Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 2 - Evidence for November 18, 2004
OTTAWA, Thursday, November 18, 2004
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-10, 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 10:52 a.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the Chair.
[English]
The Chairman: Welcome. This morning we will hear from Professor Louis Perret from the Faculty of Law at the University of Ottawa. Mr. Perret, please proceed.
[Translation]
Mr. Louis Perret, Professor, Faculty of Law, University of Ottawa: It is both an honour and a pleasure for me to appear for the second time before the Standing Senate Committee on Legal and Constitutional Affairs.
I believe that my first appearance here was in 2000, when you were examining the first harmonization bill. I appeared before this same committee to encourage or support the adoption of the first bill. I was delighted when it was adopted and came into force on June 1, 2001.
Today I appear once again before this same committee to urge you to once again adopt the harmonization bill, for the second time. Thanks to the passage of time and experience that has been gained, we can better assess the scope of the harmonization process for federal statutes.
I'm also here to reflect or expound on any potential future ramifications that must be taken into account when the bill is analyzed.
If our consideration is limited to the present, on the scope of the second harmonization legislation and its process within the present context, we must nevertheless recognize that beyond its somewhat technical and dry appearance, it involves changes to extremely precise legal terms and vocabulary in both languages, in 26 federal statutes, not the least of which is the Bankruptcy and Insolvency Act, which can even leave some of the most experienced lawyers scratching their heads.
This act, through its process and its final nature, since it involves ensuring compatibility of federal statutes with Quebec civil law and common law in the other provinces and territories of Canada, is far-reaching, both domestically as well as internationally.
Let us begin by determining its importance within Canada. Even though one might question the value of such a difficult, arduous and costly undertaking, we nevertheless must admit that it was high time for harmonization after the implementation of the new Quebec Civil Code in 1994.
Indeed, what could be more natural than having federal legislation speak the legal language of each province in which it must apply? For example, can federal legislation make a general reference to legal counsel in Quebec, when in that province the actions covered by the federal act apply only to lawyers and notaries?
Another example: when federal law gives provincial courts jurisdiction over ``equity'' in that province, when the concept of ``equity'' does not even exist in Quebec.
Moreover, it is only natural that a federal act be compatible with the law and legal concepts of its provinces, where it is supposed to apply. For Quebec, we have civil law concepts and wording; for the other provinces and territories, the common law concepts and wording apply.
The harmony between federal law and the law in each province can only result in clearer law for each individual province, which will make it easier to understand, enforce and interpret; it will reduce the sources of conflict, and therefore there will be less litigation; it will reduce the cost of enforcement and access to justice; and it will increase the predictability of the law and, of course, legal safety. This is extremely important for the business world.
There will also be a greater cohesion between the federal government, the provinces and territories, and a greater feeling of belonging to one group, namely, Canada.
Things could, of course, work out much differently if federal laws do not respect the diversity of each individual province, by not speaking its legal language. Some might feel estranged within their country, Canada.
Creating unity while respecting diversity, that is what is so special about federalism, and something that we must take full advantage of here.
This goes beyond the simple technical aspect of the harmonization bill No. 2, as it applies domestically in Canada, that is, to ensure that the law will be clearer and more accessible and predictable, so as to provide a greater cohesion between the federal government and the provinces, for the good of all of those who are subject to the law throughout the country.
Now, what of the international scope of the second harmonization bill?
There is a move, on the international front, to standardize international commercial law so as to facilitate cross- border transactions. That is the aim of globalization. With the combined effect of the GATT, which has now become the WTO plus the free trade agreements, cross-border international trade has multiplied 13-fold in the past 50 years.
What does this mean for Canada? It represents 43 per cent of its GDP and is responsible for one out of every three jobs that is directly connected to exports, therefore, to international trade. Although the GATT, the WTO and free trade have managed to reduce, or sometimes even abolish, trade barriers, the same cannot be said for legal obstacles. An in-depth study that we undertook at the University of Ottawa and have published on our website, demonstrates that the world is divided into various legal systems and that, in particular, pure or mixed civil law, together with other laws such as Muslim law, for example, or the common law as it customarily applies in Africa, represents two thirds of the world's population. Pure or mixed common law represents one third of the world's population, and together they represent about 99 per cent of the legal systems that apply either in a pure or combined fashion throughout the world.
Of course, in cross-border trade, there is a possibility that one might have to deal with another legal system, resulting in a conflict between two laws, and in order to resolve it, the company belonging to the strongest economy could impose its law or its hegemony. The Americans are often blamed for that type of imperialism.
The solution has been to attempt to standardize law, so as to have a common denominator, which would be neither civil nor common law, but rather a blend of the two. So there are common denominators. An example would be the 1980 Vienna Convention on the International Sale of Goods, which was ratified by some 50 countries if memory serves, including Canada. On our continent, the 1980 Vienna Convention was ratified by most South American countries, Mexico, the United States and Canada. Another example is the Unidroit Principles of International Commercial Contracts published in 1994. They were recently republished, ten years later, in 2004, as an update on its broad application: this common denominator between civil and common law has applied, in particular, in cases of international arbitration.
The combination of the two systems, civil and common law, plus a sui generis law devised by merchants, or the lex mercantoria, as it is called, is the method preferred by the legal departments in international corporations. The methodology is simple, because in using clearly devised, concise terms, the civil law methodology is a harmonious expression of concepts that are derived both from civil as well as common law, for example, the principles of ``unquestionability'' or ``frustration'' in international contracts.
In this context, it is obvious that Canada's bijuridism experience is extremely useful. There are international organizations that welcome officials from the Canadian government with open arms, as these people often have backgrounds in both legal systems and speak both languages. That is often the case when they are preparing bijuridical international conventions, which are bilingual, and even in other languages, of course, but English, as we know, is the primary language of communication in the world. We must not forget — and we studied this at the University of Ottawa — that French is the second most common language spoken in the world. It is the official language for most large international organizations including the G7 and the Olympic Games. It is spoken on five continents, which is not the case for Spanish, Chinese or Russian, for example. But it does apply to English and French. Bijuridism and bilingualism are phenomenal assets for a country like Canada; we are starting to take advantage of it, but we can still do more.
I spoke about international organizations but this could also apply to the private sector. In the world of business, having both types of legal training and being perfectly bilingual helps to avoid problems, to better negotiate, and to better mediate between lawyers belonging to these different systems or working in international commercial arbitration. For example, people such as Yves Fortier, Marc Lalonde and Paul Gélinas are very well known in this area. In terms of law harmonization and international organizations, Professor Crépeau and Justice Anne-Marie Trahan, for example, have done a considerable amount of work on law harmonization and the international institute for the unification of private law. This is therefore a reality, not a future scenario, but rather an area that can be further developed.
On an international level, bijuralism gives Canada a unique expertise which can be useful within international organizations for the drafting of conventions and in the business sector for developing exports and therefore, Canada's economic resources.
Canada, of course, only has prestige and economic advantages to gain from this. That is the idea behind McGill university's transystemic program and the University of Ottawa's national program, that is to train bijural and bilingual experts that Canada will need for its domestic and international economic development.
I would like to say in passing that these universities should be further encouraged by the federal government to continue in this direction, even though education is an area of provincial jurisdiction. The goals are Canadian goals. In fact, that is the idea behind the University of Ottawa's new title, Canada's University, and one can see the significance of this.
No doubt an appropriate amount of federal assistance in this field would stimulate other universities to do the same in Canada's interest, rather than be passive, especially in common law provinces, in their interest in other legal systems. This process of harmonization of federal statutes has the potential to provide us with future applications of the harmonization process.
That brings me to my second part, and that is the potential importance of the harmonization process. I see it from two angles: first, that of Canadian federalism and second, that of the science of law. From the angle of Canadian federalism, and for the same reasons I previously gave, it would only be right to harmonize federal law with native law, to the extent that we are familiar with it.
This is a significant challenge because it deals with customary law, which many are unfamiliar with and which is no doubt quite varied. Therefore, studies in native customary law should be encouraged and further funded and developed. A harmonization pilot project could be developed, especially in areas where the native population is greater and even represents a majority.
I am thinking of the territories and I am thinking of Nunavut. There could be collaboration with lawyers from these areas, with native lawyers that we have helped train, whether that be at the University of Saskatchewan or the University of Ottawa, in native pre-law programs.
Another potential area in bijuralism would be the development of a true science of law within a bijural framework. In the federal law harmonization process, bijuralism has mainly consisted in, on the one hand, making federal law coexist with civil law in the province of Quebec, and the other hand, making it coexist with common law in the other provinces. Many serious studies have resulted in identifying concepts that are unique to each system in order to respect the uniqueness and diversity of these systems. We should be proud of that.
The results of those studies are partly available in the Department of Justice's databanks on the Internet and also in the shape of legal vocabulary and dictionaries. I am thinking of the national program for the integration of both official languages in the administration of justice, which recently changed its name and of the Department of Justice's bilingual terminology records. These are very useful in interpreting texts in both systems. The results are very useful in terms of legal clarity and the benefits of having that clarity.
It would be useful for websites to be improved so that access is easier. Regardless of their value in the coexistence of these systems, more publication of the comparative research that has led to these distinctions would be very useful in developing a comparative science for both systems, and it would make the task of developing legal rules and rules for bijural law easier — bijural referring to integration and not coexistence. There would be one uniform law that would integrate within one text the concepts and methodology from each system and even from international trade law, such that both systems would merge in order to obtain a common denominator representing the best of each. So in this case we're not talking about a bijuralism of coexistence that acknowledges two different legal systems and respect for both, but a bijuralism that goes further and looks at the whole picture and how both systems can be integrated. What will be the common denominator?
It is therefore this third path, unidroit's work, for example, that could be very useful for Canada at the domestic level. We've just strengthened our domestic, interprovincial commercial market. Perhaps uniform laws could be just as useful at an interprovincial level as at an international level. Trade between Quebec and Ontario represents 45 per cent of domestic Canadian trade. Perhaps this interprovincial area could be helped without affecting the internal laws of each province, in order to respect their diversity. In the interprovincial area, the problems are different. We need to make things easier, we need to remove barriers. Of course, the same applies to the international scene in order to make trade between nations easier. Obviously, if there were a data bank that included legal vocabulary and legal terminological records, and that was published and made more available to researchers in Canada or abroad, and to lawmakers in Canada or abroad, then this would be highly useful. Canada, because of its work, its experience and its leadership, has an extraordinary potential to develop the process of law harmonization.
I will conclude by calling for collaboration between the POLAJ and what it has become, the Department of Justice, the Law Commission of Canada, as well as all interested universities, so that they can combine their intellectual resources in the area of fundamental research on bijuralism within the framework of a centre of excellence on bijuralism. This could be sponsored by brilliant senators, given that this would be a Canadian perspective. The federal government should be generous in its financial assistance given that it would require a significant investment. But the return on this investment would be no less significant in terms of prestige and legislative, legal and commercial efficiency for our country.
In conclusion, I would highly recommend that the harmonization of federal statutes be continued, specifically by taking a second step this year by adopting harmonization act No. 2.
The Chair: You mentioned the work that many law faculties have done in training lawyers in both legal systems in Canada. It is true that more and more lawyers are being trained in both systems.
Could you tell us if bijuralism is taught in your law classes?
Mr. Perret: That depends on what you mean by ``bijuralism,'' that is whether you are talking about coexistence or a trans-systemic bijuralism. Coexistent bijuralism is taught in all courses or in several courses. When you have within one group students with different backgrounds, for example, students with common law training in a civil law course, then you have to make comparisons. We do this at the University of Ottawa, in undergraduate classes. McGill University does this differently because some courses include both the civil and the common law aspects, for example, contract law. That is another method. We prefer to train our students in one system so that they have a reference point, whether that be civil law or common law, and then when they have a solid grounding in one of those systems, they can spend a year studying the other legal system.
As I said earlier, there are two faculties doing this on a systematic basis, and we have been doing so for some years now. The Université de Montréal offers a graduate program, it is a master's program in business law based on New York law. It is an Americanized program rather than an analysis of the various legal systems. The Université de Sherbrooke does the same by means of a summer course.
Furthermore, my colleague, Professor Aline Grenon, has published a study which we carried out on the teaching of other legal systems, be it through a course in comparative law or a course in international law. We looked at progress in other Canadian provinces and other faculties in Quebec. Yes, progress is being made, but it is slow and we are at a somewhat embryonic stage.
The situation is worse in the United States. Statistics show that only 17 per cent of American students have been introduced to international law. That means that the difference is almost 90 per cent. Some have never even heard mention of international law, and that becomes evident when you take a look at current events.
[English]
The Chairman: Senator Eyton, do you have any questions?
Senator Eyton: Thank you, sir, for your presentation. It is very eloquent. I want to make some preliminary comments and I have three or four precise questions.
First, you spoke broadly of the application of the bill and you talked about all the other provinces and how it would benefit us nationally and internationally. However, the title of the bill, and clearly its purpose from your remarks is, and I read here: ``a second act to harmonize federal law with the civil law of the Province of Quebec.'' That is its purpose, and your ruminations about its other application, I think, went much beyond that.
You mentioned some numbers. You talked about our export business or trade representing something over 40 per cent of our gross product, our domestic product. You went on from there to say that the common law system and the civil law system combined covered almost all of the world. I think you used the number 99 per cent. I think I agree with that; but in practical terms, I just remind you that of our trade, something over 85 per cent is with the U.S and probably another 4 or 5 per cent is with other common law jurisdictions. Therefore, in effect, the language of trade for Canada, particularly, is English and the common law.
Bringing that down to my personal experience, I was a lawyer for some years. I have not practiced law now admittedly for about 25 years, but I was with a well-known Toronto law firm. In the 60s and 70s, Montreal was the financial centre of the country and what that meant to me, because I worked with a commercial law firm, was that I spent a day or two every week in Quebec dealing with a variety of commercial transactions. Essentially, the role I played was to help people buy and sell companies, to manage large companies, largely national and/or international companies, and to arrange financing.
I worked happily with my Montreal counterparts who were versed in civil law and we made accommodations and arrangements as needed. From my point of view, it seemed to work perfectly well and I was not aware of any problem at all in reconciling at least the commercial needs in Quebec and outside of Quebec.
The last observation is about facilitating trade. Canada today is the leading trading nation amongst the developed countries, certainly amongst the OECD, so it is doing awfully well right now. Again, the implicit question in that is why is this process necessary? You truly scared me when you talked about harmonization with Aboriginal law, because I think that would be an exercise that would take centuries and, in fact, may never achieve its objectives.
I am a bit cynical about the whole process. I recognize that this bill before us is a modest bill in the terms that we are talking. It is a step and it helps deal with specific terms and specific problems. Behind that there is an ongoing effort that will involve many other people and may have many other significances.
First, who is behind Bill S-10 and the whole convergence issue? Who is pushing it and promoting it?
Second, is this necessary? I look at the history of more than 100 years of people accommodating one way or another and getting along well enough, at least in my experience in reading, it wasn't a problem.
Third, if it is not necessary, is it even useful? I recognize that there is a great deal of work in this for the legal profession. I say that rather happily as an ex-lawyer, although I am still qualified.
I can understand lawyers saying that it is a worthy effort and the time should be spent on it. However, is it even useful beyond the academic study?
I suppose this is my fourth question. There is clearly a melding, if you will, a compromise between the systems, implicit in the whole exercise. You have talked about the advantages of that, some of which I question. There must be costs as well, or disadvantages, and I would like you to comment on those that are apparent to you. Who is behind it? Is it necessary? Is it useful? What are we giving up in this process?
Mr. Perret: Who is behind it? Well, I think that it is not for me to answer that question. It is the federal legislator. It is a federal spirit that must be behind the effort. I share the sentiment as do many people across Canada; it is a Canadian value.
Who specifically is behind the convergence I do not know but I share the desire. Is it necessary? Is it useful? Yes, it is. If your law is not compatible with my law, then I will go away; and that would encourage separatism. That is it. It is a challenge for the country. If I feel at home, I will stay. If I do not feel at home, I will go elsewhere.
Senator Eyton: We are talking about trade, commerce and exchange.
Mr. Perret: If there is incompatibility between my law and the one that you want to impose on me, then it is called ``colonialism.'' That is it. Remember the history of Quebec. At the time of the Treaty of Paris, 1763, common law was applicable in Quebec. Eleven years later, in 1774, British authorities adopted the Quebec Act. Thus, we returned to the Custom of Paris. Codification of the laws began in 1857 and culminated in 1866 with the coming into effect of the Civil Code of Lower Canada in respect of the proper culture of Quebec.
Senator Eyton: I do not have a problem with that.
Mr. Perret: Sir George-Étienne Cartier tabled the codification legislation in the Parliament of the United Canadas but first he wanted to ensure the specifity of the two pillars: the language and the legal system. Otherwise, he would not have tabled the codification document.
Who is behind it? Is it useful? My answer is that. Is it costly? The Department of Justice has done a study on that.
Senator Cools: We do not know that the Department of Justice has done a study on it.
The Chairman: Senior officials from the department are still present and can answer questions after Mr. Perret.
[Translation]
Mr. Perret: Is it costly or not? Studies have been carried out on that issue. At any rate, regarding the issue of cost, we have no choice in terms of domestic policy, and on the international front I am certain that it will bear dividends.
We are speaking about a bill which is limited to harmonization, so there is a specific link. That is why I divided my presentation into two parts; one part looking at this specific bill, and the other part focusing on the future to see if it is worth taking this second step.
I said myself that this is extrapolation. When taking the second step, one has no choice but to look out towards the horizon rather than staring at one's own feet. When you spend too much time staring at your feet, you run the risk of falling flat on your face. If, however, you choose to look out to the horizon, you gain a better understanding of what lies ahead.
In international trade circles, there is a great deal of talk about American imperialism requiring people to adhere to New York law, particularly when it is a matter of refinancing companies. And it is for that very reason that we are seeing these reactions, it is for that very reason that we are looking for alternative, more harmonious solutions which would allow greater respect for the various political partners.
On that subject, I have been invited to a symposium in Paris on November 30 where we will be discussing the World Bank's report called ``Doing business in 2004/2005.'' The title of the symposium is ``Is the French model an obstacle to development?'' I think you get the picture as to where we are in this. A few years ago, a symposium was held on the comparative efficiency of civil law versus common law. Both systems are efficient. By combining both systems, we may well be able to find something which is even more efficient, and which, above all, allows for both systems to be respected.
Eighty-seven per cent of our trade is with the United States. That means common law, that means using English. But what we are trying to do is diversify our trade so that we are less dependent on the United States.
A further 3 per cent of our trade is with Latin America, that means that 90 per cent of all our trade is carried out in the Americas. But do not forget that, with the exception of Belize and Guyana, all of Latin America uses civil law. Furthermore, bearing in mind that we have two official languages, let us not give up too early, we have available to us all the advantages that stem from being a member of the francophonie. Let us not forget that.
Canada is a Commonwealth country which enjoys all the advantages of the English language. Canada is also a member of the francophonie, and as such, enjoys all the advantages of the French language. Let us not relinquish these advantages, especially given that French and English are the most important languages in the western world. If we want to diversify our trade, and here I am referring to the 10 per cent of trade which does not involve the Americas, then it is most likely that we will be turning to a country which uses civil law.
But isn't Canada a country which respects diversity? Should it not be a model, through its legislation, to distinguish itself from its larger neighbour which can crush any resistance because of its might?
The world reacts against such actions and it fosters good feelings for Canada.
Senator Ringuette: I must admit that I greatly enjoyed your presentation. I would like to discuss the involvement of the University of Moncton, which you did not mention.
Mr. Perret: At the University of Moncton, they teach common law in French, but they don't teach both, civil law and common law. But yes, you are right.
Senator Ringuette: I have to admit that you have provided us with a very interesting point of view; nothing we have heard previously highlighted the scope of civil law throughout the world.
I have to admit that I am frankly astounded that two thirds of the world is ruled by civil law when I would have thought it was more like one third. You really have shown us how widespread civil law really is.
Mr. Perret: China has a civil law system, as well as Japan.
Senator Ringuette: I realize, aside from the cost of research, that if we want to make progress, we have to conduct research. In the areas of health care or the law, it's a matter of progress and vision. Some people may question short- term costs, and some of my colleagues will surely want to discuss this matter. However, our young legal experts would benefit from the work being carried out internationally. People talk a lot about the export of our goods, but we also export our intellectual capital. The export of our expertise, which you clearly demonstrated this morning, is rarely discussed in committee or revealed in our statistics.
I was involved in provincial politics. I realize to what extent interprovincial barriers and different legal systems create obstacles. They are very costly to Canadians.
You also talked about our role as a world leader in the area of peace research. There is a dimension to the work we are carrying out now which strengthens that aspect, this intrinsic value which our country can teach the world. Thank you for your presentation which has helped me appreciate this bill even more.
[English]
Senator Cools: I hope that the bill before us does not mean that the Department of Justice is going down the road that the witness is speaking about. If that is the case, then I would have serious concerns about voting for this bill. What we are talking about is not harmonizing the law of Quebec with legislation passed in Parliament; we are talking about a creating a whole new animal or a whole new creature.
I have a few questions. I wonder if you could help me understand. I missed the first few minutes of your presentation, and my apologies for that. I listened to you with some care. When you used the word ``law,'' you had many different meanings for that word, which has introduced an element of confusion into your presentation. Sometimes when you used the word ``law,'' you used it to mean a desired result rather than a process to results. There are many meanings.
I would respond to the question of harmonizing law by saying there is no one in the world, in this Parliament, that I know of, who is not supportive of seeing Aboriginal people assume their rightful place in Canada and who is not supportive of the law of Canada, all the law of Canada, in its many different forms and shapes, taking cognizance of the proper and just aspirations of these people. However, I do not think that to describe that as harmonizing is a fit characterization, and it is not the same thing as intended in this particular exercise as embodied in this bill. We confuse the issues when we talk about the just aspirations of Aboriginal people and this particular exercise going on in this particular bill. I do not think it is helpful to obfuscate or confuse those issues.
The next point I should like to make is that you talk about the common law and you talk about the civil law and you talk about creating a uniform law. Coming back again to the harmonization, in your theory, and it is largely an academic theory, I wonder, in your wish for uniformity or harmonization, what are the limits of that harmonization? For example, does it include harmonizing federal law with the Sharia law or with other laws, for example, that permit polygamy? I am having great difficulty understanding that, because my understanding of the project before us is that it had definite limits. It was intending to reduce confusion and provide clarity. If I am wrong, I want to know. Perhaps the departmental people can clarify for us that the project before us is what is before us and not an additional larger project about which we know nothing.
I am wondering if perhaps the word ``harmonizing'' is being stretched a little bit too wide. I am not sure that the law is as elastic, although maybe it is. Some of these concepts seem frightfully elastic to me. In your definition of ``harmonizing,'' what are the limits, and at what point does your harmonizing mean moulding, bending, sculpting, torturing, if you wish, the law into the result that you want?
The law is not a tool to be socially engineered. One of the features of the common law is the phenomenon that it came from the bottom up. That is why it was called the common law. The term is the same as that in the name of the House of Commons. The common law is derived from the people.
Whenever I hear a lot of discussion about making the law this and taking it here and doing that, to my mind, that is contrary to the purpose of the common law. The common law is not supposed to be bent to fit the wills of elites. I wonder if you could comment on that. Are you not suggesting that one form of law should be swamping the other?
You mentioned the Custom of Paris and the Treaty of Paris. I belong to that group of people that believe that those accommodations with language and the law, and not only the language and the law, the church — many people do not talk about the church anymore, but the importance of the Roman Catholic Church to those French people, post-1769 was very important — and I belong to that group of Canadians who believe that those accommodations were outstanding accommodations and form a part of our history.
I also understand, as well, that in a funny kind of way what we are talking about and what you are talking about is the opposite of some of that. All the literature that I have read speaks to the fact that those accommodations were made so as to allow the French people to have their total autonomy, as people, and to have total expression, as people.
As a matter of fact, the word that pops up in a lot of the old literature is ``distinct,'' and distinctiveness. When many thinkers — and our chairman was involved in the development of Meech Lake, in another reincarnation — but my understanding is that many individuals at the time looked to the term ``distinct society'' because they found those terms in the early —
An Hon. Senator: We are not talking about politics.
Senator Cools: No, we are not talking about politics; we are talking about harmonizing one law to the other. I am responding to the witness's presentation, unless you do not want him to make a presentation. I am responding to his presentation. He said if he is happy, he stays. If he is not happy, he goes. I am responding to that.
I do not have to attend this meeting, chairman. Count me out.
[Translation]
Senator Gill: I would like to congratulate you for your presentation, Professor. I am a member of the first nations. This means that, since birth, I have been subjected to the Indian Act, which was created under common law. If you have been subjected to this legislation, you cannot passively stand by while it is being reviewed. Please understand that when you have been colonized, as opposed to having been the colonizer, you have suffered.
Harmonization has come up. I will not get hung up on words; in any case, it would be beyond my ken, since I am not a lawyer and I don't really care about words. However, I know that there are two majority groups in this country. For a while, we were under the French regime and then under the English one, and the first nations were always there. I'm surprised that no one thought of doing this earlier, that is, doing something to bring us together and to harmonize this entire situation. I wonder why it was not undertaken before today. It is all the more surprising that this is being done only for first nations. Every time the government adopts legislation — be it at the provincial or federal level — our rights as native peoples are violated. That is reason enough to review the entire legal system. After all, we are full- fledged citizens of Canada and our rights need to be respected just as much as those of other Canadians.
I have no doubt that this work needs to be done. In fact, it should have been done a long time ago, but it has to be done now. People who refuse to take part in this exercise and who do not want to participate will not be the ones to suffer the repercussions which might otherwise occur. I am not saying that the Civil Code must be completely harmonized, but you talked about integration and coexistence. There certainly is a way to improve the coexistence of both systems, as well as customary law. As you said, that is the situation in Africa. You said that there are customary rights in Africa. I imagine that we can do the same here in Canada.
Since you are an expert in the field, I would ask you why it has been done in Africa but not here.
Mr. Perret: I am extremely sympathetic to the way you reacted because, at the time, the Indian Act was called the ``Loi des sauvages'' in French. That says it all. You cannot help but have sympathy for those who were covered by the act.
Of course, change will not happen all at once. Native law is misunderstood, which is really a bit scandalous. It is easier to understand if you approach it through treaty law, rather than through customary law or private law, or by the way in which it is organized. I believe studies have been carried out, in particular with the collaboration of native peoples, perhaps not to codify, but to make it intelligible, to make it known, and to write it down.
It is also interesting to note that, in Muslim countries, for instance, countries which have adopted either civil law or common law, but which have integrated it with their own law, Muslim law — anything affecting the individual is included in Muslim law. In other words, it includes anything affecting the individual, the family, marriage and affiliation, amongst other things. Matrimonial regimes and property also affect the individual, which again are integrated into Muslim law. It is much less personalized, less cultural per se.
I would like to address some issues which were raised earlier. I divided my presentation into two parts — the bill per se, in its current state, and what it means. From that point of view, harmonization means the coordination between federal legislation and provincial statutes. That is coordination. It is not a matter of changing provincial statutes or federal legislation. That is what it means.
By extrapolating what I said in the second part of my presentation, when you think about it, you can go even further and ask yourself whether it is possible to harmonize and amalgamate both systems, in other words, to arrive at a system of bijuralism. It is not a matter of one system taking over another, but, on the contrary, as in the principles of unidroit, it is a matter of retaining the best of each system, such as the methodology of one system and the very commercial aspects of the other. But where should the line be drawn with regard to harmonization? In other words, we are dealing with the fast food of law, the MacDonalization of the law. Should one system apply to everyone? Of course not, since that would obviate the respect we must have for each person's individual culture.
It can only be done at the international, transborder and interprovincial levels, but not with regard to domestic law. Again, if I take the example of Muslim law, the cultural elements in their laws regarding the person were truly respected, and the rest was harmonized. The question is, where do you draw the line when you want to respect each nation's culture but still harmonize many other areas? Common law comes from the people; it was created in the time of William the Conqueror in England when the royal courts organized the entire property system. The entire property system is based on that approach. However, civil law is based on Roman law, which is praetorian law mixed with learned law.
The Napoleonic code was based on existing customs and traditions, in addition to case law and aspects of the Code of Justinian. A rationalization was done.
When we look at the world after colonization, and after the communist era, what judicial systems do we find emerging countries adopting for their domestic law? For example, China, the Czech Republic and Romania have chosen civil law. None has chosen common law. This does not prevent them from adopting business laws, or banking laws for their securities, but they do not adopt the entire common law system, including the common law judicial system. If we look at the world as a whole, we find that common law spread only through colonialism. Not one country has adopted the common law system as a whole, including bewigged judges. We were spared those here in Canada. We do not find countries adopting the entire common law system voluntarily. However, they do seem to adopt civil law. China, Japan, the Czech Republic, Romania and Lithuania did not adopt civil law because they were colonized. They adopted it because it is the simplest from a methodological point of view, it provides easier access to justice than a body of jurisprudence dating back to William the Conqueror. The same goes for the metric system. There is a strong connection between the rational underpinning of the Napoleonic code and the metric system, since Napoleon introduced both in his time.
[English]
Senator Milne: It seems to me that there is a great deal of misunderstanding around this table. I want to reinforce what you have said, Mr. Perret: This bill does not change either the civil law or the common law.
Mr. Perret: No, it does not change either one.
Senator Milne: This bill merely makes the words mean the same thing in both.
Mr. Perret: Yes, it makes them compatible, or provides for coordination between the two.
Senator Milne: Precisely. It changes some of the words so they mean exactly the same thing in both systems.
Mr. Perret: That is right.
Senator Milne: This is a basic misunderstanding around the table, and it is something that we need to keep reinforcing. I congratulate you for doing that.
What percentage of the world did you say used the civil law and what percentage common law? Did you say 60, or was it 66 per cent?
Mr. Perret: It was two-thirds for the civil law and one-third for common law.
Senator Milne: It is about 33 per cent. Since there is this dichotomy within the world between the two different systems, a whole body of law has developed called conflicts of law, and this is used to decide what law will be used to seek solutions between people from different countries that operate under two different systems of law when they have some kind of a dispute.
Mr. Perret: Yes.
Senator Milne: I wonder if any of this type of conflict resolution has found its way into this bill, sir, and I would ask you to answer briefly, please, because our time is going on.
Mr. Perret: No.
Senator Milne: It has not?
Mr. Perret: No.
Senator Milne: This is merely correcting the language?
Mr. Perret: Yes. I should like to be very clear. There are two parts to my presentation. One is related just to the bill, and the second is an extrapolation.
Senator Milne: Thank you very much, sir.
Senator Watt: Professor, I am glad to have you here. I followed your drift quite clearly, and I feel that I have a clear understanding of what you have brought to our attention here. I wholeheartedly support the process of examining the civil law and the common law to see whether they could be improved in the sense of being able to operate without affecting one another, or respecting each other. I guess that is what we are talking about here. Perhaps the term ``harmonization'' should not be our concern because we are going a little bit beyond that.
You have also highlighted another possibility that you might prefer when you talked about international communities, international trade and things of that nature, and that might be beneficial down the road for the civil and the common law and for this country.
Mr. Perret: In fact, it is not exactly what I would prefer. It is a coordination, which is very good and well. A lot of work has been done. With all the work that has been done, we could go much further for the benefit of our country, because there is a trend of globalization and unification. Unification is something else, though, because to unify, you must look at the differences and the advantages and disadvantages and do a balance and then decide.
Senator Watt: I believe I understand that, and I think that is only beneficial. It is not something that takes away, but is an add-on. That is the way I look at it. Positive directions have been taken by going through this process.
I will speak to the second part in which you talked about Aboriginal peoples not having been at the forefront. That is because Aboriginal law has never been written. It is an oral law of how Aboriginal peoples operate. I will only speak to what I know best, which is the Inuit that live in Nunavik, Nunavut and Labrador. I believe Senator Adams covered this quite well in respect of other Aboriginal groups in Canada, who have to be taken care of as well. I leave that up to them.
You mentioned the possibility of doing something for Nunavut because they comprise the majority in the geographically designated area; and Nunavik holds the same status — a geographically designated area for the majority of people in the territory within Nunavik, which is part of Quebec.
I will speak to my personal experiences and ask you some questions on that. How do you rectify the conflicts that I have lived with over the years? I have negotiated to change the James Bay and Northern Quebec Agreement, as you are probably aware. My name is Senator Watt. During the early years of our negotiations, we came to an agreement with both the provincial and federal levels of government. It bothered me throughout the whole negotiation process that the general laws of applications apply beyond what was received. Do you follow my drift so far on that?
Mr. Perret: Yes.
Senator Watt: As I said earlier, Aboriginal law is not written, therefore we have no pillar. Common law is a pillar for Anglophones and civil law is a pillar for Francophones. Aboriginals have no pillar, unless we could say that we have written pillars.
An opportunity to move in the direction of materializing Aboriginal law — putting it in writing — would be timely because it should have been done a long time ago. That was my objective when I was involved in the James Bay negotiations. I will return to that later to tell you why. I also felt that it was urgent for us to be involved in the constitutional negotiations, hoping that we would undertake to move in this direction — what we are talking about now and the proposals you have indicated or the thoughts that you have to deal with Aboriginal peoples.
At times, we have great difficulty convincing the authorities on behalf of Aboriginals because we do not hold the necessary weight in terms of the vote. That is an important fact. Thus, section 35 of the British North America Act, in which I was also directly involved, has not been implemented. I have tried to find a way to implement that. I would say that if we isolate it from dealing with the civil code and the common law would be dangerous because I do not think it would go anywhere, therefore, we need to find a niche. In other words, taking a ride on what is taking off to ensure that our issues are being dealt with at the same time.
That is one of the reasons that I have been encouraged by your words. We have interaction between the Government of Quebec and Nunavik on a daily basis. As well, we have interaction between Nunavut and the Government of Canada on a daily basis. People are beginning to ask, what about our system? What about the fact that we need to survive? Our eternity is no longer intact. Our eternity makes us who we are. It is being put further and further put into doubt. For that reason, this study of Bill S-10 by the Standing Senate Committee on Legal and Constitutional Affairs is encouraging, not only for Canada but also for Aboriginal peoples.
My question is this: I signed the so-called modern treaty deal with the Government of Quebec and the Government of Canada. It contains wording that the general laws of applications overrides, above and beyond, what you have achieved. Is it not, in a sense, giving with one hand what it takes form the other hand? It might not be perceived in that fashion but in the end, we need to develop the code for ourselves to include why those rights are serious, why they have to be protected, and why they have to be recognized by other sets of regulations and laws. If that does not take place, there will be constant erosion in terms of what is being achieved between Aboriginals and the Government of Canada.
Let me take it one step further. I have examined and looked at the various sets of agreements that have been signed across the country and only one seems to be working: the James Bay and Northern Quebec Agreement. I do not know why that is. Perhaps it is because there are similarities in terms of the way they describe things between the Inuit and the French Canadians. Maybe that is a factor but, in a sense, we try our best in that area. Could you enlighten us on how we could overcome the problem of general laws of applications overriding above and beyond what you have achieved? How could that be dealt with?
The Chairman: Senator, is that the question?
Senator Watt: That is the question. I am repeating myself on that.
Mr. Perret: I want to be very clear. The purpose of harmonization bill number two does not deal with the rights of Aboriginal peoples. This is clear.
Senator Watt: I realize that.
Mr. Perret: We will discuss this in the future because it is an extra process —
Senator Gill: We hope that it will happen.
Mr. Perret: — that this process might or should include. I want that to be clear in everyone's mind.
I also want it to be clear that the harmonization does not change the existing provincial or territorial law. Rather, it is simply a coordination of the federal law and the local law.
Senator Watt: I understand.
Mr. Perret: The challenge, of course, is to know exactly the state of Aboriginal law because it is not well known — perhaps by Aboriginals only. Should that law be written? I do not know. That is for you to decide. If one day it is written, that would be the first step to knowing and understanding it and then to adopting the federal legislation as is done with the common law provinces and civil law provinces. That is my answer. Otherwise, I am not an expert in Aboriginal and treaty law.
Senator Watt: Connected to the questions that I raised, there is another issue. Why is it then when you entered into an agreement it was done under the terms of someone else's conditions and not your conditions? There was no code used on your side to satisfy what you achieved. Please give me your professional interpretation of agreement versus treaty.
Mr. Perret: I am not sure.
Senator Watt: You do not want to go into that?
Mr. Perret: No.
[Translation]
Senator Joyal: With respect to aboriginal law, I believe that this right is recognized and confirmed by section 35 of the Constitution Act, 1982, which stipulates that:
The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.
Aboriginals have ancestral rights allowing them to govern their private relationships — we are talking about civil law now — the relationships among themselves, according to their own traditions and customs. This was clearly affirmed by the Royal Proclamation, and section 25, which reproduces the guarantees in the Royal Proclamation. Allow me to read section 25:
The guarantee in this charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any Aboriginal, treaty or other rights or freedoms that pertain to the Aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763.
The Royal Proclamation clearly recognized the rights of aboriginal peoples to govern their private relationships as they had traditionally done. The Royal Proclamation did not impose common law on aboriginal peoples, anymore than it imposed the way things were done in Paris at the time — not recognized then but recognized in 1774 — nor any other kind of law. The Royal Proclamation recognized that aboriginal peoples had the right to manage their private dealings in such matters as marriage, contracts and reciprocal obligations as they had always done. I believe they have a right to their law. They have a constitutional right to their law. So when we talk about aboriginal law, it is not as if we are trying to grant aboriginal peoples a sudden favour, it is not as if we have decided to be nice to aboriginal peoples from now on.
[English]
After so many hundred years, we find that the result is not very happily achieved.
[Translation]
My approach is that this is a constitutional matter, not simply an initiative that Canada may wish to take because aboriginal law would be a good thing to talk about these days. Aboriginal peoples have a constitutional right to the recognition and formulation of their traditional law, and to having their traditional law taken into account in the interpretation of their obligations and rights in treaties and agreements they conclude with the government of Canada.
Mr. Perret: Absolutely; I support the entitlement to the law, and that is why in analyzing this entire process, I say why not; aboriginal law should be there as well. This right to the law is undeniable and it is not a favour. The problem is in having an index and identifying it. The official who needs to harmonize or coordinate, to get away from the word harmonize, federal law, needs something that will enable him to do so. It is this something which is not well enough known or has not been written about.
[English]
A pillow, as you said. What is it? Well, it should exist. It exists, but to be discovered, or to be written or to be known, put into practice, yes.
[Translation]
Senator Joyal: I believe we will probably have an opportunity to hear you again with representatives from the University of Saskatchewan in another forum. Perhaps not in relation to this bill which does not deal with the issue, but I think that it is inherent to the very nature of this bill.
My second and last question is in regard to your presentation. I will use the same terms you used. You said: ``I would look at it from two angles, Canadian federalism and the science of law.'' I am concerned with Canadian federalism and how the concept is presented. The way I see the harmonization initiative, it is not about consecrating two distinct, individual systems — and I use the word distinct much as it has been used over the last 20 years — rather, its purpose is to create or express another reality which would integrate the two. In other words, Canadian federalism is not about saying to each his own, as they see fit. It is essentially about distinct systems; there is common law which is practised in French and in English, represented by Senator Ringuette amongst others, and there is anglophone common law as it is found in Ontario and other provinces, and there is the Civil Code expressed in English and in French. But these four expressions meet within the body of Canadian legislation.
Canadian legislation is a fundamental expression of the nature of Canadian federalism. I think that the harmonization exercise, as it is commonly understood, aimed at the outset to recognize the individual systems, and to showcase the fact that we have reformulated a federal system of law where different realities coexist in a new, unified system, according to the will of the legislator.
It is a giant step in the evolution and the understanding of Canadian federalism, not only for the law, but for other federal-provincial areas of activity, because fundamentally, that is what we are talking about.
Mr. Perret: Yes, I completely follow what you are saying. It is what I was trying to express in another way, the unity of common values and the concurrent respect for diversity.
Senator Joyal: Do you not believe that Canada, in its current stage of evolution, is much better positioned? We have lived with the Charter for 20 years. We can guarantee this sharing of individuality on the basis of common values we recognize.
Mr. Perret: Of course.
Senator Joyal: With respect to aboriginal law, are we not better equipped to recognize and integrate it within federal legislation?
Mr. Perret: Yes.
Senator Joyal: What role could faculties play to move things along in this area?
Mr. Perret: First of all, they could teach the different legal systems. As you were saying, going beyond bijuralism, trijuralism perhaps, but also constitutional law, Canadian values, specifically those conveyed by the Charter and charters.
Senator Joyal: Do you not believe that it would be a good idea for universities such as the University of Ottawa — which is particularly well placed to do so — and the University of Moncton and some universities in Ontario, which have carried out important work on French or English-language common law, to further the reflection process on this aspect of the evolution of Canadian federalism, so that legislators and Canadians in general realize how the country is evolving?
Mr. Perret: Yes, my background is more in private commercial law than in federal public law. But this whole process leads precisely to a closer relationship among these systems. That is the extrapolation I made in my text about federal bijuralism or trijuralism.
[English]
The Chairman: Senator Eyton, did you still wish to ask questions of the department officials?
Senator Eyton: I think I asked the questions and got answers. I am not wholly satisfied, but I will not repeat the questions.
The Chairman: We will be back next week, unless you wish to proceed to clause-by-clause consideration of the bill today. We will also have observations, so I would prefer to come back, if you do not mind, next Wednesday. We could proceed with the adoption and clause-by-clause and work on some observations that we want to make to the minister and the department.
Senator Joyal: I suggest that we inform the members that we will proceed with clause-by-clause consideration in the next session.
The Chairman: That will be next Wednesday.
The committee adjourned.