Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 17 - Evidence for December 2, 2010
OTTAWA, Thursday, December 2, 2010
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 10:30 a.m. to give clause-by- clause consideration to Bill C-464, An Act to amend the Criminal Code (justification for detention in custody); and to consider Bill S-12, A third Act to harmonize federal law with the civil law of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law.
Senator Joan Fraser (Chair) in the chair.
[English]
(The committee continued in public.)
The Chair: Honourable senators, as you know, the steering committee has agreed to schedule clause-by-clause consideration of Bill C-464 for this meeting now.
[Translation]
Is it agreed that we proceed to clause-by-clause consideration of Bill C-464, An Act to amend the Criminal Code (justification for detention in custody).
Some Hon. Senators: Agreed.
[English]
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
[Translation]
The Chair: Shall clause 1 carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
[English]
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
[Translation]
Shall the bill carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
[English]
It is agreed. Carried.
Does the committee wish to consider appending observations to the report?
I see no interest in proceeding with observations.
[Translation]
Is it agreed that I report this bill to the Senate?
Some Hon. Senators: Agreed.
Senator Angus: You can see that we did not delay proceedings.
[English]
The Chair: Carried.
That means, colleagues, that we have some time before our witness on Bill S-12 is due.
Senator Banks: I want to express my gratitude to the committee, to all its members, and particularly to Senator Carignan. I am very grateful, Senator Carignan, and I want to assure you that I will work as hard as I possibly can with you to put your amendments, which are good amendments, into a bill, if that is your choice, and I hope that it will be, forthwith. I hope this committee will deal with that bill when it comes before it with alacrity so that we get your excellent amendments to the Criminal Code put into place at the first possible opportunity.
I am very grateful to you, sir.
Thank you.
The Chair: Our witness on Bill S-12 is due at noon. If anyone wishes to discuss other business, we can do that now. If not, we will suspend again until noon.
Senator Joyal: I am no longer a member of the steering committee.
Is your program of sitting up to December 18 fixed now so that we can know our agenda up to the Christmas adjournment? It would be helpful for everyone around the table to be aware of this.
The Chair: At the moment we are planning to hear witnesses on Bill S-12 on December 8 and 9, next week, and to conduct clause-by-clause on Bill S-12 on December 15, which is Wednesday. We have no business scheduled for Thursday, December 16. I was hoping to corral Senator Carignan for further work on the rules during that time slot, unless we are instructed to do something by the Senate. At the moment, that is the plan.
There is an assumption, which may or may not be accurate, that we will not be sitting the following week.
Senator Joyal: In other words, our main piece of work will be to deal with Bill S-12. Thank you.
The Chair: Honourable senators, we are now gathered to continue our consideration of Bill S-12.
[Translation]
We are considering the third Act to harmonize federal law with the civil law of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law.
Our witness this morning is, as an individual, Professor Sébastien Grammond, Dean and Associate Professor, Faculty of Civil Law, University of Ottawa. You may proceed with your opening statement.
[English]
Professor Sébastien Grammond, Dean and Associate Professor, Faculty of Civil Law, University of Ottawa, as an individual: Thank you very much, honourable senators, for inviting me to this meeting. I will speak in both official languages.
[Translation]
Before I begin discussing bijuralism as such, I would like to point out why it is positive for Parliament to pass measures fostering coexistence between the two great legal traditions in Canada. Then, I will address more specifically the justification for this bill before you today.
Bijuralism in Canada is a consequence of federalism. In a country where private law is mainly a matter of provincial jurisdiction, one would expect private law to vary from province to province. And historically, in Canada, we know that there has been one major difference: Quebec is one province where civil law, from the French tradition, or Romano-Germanic tradition, governs matters of private law whereas in other provinces and territories we have the common law, of Anglo-Saxon origin.
When dealing with this situation, Parliament is on the horns of a dilemma: should it respect the rights of the various provinces to apply one legal system over another, or rather, should it attempt to standardize the law in matters falling within its jurisdiction? If so, which legal system should it choose?
I, obviously, approve the choice that was made several years ago by Parliament to respect each province's system of private law, rather than to try to impose the same standards throughout the country, which, I think it should be noted, would most probably be the common law. I approve this decision to respect the choice of Quebec to have a civil law system, and therefore to treat both civil law and common law equally, as the two main legal systems governing private law in Canada.
I would add that this choice is defensible not only in terms of the principle of having equality between legal systems and the communities they underpin, but also from a practical standpoint.
It should be noted that the application of a province's private law as an additional legal regime, filling in gaps in federal law or supporting the application of federal laws, is something that facilitates access to rights and justice, notably in Quebec. In Quebec, most lawyers and jurists, Quebec notaries, among them, are trained exclusively in civil law. They do not know the common law concepts which apply in other provinces and territories. So, if Parliament had decided that common law rules would be the suppletive rule to federal law throughout Canada, even in Quebec, the work of lawyers and Quebec notaries would have become quite complex because, in federal matters, they would have been forced to apply concepts of private law they are not familiar with.
I think that Parliament's decision to recognize Quebec civil law as suppletive law is a fair and practical choice.
[English]
More specifically, why is a statute like Bill S-12 necessary to implement such a vision of bijuralism in Canada?
Could it be said that sections 8.1 and 8.2 of the Interpretation Act, which were adopted in 2001 in the context of the first harmonization act, are not enough? These sections simply say that, whenever private law concepts are needed to supplement or to implement provisions of a federal statute, we must refer to the rules of private law in force in the province, where the situation occurs. That means that, in Quebec, we would apply the civil law. Is that not enough?
In practice, it is a useful tool, but it cannot address the whole variety of situations that may arise in legal practice. Note that sections 8.1 and 8.2 apply unless otherwise provided by law. That has opened the door to courts to say, in any specific case, well, there is a need for uniformity across Canada, or there is some intention that we can see in the act to be a complete code and to exclude the application of the civil code.
These arguments are made, I would say, from time to time, and it is very useful to have a specific harmonization, section by section, of existing federal statutes to prevent that sort of debate from taking place.
Let me give an example. In a recent issue of the McGill Law Journal there is an article by Professor David Duff, a specialist in taxation. He notes that the concept of property is somewhat different in the civil law than in the common law. Some provisions of the Income Tax Act that allow some deductions for the acquisition of property have different effects, for example, when they are applied to a business that obtains equipment through what we call leasing or un crédit-bail. You are not really the owner; you are leasing for a long period, like a photocopier, for example.
In Quebec, you are not the owner whereas, elsewhere in Canada, the law is that you are the owner. That has led to differential tax treatment, and that has even led Department of Justice lawyers to argue that we should disregard the civil law because it leads to different results when the Income Tax Act is applied in Quebec.
If an exercise, like the one we see in Bill S-12, had been applied to the Income Tax Act, we would not have had any need for discussions and debates of this sort, which have led to several cases being argued in the Tax Court of Canada and the Federal Court of Appeal.
I have not had the time to analyze in detail Bill S-12, but I see, in some cases, very useful examples of the harmonization exercise. For example, at proposed clause 13, it amends the Canada Business Corporations Act. Let us have a look at proposed subclause 13(1). You had the definition of security interest in English that referred only to common law concepts, whereas the corresponding definition in French referred only to civil law concepts.
That is a source of trouble because it is difficult to read the two versions of the act together. That is why there is an amendment here that will add the civil law terminology to the English version of the act, and the common law terminology to the French version of the act.
Now you have a provision that makes sense in the sense that it refers to both legal systems, so there is no confusion possible as to which system is applicable. It is clear that, here, Parliament wants the private law of the province to apply to this concept. You cannot make an argument that, by using the word ``interest'' or ``charge on property`` in the English version, Parliament had the intention of making the common law applicable in Quebec.
That is now made clear that this is not the case by Bill S-12. There are other examples of that.
Another interesting example is in the amendments to the Expropriation Act at proposed clause 127. I will draw your attention to proposed subclause 127(5). That now makes it clear that, in Quebec, what can be expropriated is an immovable real right, which is a civilian concept, whereas in the rest of Canada what can be expropriated is an interest in land.
Now there is no confusion possible with respect to what Parliament intended to be the applicable law that underpins the Expropriation Act when it is applied in Quebec or elsewhere in Canada.
I do not want to go into any more detail, but these are essentially the remarks that I wanted to make to support the general idea of Bill S-12 as being a valuable legislative exercise.
[Translation]
Thank you very much. I can now take your questions in either official language.
[English]
Senator Wallace: I do not have any questions at this point. Thank you for your presentation.
[Translation]
Senator Carignan: Thank you, Professor Grammond, for your attendance here and your explanation of the fundamentals. I think it is always important to understand the basic underpinnings of what we do here in Parliament, specifically with respect to harmonization laws.
I am concerned about one thing. Given that we have two different civil law regimes, federal law could technically be applied differently in Quebec than the rest of Canada —
Mr. Grammond: Yes.
Senator Carignan: . . .and have different effects. Is that normal? Is it a good thing? I would like you to give us some examples. It creates two classes of people; in any case, there are two different types of impact from this.
Mr. Grammond: I can give you this example of a rather sad story. A public service retiree who is killed by her husband, or perhaps it is the other way around, I cannot recall; it was a case of manslaughter. The problem was that the surviving spouse, who was also the offender, wanted to take advantage of federal provisions on pensions for public service retirees and wanted to claim a pension as the surviving spouse. The question arose as to whether or not this person could be considered the heir to the deceased spouse, which would have, within the meaning of federal law, given the offender the right to pension payments.
Under common law, the response would have been that in such a case, the person would have been unworthy of the inheritance. In civil law, unworthiness to inherit only applies to cases of murder or attempted murder. In this case, the individual pleaded guilty to homicide. So, the Federal Court of Appeal ruled that in this matter, one of the first illustrations of bijuralism in the modern era, if I may say, civil law should apply because federal law does not define inheritance and must clearly be supplemented by Quebec private civil law, in this case. This civil law had to be applied even if it led to a result that is other than that which would have occurred were the crime to have been committed in Ontario.
You are asking whether it is unfair and creates classes of citizens? My response to that would be that it is an inherent effect of federalism. To the extent that we have a country where civil law falls within provincial jurisdiction, we accept, generally speaking, that people will be treated differently depending on their province of residence.
I can tell you that, in general, civil law and common law lead to relatively similar result in most cases. As I say to my students, a contract is a contract, be it under the civil law or common law. But from time to time, there are small differences which we must accept, I believe, as being a necessary outcome of each province's freedom to define its private law.
And to get back to my examples, if we consider it unfair that a person in Quebec is not declared unworthy in cases of manslaughter rather than murder, it is up to the National Assembly to amend the Civil Code in this way, which would be in accordance with the distribution of powers provided under our Constitution.
For this reason, I would say that it is not unfair and does not create a multi-tier system beyond that which would be a necessary outcome of federalism.
Senator Joyal: Good day, Professor Grammond. I would be tempted to complete your explanation in response to Senator Carignan's question by pointing to other federal statutes which recognize that provinces have the capacity to adapt federal goals to the particular context in a given province. That is the case under the Young Offenders Act where the lieutenant-governor in council may decide to determine criteria within which the purpose of the act will be applied.
So, it is possible that even within federal legislation, provinces may be recognized to have the capacity to determine for themselves variations in the application of objectives which are otherwise established for the country as a whole.
So, the goal is not strictly to ensure comparable enforcement of the law, but also to adapt the law to specific conditions in provinces where the federal government legislates in areas already covered under section 92 of the Constitution.
I think this is something that already exists within federal law above and beyond what is to be found in S-12, pursuant to sections 8.1 and 8.2 of the Interpretation Act. It already exists in other areas.
My question has more to do with the courts' interpretation of section 8.1, which I will read as follows in French:
[. . .] Le droit civil et la common law font pareillement autorité et sont tous deux sources de droit en matière de propriété et de droits civils au Canada et, s'il est nécessaire de recourir à des règles, principes ou notions appartenant au domaine de la propriété et des droits civils en vue d'appliquer l'application d'un texte dans une province, il faut, sauf règle de droit s'y opposant [. . .]
My question bears on the interpretation of this exemption, because it is an exemption, on which we must legislate. Because the English version reads as follows:
[English]
. . . unless otherwise provided by law.
[Translation]
This therefore means that Parliament has to have specifically expressed it. Since the passage of this provision of the Interpretation Act, in 2001, to your knowledge, has Parliament ever found an exemption with respect to the quality of both legal systems when it comes to interpreting civil property rights?
Mr. Grammond: First off, I will react to your remark, which was not a question. Yes, I am aware of this situation and I would simply add that the Supreme Court has already recognized that it was not a violation of equality rights to have federal law enforced differently from one province to the next, for instance, in the case that you mention, where the Young Offenders Act applied according to the provision taken by the attorneys general of each province.
Your question is in two parts. First of all, I have not done a comprehensive analysis of federal legislation to see whether there have ever been exemptions to section 8.1. However, I can say that in a general sense, maritime law in Canada is an example of Parliament applying identical standards throughout the country, standards which are generally considered to be inspired by common law even though maritime law could be construed as a third system. The Quebec Civil Code does not apply in this area even in cases of collisions between two pleasure crafts.
Senator Joyal: In waters that are under provincial jurisdiction?
Mr. Grammond: Precisely. That would mean that if two boats were to collide on a lake, somewhere in Lanaudière or the Lower St. Lawrence, in theory, their lawyers would have to base their arguments on common law notions rather than civil law ones. This case may seem to be an anomaly.
With respect to the interpretation of section 8.1, ``unless otherwise provided by law,'' as you point out, Parliament could pass legislation prescribing that the same rule apply throughout the country.
In fact, Professor Duff, in his article, said that Parliament should perhaps act to bridge civil and common law and find a standardized way of dealing with lease contracts under the Income Tax Act. It is an invitation to legislate in a way that sets aside both legal systems.
That said, the Supreme Court has, on occasion, found ``unless otherwise provided by law'' within the general interpretation of an act. For instance, in a 2006 decision on the bankruptcy of Canada 3000, the issue of whether federal legislation on security interests for aircraft should be applied to Quebec while considering provisions of the Civil Code was raised. The Supreme Court dismissed the issue by saying that in such cases, federal law was complete. According to the Supreme Court's interpretation, the legislator wanted people to find a solution to the problem within the act and not by referring to provisions provided within one province's specific private law.
This resulted in the non-application of the Civil Code and in some way, in the standardization of applicable law in Canada. I have not conducted a comprehensive analysis, but I would imagine that when the Supreme Court interprets this act without considering provincial law, it does so mainly by using private law concepts within the common law, if only because a majority of Supreme Court justices come from the common law tradition or because of other institutional reasons. For instance, if the act is applied in Ontario, no one will think to wonder what the Civil Code has to say about it and the common law will be applied without any questions being asked on the interaction between the two legal systems. In my opinion, this type of reasoning effectively marginalizes the Civil Code.
For this reason, I find the provisions of the bill you are considering useful as they will specifically, in every section, say that the Civil Code must apply in Quebec and that concepts of civil law will be used in Quebec.
Senator Joyal: Was the University of Ottawa faculty of law consulted in the drafting of this bill? Were you part of the group of professional institutions consulted?
Mr. Grammond: Not in the drafting of the bill, to my knowledge. It may be, however, that common law section professors may have taken part in it, but I do not know. Obviously, over the years, the University of Ottawa has supported and taken part in a number of efforts to promote bijuralism. I know that some professors have collaborated with the Department of Justice at various stages in the harmonization project.
I, for my part, can tell you that the civil law section is proud to offer, to Department of Justice officials, who are common law jurists, a supplementary civil law training program in English so as to make civil law accessible to everyone, independently of the language obstacle many people face.
In my opinion, this contributes to the dissemination of civil law throughout Canada and perhaps even to a more open attitude to issues of bijuralism.
Senator Joyal: In your opinion, what is the potential impact of the cohabitation of both systems in the same federal statute on legal education in the law schools of Canada?
Mr. Grammond: I think the cohabitation of common law and civil law terms will force people outside Quebec to realize that there is a legal system other than the common law system in Canada, and will force people to realize that they have to ask themselves questions about the interaction between civil law and common law.
As my colleague from the Université de Montréal, Jean-François Gaudreault-Desbiens, pointed out in his book entitled Les solitudes du bijuridisme, very often, outside Quebec, the question does not even come up. The common law is applied automatically, and ultimately only in Quebec do people ask themselves whether the civil law should be applied to supplement federal legislation in any given case. And since the issue only comes up in Quebec, it must be met with blank stares when raised outside Quebec.
Having civil law terms in federal legislation or provisions like the one I referred to earlier, stating explicitly that civil law concepts must be applied in Quebec and common law concepts must be applied outside Quebec, will remind everyone all across Canada of the existence of bijuralism and of the need to ask the necessary questions when dealing with problems involving the interaction between private law and federal legislation.
[English]
Senator Joyal: May I continue?
The Chair: I will put you down for a second round. Senator Baker is waiting and I have a question to put.
Senator Baker: I will be quick. I noticed, Mr. Grammond, that last month the Supreme Court of Canada decided two cases that you were directly involved in. In both cases, the Supreme Court of Canada noted what a great job you had done on your factum.
Mr. Grammond: Thank you.
Senator Baker: I wanted to put that on the record.
In view of what you have said as to the interpretation of section 8.1 of the Interpretation Act, I would like to read you a sentence from the Federal Court of Appeal in Bouchard v. Canada, 2009, paragraph 17:
According to sections 8.1 and 8.2 of the Interpretation Act, it is appropriate to refer to the civil law when it is ``necessary'' to do so, except where ``otherwise provided by the law'' . . . .
Then it says, ``see on this point St-Hilaire v. Canada. . . . ``
In effect, then, the burden would be on the applicant or the appellant, whichever point it would be, to show that it is necessary to incorporate the civil law notions on which the applicant relies, and that there is no provision to the contrary in federal law. Is that correct?
Mr. Grammond: Usually we speak about burdens with respect to evidence, not with respect to the law itself. There is not necessarily a presumption or a burden that you must discharge before you apply the civil code. I would say that it goes without saying that, whenever a federal statute uses a concept of the private law, like a contract or an agent, in order to know what that means, you must refer to the private law. You would then refer to the private law of the province concerned.
I think the problem is that lawyers, especially lawyers for the federal government but also for other parties, have a tendency to fall back on the equality argument and say it does not make sense to have a federal statute that does not apply evenly across Canada. That is often seen as a reason to hold that there is a rule of law to the contrary. A rule of law is not necessarily statute law; it may also be a rule of judge-made law, common law.
For example, in the Canada 3000 case in the Supreme Court of Canada in 2006, the court said that we are dealing with airplanes and it makes sense to have the same law apply throughout Canada — therefore, we will decide that there is a rule to the contrary and that we will not refer to the civil code. I think the idea of necessity in section 8.1 refers to the idea that a federal statute uses private law concepts without defining them and, therefore, it is necessary to go to the private law of the province concerned to find that definition. That is what the necessity is.
Senator Baker: Of recent cases involving, for example, bigamy, which is topical in the news, with respect to section 290 of the Criminal Code, it is necessary to go to provincial law to determine what the parameters or the definition of marriage is. I will ask you to comment on it in this respect regarding a specific comment that was made in a case last month of the Quebec court in Kairouz, 2010 CarswellQue 5497. It is at paragraph 73. It states this:
But one could have thought that the reform of the Civil Code of Quebec, which began in 1991 and came into force in 1994, or at least the adoption by the Canadian Parliament in 2001 of the Federal Law-Civil Law Harmonization Act, No. 1, would provide an opportunity to clarify the issue of the sanction applicable to bigamous marriages. But that was not the case. On the contrary, the debate has since taken another course. The authors fascinatingly said that, since the harmonization legislation prohibits bigamous marriage but does not provide a way of sanctioning a marriage contracted in violation of that prohibition, the question is whether the former theory of non-existence should be recycled . . . .
It is a continuous process, is it not, of interpretation and application?
Mr. Grammond: Yes.
Senator Baker: It becomes increasingly difficult at times when you have this complexity in which you are applying a federal law, but you must apply a provincial law in order to affect a solution.
Mr. Grammond: That is correct. I have not read this judgment, but because of the paragraph number you mentioned, I can assume it is a long one.
Senator Baker: Yes, it is. It is like one of the judgments you are normally involved in.
Mr. Grammond: However, the Christensen case is only three paragraphs.
Senator Baker: Yes, that is right; one page.
Mr. Grammond: However, this particular issue is complex for one particular reason: Marriage and family law is usually seen as a part of private law and, therefore, under provincial jurisdiction. However, section 91.26 of the Constitution Act carves out a tiny bit of that, the very definition of marriage, which leads to a somewhat you could say bizarre situation where you have a civil code in Quebec that regulates marriage, that deals with the consequences of marriage, but that does not define it. That is to be found in sections 5 to 7 of the first harmonization act.
It may be that, as the judge in this case was pointing out, we did not think about all the consequences of enacting a particular rule, a simple rule in this piece of federal legislation without thinking through all its implications with respect to the rest of the civil code and, in particular, with respect to bigamy, if this is the case I am thinking of. Is this a case that was rendered here in Gatineau?
Senator Baker: Yes, it is.
Mr. Grammond: I heard about this story, and it is a highly complex one.
Senator Baker: Yes, it is complex.
Mr. Grammond: It is bizarre at times. It is always difficult.
I understand the perspective of parliamentarians who make laws and who try to foresee the consequences of the laws they are adopting with various situations that may arise. However, we see it is impossible to make specific provisions for everything. There will always be a need for someone who exercises some sort of discretion or judgment in the application and interpretation of the law. That was probably one hard case in which everything had to be turned over and over again.
[Translation]
Senator Chaput: I really appreciate what you have told us so far, professor. Thank you very much, it is very interesting and fascinating to me, as a non-lawyer.
Mr. Grammond: You are welcome.
Senator Chaput: Canada is founded on the coexistence of the French and the English, and the harmonization process allows for the coexistence of the two systems, civil law in French in Quebec and common law, which is the English system. It allows for respect for both systems and treats the two main systems equally. It must not be very easy to deal with one system written in English and the other written in French.
I would like to know, professor, what effect the harmonization may have or has had on the evolution of the terminology. The common law, I assume, at some point, has to be translated into French and the civil law has to be translated or rewritten into English. So what is the effect of harmonization on terminology?
Mr. Grammond: You raise an excellent point. This whole harmonization exercise has been an opportunity to step up our efforts to bring alive the common law in French, because there are actually a million francophones outside Quebec, living in common law provinces, and so a fair number of francophone lawyers practise common law. And you quite rightly point out that for these people, the terminology is quite a challenge because the common law system was developed in English.
As for civil law, the situation is perhaps less one-sided, because the civil law system originated in Latin, and then went on to exist in many different languages, including German, French, Spanish and even languages of other continents. But as far as Quebec goes, there is a tendency to equate civil law and the French language, and this equation ignores the fact that in Quebec, there are many English-speaking lawyers who practise civil law in English.
The harmonization exercise has been an opportunity to ask ourselves questions about how civil law should be read in English and how we should translate concepts where the terminology in French is very well known but is sometimes lacking in English or has not been thought through all the way. At the University of Ottawa, we have, to a certain extent, taken it upon ourselves to encourage the dissemination of civil law in English; and we have a teaching program in English. We also try to produce publications on civil law in English.
Senator Chaput: One final question: In your opinion, has this been a positive initiative to date?
Mr. Grammond: Certainly.
Senator Chaput: To enable both parties to better understand the terminology and definition of the system?
Mr. Grammond: Certainly. There is still a lot of work to do, but we should underscore the efforts made to state explicitly what, despite more than 125 years of living together has never before been said, namely, that there are two private law systems and that we must use the system germane to the province in order to enforce federal legislation.
Senator Chaput: Thank you.
[English]
The Chair: I have a supplementary to Senator Chaput's question.
As I understand it, historically much of the time when federal law was being drafted, the English version tended to use common law language, and the French version tended to use civil code language, whose meaning might or might not correspond. That is why we are studying this.
What has happened in the case of francophone journalists outside Quebec? If I were a francophone lawyer, which you know I am not, pleading before a francophone judge — therefore, pleading in French — in Ontario, which is a common law province, what would happen? Surely there would be difficulties.
Mr. Grammond: Allow me to reference proposed clause 13(1) of Bill S-12, which adjusts or amounts the definition of ``security interest'' or ``sûreté'' in French. As the law stands, a francophone lawyer in Ontario, the definition of ``sûreté'' is ``un droit grevant les biens d'une société.'' That is civil law terminology. The fact that you would use the civil law in French and the common law term in English has the effect of depriving francophone lawyers outside Quebec of access to a French version of their own legal system. That is one thing. Bill S-12 proposes ``droit, intérêt ou charge,'' which is common law terminology.
There was another perverse effect. Hypothetically, if the Supreme Court had before it a section that uses common law terminology in English and civil law terminology in French, the judges could well be tempted to say, ``Parliament intended to refer to the common law concept and adopted a bad translation of it in French,'' thus giving priority to the English version as being presumably the one that best reflected the intention of Parliament. The result of that would be to apply throughout Canada an interpretation that would disregard the civil code. The old approach that you mentioned has a number of detrimental effects.
The Chair: Are you aware of cases where it created a problem? Have the lawyers managed to muddle through probably by using English terms in the middle of a French pleading?
Mr. Grammond: I gave some examples of that during my presentation. In the Canada 3000 case, the Supreme Court of Canada said that it makes sense within the frame of mind of the common law, and would not try to adjust it in respect of the legal tradition of each province. It did so for reasons of convenience that might not be good; I do not know. In the end, the court made judgment, not Parliament.
Senator Joyal: I have two questions concerning the answers that the witness has given.
[Translation]
Let us go back to the example you gave, clause 13, where you very correctly state that a law charging a corporation's property, with respect to the definition of a security, is a concept of civil law.
Mr. Grammond: Yes.
Senator Joyal: If you look at page 61 of the bill, subsection 10, which is in the middle of the page, refers to clause 26 of the bill, which amends the Canada Business Corporations Act.
Mr. Grammond: If I may, I would like to correct you and point out that this is an amendment to the Expropriation Act.
Senator Joyal: You are quite right; this is clause 142, which amends the Expropriation Act. I apologize. If you look at paragraph 10 — and the chair pointed this out yesterday — the English version states:
[English]
26. (10) Where an expropriated interest was, immediately before the registration of a notice of confirmation, subject to an interest in land that was held by the owner thereof as security only, in this subsection called a ``security interest'', . . .
In Quebec, the security interest is ``real security.''
[Translation]
So specific reference is made to the civil law in Quebec.
When you read the French version of the text, there is no mention made of the fact that the definition of ``security interest'' corresponds, in Quebec, to ``real security.'' I will quote the clause in question:
If an expropriated interest or right was, immediately before the registration of a notice of confirmation, subject to an interest in land or immoveable real right held by its owner as security only, in this subsection called a ``security interest'' or, in Quebec, a ``real security'',
By identifying by name the concept in effect in Quebec, are we not creating an exception with respect to the concept of civil law whereas in other statutes, including the one I alluded to, in clause 13, which pertains to the Business Corporations Act, the concept is definitely a concept of civil law in effect in Quebec, but there is no mention made of the fact that this is a concept of civil law in Quebec? Would you not conclude that, by territorializing the concept, whereas in fact the other concepts are not, we are introducing into this harmonization process something which I would not qualify as being a distortion but rather some interpretive ambiguity?
Mr. Grammond: Or some degree of hierarchy? Is that what you mean?
Senator Joyal: Yes, among other things.
Mr. Grammond: There is no way to get around this historic fact that the civil law applies only in Quebec. So, when we want to be specific in federal legislation, we have no choice but to state, when required, that in Quebec, things happen one way, and elsewhere in Canada, they happen another way. I had given another example in my presentation, clause 127 of Bill S-12, subsection 5.
Senator Joyal: On page 44?
Mr. Grammond: Exactly. It says that an interest in land relates to any land in Canada elsewhere than in Quebec and that an immoveable real right —
Senator Joyal: This is in Quebec.
Mr. Grammond: Yes, it is territorialized, but that is because it applies only in Quebec where we have a civil law system. When we really want to direct the reader to the appropriate legal system, one of the techniques that we use is to include this type of drafting in subsections, where we state that in Quebec, this is the concept and that elsewhere in Canada, another concept applies.
I know that this was also done in the Crown Liability and Proceedings Act, where it states, for instance, that the Crown is responsible for ``délits civils'' in Quebec — I am stating this from memory, and elsewhere in Canada for torts.
I do understand that this tends to set Quebec apart in the drafting of federal legislation, but at the same time, it is a recognition of Quebec's specificity in the Canadian legal system. Quebec is the only province or territory to have a system based on the civil tradition.
I do understand your concern, but I think that it is necessary to specify, in certain cases, that such and such a rule applies in Quebec and that another rule applies elsewhere.
There are other cases, as you mentioned, such as the example of clause 13(1), where the terms civil law and common law are juxtaposed, without any indication of whether the terms come under either the civil or common law system. I cannot comment on the specific drafting choices made for each clause, but I think that in cases such as this one, it is obvious, at least it is for a civil law reader like me, that the words ``interest in or charge'' do not figure in civil law and therefore we will not be tempted to apply them in Quebec. In some instances, I would imagine that the people who drafted the bill felt that it was necessary to specify exactly what concept pertained to the civil law and which one pertained to the common law.
Senator Joyal: My next question pertains to an observation that you have made. What is the long-term impact of having two legal systems cohabit in the same statute or same federal system? In other words, what impact has their cohabitation in the same statute had on the way that the two common law and civil law systems have evolved? We always say that Quebec's Civil Code is the French tradition; however, the Civil Code is not just the French tradition of Quebec, it is also a law that combines various concepts inspired by the French system but also by the common law.
Mr. Grammond: Yes.
Senator Joyal: And it also draws from Roman law and customs and traditions that were reviewed, in 1994, and which bear very little similarity to the original model, since we thought that the code was simply the reflection of the Napoleonic Code, or the French Civil Code.
In my opinion, if this system has evolved by drawing upon so many sources, what impact has this cohabitation had on each of the two systems?
Mr. Grammond: You are right. Moreover, this is why we consider the Quebec system as being a mixed system and not what they would call a ``pure'' civil law system. It is difficult to predict the long-term future, but I dare to hope that, by recognizing the legitimate application of the civil law as being complementary to federal statutes in Quebec, harmonization efforts will lead to better recognition of the civil tradition at the federal level as being a component of Canadian legal diversity. Without that, we may be tempted to think that the federal law system is a common law system, when in fact that it is not. It should be a system that equally reflects the two primary legal traditions of the country, namely the civil law and the common law. By doing this, civil law outside of Quebec will be given better recognition, just as civil law in federal jurisdiction matters in Quebec will be.
Senator Joyal: Do you not believe in what I refer to as ``borrowings'' or ``osmotic phenomena'' that can occur, in practice, in the long run?
Mr. Grammond: Certainly. First of all, I do not see borrowing as being something that is fundamentally negative, providing that the decision to borrow be made by Quebec legal experts, through their representative institutions. However, I think that an initiative such as this one will enable us to better understand when we are borrowing, if that is the case, and to better understand the osmotic rationales which you referred to and which certainly exist, but which, if not controlled, could undermine the independence of Quebec's civil law. I do not view this as a threat, but rather an opportunity to understand the existing phenomenon and to monitor it better.
Senator Joyal: The phenomenon also exists in the other direction, namely common law also borrows from the civil tradition.
Mr. Grammond: A little bit, yes.
Senator Joyal: In commercial law, obviously, the basic concepts are drawn from the common law tradition, but there have been some adaptations that have been made all the same, given the particular reality in which commercial law has developed.
Mr. Grammond: Yes, you are right.
Senator Carignan: My question is further to Senator Joyal's question regarding the reference to Quebec. When you go through this bill quickly, you can see that this is not the only place where reference is made to Quebec. Several clauses specifically refer to Quebec. If I am someone who follows the civil tradition, normally, when I read a list of terms, it is this term that will draw my attention as I am familiar with it.
So my question is twofold: I have not seen the other harmonization statutes, but is it new in Bill No. 3 to refer specifically to Quebec in certain definitions or clauses? Is there not a danger in referring to Quebec, not in the way that you describe, but in the sense that if we do not specify ``in Quebec'' in certain definitions, it will mean that it is something else?
Mr. Grammond: First of all, I would say that there is nothing new in this specific reference ``in Quebec.'' I gave the example of the Crown Liability Act which was harmonized; I do not recall whether this took place in 2001 or after. This was done some time ago and we have this separation of ``in Quebec'' and ``elsewhere in Canada.''
Could we make an argument to the contrary by saying that where it is not being specified, we are to assume that we did not mean a different rule? However, no, because of section 8.2 of the Interpretation Act, which states that where a text contains both Quebec civil law and common law terminology, it will use the relevant terminology in accordance with the case. So I think that when we have the words ``right,'' ``interest'' or ``charge,'' it is obvious that, in Quebec, the word ``right'' would apply and elsewhere it would be ``interest'' or ``charge.'' Generally speaking, legal experts have all kinds of tools enabling them to understand Parliament's intention. I think that in a case such as this one, there should not be any major problems.
At any rate, it is better to be specific rather to leave something open-ended; this gives rise to the type of legal saga described by professor Duff in his article.
Senator Carignan: Let us hope that they will use the work done by the Senate and your testimony.
Mr. Grammond: I do not assume to know what underlies your intent, but thank you.
[English]
Senator Baker: What happens when you have the rules of statutory interpretation being applied by the courts, and one runs counter to the intent of sections 8.1 and 8.2?
Mr. Grammond: In a nutshell, what happens is that sections 8.1 and 8.2 are additions to the traditional rules of interpretation. In the same way as we had to develop specific rules for bilingual legislation, now we also have to develop special rules for bijural legislation. It simply makes the statutory interpretation richer.
Senator Baker: More complex.
Mr. Grammond: You could say that.
The Chair: Mr. Grammond, thank you very much. It was a pleasure to have such a learned witness before us.
Colleagues, this committee will meet Wednesday next in this room at 4:15 in the afternoon. Before you go, colleagues, this is Jennifer Bird's last day before she goes on maternity leave, so best wishes.
(The committee adjourned.)