know will be debated further, and that we know Canadians, in general, have not finally pronounced on. On the two occasions that they had an opportunity to pronounce on it, they rejected it. They rejected it in the Meech Lake Accord and they rejected it in the Charlottetown Agreement. If we are to do something legal - and, I wish to use a word without offending the Jewish culture - and something that is kosher, legally, we should refrain from introducing a concept that has been debated and will continue to be debated on the first day that this bill is adopted.

You told us that the people will forget about the preamble and that they will just focus on the substance of the legislation. I can tell you that the preamble will be part of the arsenals of argument on any future debate regarding the introduction of an interpretive clause in the Constitution on the distinct society of Quebec.

[Translation]

Mr. DeMontigny: First of all, I want to point out that as a public official, my role is not to give my views on what experts may have said here, particularly with respect to the idea of dual citizenship or whether or not it is appropriate for Parliament to include a preamble such as this in future legislation. That is clearly a decision that rests with you.

Also, I want to make it clear that the reason I referred to the reports of the Laurendeau-Dunton and Pepin-RobartsCommissions was not that the department endorses the findings of these reports or the consequences attached to this concept of Quebec society.

The only reason I referred to them was to illustrate the fact that this expression goes back a long way and has been used in a number of different contexts. This expression, it would seem, is now part of the landscape in terms of what is described as being Quebec society.

As for biculturalism, once again, it is not up to me to decide whether this concept should or should not be rejected. You are right to point out that bilingualism has been accepted as a concept, but not biculturalism.

This bill draws attention to the fact that one of the characteristics of Quebec society is bijuralism. I do not think there will be much debate around this table about accepting the fact that private law in Quebec is different, unique or distinct. Once again, we could use all the terms that exist in the other provinces. The preamble is only an attempt to reflect the fact that Quebec has a different system of private law. We also talk about the fact that the common law is part of the Canadian legal system. In this way, the appropriate balance is maintained.

Once again, the department's position on the use of the expression "Quebec society" is in no way a veiled attempt to introduce in the Canadian Constitution a concept that has already been debated and may again be debated, because this is first and foremost a preamble that is not in itself binding.

This is not a constitutional measure; it is an ordinary bill. There are no legal consequences to referring to Quebec society, unlike what was attempted in the Meech Lake Accord or Charlottetown Agreement. The idea there was not simply to introduce this concept into the body of Canadian law, but to provide for legal consequences. Based on my understanding of the debates that took place, that was the matter at issue. There is no such problem here.

The department's position is this: we are only describing a factual situation - namely that the civil law system is one of the characteristics of Quebec. It should be seen as nothing more than a description of an established fact. I understand that people may extrapolate something more from it. It is not my role to comment on any possible extrapolations. I simply want to explain the reasons why that expression was used and why this "whereas" was included in the preamble, which is only intended to reflect the current reality.

[English]

Senator Joyal: You had said that it is "only" the preamble. I would refer you to the Supreme Court decision where the court, in reading the preamble of the Constitution, found important elements in there which they interpreted before making the decision that they did. A preamble is not neutral. What comes to mind immediately is the decision in the Alberta tax case, where the court found that, in the preamble, they saw the entrenched principle that debate is characteristic of democracy in Parliament. They drew a lot of conclusions from that. When you state that a preamble is meaningless or without any consequence, I do not agree. The court has based many decisions - I do not have them here in front of me, but I could quote from them - on the basis of the significance of a preamble.

That is the only comment I want to make on the nature of a preamble in legislation.

Senator Beaudoin: Everything has been said on both sides now, but I wish to state very clearly for the purpose of record that I disagree with that.

We have the Quebec Act, 1774, which states that in a British colony there is the return of French laws. Constitutionally, this is the best description of "distinct society" that we ever had.

In 1866, we made the Civil Code. In 1967, we gave property and civil rights to the provinces. The reason was clear-cut in the mind of Cartier. It was to give effect to the Quebec Act in that area.

We have two judgments of the Judicial Committee of the Privy Council, the insurance case and the one after that, where it is stated clearly that property and civil rights has the same meaning in the Constitution as in the act of Quebec and should be interpreted liberally. We have the Ford case, where we have the phrase, "visage linguistique du Québec." We have the declaration of Dickson, where the unique character or distinct character of Quebec is certainly stated clearly. In the Constitution, we have section 27 of the Charter that says Canada is bilingual, of course, but it is also multicultural. We have certain articles, articles 98 and 94, that state clearly that Quebec has a different Civil Code, a private law system that is different. This is beyond any possibility of change. It is in the jurisprudence of the Constitution.

I now come to December 1995, and the motion by a great majority of legislators in both Houses, and, at the request of the government, the cabinet, stating that Quebec is a distinct society. It is neither a law nor a constitutional amendment; it it is something done by the legislative branch of the state.

I listened carefully to the discussion for hours. They agreed that the tradition of civil law finds its expression in the Civil Code. The unique dissenting opinion is not on Quebec. The unique dissenting opinion is on two words: "Distinct society."

I am of the opinion that Canada is based on two systems of law. It is accepted; it works very well; it is enshrined in the Supreme Court; and Quebec is certainly distinct juridically in the field of private law. Should we say that? Some say no, and others say yes. I say yes. I like the facts and I like history. I think it should be stated.

What words should we use? I have no objection and no hesitation in saying that in our country - and I am trying to find another example - we have two official languages and two private law systems: One is in one province and the other is in all the other provinces, namely, common law, civil law. Common law and civil law are two extraordinary systems that have their own genius.

To conclude that this is a unique character of Quebec society is so obvious that I cannot say more than that. I know that the preamble may be used before the courts and Parliament - and I agree with that - but to use those terms that start with "la province de Québec" is certainly not helping our advisers and our rivals, as I heard yesterday. There is nothing more federalist than this bill, because in it we say that Canada is one country, one nation in the sense of the British system.

Senator Joyal: Where did you see that? Where is the word "nation" in the preamble?

Senator Beaudoin: I am saying that Canada is one country. It is a country that is composed of two private systems of law. We say that one of them is in the Province of Quebec and it reflects the unique character of Quebec society. It is so obvious that we can say that.

There is the argument that, if you do that, you are helping the sovereignists, but I do not agree with that. We are not helping anyone. We should help ourselves. Our country is like that. We may come across different meanings of this.

[Translation]

We can always change the words, or the ideas, but Canada is a unique country and the province of Quebec, from a legal standpoint, has a unique situation. I think that is a good thing; that is the history of Canada.

I am not afraid of expressions like "unique character" or "distinct society." If there is ever a need to argue the second "whereas" before the Supreme Court of Canada, I do not think it will be used to support the case for a confederal union. On the contrary, this is a federal bill.

We also have the resolution passed by the House of Commons and the Senate. Senators and Members of Parliament representing every region in the country voted in favour of that motion. Of course, it is not a statute; it is not an amendment either, but it is a fact. It was important to state that for the record.

[English]

I have no difficulty with that. I respect the other opinion and I understand it, but I would certainly not vote in favour of the removal of the second "whereas" because this is exactly what our country is.

The Chairman: I do not think you are required to respond to that.

Senator Cools: I listened to the witnesses with some care and some attention. I am always overcome by a gnawing sense of uneasiness when lawyers tell me that certain phrases placed in a statute are of no legal consequence. If there is no legal consequence, then it should be easy to take them out or, even better, never to have put them in. If they are of no consequence, perhaps the witnesses could tell us why they are included in the bill - that is, unless someone was attempting to be poetic.

I have read numerous Supreme Court judgments where the basis for their thinking is drawn from the preamble. I do not remember it now because time has passed, but I believe the secession reference to the Supreme Court also drew on the preamble. I would have to look on that again. Am I right on that?

Mr. DeMontigny: Yes.

Senator Cools: I belong to the group who does not understand how the court came to the conclusion it did. However, that is another debate for another day.

Having said that, if these words are of no legal consequence, then why are they there?

The second question concerns the so-called two systems of law. In Canada, we only developed the Criminal Code as a distinct statute in 1892 and a lot of common law criminal offences remained as such until 1955. However, the entire basis for the Criminal Code was the British common law. Could you comment on the application of the criminal law, as it has its basis in common law, and how it was handled in the Province of Quebec? I think we are losing sight of the presence of a strong common law tradition in Quebec as well. We seem to be losing track of that.

Third, I laud the fact that you have taken a lot of time and trouble to uphold the purity and the integrity of the Civil Code, but I was struck when you said that the genesis and the initiative for this project was derived from the new Civil Code in 1994. By that you are telling me that the initiative is being driven by the Civil Code of Quebec rather than a national wish or thrust to do this harmonization.

I wonder if you could answer my final question. You have convinced me that you have striven to maintain the integrity and purity of the Civil Code, but in the carving, the scripting and the drafting of these initiatives I would like to know what safeguards have been employed to maintain the integrity and the purity of the common law as well. I do not believe for a moment that one can just go around and change words here and there. I have a problems with this so-called plain law approach because I know how much law has been rewritten by the use of so-called plain language. A lot of law has been totally reconceptualized and rewritten.

Could you answer those three questions? I will understand if you tell me that they are a little bit too much.

Mr. DeMontigny: I will let my colleague answer your third question, as he is in a better position to do that.

On your second question, you are absolutely right that common law is at the basis of criminal law as well as of every public law. If it can be of any reassurance to you - and I am a former university professor at the Faculty of Law in Ottawa - we do teach a lot of common law even in the Province of Quebec. Public Law, that is constitutional, commercial and everything else, is common law. It is still part of the corpus of what every law student learns.

Do not worry about this. Common law is still very much alive in Quebec.

Senator Cools: It is as though this phenomenon is totally applicable to Quebec, when in point of fact there is a whole other set of bodies of law operating at all times in Quebec. I am pleading for us to sound a bit more balanced. I have problems with the approach that this bill concerns not Quebecers but French Quebecers, Québécois in particular, and others really should just stand by and let the bill pass.

Mr. DeMontigny: Again, private law, of course, is a provincial jurisdiction. It is true that civil law is different in Quebec from every other province, but we are trying to take this difference into account in federal statutes. That is all we are doing.

As for your first question, maybe I have not expressed myself clearly enough. I do not think I have ever said that preambles have no legal consequences. They do sometimes have legal consequences in that they are used, if there is ambiguity in the substance of the law, to interpret problematic words, sentences and sections. I would not want to be quoted as saying that preambles are of no use. I believe you will agree with me that the main use of preambles is to state the context into which a bill is enacted.

Senator Joyal: The preamble states the objective as well.

Mr. DeMontigny: The preamble states the objectives, which are very often of a political nature.

Senator Cools: I was not questioning everything you said about preambles, I was responding to your example where you suggested that those terms "unique character of Quebec society," and in particular the words "Quebec society," were of no legal consequence. My question to you is fairly narrow.

Mr. DeMontigny: Perhaps to repeat what I have said before, the intent of this particular "whereas" clause of the old preamble was, in the view of the department, to state what we think is the obvious. It is a statement of fact and nothing more. We are not trying again to incorporate into the Constitution new concepts that could have consequences throughout the Constitution and throughout the interpretation of the Constitution as if we were amending the Constitution Act of 1867 or the Charter of Rights.

Having said this, of course, the preamble could be used, in theory at least, to give meaning to the substance of the bill. All I can say about this, and I would just refer you to what Mr. Gaudreault-DesBiens said yesterday, at least at first sight it seems difficult to imagine an ambiguity in this bill that could be solved by resorting to the concept of the société québécoise. There is nothing in the bill which could draw from this expression interpretations which would not be straightforward, just looking at the bill.

Senator Cools: With all due respect, I would have said to you a few months ago that there was absolutely nothing in the BNA Act or in any of the constitutional acts of Canada that would allow the Supreme Court to come to the opinion that it came to on the secession reference; but they did it.

Mr. DeMontigny: Remember as well that, if ever the court were to resort to the preamble and to this particular "whereas" clause to interpret the bill, it would not look just at this second "whereas," it would look at the entire preamble. When you look at the entire preamble, its purpose is quite obvious. Again, as I said, we refer to the Province of Quebec in different places. We refer to the necessity for Canadians to have access to a statute that they understand in both languages and in both legal systems.

If you take the preamble as a whole, frankly, I do not see what the problem would be with the second "whereas" clause, as it would not be taken in isolation. It would be taken as part of the preamble as a whole.

Senator Cools: I appreciate it is a hard question for you to answer.

Mr. DeMontigny: I will leave the third question to my colleague.

Mr. Bisson: With regard to modifying the common law, I mentioned our methodology, the way we work. The first thing we do when we look at a statute is to identify private law concepts, the word "contracts," for instance. There is a whole body of law that surrounds what age you can enter into a contract. If for federal purposes it is not defined in the statute we are examining, we must turn to the private law of the provinces. The age at which one can validly enter into a contract will be determined by what we call the private law of the provinces.

Our methodology involves working at identifying the common law concepts that exist currently in federal legislation. As the minister said, traditionally, we have not been very successful at always putting in federal legislation the appropriate civil law concepts. It is a remedial program, in a way. We are trying to catch up. The impetus was that we start with the common law concept, then look at whether or not there is a civil law equivalent. If not, we try to find a new one based on the 1994 Civil Code of Quebec. If there is a civil law concept, we determine if the terminology has then changed. We operate with a list of terms that the Ministry of Justice in Quebec gave us, which they used to modernize the whole of their public law in the Province of Quebec.

The overriding concern of the harmonization program is not to modify the law. It is a technical bill. We are doing in statute, if I can say this, live comparative law exercises.

Senator Cools: I appreciate that.

Mr. Bisson: We are not there to modify the law. There are many steps we go through.

Senator Cools: Please look at page 23, clause 3.

Clause 36 states that section 3 of the Crown Liability and Proceedings Act is replaced by the following: "Liability and Civil Salvage," the predecessor was called "Tort and Civil Salvage." You must look at the proposed subsections 3(a) and (b) together. Before it said "the Crown is liable in tort." Now you differentiate between "the Province of Quebec" and "...any other province." Those are the two distinctions.

Am I to understand that "liability" means the same as "tort"?

Mr. Bisson: I should like invite Guy Faggiolo to come to the table. He is responsible for that part of the bill.

The Chairman: Please join us, sir.

Mr. Guy Faggiolo, General Counsel, Civil Code Section, Department of Justice: Your question has two components. The first is the use of the words "liability" and "responsibility" in the title. The second question relates to the distinction between "tort" and "responsabilité civil extra-contractuelle," and the former concept "responsabilité délictuelle."

Regarding the title, in the English version we used to have the words "tort" and "civil" and in the French version, "délit civil" et "sauvetage civil." The words "délit civil" reflected a notion found in the Civil Code of Lower Canada. It has been replaced by the notion of "la responsibalité civile extra-contractuelle."

"Responsabilité civile extra-contractuelle" is the Quebec civil law equivalent to common law torts. We could have used a series of words in this title to reflect torts and extra contractual civil liability or "responsabilité civile extra-contractuelle" and"responsabilité délictuelle" which is the common law in French equivalent of tort. However, we decided to use a single term that reflects the reality of both legal systems. That single term is the word "liability" or "responsabilité." Having done that, we now go to the redrafted section.

We were faced with a situation where, first, the notion of responsabilité civile extra-contractuelle replaced the notion of délit civil in Quebec civil law. We were also faced with the fact that the English version of the Crown Liability and Proceedings Act was based on common law only and the French version of the said act was based on civil law only. We decided to ensure that both legal realities would be reflected in each linguistic version.

To do that, we created subparagraphs. We have a definition which is that the Crown is liable for damages for which, if it were a person, it would be liable in the Province of Quebec in respect of damages caused by the fault of a servant of the Crown. "Fault" is the key component of la responsabilité civile extra-contractuelle.

Senator Cools: Is it a key component of the common law concept of tort?

Mr. Faggiolo: That is were we get to the proposed subsection 3(b) "in any other province in respect of a tort committed by a servant of the Crown..."

The notion of tort has three basic components. First, you must have a damage.

Senator Cools: Not a damage like compensation dollars, you mean a broken arm?

Mr. Faggiolo: Yes.

Second, you must determine the amount of money to compensate. You must also establish that there is a link between the act that caused the injury and the damage itself. If these three elements are established, then a court would find that there is liability in tort.

Similarly, in the Quebec civil law, if you establish the fault or the damage, and if you establish a link between the fault and the damage, the court would also award damages. These are extremely theoretical concepts and, perhaps, an example would be appropriate at this time.

Let us say that someone drives on a road. The person has an accident and the person says, "I had this accident because the provincial government did not put salt on the road." The courts will say, "Was the province negligent in not putting salt on the road?" If there was no salt because it rained 15 minutes ago and then the temperature dropped substantially and the road iced over so that the provincial road crews could not get to the place in time, the courts will say "Yes, there was an injury. Yes, you suffered damages, but we cannot establish a link between the damage that you suffered and the behaviour of the province." Therefore, there would be no finding of negligence.

To summarize, in the title, "liability," and "responsabilité," reflect both legal traditions.

In the internal organization of the section, the proposed subsection 3(a) reflects the reality in Quebec, and the proposed subsection 3(b) reflects the reality in the other provinces. The reality in Quebec is responsabilité civile extra-contractuelle and in the other provinces it is tort. Someone reading this section would clearly say, "I am in Ontario. Therefore, subsection 3(b) states the law that will govern my situation." If someone were in Quebec, it would be subsection 3(a).

Senator Cools: Under the proposed subsection 3(a), in terms of the divisions that you have outlined, the accident or the incident must occur in the province itself?

Mr. Faggiolo: As a rule, yes.

Senator Cools: In other words, if a person from Quebec were driving in Ottawa when this happened, what would apply?

Mr. Faggiolo: That person would be governed by the law of Ontario.

Senator Cools: I understand exactly what you are saying. Let us drop down to clause 37 which amends section 4 of the act. It states:

The Crown is liable for the damage sustained by anyone...

What does "anyone" mean? I notice that you have already appropriated the term "person."

Mr. Faggiolo: "Anyone" is basically another word for "person." It includes both a physical person or a moral person. In other words, an individual or a corporation.

Let me use the example of the road accident again. Let us say that the person was driving on a road owned by the federal government. If the owner of the vehicle is a corporation, then that corporation would be entitled to compensation because the word "anyone" or, in French, "personne," would cover a corporation. Similarly, if the owner were an individual, the individual would be entitled to compensation, presuming that all the elements are proven.

Senator Cools: In this instance you use two words. You use the word "anyone," and later on you say it is used as if it were "person" and you tell me that "anyone" means "person." If "anyone" means "any person" why do you not say "any person"?

In the example of a road accident which you described, let us suppose a pregnant woman was being driven to the hospital to deliver her baby and that the accident happened in the circumstances you described. Could the word "anyone" include the baby that was just about to be born?

Mr. Faggiolo: The Crown is liable as if it were a person.

Senator Cools: The definition of "person," which you have at the top of the page, is very clear. It is not so clear in the proposed subsection 4 when you use the word "anyone."

Mr. Faggiolo: We will get to that. The Crown is liable as if it were a person. We want to make certain that the rules applying to Tom, Dick and Harry would apply to the Crown.

Having said the Crown could be liable, it is liable for the damage sustained by anyone by reason of a motor vehicle owned by the Crown. If a Crown vehicle damages your car or injures you, the Crown could be sued and could be found liable because the damage you sustained was done by a Crown motor vehicle.

You were asking about the case of an unborn child. That is a rather complicated issue, but let us say that the child is born after the accident but suffers damages in that accident. In that case, the Crown would be liable.

Senator Cools: In this instant, the Crown would be liable for that. That is interesting. There is such a case around.

Mr. Faggiolo: The Crown would be liable because, as I said, Tom, Dick and Harry, or Harriet, would be liable.

Senator Cools: The language used in the existing section 3 reads is "private person." Your new definition reads:

The Crown is liable for the damages for which, if it were a person, it would be liable...

However, the statute that you are proposing to amend now, reads: "if it were a private person." Does, then, "a private person" means the same as "a person"?

Mr. Faggiolo: If I may answer, the current section reads:

...if it were a private person of full age and capacity...

You will notice that we propose to amend section 2.1 so that it reads:

..."person" means a natural person of full age and capacity...

The changes regarding "a private person" as opposed to "a public person" do not affect the reality that is listed before. The principle is that the Crown is still liable as if it were a person. It was not deemed necessary to say "private person." The definition now clearly reads that this is

...a natural person of full age and capacity other thanHer Majesty in right of Canada or a province.

There is basically no change in the purport of the legislation.

Senator Fraser: I have one question and, I am afraid, one observation, which I shall try to keep as brief as I can.

Could you please explain to a non-lawyer the difference between a preamble and an interpretive clause?

Mr. DeMontigny: There might be persons better able than I to explain the difference, but in basic terms the preamble is not part of the law, whereas an interpretive clause, which is part of the statute, will have to be in force whenever you interpret the bill. The preamble will only be used if there is a problem of interpretation. It does not carry as much weight, legally speaking, as a substantive provision meant to interpret the statute.

Senator Fraser: Just to follow that thought through, if the legislator put into the body of the bill and voted and passed in error something that was not in agreement with the fine objectives stated in the preamble, it would be the clause in the body of the bill that would carry?

Mr. DeMontigny: Sure. In fact, you may remember that we had this whole debate previously with respect to the distinct society clause back in the 1980s, where the discussion was around whether we should have this clause in the preamble or in the Constitution Act of 1867. One of the distinctions made at the time was that it carries more weight if it is in the act itself than if it is in the preamble.

Senator Fraser: My observation relates to the recognition of the nature of Quebec, which has bedeviled us for so many years.

It is worth noting that the impetus for some form of explicit recognition has come initially, almost always, from federalists in Quebec, not from separatists. It is a natural reaction of minorities to say, "We do not want to separate from you, but we want you to recognize us for who we are;" and that "Although we are part of the broader group or community, we are not exactly like you." It is in the nature of majorities to have trouble with this concept, whatever the nature of the issue in question. I would note, for example, that for many years men - good, well-meaning, charitable, generous men - had terrible trouble with the notion that women should be recognized in any way for anything other than in the way men thought they ought to be recognized.

The Chairman: As persons.

Senator Fraser: As persons. Minorities, frequently, not only in Canada, feel a real need for some form of acknowledgment. In the case of Quebec and of its francophone majority, you could argue that there is some historical ground for wanting some such acknowledgement.

We have heard references to Lord Durham discovering two nations warring in the bosom of a single state. English Canadians frequently forget but, in my experience, French Canadians never forget that his proposed solution to this difficulty was to assimilate all the French so there would be no more French Canadians. Then we would not have a problem. To French Canadians, and more particularly to those who live in Quebec where they form a majority, that is not an agreeable prospect. Unfortunately, they have heard other English Canadians over the years make similar suggestions.

I believe that it is from that background that we have seen Quebec federalists - I repeat, federalists - say, "We wish to be Canadian. We really want to be Canadian. We concede that this is a great and wonderful country. But, please, this great and wonderful country should recognize us as not being exactly like everyone else, not better, not worse, not superior, not inferior, just different."

Part of the difficulty with the various attempts to achieve some form of recognition of this plain fact has been that, in many instances, whatever formula has been proposed has been taken up by separatists for their own purposes and used in one way or another. We had a discussion last night about a resolution from the National Assembly and why the Parti Québécois took language from the program of the Quebec Liberal Party and thereby clouded the issue enormously.

What interests me in particular about the language used in this preamble is that it comes from the Calgary declaration. The Calgary declaration is one of the very few instances, perhaps the only one - and certainly the only one I can bring to mind right now - where the initiative came only from federalists. It was never taken up in any way by separatists. Indeed, it was derided by separatists, because the last thing they want is for Canada to look welcoming in any way to Quebec or the Quebec fact. It was debated intensely in English Canada at the grassroots level. My memory is that it was adopted by most provincial legislatures. It has never been récupéré in any way by the forces who seek to take Quebec out of this country. That is one reason why I like it very much.

Senator Joyal: I think it is fair to let the witnesses answer Senator Fraser.

Mr. DeMontigny: There is nothing I would add. I am happy to listen to what you say.

Senator Joyal: I would like to come back to the legal nature of preambles and interpretive clauses. When you say that the preamble will be used to understand the objectives of the bill, the substance of the bill, and the general context in which the initiative has taken place, I do not dispute that at all. Essentially, that is the nature of a preamble.

Where you and I differ in opinion is that you restrict the nature of the preamble only to the substance of this bill. My contention is, and it is verified in the precedents, that when a court is faced with the decision to give an interpretation on the status of a province in a conflict with the federal government over the exercise of powers, or in the interpretation of the Charter of Rights and Freedoms, and I think Justice Dickson essentially says that, the court will look into the whole of the legislation, not only the legislation in dispute, but it will consider other bodies of legislation to try to understand the meaning and the scope of a certain power.

As an example I refer to the 1982 reference on Quebec's veto. In that case, there was no substantial legislation in dispute. No legislation stated that Quebec had no veto. Likewise, there was no legislation in Quebec saying that Quebec had a veto. There was a resolution of the National Assembly, which was like the resolution of 1995, no more and no less. It was not binding. As Senator Cools has said, it died with this Parliament. It is not binding on the next Parliament. Another government could have been elected and passed another resolution and nobody could have claimed enforceability of the resolution.

My point is that, when the courts are confronted with the difficult question of interpreting the nature of an alleged power by a province or the federal government, or the interpretation of a statute, and I refer here to the Montfort case, they will look at different legislation to seek out the whole of the nature of the request for the power.

My submission to you is that this preamble could serve in such a case. I know that such cases are rare in the courts. However, I submit to you that, for instance, in the case of the 1982 reference to the Supreme Court, as well as in the statement of the other judges in the case of patriation, a statement like that, in the political context of which it has been made traditionally in Canada, is meaningful.

The point is not that it will be of application in section 35 of the legislation, but we can never know what will happen.

As Senator Fraser said, the nature of Canada and the status of Quebec is still in dispute. When it is in dispute in a court, the court resorts primarily to legislation to try to interpret the intention of the legislators. Even though that word seems to be innocuous, as everybody has said, we cannot ignore that it has been the object of discussion. It is still the object of discussion, and it will continue to be the object of discussion.

I want to qualify your statement that it is merely a preamble; it is concentrated on the nature of this bill; and it is of limited consequence. I submit to you that in any case or references to a Canadian court where the status of Quebec or the exercise of some powers of Quebec are at stake, this preamble could serve as an argument or an element of explanation of one position or another. That is my point. It deals essentially with the definition of the country.

We can agree with it, or we can disagree with it. As Senator Fraser has said, some federalists think that it solves the insecurity that minorities want to be satisfied. Some other federalists are of the other opinion. That is for debate in another forum.

That is why I think this preamble has a legal implication, which is not limited to the substance of this bill, because the preamble addresses itself to the very question of the status of Quebec in Canada. That is why I am telling you that it is not neutral.

Mr. DeMontigny: I absolutely agree with you that a preamble in one statute could, theoretically, be used for the interpretation of another statute, although no example comes to my mind. Usually, you would take the preamble of that statute and not adopt another preamble for another purpose in another context. In theory, you are correct. I will accept that.

Regarding the reference on the veto in 1982, as you remember, the question did not turn on a resolution or a statute. Essentially, it turned on the conventions of the Constitution, and there was nothing more or less than this in that reference.

Where we have disagreement is that, even if you are correct that this preamble could be used to interpret another bill - and I think you are - it is the department's position that this is not expressing anything more or less than a factual situation. As the minister eloquently said when she appeared two weeks ago, this is merely a statement of fact. If a court were to refer to this preamble, as I said previously, they would refer to it as a whole and not only to this particular "whereas" clause. If we were to imply from this preamble anything more than a statement of fact, and if it concerned the status of Quebec as you have stated, then I think the court would pay attention to the fact that both the Meech Lake Accord and the Charlottetown Agreement would not be enshrined in the Constitution. That is of much more relevance and weight than this preamble, which is innocuous in this respect. That is why I have problems with the notion that this "whereas" clause could be used for interpreting another bill to give it a meaning that is quite different from what we have in mind in adopting this particular "whereas" clause.

Frankly, it would be quite a stretch to use such a "whereas" clause for the purpose that you have in mind, considering the historical and political context of Canada and the rejection of the Meech Lake Accord and the Charlottetown Agreement. Again, this is not a constitutional document. It is not meant to interpret the Constitution. This is merely a statement of fact.

Senator Moore: Were the witnesses both here yesterday?

Mr. DeMontigny: Yes.

Senator Moore: You know, then, that we have been at this for five hours, mostly dealing with this unimportant second recital in the preamble.

One of our witnesses, Professor Gaudreault-DesBiens, said its effect is minimal and that it does not mean much. I replied that, if it did not mean much, then why are we putting it in the bill. Others suggested that it should be changed. It must have been because it occupied us here for five hours.

It was also suggested that the words after "Civil Code of Quebec" should be deleted or that, rather than the words "Quebec society," we put in the words "the Province of Quebec."

I wish to stick to the purely legal wording that the rest of the document contains. However, I do not know where "windows of the world" comes from. It sounds like we are writing a song. I understood "unique opportunity," but "windows of the world"? It sounds like we are writing a song.

I want to have your comments about those suggested possibilities of amendment to that second recital, stopping after the word "Quebec and Civil Code of Quebec," or substituting "the Province of Quebec" for the words "Quebec society."

Mr. DeMontigny: I cannot do better than repeat what my minister said two weeks ago. For the department, this, once again, states the obvious. The obvious is that this is the code of Quebec and the civil law tradition reflects the unique character of Quebec society.

I do not have any mandate to comment on possible amendments that may be put on the table in the following sessions of this committee, but the position of the department is that this is the preamble and the "whereas" clause that best reflects the purpose and the objective of the bill.

Senator Moore: You do not think you should respond to suggested changes. What are we doing here, then? Why did I come here?

Mr. Bisson: Obviously, we will report the concerns that have been expressed here to the minister. It is for the minister and the government to decide whether they want to reopen the bill. Good arguments have been made, and we will be bringing these arguments to the attention of the minister.

Senator Moore: I was asking for your response to those possibilities. Does it kill the bill? Does it help? Does it lessen it? Does it make it more definitive? What does it do? Give me some response. It is no good to sit there and say, "I am a bureaucrat. I cannot respond to that." That is your job.

Mr. DeMontigny: As I said previously, the genesis of this "whereas" clause was the Calgary declaration and the resolution adopted by both Houses in 1995. That is where the language is taken from. It is the position of the department that this is the best way to describe the purpose of the exercise and the reality of the civil law tradition both in Quebec and in the rest of the country. We feel, and the department is still of the view, that this is the best wording that we can come up with.

Of course, if there are suggestions, for example, amendments to delete part of this "whereas" clause or to take it away completely, the government will have to assess this and respond in due course. As far as I know, we are not at this stage yet, and it is difficult for me to reply to possible amendments that may arise in your following sessions.

Senator Moore: Am I correct in saying that it would not matter to you if any of those amendments were made or not?

Mr. DeMontigny: It would not change the substance of the bill. We say that with all confidence. The bill deals with harmonizing the federal statutes with Quebec's new civil code, and the preamble is there only to explain and to give context to this exercise - nothing more, nothing less.

Senator Cools: I have a comment on Senator Moore's question. I know that you cannot possibly be speaking for the minister. I think the senators around the table also understand that the minister does not decide if the Senate makes an appointment. Some ministers think they do, some say they do, and some act as though they do, but the Senate decides that.

When your drafts people set out to do the actual draft and follow all the rules of drafting - and, it is a very complicated business - who guides the drafters to be as astute as they possibly can be so as to encourage maximum support for the bill and to allow it to sail through without much objection? I would seem to me that any astute person setting out to draft this bill would rather reach out and bring in the language of the Calgary declaration or any other declaration than steer a wide berth around it.

How would such a decision have been taken to strip both words in this bill before us?

Mr. DeMontigny: At the time of drafting - and I was not privy to the drafting of the old bill, but I was certainly involved in drafting the preamble - again, all we were trying to do was to implement and give effect to the resolutions adopted by both Houses of Parliament. We thought this would be something that would sail without any problem because we were just, again, doing what we were commissioned to do by both Houses of Parliament and by the Prime Minister himself. That is the genesis, frankly, of this preamble, and of this particular "whereas" clause.

Mr. Bisson: I may add that we held two public consultations on this bill, one in 1998 and one in the fall of 1999 and early in 2000, before we tabled Bill S-22 last May.

This bill has been around three times. We have consulted widely.

The issue of the second "whereas" never came up anywhere in the forums. The bill was debated throughout Canada. It has been received by all Departments of Justice throughout the country, as well as all law schools. We had face-to-face meetings with the Quebec Bar, la Chambre des notaires, and the Canadian Bar Association.

It is a bit of a surprise for us to see this concern. In three years, this matter has never received the attention it is receiving now.

Senator Cools: With regard to the question of public consultation, not for this particular bill but in general, Senate committees should take a look at what goes on in those consultations. Quite often, when bills get to us, we are told that all the public consultations have gone on, that there have been meeting with certain people, and so on; but I have yet to be invited to attend or watch one of those consultations. I would like to know what it is that they do there. I understand they are quite expensive.

Perhaps we can be included on the invitation list to attend these public consultations.

The Chairman: Just to wrap up, would it be fair to say, Mr. DeMontigny, since this whole project is designed to clarify federal law, it is the purpose of the bill to eliminate any ambiguity in the federal law and that, therefore, the preamble is only there to set out the appropriate context and is unlikely to be used?

Mr. DeMontigny: I think you are absolutely right. Again, as the minister has said, and as Mr. Bisson has said previously, this is a unique project. It has never been done, as far as I know, anywhere else in the world. It is also an ongoing project which will be evolving over the years to come. The department felt that it was important that the first step in the first bill to be introduced would be to set out the context and the background. Of course, when the particular bills to be amended are amended, the preamble will be of much less interest. It will remain somewhere in the statutes of 2001 and will not be reproduced in every statute that is amended following this bill.

The Chairman: Thank goodness. Thank you very much.

The committee adjourned.