THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Tuesday, December 13, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 9:02 a.m. [ET] to study Bill S-11, A fourth 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 Mobina S. B. Jaffer (Chair) in the chair.
[Translation]
The Chair: Welcome to the meeting. Before we begin, I’d like to ask the senators to introduce themselves.
[English]
Senator Cotter: Brent Cotter, Saskatchewan.
[Translation]
Senator Dalphond: Pierre Dalphond, independent senator, from Quebec.
[English]
Senator Boniface: Gwen Boniface, Ontario.
Senator Harder: Peter Harder, Ontario.
Senator Tannas: Scott Tannas, Alberta.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
The Chair: I am Mobina Jaffer from British Columbia, chair of the committee.
[English]
Senators, today we study Bill S-11, A fourth 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.
Senators, in front of us, we have the Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada. He is accompanied by Riri Shen, Deputy Assistant Deputy Minister, Public Law and Legislative Services Sector; and France Allard, Senior General Counsel, Legislative Services Branch.
Minister, once again, thank you very much for making yourself available at very short notice. We’ve now become used to having you here every week. Welcome, and please present your opening remarks.
Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, Madam Chair. I sometimes joke that perhaps I spend more time here than some of your honourable colleagues.
The Chair: Be careful.
[Translation]
Mr. Lametti: Ladies, gentlemen, and honourable senators, it is a pleasure to be here before this committee as part of the study of Bill S-11 entitled A fourth 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.
Joining me are Riri Shen and my colleague for the past 30 years, France Allard. It’s wonderful to see France here today, because she is a great expert in the field.
I have to tell you that, for 20 or 25 years, teaching was part of my life; I taught courses in civil law and common law at McGill University. Therefore, the issues we’re going to talk about today were part of my daily life.
This fourth harmonization bill supports our commitment to facilitate access to justice, by providing Canadians with access to legislative texts in either official language, civil law or common law tradition.
[English]
As some of you know, I was a professor of law at McGill for almost 20 years, and one of the courses I taught was legal traditions. I also taught property, mainly civil law property but also common law property, as well as other areas of private law, so I’m pleased to speak today on the importance of law harmonization and its roots in the Canadian tradition of legal pluralism.
Bill S-11 will ensure equal interpretation of and protection under the law across our country. As the title of the bill indicates, Bill S-11 is the fourth bill of its kind. It’s also the most comprehensive of the harmonization bills to date. The purpose of the bill is to amend a total of 51 statutes under the jurisdiction of nine departments. These nine departments have worked with the Department of Justice to develop the harmonization amendments proposed in Bill S-11. A significant proportion of the bill deals with the statutes governing financial institutions. The proposed amendments are technical and terminological. The changes resulting from harmonization are not intended to alter the legislative policy underlying the provisions concerned.
[Translation]
While the interventions are only terminological, the harmonization requires an in-depth analysis of the legislative texts in terms of substance. This analysis consists of reviewing all federal statutes and regulations, the application of which requires recourse to provincial or territorial private law, and then reconciling, where necessary, the content so that it incorporates both Quebec civil law and common law notions, principles and concepts.
As you know, in the province of Quebec, private law rights and obligations are generally governed by the Civil Code of Quebec, which came into force in 1994, while the other provinces and territories are governed by the common law.
The purpose of the harmonization initiative is to ensure that each linguistic version of federal statutes and regulations takes into account the civil law and common law traditions. The coexistence and interactions of these two traditions is referred to as bijuralism. This characteristic is a reflection of Canada’s history and its legal and constitutional structure.
The Canadian legal system is a mixed system of law defined in part by its legal pluralism. This pluralism reflects the diversity of multiple sources of law and multiple legal systems that coexist and interact with each other. This includes Aboriginal traditions, orders and legal systems, whether they are Inuit, Métis or First Nations. Bijuralism, which underlies the harmonization initiative, is one manifestation of this pluralism.
Bijuralism has been around for a long time in Canada, long before Confederation itself. In 1774, with the Quebec Act, the British authorities recognized the right of the French-speaking population, living mainly in what is now the province of Quebec, to have a French-inspired regime. As I said a few moments ago, the Civil Code of Lower Canada was published in 1866, one year before Confederation, and was largely founded on the Napoleonic Code, but it contained many changes that reflected the reality of Canada, or Lower Canada at the time.
[English]
Both the common law and the civil law evolved from settlement; then from conquest; then from the Quebec Act; and then, from 1866, the Civil Code; and from 1867, Confederation; alongside each other and interacting with each other at every point.
[Translation]
The Fathers of Canadian Confederation reiterated this historical reality in the British North America Act of 1867. Today, the Constitution Act maintains this reality in Canada by giving the provinces exclusive jurisdiction over property and civil rights. Thus, since the Quebec Act of 1774, civil law and common law have coexisted formally in Canada. As for the territories, their jurisdiction in matters of property and civil rights is derived from a legislative devolution from Parliament.
[English]
Provincial or territorial law generally determines the concepts used in matters of private law. When the federal Parliament adopts legislation that refers to private law concepts, it does so with the knowledge that it is relying on existing provincial and territorial law.
My team joining me today is from the Legislative Services Branch. This branch of the Department of Justice has the mandate to harmonize federal legislation. As I have already hinted, Ms. Shen and Ms. Allard will be able to answer technical questions about the bill. They are the experts. Along with their colleagues, they will do the work necessary, for the purposes of harmonization, in collaboration with the departments responsible for the administration of the statutes and regulations affected by the proposed amendments. Once this first phase is completed, the proposed amendments to the statutes and regulations are developed and then submitted for public consultation.
It’s important to note that harmonization acts are introduced in Parliament after they have been reviewed and commented on by members of the legal community and stakeholders. In my past life as an academic, I was consulted on harmonization of the property pieces and worked on bijuralism at McGill.
[Translation]
Harmonization facilitates access to justice by making legislation easier to understand for Canadians. This ensures an effective and efficient administration of justice across Canada. In doing so, harmonization clarifies the application of federal legislation and reduces the risk and number of unnecessary court actions and, at the same time, the costs of administering justice for all Canadians.
[English]
Harmonization laws are key to upholding bijuralism — a core element of Canadian legal pluralism — and ensuring equality in Canadians’ interpretation of the law. I note that the previous three iterations of this process have all been passed by unanimous consent motions. I hope that this will be the case again today in both of these houses.
Thank you for this opportunity to explain this important but highly technical piece of legislation. My colleagues and I, as I have mentioned, are happy to answer any questions you may have. Thank you.
The Chair: Thank you very much, minister.
I would like to ask you a question. Your government has really progressed on Indigenous issues, reconciliation and other issues. Is your department studying a time when we will also look at Indigenous laws? What progress have we made or what progress has your department made in that area?
Mr. Lametti: Thank you for that question, Madam Chair. Indeed, that’s something I work on a great deal as minister.
We’re at the stage where we are working with a variety of Indigenous leadership, nations, rights holders, regional Indigenous organizations, national Indigenous organizations — Métis, Inuit and First Nations — in a distinction-based approach to revitalize Indigenous normative systems. It’s something that I take very seriously. It’s something that, as a committed legal pluralist — and you can now see evidence that it’s in my DNA from my time at McGill — it is important that we allow legal systems to flourish as they have since time immemorial.
As part of Calls to Action 42 and 50 under the Truth and Reconciliation Commission report, I’ve been investing in Indigenous-led and Indigenous-defined projects to revitalize, resuscitate or strengthen existing normative systems on the ground. I continue to be open to that.
Working through the UNDRIP process now, developing an action plan again with Indigenous leadership in its multiple forms, we are trying to allow again — “allow” is the wrong word — we’re attempting, working with Indigenous partners, to build a base for those Indigenous legal systems to flourish.
At some point, maybe there will be a time and place to recognize more formally the de facto legal pluralism that exists in Canada. I’m hoping to build towards that point.
The Chair: Thank you, minister.
We will now go to the sponsor of the bill, Senator Clement.
[Translation]
Senator Clement: Good morning, minister. It’s good to see you back at the committee. I’d like to thank Senators Dalphond and Dupuis for their fine speeches at second reading in the Senate on this harmonization initiative and also Senator Carignan for his speech as critic. We talked about the history of bijuralism. You really have very direct experience, because you have taught on the subject. So I would like to ask you this question in a very personal way.
How have the harmonization initiative and bijuralism been received in Quebec, particularly by civil lawyers? Where are we with this bill? Will we one day be able to say that we will no longer need to introduce harmonization initiatives and legislation will be drafted in a harmonious manner?
Mr. Lametti: That’s a good question. For the latter part of the question, I will turn to my colleagues to see what the future holds. These are important questions, especially for access to justice for Canadians across the country — francophones, anglophones, civil lawyers and common law jurists — and for a better understanding of the law. I will give some examples that are a little easier for everyone.
[English]
Mortgage is a common-law concept with an interesting conceptual structure.
[Translation]
When it comes to mortgages, it’s the same job in French, except conceptually it’s not the same thing. So how do you draft a law that deals with financing, which is called “secured financing” in English? I will switch from English to French, so I apologize to the interpreters. How do we understand all of this properly?
The same thing goes for terms like “trustee,” “mandatary fiduciary” and “fiduciaires;” these are terms used in the particular context of this particular system. We need to look at how we can harmonize them, because federal law refers repeatedly to either the common law or the civil law. These are significant issues that need to be understood; they’re important for access to justice and for Canadians. When someone buys a house and moves from Quebec to Ontario or vice versa, it’s very important that they be comfortable with the documents linked to the transaction. As to what we have left to do, I will ask my colleague to respond.
Riri Shen, Assistant Deputy Minister, Public Law and Legislative Services Sector, Department of Justice Canada: I’d like to add a few details. In terms of the organization of the Legislative Services Branch, as you know, we practise co-drafting, meaning that there are two drafters for each piece of legislation. We also have several review processes, including bijural review.
[English]
That is to say, all legislative texts are reviewed for bijural elements as we’re drafting them.
One of the challenges is, of course, that before the bijuralism harmonization project started, there was already a legislative corpus in place. One of the main goals of the harmonization project is to take on those large omnibus bills whereas, by and large, most bills and legislative texts are amending in nature so there may not always be the opportunity to provide bijural updates in the course of those bills.
Mr. Lametti: Senator, can I add that on the Quebec dimension of your original question, it’s critically important in Quebec. Why? Because for too much of our history, too much of our law was drafted only in English and then translated into French and drafted only with respect to common law principles.
[Translation]
We’ve changed the system. We are now co-drafting statutes with a civil law and common law sensibility at the same time. This improves the process of drafting and designing legislation. It takes time. It is very important to have equality between the systems and languages, not only in practice for Canadians, but also symbolically for the country.
Senator Clement: Thank you.
Senator Boisvenu: Welcome, minister. I’d like to make a very important introductory remark. When we adopted Bill C-5, you told us that no dangerous criminal would be sent home to serve their sentence at home.
I’d like to inform you that yesterday in Montreal, a criminal convicted of hard drug trafficking, possession of a firearm in possession of a weapon discharging up to 30 bullets was sentenced to two years less a day to be served at home.
This bill ensures that dangerous criminals will never go to prison. I wanted to give you this information.
Mr. Lametti: Senator, it is the responsibility of the judges to determine whether the person poses a threat to public safety. It is the responsibility of the judges to determine that, based on the facts and the context.
Senator Boisvenu: You said that perpetrators of serious crimes would not be serving their sentence at home; but the opposite is true.
Bill S-11 will amend 51 statutes that are under provincial jurisdiction. I’d like to know how the provinces have cooperated in the preparation of this bill and I would also like to know if their requests for amendments have been accepted by your department.
Mr. Lametti: To be accurate, senator, these are federal statutes that are being amended; provincial statutes are not being touched. In this case, it is federal legislation that refers to provincial legislation, to be clear; it is a concept that falls under civil law or common law. So we don’t touch provincial statutes.
We did conduct a lengthy consultation process at every stage, with the bar associations, the Chambre des notaires du Québec and many others. They all had the opportunity to participate in the process.
France Allard, Senior General Counsel, Legislative Services Branch, Department of Justice Canada: In fact, as Minister Lametti indicated, these are federal statutes and they are conceptually based on provincial law. In these cases, in the exercise of its jurisdiction, Parliament always has the option of derogating in whole or in part from a provincial rule of law, which it frequently does, as it did for section 27, for example —
Senator Boisvenu: The provinces were not consulted.
Ms. Allard: All the bar associations were consulted, all the —
Senator Boisvenu: I’m talking about the justice ministers.
Ms. Allard: Justice ministries were consulted once the bill was drafted. All bar associations were consulted.
Therefore, over 400 stakeholders received the consultation materials and had the opportunity to comment —
Senator Boisvenu: I know that the Chambre des notaires du Québec made comments. Have those comments been taken into account? They asked for changes to the bill; have you made those changes?
Ms. Allard: We didn’t go with all of the changes. We very carefully examined all comments we received from everyone to determine if they had any incidence on the bill.
We did go with some changes, several were excluded because we have certain criteria for intervening in terms of harmonization. This means that if a comment is included, there must be no change to the legislative direction found in the text of the law. In addition, the more technical commentary must conform to federal drafting standards, which may not be the same.
We always try to change the statutory text as little as possible, as it is, so as not to create additional interpretation issues if it is completely reworded. We only intervene when a term is not sufficient, for example, if there’s only a common law term to implement the legislative direction. However, if the terminology used is not exactly the same as in provincial law, with the provinces and territories, it’s almost impossible to have the precise vocabulary. The use of the terms in the statute is still consistent with the recognition of the civil law and common law, so that they can be applied consistently without always using the same terms.
In those cases, we don’t intervene. Clearly, when referring to a legal regime, we use the most precise terms possible.
Senator Boisvenu: Thank you very much.
Senator Dalphond: Welcome, minister. It’s a pleasure for me to see Ms. Allard, who got me interested in bijuralism 30 years ago when I was a young Supreme Court justice. I’m glad to see that you have made a career out of it. I think it’s an extremely important phenomenon to recognize the diversity of Quebec, the legal plurality and the distinct and particular system that defines Quebec.
My question is for the minister. Minister, you talked about access to justice and access to federal legislation. Canada’s most important law, the Constitution Act, 1867, contains only seven sections — and perhaps eight since last week — that have been adopted in both languages and have a bilingual version. That leaves a good number of sections, more than 100, that are still official in English only.
What’s the department doing to put an end to this unacceptable situation, which is contrary to section 55 of the Constitution Act, 1982?
Mr. Lametti: Thank you, senator, justice.
I agree with you; it’s something we definitely need to fix. What I can tell you is that the Department of Justice has published a complete French version of the Constitution; it’s not official, of course, but it is posted on our websites.
I hope that by publishing a draft like this, the version will take root. When the time is right, we will make this constitutional change.
Senator Dalphond: Why aren’t steps being taken with the provinces to finalize this process? The texts have been ready for more than 20 years and still no effort has been made in this regard. They gave up after the deputy minister contacted the provinces at one point; since then it’s been at a standstill.
Why won’t the government commit to making an effort to get this part of the 1982 constitutional work completed?
Mr. Lametti: I share your opinion. I’d like to see an official bilingual Constitution. What I can tell you is that sometimes you have to rely on evolution. So, I hope that in the near future and at the right time, we can do that.
Senator Dalphond: As I understand it, with the amendment procedure that has to be followed and the procedure that’s provided for in the Constitution Act, 1982, that means that Parliament could pass a number of sections that are solely within the purview of the federal Parliament by way of a constitutional amendment that would be passed by both chambers.
The example could be set by starting to pass a number of provisions that are only for the federal Parliament and telling the provinces that the time has come to deal with the other provisions together.
Mr. Lametti: That’s true. I’ll think about it.
Senator Dalphond: Thank you, minister.
[English]
Senator Batters: Thank you, Minister Lametti.
I’m troubled by the Trudeau government’s paltry record of transparency about legislative consultation. Senator Carignan had to ask you twice for a list of stakeholders on our Bill C-28 study, and you still wouldn’t reveal what advice those particular stakeholders had given you about direction for that bill.
Now, for this bill, the government conducted legislative consultations in 2017, but Bill S-11 wasn’t introduced in Parliament until five and a half years later. You still haven’t told us which stakeholders were included in those consultations, nor what their advice was. Have the concerns that were raised by stakeholders during those initial consultations been addressed in your legislation?
Mr. Lametti: The substantive answer is yes, those concerns were addressed.
There has been extensive consultation in every single phase. This is the fourth phase of harmonization, a process that began in the late 1990s under different governments. The last harmonization bill was brought forward by Rob Nicholson. As I mentioned before, it received unanimous consent. All of the bills received unanimous consent, and I hope this one will too. There have been extensive consultations with provinces and stakeholders, all the bar associations of each province, and the suggestions made were taken seriously, and many of them were incorporated.
The ones that weren’t incorporated in principle — I am roughly translating what Ms. Allard said a moment ago — were out of the scope of the bill. These harmonization bills are meant to not change the substantive law; they are meant only to harmonize. A number of the changes that were made, including a number of the changes proposed by la Chambre des notaires du Québec, would have actually expanded or changed the scope of the bill. Those kinds of suggestions were not retained.
The other kinds of suggestions as a category that were not retained were those that did not necessarily fall within the drafting practices of the government. To cite an example, the principle of brevity, I suppose, is to state the provision in the shortest way possible, and some of the suggestions that were made would have expanded or unduly complicated a definition.
All of those were taken into account, and the same process was effectively used for every single consultation during the four stages, with improvements made along the way. We are happy to provide a list of stakeholders.
Senator Batters: That would be much appreciated so that we can have an idea of whether the stakeholders’ concerns were addressed or not.
Minister, the Trudeau government’s insistence, then, on forcing this huge bill — I mean, look at the size of it — through the Senate just before Christmas break is indicative of their lack of respect for the work of Parliament. We have extremely tight time frames for turning this bill around, and we haven’t been able to secure witnesses for these hearings because of that, other than officials from your office and department. It is difficult for us to provide sober second thought — actually, sober first thought because you initiated this bill through the Senate — when we don’t have the time or required information we need to hear from a balance of witnesses. Also, we are expected to vote on this bill at clause-by-clause consideration this afternoon.
I have grave concern with us being asked to pass something in such a rushed fashion, when we know there are concerns out there from key stakeholders that our committee won’t have time to hear from and consider. I’m aware that la Chambre des notaires du Québec submitted an application to appear before our committee, but we haven’t had time to receive a translated copy of their letter yet. They have concerns that some federal laws will not be amended by Bill S-11. This group was part of the original 2017 stakeholder consultations, and their letter provides a number of recommendations with technical amendments. Have all of those recommendations been incorporated into the bill other than ones you’ve already spoken about? And if not, why not?
Mr. Lametti: I have already given the answer. The amendments proposed by la Chambre des notaires du Québec were all duly considered. A number of them were incorporated. The ones that were not incorporated either expanded the conceptual or substantive scope of the laws in question or they would have a similar impact. The drafting rules of thumb, as it were, meant that they would have rendered the structure of the translation heavier, more complicated or otherwise inconsistent with other drafting practices.
I have seen the text of a response to those concerns, and I know that text has been forwarded. I don’t know that you have all had access to that yet, but you will have access very shortly.
Senator Batters: Hopefully before clause-by-clause consideration.
Minister, I see in several places in this bill the title for “Her Majesty” has been changed to “His Majesty,” obviously to reflect the change in the monarchy with the recent death of Queen Elizabeth II and the ascension of King Charles III. For example, clauses 528 through 530 reflect such changes to the Cultural Property Export and Import Act at page 180 of the bill.
I’m assuming that Bill S-11 does not contain every such instance in Canadian law where “Her Majesty” must change to “His Majesty” or the word “Queen” must change to “King,” given that such words are considered interchangeable under the Interpretation Act. Why, then, did you choose to include some of those terms in this bill and not other ones?
Mr. Lametti: I will turn to my colleagues for that.
Ms. Shen: You are correct that the Interpretation Act means that references to “Her Majesty” are now considered to be “His Majesty.” As a matter of legislative drafting practice, for any new legislative text introduced since the demise of the Crown, it has been our practice to refer to “His Majesty.”
Senator Batters: Why, then, does this bill include some changes to “His Majesty” but not all of the changes?
Ms. Shen: Because we were only addressing those references that specifically included “Her Majesty.” Those specific references would have been changed, but as you know, throughout the legislative corpus, there are many references to “His Majesty.” As a matter of legislative practice, we only made those changes to texts that were being amended, so the specific provisions that made reference to “Her Majesty,” those references would have been changed to “His Majesty.” For example, if the harmonization amendments to one of the bills that was being addressed did not include references to previous text that read “Her Majesty,” that would not be addressed by way of an amendment to the legislative text before us.
Senator Batters: You are only dealing with those 51 bills? Is that why?
Ms. Shen: No. Of the texts that are being harmonized in the 51 bills, any reference to “Her Majesty” would have been changed to “His Majesty.” But if a bill is being amended, even if the underlying bill includes references to “Her Majesty,” because they were not being modified by this bill, we would not make the change to “Her Majesty” because, as you know, the Interpretation Act addresses that.
The Chair: Senators, for your information, la Chambre des notaires was invited, and they declined. As you know, they have sent a letter. At the end of the minister’s presentation, the clerk will read the letter in. We are hoping to get the translation by 2 p.m.
Senator Cotter: I have not a particularly difficult question today, Minister Lametti. In fact, it’s something I guess I’m interested in learning about. Admittedly, this is quite a fast pace for this bill, but it has been agreed by all the groups that we would move it through expeditiously.
I had the experience before coming to the Senate of working with our mutual friend Daniel Jutras in a substantial rewriting of the code of ethics for Superior Court judges entitled Ethical Principle for Judges. The approach taken in that exercise was very much parallel to what you have described here, which was a co-drafting, as opposed to the previous version which had been written in English and then translated into French.
I have two observations from that. One is that I think, actually, the exercise provided insight into the English language. It wasn’t just maybe the French-language version would be a little better, but the English-language version was good as well. Also, it uncovered not just delicate choices of language between French and English versions but different ways of conceiving the concept.
I’m wondering if you could talk at a general level about the challenge that the Civil Code common law differences create for drafting and thinking about the language that is used. I’m nervous this might invite you to deliver one of your lectures, so maybe we could have the short version.
Mr. Lametti: You have no idea how tempted I am. I’m happy to reflect on parts of it, but I’ll certainly open it up to my colleagues to reflect on it as well.
Years ago, when I got to McGill, I redrafted the Law Students’ Association constitution with a francophone colleague of mine, who is still a good friend and a professor at the National University of Singapore. That was my first experience with that exercise, trying to co-draft and do it in a way where the concepts spoke to each other, even in something as — I won’t say as banal but as straightforward, I would think, as a functioning constitution for an organization. Think about how much more challenging it would be for concepts.
You have to look at the way the systems evolved. The common law, as you know, evolved through judge-made law. There were King’s Bench judges since 1066 — I’ll say that date because that’s what everyone uses, although it was happening before that too — making law on the ground according to cases. Then there is this infusion of Norman terminology after 1066, so you have Norman French. Then there was the constantly borrowing from Roman law. Every time the common law needed to organize itself, it turned to the Roman law tradition or civil law tradition to give itself organizing concepts, and then statutes come in. I don’t want to say there is a jumble, but there is a jumble of sources in the common law and concepts — like a mortgage, for example — developing on the ground with laws through cases in a slow evolutionary fashion.
The civil law tried to do it differently. I’m not saying there weren’t sources on the ground in the civil law too, but the civil law tried to do it differently by taking larger principles from Roman law and trying to rewrite them all in one book. There were original codifications in the first Renaissance in the 14th century across Europe — different kinds of codes being written, whether codes of canon law or civil law. Then in the 19th century, Napoleon tried to do what Justinian did in Roman law, which is to put it all in a series of codes or books in a conceptually coherent way. The civil law has this wonderful architecture to it that is rational and tries to organize it that way.
So you have two systems coming at it from very different starting points. Again, I have characterized the two — but permit me that; I’m an old law professor — so sometimes the interactions are different. Then throw in the language matrix of French and English. The confusing part of it is that a lot of the common law terms were from Norman French, and it becomes a lot of fun.
I’m not sure if any of our colleagues would like to add anything.
[Translation]
Ms. Allard: What I can say is that the exercise itself forces us to establish a dialogue between the two languages. I have a story about that. Two legislative advisors from the branch completely disagreed on how a provision should be organized. The francophone said that it wasn’t organized logically, that it should have been drafted in such and such a way and that it was a new provision. His colleague included all the details, enumerations and even synonyms in the enumerations, which are what you often see in the common law. Once it was explained to both of them that it was better to convey an idea in a text using categories rather than lists of institutions to achieve the same result, one of them said, “Now I understand why we never agree.”
The problem in the federal legislative context, particularly from a harmonization standpoint, is that we’re dealing with a fixed text. It’s different with revisions because then you can play with the text and influence its legislative direction. If you can influence its legislative direction, that means you have to abandon that provision.
There are cases where, by analyzing the text in both languages and reading it in one way and then the other, if you adopt a civilist reading, you may get a different result. However, when you read the two provisions together, sometimes you realize you may be altering the direction of the legislative text itself, so you abandon them because they aren’t saying exactly the same thing. Sometimes you may say the same thing if you do a literal translation from English to French, but you may not get the answer if you read a provision through a civil law lens and based on the way it will be applied. That’s where the legislative direction issue arises.
[English]
Mr. Lametti: May I add one other thing to the question? I guess it shows how personal this is to me.
One of my long-standing friends and colleagues died last week after a long battle with cancer, Professor Stephen Smith. Steve was one of the great contract lawyers in the world. He taught at Oxford and McGill. He had this canned lecture on common law contracts for civil lawyers. The common law contract started with a case, then another case, and another case on an interpretive point, and it ended up being 100 pages long — so 100 pages of boilerplate contracts for commercial settings. The civil reaction was a couple of provisions in the Civil Code and then leaving it to the parties to interpret and bringing those two together.
Again, it’s a caricature, but it is important how the traditions evolved. The wording evolves, and then you have to try to marry the two in some way, shape or form. As Ms. Allard just pointed out, sometimes it is a question of the conceptual organization as well and trusting the interpretation and interpretive principles of the code or trusting the common law and its evolution through cases.
Senator Pate: Thank you, minister, for being here, and thank you, Ms. Shen and Ms. Allard.
I also want to thank Senator Clement for, when she introduced this bill, talking about the Indigenous traditions and cultures that are not part of this but are certainly part of the founding, and also Senator Jaffer for asking that question.
Along those lines, what are some of the processes you are engaged in now to think in advance about not just harmonization but treaty entitlements and, of course, the UN declaration? I was struck by this in a recent conversation with some law students in the University of Victoria Indigenous law program who are thinking about these ideas long before people like me — maybe not you — are thinking about them. I was struck by the idea that it is going to require a whole new conceptualization that maybe isn’t harmonization but some other construct or paradigm. I’m curious about the discussions that might be happening there, because they will certainly have an impact in the future, as Senator Clement rightly pointed out in her speech.
Mr. Lametti: Thank you, senator. This is a question that touches my heart because I believe it is critically important.
We helped fund that UVic program from the Department of Justice. At this stage, we are being supportive in any way that we can — creating the metaphorical space or helping to create the metaphorical space or supporting financially where we can.
The reassertion — maybe that’s the best word — of Indigenous normative systems following the work of — at this stage in the universities, it’s the law faculties. UVic. The University of Ottawa has recently funded a program. The University of Alberta and other faculties like McGill have certain integrated courses. At McGill, it’s now property, where it’s common law, civil law, Indigenous — one third, one third, one third. There is an integrated component and ways of thinking.
We’ll continue to press. I’m hoping that when the law commission is up and running, that this is something they can look at. There is Rod Macdonald’s work on legal pluralism but also John Borrows’ work on weaving indigeneity through the common law. I think John Borrows is the most brilliant legal scholar in Canada — no other adjective. I think the role of the Minister of Justice and the ministry is to facilitate and support that kind of work, and I think at some point there will be another stage of evolution in Canadian law.
Senator Harder: Senator Cotter has given me permission to seek my own edification in my questions as well.
This is a fourth iteration. I’m sure that when the first was done, the Minister of Justice came and said our drafting policy is now, in the drafting process itself, the integration of civil and common law. Could you describe to us, then, why it has taken four iterations, and what is left? In any of these processes, particularly this one, are we modifying laws that were drafted at the time we thought we actually had it fixed in the Department of Justice? In other words, is the fix an ongoing adjustment within the department itself, or has the integration worked such that we can see a finite set of laws that predate that fix? And what time frame do you attach to when we got it right?
Mr. Lametti: That’s a great question.
I will turn to my colleagues momentarily, but I would offer the observation that it was my understanding at the outset that they were starting with property way back and other sort of core private law areas in subsequent steps, because that’s where the distinctions were the most stark and had the most pointed consequences. I would also surmise that there has been an evolution as we have gone through the four iterations, but I will leave it to the experts to weigh in.
Ms. Shen: To address one of the points, as I had previously stated, within the Legislative Services Branch of the Department of Justice, we have had a practice of incorporating as we were drafting new legislative texts. For example, any new bill or new regulation would include a bijural review to ensure that those concepts are being incorporated. There is ongoing training for legislative counsel —
Senator Harder: From when did that date?
Ms. Shen: I believe that dated to about the year 2002.
Senator Harder: It is relatively recent?
Ms. Shen: It is relatively recent.
With respect to the legislative corpus that existed at the time, that is the analysis that started when this project was first initiated in the mid- to late 1990s. There was analysis of ongoing different areas of law where we thought that there were more likely to be bijuralism concepts that needed to be harmonized.
The legislative corpus is always changing and being added to. That adds additional layers of complexity in terms of whether the opportunity is the right time to — if a bill is being opened, we would consider is there an opportunity to harmonize? We are always looking for the most efficient and effective ways to make sure that we have those concepts harmonized but, depending on the nature of the project, that may not be —
Senator Harder: If I have time for one supplemental, are you confident that the laws that Parliament passed since 2000 have incorporated that bijural approach, or are we going to have to review some of those early laws because, in a sense, even that concept has evolved?
Mr. Lametti: My understanding is we now codraft. We have internalized, if you will, the lessons of these processes. They are codrafted now, French-English as well as common law-civil law, where appropriate, to the extent that is necessary.
Senator Harder: Thank you.
Senator Clement: I have a question for the minister.
I am sitting here listening to you and remembering my first day of law school. I studied here at the University of Ottawa. I remember my first day of law school. I was going to study both systems. We have two legal systems in this country, and I wondered what it was going to be like in terms of studying it and understanding two very different systems. Does it give us an advantage internationally to have two legal systems, and now this tapestry of Indigenous language and legal systems that we are going to reassert? It is complicated. Does it give us an advantage to be able to deal with that complexity, or not deal with it sometimes?
Mr. Lametti: Absolutely. I speak to the experience of having taught at a law faculty that integrated, as much as possible, these two traditions and is now working on the Indigenous side. It’s, I suppose, a matter of fact, but it’s a matter of fact that I’m quite proud of, that we had quite an international profile in terms of the careers of students. They would go off to other countries. They would go off to the United States and Europe. They would go off and practise human rights law at The Hague and other places. They would come back and say the fact that they can move easily between common and civil law, or to think — back to Senator Cotter’s point about thinking — in different systems and the ability to move easily between those systems was an advantage in terms of explaining law to a client or making a case or doing public service work. It was very interesting.
I would also point to the history. The University of Ottawa is an example, and McGill is another example. We went from a faculty in the 1970s that was teaching two legal systems side by side at the same time to a faculty that began to — and this was when I got there as a student — flirt with teaching the two together a bit, and then making a radical change — as we did, and as I participated in as a young professor — to really integrate the basic private law courses.
There you saw an explosion of thinking, which was very interesting. I would say to you that a lot of the private law scholarship that came out of McGill as a result was cutting edge in the world. Again, it was a just a way of thinking across systems that wasn’t being done anywhere else. Now there are other models, and now there are other models with respect to Indigenous thinking. I cited John Borrows — and I would cite him again — which, again, pushes the way our brains work, quite frankly.
Sorry to be a geek here.
Senator Clement: Oh, no. Go for it.
Mr. Lametti: It was fun to participate in and fun to watch and fun to think about. It is one of the things that I miss.
Senator Clement: Thank you.
Senator Batters: Minister Lametti, I would prefer if we could have clarification from your department, if not you in particular, about where this assumption that harmonization amendments have to be technical in nature and not substantive comes from. We asked the Library of Parliament about that assertion, because this particular part was included in the technical deck on Bill S-11 sent to us by officials. It said:
Harmonization amendments are technical in nature and noncontroversial and are not intended to alter the legislative policy underlying the targeted provisions.
The Library of Parliament’s answer was interesting on this. Roughly translated, no document from the federal Government of Canada has been found that would describe the existence of a rule or a principle that a federal law harmonizing federal law with the civil law should not make substantive changes to the federal laws.
Could you provide us some detail as to where that comes from and what the substantive reason is for that and the justification?
Mr. Lametti: I will let my officials confirm, but I would say that it was likely a policy decision made. Obviously, Parliament is sovereign, right? Parliament can change whatever it wants, and it can change things technically or substantively in any legislative project. This is a legislative project. My guess is that — it is an educated guess, but it is a guess nevertheless — the policy decision was made at the outset in order to proceed as expeditiously as possible with as much harmonization as possible given the scope of the task without raising substantive questions so that, as I mentioned, we could get through the first three iterations of this act with unanimous consent motions because, again, it is sticking to technical matters. When you move to substantive matters, there should be more room for substantive debate and substantive evaluation of changes in question, and that’s a different order of things which requires more time, evaluation, et cetera. I suspect that that was the basis for the policy decision made at the outset.
A lot has been done. The volume of work that has been done on this over the first three iterations, and now the fourth, is nothing less than massive. Sticking to technical allows that to be done efficiently and expeditiously. I do not know if you would like to add to that.
Senator Batters: When you say that a policy decision made “at the outset,” are you talking about the year 2000?
Mr. Lametti: It sounds like that would be the nature of it. I am happy to —
Senator Batters: Twenty-two years ago. Okay.
Mr. Lametti: Obviously, there has been evolution, but it has been sound. It has been presented by different governments of different stripes. As I mentioned, Rob Nicholson did the last round.
Senator Batters: Eleven years ago.
Mr. Lametti: We are all proud of the work that has been done over the course of this time.
Senator Batters: Thank you.
[Translation]
Ms. Allard: To answer the question, there was no formal mandate at the outset that we’ve been able to trace ourselves. The program was introduced in 1995, but the Department of Justice adopted a policy of applying the Civil Code of Quebec to federal government activities in 1993. A program was established at that time to update federal legislation based on the amendments made to the code. We can’t say that it happened in 2000 because the work actually started in 1995 in a unit called the Civil Code Section.
Policies were established at the time on how to harmonize the statutes and to prepare a plan so the departments potentially concerned by the amendments would accept all of that more quickly, since they’re all responsible for their statutes. It was an initiative of the Department of Justice Canada and the government of the time.
Traces of those policies are apparent in the speech that Judge Anne McLellan gave when the first bill was introduced, in which she said that this criterion was one of the most important; that is to say that the technical criterion doesn’t alter the legislative direction, substance or very foundation of the bill.
That principle has always been upheld and used to convince the departments to open their laws. It was also a very important principle for the Department of Finance. That principle, which we have maintained over the years, was established by the initial mandate of the Civil Code Section.
I have to say I’ve looked for information too. I thought it might exist. One of my colleagues did what I would call archaeological research, but, in the end, all we could find was what was in the initial policies that were designed to advance what was initially considered a program. It was a regular activity of the Department of Justice, but it became a program starting in the 2000s. That’s when I was hired as an expert and when the legal review service was established.
To answer Senator Harder’s question, even though the legal review service was established in 2002, it took many years of transition for all the departments and drafters to understand. In 2006, John Mark Keyes, the first legislative counsel, assigned me to review all the statutes that the Department of Justice had adopted to determine whether any corrections should be made, because the drafters had often failed to follow established processes. The necessary measures had to be taken at that time.
The purpose of legal review was to determine that, if we didn’t completely evaluate new statutes, we would always have to ensure harmonization, because we would always be making corrections. That was one way of saying that there was an existing body of laws, a transitional body, and that, once we had surveyed it all and new laws were passed, that would eventually make the law evolve.
[English]
Senator Batters: 1995 was the year I was called to the bar, so I don’t like the reference that you had to do archaeological digs in order to find that sort of thing, but thank you.
Ms. Allard: I’m sorry.
Mr. Lametti: I would add, senator, that I turned down a job offer from this department in roughly 1996 as I was starting my career. Maybe it could have been different.
The Chair: Minister, I understand you have also received a letter from la Chambre des notaires, and you’re going to respond to it and send us a copy before clause by clause. Is my understanding correct?
Mr. Lametti: That is my understanding as well, Madam Chair.
The Chair: Will you send it?
Mr. Lametti: Yes.
The Chair: Thank you, minister, and thank you for being here. As this will probably be our last meeting with you this year, we wish you a happy holiday and a happy new year. Thank you for being here so often. We will continue our meeting with the officials.
We can’t distribute this letter until it is translated. Some of you might want to know what they have to say. The clerk has kindly agreed to read it to you so we can get an interpretation, or they have said they will try to give us a translation by two o’clock. What would you like, committee members? The clerk has said it will take seven minutes.
Senator Harder: Seven minutes isn’t that long.
The Chair: Okay. We will have it read. Thank you.
[Translation]
Mark Palmer, Clerk of the Committee: This is the letter from the Chambre des notaires. We should receive the translation around 2:00 p.m.
To the members of the Standing Senate Committee on Legal and Constitutional Affairs
Subject: Comments of the Chambre des notaires du Québec on Bill S-11, A fourth 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
In May 2017, the Chambre des notaires was pleased to be involved in the consultations on the fourth series of proposals to harmonize federal law with the civil law of the province of Quebec and to amend certain Acts to ensure that each language version takes into account the civil law and the common law.
The Chambre des notaires welcomed the federal government’s efforts to recognize the unique role of notaries in Quebec as part of this harmonization initiative. However, it suggested adjustments to the proposed measures that would ensure certain sections of the law would better correspond to the concepts of civil law and notarial law. The Chambre des notaires wishes to reiterate one of its proposals, which Parliament did not incorporate into Bill S-11, A fourth 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 (Bill S-11).
Section 27 of the Canada Evidence Act addresses notarial acts in Quebec specifically. Clause 520 of Bill S-11 amends that section as follows:
520 Section 27 of the Canada Evidence Act is replaced by the following:
Notarial acts in Quebec
27 Any document purporting to be a copy of a notarial act made, filed or registered in Quebec, and to be certified by a notary or clerk to be a true copy of the original in his or her possession as a notary or clerk, shall be admitted in evidence instead of the original and has the same force and effect as the original would have if produced and proved, but it may be proved in rebuttal that there is no original, that the copy is not a true copy of the original in some material particular or that the original is not a document of any nature that may, by the law of Quebec, be taken before a notary or be filed, enrolled or registered by a notary in that province.
However, the Chambre des notaires noted in 2017 and would like to reiterate now that the wording of this provision should be revised to eliminate any possible ambiguity and to ensure that federal law concords with Quebec’s Notaries Act (CQLR, c. N-3) and the Civil Code of Québec. This is especially important because the Civil Code provides that a notarial act is an authentic act in which the recital of the facts that the notary had the task of observing or recording makes proof against all persons. Accordingly, the Chambre des notaires proposes amending section 27 by taking into account the following provincial legislative provisions:
Sections 34, 35 and 38 of the Quebec Notaries Act:
A notarial act is executed en minute or en brevet. Only the act en minute is deposited and preserved in the notary’s notarial records, and only from it can authentic copies or extracts be issued. An act en brevet is executed by a notary only in the form of one or more originals, and no authentic copy of or extract from it may be issued.
Recommendation: Use the term “notarial act en minute”
Section 34 of the Notaries Act provides that a notarial act is executed en minute or en brevet.
Recommendation: Replace “made, filed or registered” with “executed”
Article 3110 of the Civil Code of Québec:
A notarial act may be executed outside Quebec before a Quebec notary if it pertains to a real right the subject of which is situated in Quebec or if one of the parties is domiciled in Quebec.
Recommendation: Strike “in Quebec” in the first sentence of section 27.
Articles 2815, 2819 and 2820 of the Civil Code of Québec and section 55 of the Notaries Act (c. N-2):
For a copy of a notarial act en minute to be authentic, it must be attested. The copy is certified true by the notary who executed the act or any other person who is its legal depositary. This copy is authentic and makes proof of what was in the minute.
Recommendation: Replace “certified by a notary or clerk to be a true copy of the original in his or her possession as a notary or clerk” with “certified true copy”
The notarial act makes proof against all persons. As a result, it does not need to be proved. The same is true of an authentic copy. Recommendation: Strike “would have if produced and proved”
Articles 2815 and 2816 of the Civil Code of Québec and articles 486 to 488 of the Code of Civil Procedure:
An authentic copy makes proof against all persons, and the fact that the “original act” is lost has no effect on the validity of the certified true copy.
Recommendation: Strike “that there is no original”
In summary, in order for the Canada Evidence Act to be harmonized with the legislative provisions on notarial acts and true copies, the Chambre des notaires again proposes the following wording for section 27:
Any document purporting to be a copy of a notarial act en minute executed by a notary of Quebec, and to be a certified true copy, shall be admitted in evidence and has the same force and effect as the original, but it may be proved in rebuttal that the copy is not a true copy of the original in some material particular or that the original is not a document of any nature that may, by the law of Quebec, have been executed by a notary of Quebec.
The Chambre des notaires remains available to answer any questions you may have.
[English]
The Chair: Thank you.
I have a question for the officials. I don’t think I’m putting you at an unfair advantage in that the letter has just been read. I think you know of this issue, and the minister also touched on it. Can you respond to what was said by la Chambre des notaires?
[Translation]
Ms. Allard: We actually considered this proposal — as we have all other proposals of the Chambre des notaires du Québec — regarding our previous work, their previous comments and this letter, which reiterates their proposals even more precisely.
Going back to the criteria for harmonizing laws, the proposal essentially didn’t meet our harmonization criteria.
First of all, the purpose of the request by the Chambre des notaires du Québec isn’t to harmonize federal legislation in English and French with the civil law of Quebec. My understanding is that it concerns notarial acts in Quebec. I can understand their concerns, but the idea that notarial acts are drafted in a manner perfectly consistent with the Notaries Act and the Civil Code of Quebec isn’t the preferred approach because the idea isn’t specifically to include Quebec’s evidence rule.
On that aspect, if we examine the wording of section 27 as proposed, and if we accept the proposal of the Chambre des notaires du Québec, that would have an impact on the scope of the application of section 27, which is a derogation from the law of evidence as drafted in Quebec, including in the Notaries Act and the Civil Code of Quebec. Some aspects have been circumscribed in section 27 and others expanded.
In addition, the form in which the provision was drafted is inconsistent with our drafting standards, starting with an established text and the legislative policy appearing in the text.
Since we absolutely understand the concerns of the Chambre des notaires du Québec, we aren’t taking their proposals into account out of a lack of respect. We also understand that a notary may receive notarial acts outside the province of Quebec, but the evidence rule adopted in the Evidence Act is the one that applies solely to acts received in Quebec. Consequently, that’s where a change of legislative direction appears in their proposal.
[English]
The Chair: Thank you.
I have a second question, which I asked the minister as well. What are you doing at the department or the ground level to look at Indigenous rights and how we will bring them into harmonization? It may not be harmonization, but what work is being done to look at this issue of Indigenous law?
Ms. Shen: Thank you for the question.
As the minister noted, the government is currently in the process of developing an action plan with respect to the UN declaration. More broadly speaking, we’re in the early days of considering the issues around Indigenous legal traditions and how they might interact with common and civil law. We’re still in the early days of how that might be integrated in the future. I do think that the tradition of bijuralism in Canada, though, helps us in that path because it already is a manifestation of legal pluralism in Canada, and that will help us in terms of our path to further reconciliation principles around Indigenous legal traditions.
The Chair: We will now go to the sponsor of the bill, Senator Clement.
[Translation]
Senator Clement: I’d like to go back to the proposal by the Chambre des notaires du Québec. I’d like to understand the kind of comments that your department would agree with, if we compared it to the present situation in which the department doesn’t agree. Can you cite some examples?
We accept the fact that this is complicated. I know this isn’t all that was retained, but since certain suggestions were retained, perhaps you could give us an example of what was retained?
I’ll continue right away with the second part of my question. Would it be possible for you to contact the Chambre des notaires du Québec and answer this letter and explain to them the reasons for the decision that was made about which of their suggestions were or were not retained, if that’s the case?
[English]
Ms. Shen: We can certainly respond to la Chambre. We will have to look more closely at the proposals to see if the response might be covered by certain — for example, I don’t know that this is the case, but I could see the example where perhaps it is covered by either solicitor-client privilege or cabinet confidence, but I haven’t done that analysis. Perhaps I can leave it to Ms. Allard.
[Translation]
Ms. Allard: I would have to look at each of the documents and consider each comment, but I do want to say that, on the whole, we appreciate the comments provided by the Chambre des notaires du Québec. We have always been mindful of those considerations. We have notaries on our own team, so we do pay attention to the unique nature of the bodies of professionals who practise law in Quebec. The Chambre des notaires du Québec is a very important body, and it’s very active when it comes to publishing information and sharing knowledge. It also does a lot of work in Quebec to help educate people on the law and protect the public.
It’s really done a thorough job, so we want to thank the Chambre des notaires du Québec. The effort it went to in providing so many comments is a testament to its commitment to bijuralism.
Silly as it may be — but that’s how it is with harmonization — it always comes back to our criteria, and we went through all the criteria one by one. The recommendations fell under a number of different categories. If we had implemented the Chambre’s recommendations for section 27, for instance, it would have changed the underlying legislative policy. The recommendation sought to change the content of the provision, so it went beyond a substantial analysis resulting in a terminology standard. The recommendation would have changed the very basis for the provision or part of the legislative policy underlying the provision. For that reason, we did not take those changes into account.
Other recommendations had more to do with drafting. As my colleague Riri already mentioned, federal legislative texts are based on the federal government’s drafting standards. If you compare Quebec statutes with federal ones, you see that they don’t follow the same structure and that they aren’t drafted in the same way. The combination of common law and civil law also affects how statutes are drafted, in accordance with prescribed standards. There is a lot of history behind how legislation is drafted, and that is something we have to take into account.
We really said no to recommendations that involved drafting because, in some cases, they would have meant rewriting the provision completely. If a preference for a certain term requires that the provision be redrafted, it means that the existing legislative text is being changed too much, and that could potentially affect how the provision is interpreted.
However, we did implement some of the recommendations. One of them came from the Chambre des notaires and Justice Québec; it involved the Bank Act and the definition of “real property brokerage entity” — or “courtier immobilier.” In our recommendation or our revisions, we hadn’t defined “real property brokerage entity” correctly in Quebec. Because the error had to do with how we had addressed the issue of bijuralism, we were able to fix the mistake without changing the policy underlying the legislative provision. We had used the wording “agent or mandatary” — which is used everywhere so using it can be a reflex — but the term “agent” isn’t always rendered by the term “mandatary” in French.
The provision needed to be adjusted to refer to “provider of brokerage services,” which is the basis for the real estate broker relationship, whereas in common law, the relationship is based on the concept of agency. More significant recommendations as well as more minor ones were also implemented when they didn’t affect how the provision was drafted or how the text was structured. For example, that was the case involving one of the provisions that refers to “letters and verification, letters probate.” A lot of clarification was needed, and they suggested removing certain words to make the text clearer, and that’s what we did. We went through all of them, one by one, reviewing them against predetermined criteria, in order to achieve harmonization.
Senator Clement: I’d like you to clarify something, please. Did you say there were notaries working for the Department of Justice?
Ms. Allard: We have notaries on our team. That’s always been the case.
Senator Clement: I see. Thank you very much.
Senator Dalphond: As I recall, Anne-Marie Trahan, a former associate deputy minister of civil law and legislative services, even recommended that notaries be eligible for the title of Queen’s Counsel — or King’s Counsel today. She wanted to recognize the specific character of Quebec’s legal system. I realize that the Department of Justice has notaries on staff, but they are different from what are known as notaries public in other provinces. They aren’t the same thing at all.
That brings me back to the Chambre des notaires’s letter. I really want to thank you for the Clause-by-Clause Analysis the department put together. It’s quite helpful. I gather from your remarks that you actually don’t want to change the content of the Canada Evidence Act. All you want to do is harmonize section 27 of the act with the new terminology used in Quebec, replacing the term “prothonotary” with “clerk” and “notarial instrument” with “notarial act.” They are terminological changes, not substantive ones.
The first of the Chambre des notaires’s recommendations had to do with the difference between deeds executed en minute and those executed en brevet. I understand the rationale, but I also think that only deeds executed en minute are part of a notary’s records, not deeds executed en brevet. A copy of a document made by a notary is necessarily a document en minute. If it were a document en brevet, it would not be kept, so it would not be possible to make a copy.
On one hand, it’s an understandable clarification from the notarial standpoint, but it doesn’t actually change anything because section 27 can apply only to a document en minute. On the other hand, while the recommendation provides greater clarity, it may be somewhat redundant. I agree with what you’ve proposed.
The Chambre des notaires goes on to recommend referring to a notarial act as being “executed” instead of “made, filed or registered.” The language you’re using is more comprehensive than what the Chambre des notaires is recommending.
That brings me to the Chambre des notaires’s third recommendation, which has to do with property in Quebec. Let’s say a Quebec notary goes to Florida to see a Quebec client who is selling their cottage in Quebec. If the notary has the client sign a notarial act — which would be a deed en minute — the document is perfectly valid, even if it’s not executed in Quebec, because the property is located in Quebec.
In such a case, the notary has to file the executed deed with Quebec’s land registry office and may then issue copies, since the notary will have a copy of the document or the original in their records. In that sense, the amendment proposed to cover situations in which acts are not executed in Quebec refers to acts that are “made, filed or registered.” That wording probably captures those situations, then, since the act in my example would be executed in Florida, but registered in Quebec with the land registry office. Copies could then be issued, and a copy of the deed en minute and the declaration in the register could probably be filed.
The clarification that the Chambre des notaires is recommending may have its place, but unless you tell me otherwise, to my mind, section 27 captures the situation in my example, where the act is executed in Florida and registered in Quebec; that is now referred to as “published” in Quebec. The concerns that the Chambre des notaires is raising seem to have more to do with terminology and are covered by the bill.
If I understand correctly, the Chambre des notaires’s other recommendation concerns the wording “if produced and proved” and the fact that a notarial act does not need to be proved. As I understand it, the word “proved” is sufficient, so between “produced” and “proved,” one of the words may be unnecessary. However, that doesn’t need to be changed if the point is not to amend the Canada Evidence Act, as it currently stands.
In conclusion, Ms. Allard, I am reassured by your explanations. Although serious, the Chambre des notaires’s concerns are adequately captured by the current wording in the bill — unless I misunderstood and failed to recap your position accurately, that is. Correct me if I’m wrong for the benefit of the notaries following the committee’s proceedings, because there’s still time. If not, though, I don’t think it’s necessary to make the amendment that the Chambre recommended.
Ms. Allard: Thank you, Senator Dalphond. That was well said.
Senator Dalphond: Thank you, Ms. Allard.
[English]
Senator Batters: First of all, I want to ask about the very last point that Senator Dalphond was raising. Perhaps it was lost through translation, but I heard him say something referring to at least one of the concerns of la Chambre des notaires du Québec, and I think it was translated as “a matter of terminology rather than a real concern.” Isn’t it these matters of terminology we are supposed to be addressing in this bill?
[Translation]
Ms. Allard: We are trying to capture substantial issues, because what we did was a substantial analysis. We have to keep in mind the legislative policy underlying the provision and scope of the application. That is captured in the terminology, but if we were to rewrite the provision, that would go well beyond what we are supposed to do. The fact of the matter is that, achieving the same result content-wise as would have been achieved by using the very specific terminology in the Quebec Civil Code and Quebec’s Notarial Act would have meant completely reworking the legislation.
Doing that would have affected the underlying legislative policy. For instance, in the wording “made, filed or registered in Quebec,” the clarification “in Quebec” captures the possibility that the act was made in Quebec, but also the possibility that it was filed or registered in Quebec. However, it rules out the possibility of the document being executed outside Quebec, simply to make things easier evidence-wise. The Canada Evidence Act already stipulates, in section 40, that, in principle, the applicable rules of evidence are those of the province or territory in which the proceedings are taking place and where the matter is being interpreted, but the other sections of the Canada Evidence Act provide for exceptions. In this case, they are partial exceptions, the essential elements of the nature of the profession practised by notaries are there. The Chambre des notaires’s recommendation to remove the reference to a notary or clerk would mean that any public officer would be authorized to certify a document as a true copy of the original.
That isn’t what the rule in the Canada Evidence Act stipulates, however. Only a clerk or notary can do that.
[English]
Senator Batters: I’m sorry. I missed part of the translation so ably done by our clerk, but I got the gist of it, I think. In listening to that letter with the concerns of la Chambre des notaires, this is primarily dealing with notarial deeds and those types of things, not what I had earlier understood were the concerns that your department was talking about that were too broad in scope and concerns that had been brought up by this organization. Those were things dealing with the terms “fiduciary” and “personal representative” and things like that. Obviously, this is quite a different concern that they are expressing here. Am I correct in understanding that they were pointing out different parts dealing with notarial deeds and very specific wording changes that they are seeking here, and they are pointing to the Civil Code of Québec? The very title of Bill S-11:
A fourth 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.
Am I correct in understanding that the reason you are not recommending a change for those types of matters that they are addressing here is that they are wanting changes which would affect a provincial law of Quebec? What is the reasoning? They are dealing specifically with the Civil Code, so I don’t understand why you don’t think this is a good idea.
Ms. Allard: They are not asking us to change provincial law. They are asking us to change the federal provision, and when we harmonize that federal provision, we look to whether our intervention will change the substance or the basic underlying policy.
What we have here is an evidence rule in a federal act. We are not seeking to change a provincial law; we are seeking to take it into account. Then how the provision is drafted here does not have to be in formal adequacy with the language of the code or of la Chambre des notaires because we don’t have to reproduce everything. If we wanted to reproduce everything, there wouldn’t be such a provision in the act because of section 40, which refers back to provincial rules of evidence.
This here is a mini derogation from some of the elements of the rules in Quebec, but in the end, the main elements of their concern are terminological, and some of the changes they are making are going to either broaden who can certify that an act is a true copy or, in other circumstances, allow for a notary — like they can do now, and it is going to be valid here — to certify an act when they are outside of Quebec.
As Senator Dalphond was saying, with having — I’ll read it — “made, filed or registered in Quebec,” it is going to eventually be registered in Quebec if it is done outside. It is just to facilitate proof that the “au Québec” or “in Quebec” is there. If we had just “reçu Québec,” there is an issue because the notary outside Quebec would not have been able to — here he can receive the act, but we don’t recognize that reception. We are waiting for the registration as a matter of proof.
It is little things that are a derogation. I wasn’t there when the policy was made, but in reading the policy, when we look at the impact of taking their proposals into account, it would change some of the policy issues as to why the provision was drafted.
Senator Batters: So those earlier comments that were made about “fiduciary” and “personal representative,” those types of things, were those also concerns that this same organization had brought forward but, perhaps, dating way back to 2017? Where did that come from? Was that a different organization?
Ms. Allard: With “fiduciary” and “personal representative,” la Chambre des notaires did bring it forward to have a definition of “représentant,” “representative.” In the financial institution legislation, it had a definition of “fiduciary,” and the word that was chosen as the defined word is “représentant.”
Senator Batters: I understand. I was just wondering, was it the same organization that brought those concerns forward that you were earlier referencing?
Ms. Allard: They brought the concerns about having the true representation as it is understood in Quebec as the definition of “représentant.” Yes, they did raise it, but this one is a truly substantial change, which we refused. In corporate legislation, in the Canada Business Corporations Act and other corporate legislation, the words that are always defined are “representative” and “fiduciary,” which go to “personal representative” later. Then you have so many occurrences, and it goes way beyond just a representative, according to Quebec civil law. But they did raise it.
Senator Batters: That’s what I was wondering about, yes. I certainly am aware of “fiduciary” and “personal representative,” and the implications of that. I just wondered, because that was the initial thing you were speaking about today, and we didn’t hear anything about notarial deeds until the clerk read this letter, so I just wanted to get that cleared up.
Earlier, when you were responding about why you weren’t taking some of these considerations and implementing them in this bill, again, through the translation, it came through as stating that it was “not in accordance with your drafting standards.” As I’m sure you will be very well aware, legislative drafting is a very particular expertise and is something that almost no one in Canada has. Very few people have this type of expertise, so to expect someone from an organization to comply with exact drafting standards would not really be reasonable. Obviously, that would be something for an organization to bring the ideas to you, and then you, the ones with the expertise in legislative drafting, would be the ones to implement that. Would you concede that that is something that can be worked with if the general idea is good and complies with the different components that you must ensure it complies with?
Ms. Shen: Thank you for raising that point.
I would say “les normes rédactionnelles.” That is more akin to what we would call drafting conventions rather than standards. As you rightly note, legislative drafting is a highly specialized area. There is some flexibility. We are not machines. We wouldn’t come up with the same legislative text even given the same instructions. But that said, yes, it is always part of the analysis, the extent to which the proposed amendment or terminological change would affect how we draft federal legislation. It is not a question of a standard, per se, but in the analysis of the impact that the proposed change would have or not have. It may be that it is not considered necessary because the way we would interpret the law would cover the proposed change.
Senator Batters: Lastly, Ms. Shen, earlier you were answering a question, and I think you said something like you weren’t sure if you could provide that answer because it may be covered by solicitor-client privilege or cabinet confidence. Could you expand, because I didn’t understand.
Ms. Shen: I apologize for that. That was a hypothetical situation. I’m not aware of the details of the points raised by the la Chambre, so I would turn to my colleague to answer that.
Senator Batters: So you are saying that it likely wouldn’t be covered by either of those types of —
Ms. Shen: I don’t know, because, as I said, I have not done or been engaged in the analysis of those comments on a personal level.
Senator Batters: Thank you.
Senator Harder: Elmer Driedger, who is the most famous drafter, who became deputy minister, was associated with what became known as the Driedger “modern principle” of courts having to look beyond the legal interpretation of the text to Parliament’s debates, in some references, or the context in which the law was adopted.
I’m just wondering, to what extent in the bijuridical process of improvement you actually had to apply the principle and figure out what it is that Parliament wanted in the context of the matter before us that we are adjusting, or is it simply a technical legal adjustment? In other words, has how Parliament viewed the law in its original adoption been considered in the application of, in most cases, civil law?
[Translation]
Ms. Allard: Thank you for your question, senator.
As I explained, the changes we made were terminology changes. Almost every single time we look at an act, examine a legislative text and identify potential issues, we scrutinize the text from an interpretation standpoint before making any recommendations. We apply the same interpretive mechanism that a court might. In other words —
Senator Harder: Debates as well?
Ms. Allard: No, a court.
[English]
But no debate. How would a court look at this, or any other interpreter? You have to start with the text, which is what we do. We start looking at the text, but you can’t limit yourself to the text. Then you have to look at the context of the legislation, the purpose of the legislation, the entire context and so on, and we do that exercise for each provision. When we are not sure about the outcome, because it is not our legislation — we are not the expert on that legislation — we deal with legal services who work with the responsible departments. Often, we propose something, or in other situations, it is so not clear that we say, “If this is our reading, this is what we would do, but if we are wrong and this is the other reading, this is what we would do. Can you confirm, or is there another reading or another practice that you know about?” For each provision, it’s a real interpretation issue, not only of words. Then when we read the thing, if we don’t need to add words and so on, we don’t, because the idea is de minimis. It is a substantial analysis, which becomes a technical bill, which manifests itself in terminology.
Senator Harder: Former Senator Baker would be pleased.
[Translation]
Senator Dalphond: I have one last question about the Chambre des notaires’s recommendations.
I reread what was being proposed, and I see that the Chambre wants to remove the reference to a clerk or prothonotary. That would mean that only a notary could certify a document as a true copy, whereas section 27 captures copies made by a notary or prothonotary — now a clerk, under the new terminology.
What are you trying to capture with the reference to a “clerk” that the Chambre des notaires is not?
Ms. Allard: No, it’s about how we looked at it. The Chambre des notaires wanted to replace “certified by a notary or clerk to be a true copy of the original in his or her possession as a notary or clerk” with “a certified true copy.”
Initially, the idea was to capture notaries and clerks. Removing the reference to a notary or clerk would broaden the category of individuals who could certify a copy of a notarial act to include any public officer, which is allowed under Quebec civil law.
Not referring to a notary or clerk would broaden the category of individuals with the authority to certify a document as a true copy. Currently, however, only a notary or clerk has that authority, which would no longer be the case if the reference were removed.
Senator Dalphond: I see. The Chambre des notaires’s recommendation would change, and possibly broaden, the scope of section 27. At first glance, I wondered whether it would restrict the scope of the provision, but you’re saying that it would actually broaden it.
In short, would it change the scope of section 27?
Ms. Allard: Yes.
Senator Dalphond: Thank you.
[English]
Senator Clement: Just a quick comment.
[Translation]
Senator Clement: I very much appreciated the answer you gave Senator Harder. You did a substantial analysis, which meant examining the context before making very technical changes on a terminological level.
Thank you very much for your painstaking work. It’s very appreciated.
[English]
The Chair: Thank you very much. It has been a long morning for you, and we really appreciate it. This is very technical for us, so it has been helpful. You may have avoided amendments with your explanation, so thank you. You made my work easy, so thank you very much.
Senators, the Library of Parliament has prepared background information. Some things are difficult to understand, and I was wondering whether you would like an explanation from the Library of Parliament when we come back, or are you good? Do you understand the whole paper? Everyone is good? No need.
Senators, we will meet today at three o’clock. That’s a change. We’ll meet at three o’clock until we finish. Thank you, senators.
(The committee adjourned.)