Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 2 - Second Report of the Committee
Thursday, November 25, 2004
The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its
SECOND REPORT
Your Committee, to which was referred Bill S-10, A second 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, has, in obedience to the Order of Reference of Tuesday, October 26, 2004, examined the said Bill and now reports the same without amendment but with observations, which are appended to this report.
Respectfully submitted,
LISE BACON
Chair
OBSERVATIONS
to the Second Report of the
Standing Senate Committee on
Legal and Constitutional Affairs
Bill S-10 is a government Bill that continues the very important work of harmonizing federal legislation that touches on private provincial and territorial law in order to ensure that each language version faithfully incorporates both the civil and common law traditions in Canada. It is the second in a series of such bills; the first was adopted by Parliament and came into force in 2001.
Your Committee wishes to emphasize in these observations how close the federal harmonization project is to the core of what makes Canada unique. Federal legislation touches on private law relating to property and civil rights in a number of different areas. Unless a federal law specifically defines its own terms or establishes its own concepts, it is interpreted according to the private law in the relevant province — the civil law in Quebec, as primarily reflected in the Civil Code, and the common law in the rest of Canada.
But federal legislation must thus reflect the terminology and concepts of these two legal systems, and must do so in both French and English in order to faithfully reflect our Canadian legal identity and address the needs of our four legal audiences: the francophone civil law community, the francophone common law community, the anglophone civil law community, and the anglophone common law community.
Canada is one of the few countries in the world with more than one legal system, and is a leader in harmonizing its federal law. Your Committee is proud and supportive of this uniquely Canadian project. Although Bill S-10 might appear to be merely technical, it is symbolic of the integration of two of the greatest legal traditions in the world and is another step towards the goal of making federal law more accessible, more efficient, and representative of Canada and Canadians.
Your Committee wishes to make an additional point, however, about Canadian law. There is a third historical source of law — Aboriginal traditional law — that pre-existed the two other sources of law. It is composed of the customs and traditions central to the culture of our Aboriginal peoples. Canada has yet to adequately address that oral legal heritage.
We were encouraged by the testimony of the Minister of Justice, who spoke of his personal commitment, and that of his Department, to work with Aboriginal peoples to identify and to better appreciate Aboriginal legal traditions and to consider how they can be brought into the mainstream of our legal system. We note also the ongoing work of the Law Commission of Canada in this area and the research conducted at the University of Ottawa and the University of Saskatchewan. Your Committee is also concerned with the timeframe for progress in this area.
Your Committee fully supports the comments of one of Canada's foremost experts in bijuralism who, in his testimony to the Committee, said that he encourages everyone to take the view that bijuralism is by no means exclusionary. Rather, he emphasized that it is an open model that he hoped would lead to a plural model, as time goes on.
It is your Committee's fervent position that a way should be found to integrate Aboriginal legal traditions into Canadian law alongside the civil and common law in a manner that will better reflect Canada's diversity.