Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 1 - Evidence for March 1, 2001
OTTAWA, Thrusday, March 1, 2001
The Standing Senate Committee on Legal and Constitutional Affairs, to which
was referred Bill S-4, A First Act to harmonize federal law with the civil law
of the Province of Quebec and to amend certain Acts in order to ensure that each
language version takes into account the common law and the civil law, met at
10:45 a.m., this day, to examine the matter.
Senator Gérald A. Beaudoin (Deputy Chair) in the chair.
The Deputy Chair: Today we will examine Bill S-4, A First Act to harmonize
federal law with the civil law of the Province of Quebec and to amend certain
Acts in order to ensure that each language version takes into account the common
law and the civil law.
You will remember that we already had a meeting on this last year. During
that meeting in June we had before us the minister and officials of the Justice
Department. Between times there has been an election and the bill died on the
Order Paper. It was resurrected, as is often done with bills, with eight
Senator Joyal: Before hearing our witnesses, I have a point of order, Mr.
Chairman. Although Bill S-4 has already been considered in part by this
committee during previous meetings, this is a new bill because the preceding
bill, as you said, died on the Order Paper.
As Bill S-4 is a new bill, would it not be better for us to first hear the
representatives of the Justice Department as would normally be the case for any
bill that is as important as this one, because this is not just a housekeeping
bill but a bill that has major implications both for the present and the future.
I had understood we were to be hearing representatives from the Department of
Justice and that the Minister of Justice would come before us later on during
our work. I would not want today's practice to become the rule in this committee
and that we start hearing witnesses without having heard the Justice Department
The Deputy Chair: I understand, Senator Joyal. I think this should not be
considered as a precedent. I quite agree. On the other hand, as we had already
extended the invitations, and, as you know, the former Speaker of the Senate
died and we did not sit yesterday, we did not want to change today's schedule in
any way. After the week's break we will be hearing the Minister of Justice and
her officials. Our two witnesses, Dean Perret and Dean Fabien, were ready to
proceed and we decided, exceptionally, to start with them. I certainly would not
want this to be a precedent. We normally hear the Minister of Justice and her
senior officials and after that other expert witnesses. In view of the
extraordinary circumstances we could hear our two witnesses. Of course, this way
of doing things will not constitute a precedent. So if you agree, I would invite
deans Perret and Fabien to present their briefs.
Senator Andreychuk: I think it would inconvenience the witnesses to have them
come back another day. In fairness, I think we should go ahead but generally be
mindful that we want to start with the minister and departmental officials. I
think we should proceed.
Senator Joyal: I am not opposed to hearing our witnesses. However, I want the
record to reflect that the fact that we are hearing these witnesses is not a
precedent that should be repeated in future when we examine other bills.
The Deputy Chair: Yes, Senator Joyal, that will be duly noted for the record.
Mr. Louis Perret, Dean of the Faculty of Law, Civil Law Section, University
of Ottawa: Honourable senators, it is a pleasure and an honour to appear before
you. I think it is very important, to get things going on the right footing, to
read out the full title of the bill: A First Act to harmonize federal law with
the civil law of the Province of Quebec and to amend certain Acts in order to
ensure that each language version takes into account the common law and the
It is an ambitious bill. As Senator Joyal has just said, it is important not
only for the present but also for the future, on a national as well as
The objective of this bill is to harmonize the legislation of the central
government to make it compatible with those principles governing provincial
suppletive legislation. The objective is to reconcile Canada's two legal
traditions without ignoring one to the benefit of the other, whether civil law
or common law. Those two traditions are Canada's, but they are also those of the
Western World where 72 per cent of the world's jurisdictions use either civil
law or common law and 99 per cent of the world population is governed either by
pure civil law or common law or a mix inspired by civil law and common law. This
is a bill that will have national and international impact.
First, let us examine the national impact. In Canada, this bill is first of
all an official recognition of the country's dual legal culture with
equalitarian treatment, while harmonizing those principles which govern the
civil law or common law provinces. In Canada, implementation is done both at the
provincial and federal levels.
At the provincial level, as the title says, this is the first act, and that
means there will be others. This first act already covers quite a broad field.
This first act is very broad as it covers the Interpretation Act, the Federal
Real Property Act, the Bankruptcy and Insolvency Act and the Crown Liability and
Proceedings Act. The preamble and the whereases determine the legislator's
intent very clearly.
I shall quote the main ones:
Whereas all Canadians are entitled to access to federal legislation in
keeping with the common law and civil law traditions;
Whereas the harmonious interaction of federal legislation and provincial
legislation is essential and lies in an interpretation of federal legislation
that is compatible with the common law or civil law traditions, as the case may
Whereas the objective of the Government of Canada is to facilitate access to
federal legislation that takes into account the common law and civil law
traditions in its English and French versions.
Other federal legislation will also be harmonized with federal law in Canada
and there will be harmonization act No. 2 and following. Therefore, this is a
major legislative policy not only for today but also for tomorrow which can be a
stimulus and a source of inspiration for the harmonization of commercial
legislation dealing with exchanges between provinces.
As far as commercial exchanges between provinces are concerned, there is of
course a legal duality between Quebec and the other provinces of Canada. Quebec,
as a civil law province, represents 23 per cent of the country's population and
21.5 per cent of its GDP. Interprovincial trade, in 1996, was a matter of 160
billion dollars and each billion represents from 6,000 to 8,000 jobs. If we look
only at the main trading partners, Quebec and Ontario, in other words civil law
and common law, that represents 45 billion dollars of our GDP.
There is of course an agreement on domestic trade going back to 1995. To
reinforce it, a strategic committee on the harmonization of trade legislation
for interprovincial relations was created. The provincial government, the
provinces and the territories then made a commitment to work on harmonizing
legislation with a view to:
Reduce and eliminate as far as possible the barriers to the free movement of
people, goods, services and investment within Canada in order to establish an
open, efficient and stable domestic market.
At this time, the domestic market is sown with obstacles and amongst them the
legal obstacles are numerous and that is a result of that duality. That is why
harmonization is necessary.
The result of all this is that domestic trade in Canada has remained stable,
not to say stagnant. Until 1991, interprovincial trade figures were higher than
international trade figures. The 1991 statistics go back two years after the
coming into force of the first free trade agreement in 1999 between Canada and
the USA. From 1991 to 1999, today, in other words, the volume of international
trade was double that of interprovincial trade. On the international level the
legislation was harmonized and we have not gone down that road far enough yet at
the interprovincial level.
Of course, East-West trade has its own parameters: you have distance and you
have far less population than if you go south. Nevertheless, far fewer legal
obstacles were eliminated than at the international level.
International North-South trade with the USA represents 300 million consumers
and 85 per cent of our international trade is done with the USA. In that case,
the obstacles were reduced either within the context of the North American Free
Trade Agreement or within the context of harmonization work done in different
international bodies. That is where we are looking at the international
Internationally speaking, the two legal systems are broadly represented.
Appended to my report is a map of the different legal systems throughout the
world and I would like to table here a paper copy of the study corresponding to
a document titled "World Legal Systems -- Les systèmes juridiques dans le
monde". We also have a CD-ROM version.
As I was saying before, 72 per cent of all jurisdictions are of the civil law
or common law variety and 99 per cent of the world population is governed either
by civil law or common law.
The expansion of our trade is defined as follows: 85 per cent towards a
common law area which is the USA. The other 15 per cent, with the rest of the
world, are closer to the civil law side because two world citizens out of three
are governed by civil law. Fifteen per cent of the 460 billion dollars in
international trade also concern civil law countries.
If we look at our main clients more closely, for those of our exports that go
elsewhere than the USA, in other words included in the 15 per cent, what we have
are Japan and the European Union countries which, except for Ireland and the
United Kingdom, are all civil law countries. We are looking at an extension of
NAFTA to the free trade zone of the Americas which will add up to a population
of 800 million people. That means we are going to be adding 400 million
consumers to the NAFTA zone and those 400 million consumers operate under civil
law. Latin America is completely governed by civil law except for Guyana and a
few exceptions in the Caribbean. China adopted a civil code five years ago and
they have one quarter of the world's population. We know that Team Canada is
very interested in China as they have just completely their second trip to that
country which is governed by civil law.
Harmonization efforts on the international level are many. The trading
community, in other words chambers of commerce and amongst them the
International Chamber of Commerce in Paris for many years now have been
establishing what is being called trade practice, the lex mercatoria, but there
is more and more of a tendency to try to provide written texts for it. And this
is whether we are dealing with treaties adopted formally by governments such as,
for example, through international conferences such as those of the Hague on
private international law or the UN Commission on International Trade Law or the
Vienna Convention on the International Sale of Goods which is an harmonization
between civil law and common law concerning the Sale of Goods Act and the civil
law tradition in the matter of sales. There is also the New York convention of
1958 concerning arbitration and procedural matters. Those two conventions are a
great international success. We should also mention Uncitral which is an
international organization whose objective is mainly to prepare formal
agreements but also model legislation. And one of those model acts, that is very
successful presently, is an act having to do with the principles of law in the
area of international trade contracts which is also a synthesis between the
methodology of civil law, the concepts of civil law and the concepts of common
Moreover, Bill S-4, in its preamble, addresses the international impact of
the bill through its inspiration and also its harmonization methodology where it
Whereas the full development of our two major legal traditions give Canadians
a window on the world and facilitates exchanges with the vast majority of other
In conclusion, I would say that the harmonization experience of federal
legislation will have a major impact not only today and for the future, but also
at the federal, interprovincial and international levels.
That is why we must pass Bill S-4 with great enthusiasm. It contains very
important Canadian cultural values not only for re-enforcing our own national
unity and domestic market but also our influence in the rest of the world.
Our Canadian jurists, with their bilingualism and bijuridism, have a very
important role to play.
The Deputy Chair: I forgot to introduce our two deans who, as all of us know
very well, are of the civil law tradition and jurists of great attainment. So we
are very proud to have them here today.
Mr. Claude Fabien, Professor, Faculty of Law, Université de Montréal: Mr.
Chairman, I must unfortunately refuse to answer to the title of dean you have
been using as my mandate ended last June and since then I've gone back to being
an ordinary professor. I do not consider myself to be a specialist in those
matters concerning this bill, but rather an ordinary generalist in the civil law
This precautionary warning might detract from the praise I'm about to
deliver, but it will also allow you to add the necessary grain of salt to
whatever criticisms I may formulate.
To prepare the document you should have before you, I used Bill S-22 as the
working draft. So the pages you find refer to that version of the bill as I was
not given a version of Bill S-4. I apologize in the event the page numbers are
not the same.
First of all, I will start with praise and then a few critical comments. At
the outset, I must mention that my reaction is, on the whole, positive. I fully
subscribe to the harmonization principle of federal legislation with civil law
and to bijural drafting.
I found the Justice Department's symposium in Montreal very interesting. I
read the published works of that meeting with interest and they are a major
contribution to advancing our knowledge in the area as the work is really an
intellectual monument. I therefore support those policies with much enthusiasm.
I took it for granted, perhaps naively, that all the members of the committee
had been won over by the principle of Bill S-4. I won't say anything further
about that as my colleague did address with competence and persuasively those
fundamental principles supporting this bill.
I must say at the outset that I admire those who wrote Bill S-4. It is a
considerable intellectual challenge as they faced practically unsolvable
technical problems. It deserves our full enthusiasm.
As a jurist, the second element to which I react with favour are those
elements in the preamble and especially the one recognizing provincial
legislation as being suppletive to federal legislation in matters of civil and
Doctrine had already established that, but it is interesting to see that it
will be solemnly affirmed that provincial law, in matters of civil and property
law, is suppletive law to the enforcement of federal legislation in the
provinces. And that is a good thing as there is no such thing as private federal
law with a universal vocation. There are laws which, from time to time, govern
certain matters, but statutory law to be sustained and nurtured needs the loam
of suppletive law.
My third comment is this: in going through Bill S-4, I noticed that an
opportunity was taken to do more than harmonization. The opportunity was used to
clean up the French version of certain acts and that is a good thing.
In Appendix 1, I point out improvements in language. It is a matter of terms
that were ambiguous or defective and the opportunity was taken to use far more
precise expressions. For example, the term "usage" becomes
"utilisation," the term "détenant" becomes
"titulaire" and in the case of "créance d'une somme
déterminée" they use "créance liquide."
On page 32 it is possible to make a correlation. When you read
"réaliser un placement," it seems to mean "faire un
placement." It is quite the opposite, because what the law was intended to
mean was "liquider un placement," that is to get rid of it. In the new
expression "disposer d'un placement" the expression is given back its
Certain omissions have also been corrected. In Appendix 2, you will find it
amazing to see that some translators just let some parts of some sentences drop.
Those gaps were filled in in two places. Actually, in the French version you did
not find the expression "to provide relief from error" and now it has
been added. The same thing happened for the expression sauver des vies. Lives
were saved only in English while in French it was not as clear.
I also added a point in the text that you have before you, an improvement by
borrowing, and the example that you have there was on page 21. The bill, in its
English version, addresses "fiduciary obligations." And even an
English-speaking lawyer would have to consult learned treatises or jurisprudence
to find out what "fiduciary obligations" actually means.
Now the bill is suggesting in place of that:
...obligation... to act in good faith for the general interests of the
administration of the estate.
That is more explicit and where does this idea of being more explicit come
from? It comes from civil law where that idea was set forth in a style that
resembles that. Here is an improvement through borrowing, a sound one, and both
systems are engaging in a dialogue. The enrichment is reciprocal and I believe
it is interesting to note this in passing.
As for the criticism, you will see that my comments have absolutely nothing
to do with principle as I tended to react more on the technical level. I believe
the prime quality of legal discourse in general and of the law in particular is
clarity. That must be sovereign and dominate over all other modes, all ideology
and all feeling.
In undertaking the harmonization of legal texts, we have to be careful not to
make the whole thing into a religion or a cult. It is a relative value that must
serve the greater national goal. It must also serve what is essential in the law
and what the law wants to be, and that is a totally clear discourse.
There are times when choices will have to be made between a simple language
that everyone understands and a learned language. I would submit that the simple
language should be preferred rather than the learned one. In the same way and
more subtly, there will be cases where the logical structures could be different
if one were to refer to the genius of the respective languages. The order of
propositions, for example, or the degree of contraction or clarification.
Once again, I believe the clarity and effectiveness of communication should
be a preponderant value and that sometimes one might sacrifice a bit to the
genius of the language, but not a lot. It is a matter of judgment.
I wrote: illustration: Interpretation Act, s. 8.2. In reality, it was not to
stigmatize section 8.2. On the contrary, I am full of admiration when I read
section 8.2. It is simply to indicate that this is what led me to the preceding
I will just read it out:
Unless otherwise provided by law, when an enactment contains both civil law
and common law terminology, or terminology that has a different meaning in the
civil law and the common law, the civil law terminology or meaning is to be
adopted in the Province of Quebec and the common law terminology or meaning is
to be adopted in the other provinces.
I must admit I had to reread this many times to figure out what it meant. I
had to read the English version where the structure is different and where you
do not have the same effect due to contraction. I finally understood what it
Basically, I am of two minds. I admire the elegance of the writing, but the
technique used leaves me perplexed: inversion and contraction. I am wondering
whether it would have been possible to keep the same structure as the
propositions and imitate the redundancy found in the English text for reasons of
I come to no conclusion. This is an area where we are dealing in minute
subtleties and, basically, the specialists should be thinking about these
serious questions. What I would like you to take from what I have said is that
clarity is a sovereign virtue in law and that it should not be sacrificed on the
altar of other considerations.
My second point has to do with the problem of legibility and bijural writing
and the solution of highlighting words. I would like you to remember that as the
major element of what I have been saying because if I was not wrong, that could
have major concrete consequences.
In Appendix 3, for example, in the left-hand column what we have is the
English civil law term and in the right-hand column the French common law term.
I often had to wonder if it was a new term from the Quebec Civil Code, because
we should not forget that we have been living with a new Civil Code since 1994.
Nobody knows the new civil law vocabulary by heart.
So I had doubts. I often had to go back to the Civil Code to check as to
whether it was a new term in the Civil Code. Sometimes it is a term that has
already been used as an equivalent but is it being used here in the sense of a
synonym, of a term hallowed by civil law usage or, on the contrary is it a term
used in the strictest common law sense? That did cause problems for me and I did
have doubts. For example, bien réel as opposed to immovable was adopted by
definition to give it a very technical, very specific meaning in common law
French, but the civil law practitioner does not necessarily know that.
He will wonder if bien réel is a new term in Quebec civil law, a neologism
that has been created, a federal creature that is neither of the Quebec civil
law nor of common law. The following example is "resiliation" in
English and in the French column you have the word résignation. There is a
danger of contamination there. A French-speaking reader reading rapidly might
get the impression that those two terms means just about the same thing and the
result will be that you might see emerging in civil legal vocabulary the word
"résignation, Votre Seigneurie, du bail." So you would then go to the
source and find out that yes, this is written in the federal legislation but,
no, it is not a civil law term, it is a common law term.
On page 14 you have "immovable under divided co-ownership" and
"bien réel en condominium." Condominium is part of the every day
vocabulary in Quebec. You open the newspaper and you have advertisements for
condominium properties, except that in the legal context, it is a doublet where
you are very careful to use condominium when referring to the common law
co-property ownership technique. For the English equivalent "immovable
under divided co-ownership" there is sort of a little implicit red flag
that warns that this is Quebec civil law that is being discussed.
There is the word "charge." I wondered if that word is actually
used in the new Civil Code. Maybe it is because we are talking about sûreté
and we did not talk of sûreté in the past. The word sûreté is a very general
term that was adopted with good reason. I searched for "charge" in the
Civil Code and did not find it. So if it is not in our Code, it is probably
because it is used here in French under its common law meaning.
I could continue my list to show you the type of difficulties this creates.
How have we tried to deal with this problem of doublets? This was done in the
inverse drafting. When you have a list in English to describe a functionality,
the common law term in English will be used first and the civil law term in
English will be used second. When you read the other column, you will see that
this was reversed or inverted. Once you know what has been done, this a
technique which makes it possible to distinguish between the terms. However it
took me half an hour to understand that this inverse drafting technique was
being used. Sometimes there are some explicit distinctions. There are places
where it is stated that in the province of Quebec this concept is covered by a
particular term while in the common law provinces, it is covered by another
term, and the other vocabulary is used. In my Appendix 3, I pointed out three
places, with asterisks, where the distinction is explicit and very clear.
My solution to this problem of readability is to use some printing
conventions to highlight civil law terms in English and common law terms in
French. I mentioned italics, but other conventions could be used. I thought
about placing an asterisk at the bottom of the page which would say "common
law in French" or "civil law in English", and where the
highlighting would be done. Why do this? First of all, to facilitate things for
jurists. The first reason is the time that I spent understanding this, counting
the words in the columns to try to match them up into doublets. This is not an
effective way of proceeding. The second reason is the danger of contamination of
one language by the other and some undesired effects. In other words, rather
than promoting the beautiful language of civil law in French, we might be
contaminating it indirectly with words that come, rather, from the common law in
Earlier, I gave the example of the terms "résignation" and
"condominium," which could recur. Sometimes, the distinction is
subtle, as in the case of négligence grossière and inconduite délibérée.
That can be said in French as well, except that the legal drafter rightly said
that these were terms from the common law in French and that they should be seen
Finally, my last argument is that of readability for lay people. Laws are not
just for jurists, but also for ordinary people, which includes specialists as
eminent as jurists, who are entitled to have legislation that speaks to them
clearly, without obstacles. If it is difficult for a trained jurist to
understand what is going on, imagine what is must be for lay people, who do not
start with a knowledge of either the common law or the civil law vocabulary.
There is a risk of confusion.
I would add an additional point. If we do not highlight terms, as I would
like, we should either begin preparing a lexicon of common law and civil law
legal terms, or invest in research groups. There are some extremely competent
groups of this type at the University of Moncton, Ottawa, McGill or the Quebec
Research Centre for Private and Comparative Law, where some admirable work in
vocabulary development clarification is underway. Another option would be for
the Department of Justice to provide some generous grants to these university
research groups, or else undertake itself to draft this lexicon, which would be
prescriptive in scope and a guide for bijural drafting. In any case, this will
become a necessity at some point.
I am not saying that a lexicon would replace the idea of highlighting, but if
there are some insurmountable objections to highlighting, at the very least,
there should be a lexicon available as a fallback solution. The lexicon could
eventually be available in electronic format and could offer hyperlinks. If I
read on my screen "loi harmonisée," a term that causes me some
difficulty, to find out its origin, I would need only click on the appropriate
button, I would find out that this is a neologism from the common law in French.
I would then be reassured, and I would know where I was at.
I would like to mention some specific cases, where there were some minor
reactions to the use of the word "dommage." In the new Civil Code, the
word used is "préjudice." If we use the Civil Code as a guide, we
cannot take what we like and leave what we dislike. We could have a learned
debate all day long on the respective merits of the words préjudice and
dommage. In my view, they may mean the same thing, except that the Quebec legal
drafters use the word "préjudice" and
"dommages-intérêts." They never use the word "dommage" to
mean "préjudice." Rightly or wrongly, this is what has been done, and
we have to follow this model.
The same goes for the term pertes pécuniaires antérieures au procès. This
is unclear, and it is not a term from the civil law. I have given the reference
to the Quebec Civil Code in Appendix 4.
Another word is "moratoire" in "dommages moratoires,"
which can say the same thing, except that the legal drafter made this
impossible, because the word moratoire was too highbrow. In order for people to
understand, the drafter preferred to use "dommages-intérêts résultant du
retard dans l'exécution d'une obligation."
Senator Lorna Milne (Chairman) in the Chair.
The Chairman: I apologize for not being here at the beginning of the meeting.
I was seeing another bill through another committee.
We will now hear Dean Bisson.
Professor Alain-François Bisson, Faculty of Law, Civil Law Section,
University of Ottawa: I would like to come back to the point about highlighting.
I understand the concerns of my colleague, Mr. Fabien, but that would result in
a further complexity in legislation that is already complex enough. I would
rather favour a preparatory or post-preparatory document. At the moment, right
up to the Supreme Court of Canada, administrative documents are admitted for the
interpretation of statutes in an increasingly broad way. Whether they are
documents that predate or postdate the adoption of the legislation, the
distinction is less and less clear, and I would rather favour having
complimentary documents, rather than complex typographical presentations that
will significantly complicate things. As far as the principle goes, I agree that
something must be done, but I am not in favour of the highlighting technique.
The Chairman: You would like additional documents to help to clarify the
bill, but not to go right into the bill.
Mr. Bisson: Yes.
Senator Beaudoin: The objective of Bill S-4 is to involve the Civil Code for
the interpretation of federal statutes, whereas for years, people referred to
the common law. Since we have two systems, and since we have a new 1994 Civil
Code, we must involve the civil law system.
If I understood you correctly, Mr. Fabien, you say that it might be a good
idea to have a lexicon. You are preaching to someone who is already converted,
because I have always thought that we would solve half of the problems once we
had a lexicon. This was done for euthanasia and assisted suicide. We did not
solve all the problems -- far from it -- but we did deal with many of them.
You maintain that in order to properly harmonize the genius of the civil law
and that of the common law with federal statutes, it would be a good idea to
have a lexicon?
Mr. Fabien: It is an essential step. This is required in any case, but I
would not want it to replace my idea of highlighting the text. Let us forget
that for a moment. I think that a lexicon is a fundamental tool for the
The vocabulary of the common law in French is a very recent creation. It is
not the result of history or of three centuries of legal experience. People
rolled up their sleeves in the 70s and created a vocabulary and neologisms where
nothing had existed before. They were pioneers in their field. They are
admirable. In some cases, they create different terms from the functional
equivalent of the civil law in French. There were good reasons for doing so.
Scientific language must have one meaning only. There is only one term to refer
to a chemical precisely so that it is not confused with another chemical. These
pioneers succeeded in doing this to a large extent. In other cases, they were
unable to do so, because the resources of their imagination and of the French
language did not allow them to find another term. In those cases, the same term
is used. This undertaking did not create any problems to the extent that the two
systems were clearly separate. Never in the same court would a lawyer argue both
the civil law and the common law at the same time. The two jurisdictions are
exclusive from each other; one is either in a common law court or in a civil law
court. What is different today is that there is a meeting of the two
vocabularies, and hence this juxtaposition, and the need to have the two
interact in the same text creates a new, unprecedented difficulty. We have the
intellectual challenge of finding a solution to make this work. The challenge is
not insurmountable. What I read is viable. I would not tear up my shirt if the
bill were adopted in its present form, but since you asked me what I think, I
put forward the idea of identifying more clearly the terms taken from one or the
other vocabulary, because we do not want them to contaminate each other. Hence
the idea of a lexicon.
Mr. Perret: As far as a common law vocabulary in French, some extraordinary
pioneer work was done under the auspices of the University of Moncton and the
common law in french section of the University of Ottawa, and also the federal
This vocabulary is very important in internal terms because it acknowledges
Canada's cultural diversity. In terms of Canadian unity and politics,
acknowledging that there are one million francophones living under the rule of
the common law is an extremely important political and legal gesture, but it is
restricted to one million inhabitants in this country. This issue of vocabulary
and the access to the common law in French is extremely important for Canada,
because in universities in the French-speaking world, particularly France, the
common law is not taught. They are completely without resources in this regard.
They are very interested in having access to the common law in French. So there
is a whole market in the French-speaking world that is opening up. Culture has
an important effect economically and politically for Canada's influence
throughout the world.
Senator Fraser: I admire and share your dedication to the principle of
clarity. I think it is essential. I must say that I find very interesting your
suggestion to highlight, in one way or another, the various sources of the
different expressions. Whether that means that this could be done, I am not a
jurist, and I would really have to consult my colleagues on this. The technique
I find interesting is italics, but as you pointed out so well, clarity is not
the only problem. There is also the drafting issue.
I find your example regarding clause 8.2 fascinating. Normally, when I have
trouble understanding a text we are given, I often find it is easier to
understand the French version than the English version. Even if the text was
drafted in English, the French version is often clearer. However, in the case at
hand, you, as a jurist, read the provision several times, and I must confess
that I find this text almost incomprehensible. However, when I read the English
version of the text, it was so much clearer. I would like to know if there is
some inherent reason in the francophone legal tradition that prevents a direct
translation from the English version? It is not a direct translation.
Mr. Fabien: I know. This is what has been done since the beginning of
Confederation, and it has produced some horrors.
Senator Fraser: Yes, but in this specific case?
Mr. Fabien: There are some bad habits that the country is trying to get rid
of in favour of this new bijural legislative drafting. We should not go
backwards or repeat the errors of the past. I think the approach of simply doing
a servile translation from one language to the other is obsolete. We must
recognize that each language has its own genius, and this implies a certain
latitude. It is a question of degree. There is the problem of good judgment and
degree. There are no objective rules for saying at what point one moves away
from a wording that is at the same time clear, respectful of the genius of the
language and compatible with the version in the other language. There are three
variables that have to be reconciled. It is both a science and an art. I have a
great deal of admiration for those who manage to do this.
We have to realize that the translator working in the other language has some
latitude and must not be a slave of the original language. That said, when I
warned about the temptation to worship difference and to proselytize, I meant
that the second drafter should not go out of his way to be different from the
original drafter and insist absolutely on expressing his or her personality or
even exaggerating to the point of caricature. The drafter must serve the common
objective, which is to create statutes that are drafted efficiently and clearly.
Was this the best way of achieving this objective in this case? I do not know.
If I express a preference spontaneously, I would say that the grammatical
structure should be similar in the two versions. In this case, I find the
inverse drafting, while very elegant and carefully chosen, results in a loss of
Senator Fraser: So there would be no legal reasons for not saying something
like this: sauf règle de droits s'y opposant, quand un texte emploie à la fois
des termes propres au droit civil, les termes propres au droit civil seront
Mr. Fabien: You are right.
Senator Fraser: That is the structure used in English.
Mr. Fabien: It would be possible, without hurting the French language, to
rewrite the provision using the same sequence of clauses as in English.
Senator Fraser: This is an important provision.
Mr. Perret: It is a question of degree, and sometimes a literal translation
works better, but in the past, it did not produce very good results.
Senator Fraser: Far be it from me to try to impose such things, but they do
exist in some cases.
Mr. Perret: If you want some examples of bad translations from French to
English, the Civil Code is a good example. It is a tremendous challenge to
provide a translation when you move from one legal system to the other. It is
transystemic. For example, if you have translated a statute that you have
transposed from English to French, taking the other legal system into account,
it will be easier to translate into Spanish, because the concepts are the same
within the family. However, it is just as difficult to translate from a Spanish
text to an English text. Spanish is my second language. I have no difficulty
explaining to someone in Argentina or in Spain the principles of contract law in
the Quebec Civil Code, but I do have trouble with my French-speaking colleagues
in the common law in French section because there is more than language
involved, but there is language involved as well.
Senator Nolin: I would like to say hello to my former professors. Mr. Fabien,
when you talk about highlighting and lexicon, would this be original, or has
this already been done elsewhere?
Mr. Fabien: I do not know. I would be surprised that the problem has occurred
elsewhere. It is a typically Canadian problem.
As to the printing convention involved in italics, expressions in foreign
languages are written in italics. At the time when Latin terms were used in the
statutes, and still today, when they are used in publications, they appear in
italics, rightly or wrongly. This is a well-known convention and could be an
original way of dealing with the problem.
Senator Nolin: You mentioned that you took part in a symposium in Montreal.
Did you suggest this to the representatives from the department?
Mr. Fabien: Absolutely not.
Senator Nolin: You had not been confronted with the problem at that time.
Mr. Fabien: It was a very high level symposium on the major principles,
fundamental theories and criticism of statutes and legislation. It did not touch
on technical details. Some examples were mentioned, but in passing only. Today
we are talking about things that are much more down-to-earth.
Senator Nolin: That is what drafting legislation is about. Mr. Perret, your
argument about the role Canada could play as a beacon in the commercial world --
given the fact that the world is driven by trade today -- what is happening at
this time within the European Union among the 13 countries that come under a
civil law system and the 2 countries with a common law system? What happens in
terms of bijuralism?
Mr. Perret: Trade has become so important that one job in three in Canada
today depends on exports. Trade accounts for 43 per cent of our GDP, so it is
especially important. With respect to the second part of your question, the
Commission of the European Union has suggested some directive which take the two
legal systems into account. There are also some initiatives underway and the
European Parliament has recommended that a civil code be adopted for the
European Union. Obviously, this is a major undertaking and the process is very
slow, but in some areas, such as contract law, a private committee is drafting
contractual principles for Europe that take into account the principles of civil
law and common law. The committee is made up of jurists, of practitioners from
civil law and common law countries. They have already published the whole part
on contract implementation. They are in the process of finalizing the second
part on contract development.
Senator Nolin: What we are doing in Canada could be useful to them, and what
they are doing could be useful to us, or maybe already is?
Mr. Perret: Yes, this could be a two-way street. We held a symposium at the
University of Ottawa on development of legal systems, harmonization and
international commercial law. A number of jurists from various European
countries and representatives from harmonization organizations and bodies such
as the WTO and NAFTA and the World Bank took part in it. When you want a loan
from the World Bank, you will be asked whether you respect copyright. Whether
you have provisions on intellectual property. You will be asked whether you are
part of a particular international convention to respect foreign investment.
These are the types of harmonization that are going on either directly or
Senator Nolin: With specific reference to the legislative framework, can we
draw on the European experience?
Mr. Perret: Absolutely. I was referring to jurists from the Francophonie. The
Bar of Paris is very interested in the whole issue of bijuralism because of the
competition from American firms and the lack of training of French jurists. The
same would be true for the Belgians and the Swiss and other aspects of the
common law. We had a number of round table discussions on this topic. In
co-operation with the Paris Bar, we are planning a workshop involving the French
Council of State for next November, when the courts are in session. The Prime
Minister of France and the Minister of Foreign Affairs are very interested in
the issue and Canada is in their line of sight. The report I presented to you
and the CD-ROM were part of the Paris Conference on the Economy, at which one of
the themes was the efficiency of the civil law and the common law in the
Senator Nolin: Professor Bisson, it is recognized that federal law is an
important body of work. What is the situation with respect to Quebec? Must
Quebec also recognize the existence of bijuralism?
Mr. Bisson: Yes, I think Quebec cannot help but acknowledge its existence.
Senator Nolin: Do you mean legislatively?
Mr. Bisson: Yes, legislatively.
Senator Nolin: We agree that federal statutes of civil application have force
of law in Quebec?
Mr. Bisson: The federal government always has the option of creating its own
law. However, in order to save resources, it obviously relies on supplementary
law of the provinces for its implementation, but the federal government always
has the option of creating its own instruments.
Nevertheless, I do not know whether the need is the same, because the dual
nature means that there is a civil law and common law and an applicable federal
law and an applicable provincial law.
Things were much more straightforward, whereas in the Quebec courts, there is
the unfortunate practice of interpreting the Divorce Act only in the light of
common law concepts. This leads to some distortions in the area of family law,
because while the concepts are similar, they do produce some rather different
The fact that the federal drafter says that the suppletive law depends on the
province of application means, I think, that this practice is much more
important on the federal side than it would be on the provincial side, where, in
any case, if there were a prejudice to overturn, it would be rather that of the
systematic non-application of the common law as suppletive law in the
application of federal statutes.
Obviously, I am not in a political position to make suggestions to the
government of Quebec. I do not think this has the same use.
Mr. Perret: In purely economic terms, 82 per cent of Quebec's exports go to a
common law country, namely the United States. Its North-South trade with the US
is double compared to the rest of the country. That is why it is important to
remove domestic legal barriers, for reasons of national unity. There is more
trade North-South than East-West.
Moreover, Quebec jurists are in demand throughout the world, because they are
much more bilingual and many more of them have training in both legal systems.
You find them in international organizations, and in big firms in Toronto, New
York, Chicago or Japan. Circumstances are such that Quebec must open up
commercially. Since 1998, half of the jobs in Quebec have resulted from free
The Chairman: I believe, Dean Perret, you are suggesting that a great deal of
Quebec's international trade is in the form of lawyers.
Mr. Perret: Well, you have lawyers everywhere.
Senator Grafstein: First, I should like to note that I am rather humbled by
the evidence of the witnesses. This is a rare state for me.
Senator Andreychuk: As we would confirm.
Senator Grafstein: I say this as I look around the table and see the
distinguished expertise that the three of you bring to our understanding of the
civilian aspect of this legislation, and I look at my colleagues, a former
professor from the University of Ottawa, Senator Beaudoin, and Senator Nolin,
and, of course, I could never forget my colleague Senator Joyal, who is always
on my right. I start here with a humble note of experience as a common-law
lawyer who is not too familiar with the civilian aspects. Some aspects here
raise questions with me.
I have not prepared for this but, after hearing your evidence on clause 8
another aspect occurred to me that complicates the problem. Perhaps Senator
Beaudoin and Senator Joyal might confirm this as well. It is my understanding --
and I will try to get the support for this statement because it is from memory;
I have not looked at this literally for years -- as a student of Professor
Laskin, who looked at this question from a common-law aspect, that there were
essentially three streams of law in the country, not two. The three streams of
law were the federal common law, separate and distinct from provincial common
law, provincial common law as it relates to provincial aspects, and the civilian
experience. I say "the experience" because it is a little more
complicated for me to explain.
Do you not agree that there is a federal common law separate and distinct
from what we know as a provincial common law?
Senator Beaudoin: Not very much.
Senator Grafstein: Then I will come back to that myself.
The objective of this bill, amongst other things, is to ensure that there is
equality of treatment across the country on similar subject matters. The whole
purpose of harmonization is to ensure equality of treatment of the individual
and to merge the two legal disciplines so that the outcome is parallel.
Look with me for a moment at proposed new section 3, which appears at page
23a and deals with the liability for the Crown. This proposed new section
states, in part, as follows:
The Crown is liable for the damages which, if it were a person, would be
in the Province of Quebec...
This deals with the question of civil liability of the Crown -- civil in the
small-case sense of the word, not in the civilian terms -- for damages, in
I must do more homework on this, but when I read the definition of Crown
liability with respect to the Province of Quebec and then with respect to
another province there is a different treatment for the same action. For
instance, with respect to the Province of Quebec, proposed new section 3 states
(a) ...in respect of
(i) the damage caused by the fault of a public servant of the Crown...
(b) in any other province, in respect of
(i) a tort committed by a servant of the Crown...
In your view, knowing as you do both the civilian aspects of civil liability
and the common-law aspects of civil liability, is there not a different
treatment in (a) and (b), one saying "damage caused by" the other
saying "tort committed by"; and then (a)(ii) saying "...damage
resulting from the act...in the custody of..." and (b)(ii) saying "a
breach of duty..."? Is that not different treatment?
For the same act, where the Crown is liable, is the treatment not different?
This goes back to Professor Perret's comment that definitions here must be
looked at very carefully to ensure that there is equality of treatment;
otherwise, the result can be great confusion and, worse, inequality of treatment
across the country for the same action against the same federal asset.
Mr. Perret: I also would have to look at it more closely, but traditionally
the federal act stipulates that --
Senator Grafstein: Let me just jump on to that to explain it. If it is the
Crown Liability and Proceedings Act, under the current act there is no confusion
whatsoever because the application of the principles as it applies to an action
by a civil servant in Quebec or any province or the territories is exactly the
With the goal of harmonization -- and I do not quarrel with the objective of
harmonization; it is an excellent objective -- we are looking at the
application. If we end up with a duality of systems or results, it raises a
whole host of other questions about the efficacy of some of this legislation.
Mr. Perret: We already have a duality since the Crown Liability and
Proceedings Act states that in each province the local legislation is applied.
If the local legislation is more developed in one province than another, the
treatment is different already.
The Chairman: At this point, I will read from the background paper the
Library of Parliament has prepared for us about this particular clause, Senator
Grafstein. It says:
Clauses 34 to 52, which constitute Part 5 of this bill, would make numerous
amendments to the Crown Liability and Proceedings Act. It is particularly
noteworthy that the Act would include two concepts of liability, namely
extra-contractual civil liability in the Province of Quebec and liability in
tort in all the other provinces...
Senator Beaudoin: That is already the case.
Mr. Perret: That is the case, yes.
Senator Grafstein: The purpose of this proposed act --
Senator Andreychuk: Where are you getting that? You referred to the purpose
of the proposed act as being equalization. Where do you read that?
Mr. Perret: It is harmonization, not uniformity.
Senator Grafstein: I understand that. It is harmonization, and the objective
of harmonization is to reduce the differences of treatment. We will never get to
a zero sum, but the whole idea of harmonization is to reduce the differences,
not to increase them.
Mr. Perret: We have had a long discussion about this in Quebec, and there
have been many court decisions about the Crown's liability and the liability of
civil servants in Quebec. You have to apply the common law or the civil law
tradition. If you apply the common law, it starts with, "The King can do no
wrong," and so on. In Quebec, some argued that he had to be treated exactly
as a normal citizen. In the new civil code, it says that the Crown is liable as
an ordinary citizen.
Mr. Fabien: The texts to which Senator Grafstein referred to change little or
nothing to the current state of the law as it is applied and felt throughout
Canada. We are talking about a legal format that is different from the preceding
one, but one designed to improve the language, not to significantly change the
substance or the actual solutions that are applied.
In principal, the Crown cannot be subject to any federal statute. The Crown
accepts by law to submit graciously to the legislations on liability in effect
in the provinces.
If there are any disparities, they already exist today, because the Crown is
judged in Quebec according to the rules of civil law, whereas it is judged in
Ontario according to the rules of the common law and the statutory law
applicable as well in each province. Moreover, the solutions are not so
different. There is considerable convergence between the concept of a fault in
civil law and the concept of a "tort in law" as regards assessment of
damages. The two concepts are very close. Sometimes the vocabulary or the
techniques change, but the concrete results are quite similar. For example, when
Responsibility in the Province of Quebec for "damage caused by the fault
of a servant of the Crown"; and in common law, responsibility for "a
tort committed by a servant of the Crown."
I think the two say exactly the same thing. Even though the vocabulary and
the legal concepts are different, the meaning is very close.
Senator Grafstein: I am having trouble with this definition. Pursue with me
clauses 3(a)(ii) and 3(b)(ii). Again, the objective is to try to get as close as
possible -- it will not be perfect because there are two systems -- to the same
result for the same act with the same Crown involvement in either the Province
of Quebec or outside of Quebec in another province.
Let us start with the other provinces and "breach of duty." Unless
my memory is really bad, there is a responsibility under the civil code for
fiduciary duty. There is a notion of fiduciary duty. A breach of duty here is
fiduciary. I use the word "fiduciary" because it makes it more
precise. It says here: "a breach of duty attaching to the ownership,
occupation, possession or control of property." It strikes me as being in
the same category and intensifies the duty by calling it a fiduciary breach.
That is a notion also known under the civil law, is it not?
Senator Beaudoin: It may be different terminology in the civil law.
Senator Grafstein: My point is that in 3(a)(ii) there is "damage"
and in 3(b)(ii) there are consequences arising from "a breach of
duty." Certainly they are different notions and therefore might have
necessarily different consequences.
Mr. Fabien: Yes, but what you read here is a reflection of the current
situation. There is nothing new on the table.
Senator Grafstein: Professor, my problem is that the objective of this was to
try to harmonize similar acts for similar situations. That is the objective of
harmonization. The last time I was involved in this exercise, it took 25 years.
That was the harmonization of company law across Canada. You will recall that it
started here, and I was instrumental in that. It started here in 1966, and it
was not completed until some 20 years later. It was a massive effort based on
the same exercise and objective that Mr. Fabien mentioned, which was to ensure
that we had a common playing field across the country with respect to commercial
corporate law. That was the objective.
I assume that that was the objective here, too. If we are just accepting the
law as it is, that is not a harmonization but just a restatement of the law as
it stands. It does not achieve the objective. Why are we here -- and I am
referring right now to just the proposed new section 3 that I referred to?
The Chairman: I suggest strongly that we let these gentlemen give us the
benefit of their knowledge on this. We must address this to the departmental
people when they attend.
Senator Grafstein: I wish to put this on the record because it will give us
an insight into this issue. Senator Joyal pointed out that we normally have
policy questions that we can address both to the Crown and to the officials who
attend here. I am trying to draw from their knowledge to see whether what I am
saying has any sustenance.
The Chairman: That is why I am asking them to give us the benefit of their
knowledge while they are here so that we can fire the bullets at the department
when they come here.
Mr. Bisson: As I read it, the objective of Bill S-4 does not seem at all to
be the harmonization of our common law and civil law, but rather the
harmonization of federal statutes with the new Civil Code. The idea is to take
advantage of this opportunity to correct some wordings in the common law. I
don't think the objective of this bill is to harmonize the civil law and the
common law. That is an entirely different issue which must not be disregarded
particularly in the commercial context, but it is not at all the objective of
Senator Grafstein: I wish to refer them to the third --
Senator Beaudoin: Everything is there.
The Chairman: Are you referring to the preamble?
Senator Grafstein: Yes, in the preamble.
Senator Beaudoin: The third "whereas" is very clear cut, in my
Senator Grafstein: Can we have a comment from the witnesses, perhaps? The
chairman has cautioned me about this.
The Chairman: Gentlemen, you have been directed to the third paragraph, the
third "whereas" in the preamble of the bill.
Mr. Bisson: That confirms my view. This is indeed a bill to harmonize federal
law with the common law or the civil law, depending on the province, but it does
not seek to harmonize civil law and common law. I think that is very clear.
Mr. Fabien: This is different from uniform law. The objectives of
harmonization are different from those of uniform law. In fact, there is a
Uniform Law Conference of Canada on which people have been working on uniform
law for years. However, the objectives of this process are completely different
from those of the bill we have before us.
Senator Joyal: To what extent is the current edition of the Quebec Civil Code
comparable to the original code?
Mr. Fabien: That is a huge question, but to be brief, the basic principles
and the conceptual structure are the same. In short, there is a dominant
continuity factor. Considerable efforts were made to codify the case law,
because our Code did not say everything about the state of the civil law,
because the case law had devised solutions outside the Code.
They have been put within the Code.
Moreover, some legislative policy decisions were designed to modernize our
civil law, to really bring it into the 20th century, in light of past experience
and the work comparing our law to that of other jurisdictions.
There have also been some original creations of which we are very proud,
particularly the chapter on the administration of someone else's property, an
excellent synthesis which is not found in other civil codes. All in all, then, I
would say that the Code has a dominant element of continuity, along with an
element of modernization, which combine to make it a remarkable, modern and
functional intellectual monument.
In the course of the 20th century, the Netherlands and Quebec are the only
two places that have succeeded in reforming their civil codes. It is almost a
miracle. Achieving a unanimous vote in the House on a document of such scope and
breadth is rare.
Mr. Perret: The Civil Code is modern in many of its aspects, though in others
it is somewhat less modern because it has come under highly traditionalist
influences, particularly for some contract provisions.
It is interesting to see in which areas the Code is modern, and in which
areas it has been influenced. It has been influenced by a variety of sources,
including common law, which has been incorporated into and adjusted within the
Civil Code, particularly in such areas as trusts and property mortgages, in
Quebec known as movable hypothecs. The second major influence came from
harmonization and standardization efforts flowing from international
organizations. For example, the Vienna Convention on Contracts for the
International Sale of Goods, which along with others, has been incorporated into
the Code, have resulted in changes to some principles like risk theory, with
respect to acts of God, in relation to the time when property is delivered, not
at the time when it is transferred. The two events do not always occur at the
The law is being harmonized at an international level, and this is leading to
harmonization between civil law and common law. There is the other aspect as
well, however. We talked about the influence on the Civil Code, but what would
the influence of Quebec's Civil Code be on the world? Gil Rémillard will be
very proud to explain how Quebec's Civil Code is a model throughout the world.
However, I will just add a slight caveat to what Mr. Fabien just said. At
present, many of the world's countries are in the process of adopting a civil
code, particularly Eastern European countries since they have returned to a
market economy. Thus, since the end of the Cold War and since the Soviet Union
was dismantled, Estonia, Lithuania, Poland, and the Czech Republic have all been
in the process of adopting civil codes. They are deeply interested in Quebec's
Civil Code because it has incorporated strong, modern concepts of common law.
The countries I have mentioned want a simple, accessible and predictable system,
because they want to join the World Trade Organization and the European Union.
That is the way their legislation has to go, and the Quebec Civil Code is a very
suitable model. In other words, though the code has itself been influenced, it
also influences legislation in other countries.
Senator Joyal: On the whole, with respect to commercial law, or relations
between citizens and the government in the Civil Code, given that trade between
Quebec and the West dominated Canada's economy until 1991, and given that trade
with the South is developing, and will continue to develop with an expanded free
trade agreement, can we say in practice that sources of inspiration and efforts
to adjust the code target the incorporation of common law notions with the Civil
Code, in the sections pertaining to commerce and trade?
Mr. Fabien: This is certainly one aspect of the influences which have been
received and incorporated. Fundamentally, Quebec's civil law must recognize what
it owes to common law and to its influence.
As my colleague Mr. Perret noted, that influence has been combined with
others. Overall, all influences have combined in a synthesis that included all
sorts of considerations, not solely commercial ones. One of the concerns was to
re-establish an equilibrium. We have to defend the weak against the strong,
which may conduct itself in an abusive fashion.
You have a section on the rights and freedoms of that which are explicitly
stated in the Quebec Charter of Rights and Freedoms, which is part of the
preliminary provisions of the Civil Code. In book one on persons, you have
included a complement of the Charter, which enshrines the rights and freedoms of
persons by taking them even further.
As you know, the Civil Code covers a great deal. We had to manage all the
different parts of it.
Senator Joyal: But when we talk about the interpretation of rights recognized
in the Quebec Charter, must that interpretation necessarily incorporate the
interpretation of the Canadian Charter of Rights and Freedoms, since that
Mr. Fabien: Yes, and I would go even further. Some provisions have been
borrowed, and I was associated with the process as an expert and consultant. I'm
talking about the admissibility of evidence obtained through illegal means.
There were a number of different theories and solutions. Under civil law,
admissibility was complete. Any relevant evidence was admissible, regardless of
the manner in which it was obtained. Some texts inclined towards the total
inadmissibility option. I recommended that we align ourselves with the
There were significant advantages in terms of functionality in choosing a
solution based on the Charter, and that is the solution that was chosen. It was
a fortunate choice. That shows you that Quebec has made a great effort to
incorporate the best of what is available.
Mr. Perret: In fact, discussions engaged in before the 1990s came back to the
fore. The Lower Canada Civil Code was described as a property owner's civil
code, with the concept of property at its core. Today, it is described
symbolically as a code that has the person at its core. This is a concise answer
to your question.
Senator Joyal: As a very knowledgable former television host used to say, you
have hit the nail on the head. In recognizing the specific nature of Quebec's
Civil Code, to my mind we achieve a Lower-Canadian concept of reality. Having
taken the appropriate courses sometime ago, like senators Nolin et Beaudoin --
we all had to take them, you too I presume -- we know that the current code has
incorporated principles of legal philosophy which did not exist in the legal
climate of the mid-19th century, which itself was inspired by the French
traditions of the 17th and 18th centuries. Evolutionary trends in the Civil Code
are moving towards a convergence, in recognition of the two principal currents,
and the trade you have described, which will continue to influence the evolution
of law in Quebec. But, as Mr. Fabien explained, it also incorporates the
expression of values that are centred on the concept of persons. To illustrate
this, I will give the most obvious example for my female colleagues, women's
role and rights in marriage in the Lower-Canadian traditions.
Today, when we celebrate the Civil Code, we are not looking at the deep abyss
that it represented to some aspects of social life in Quebec. This is an
extremely important consideration what we must understand when we attempt to
harmonize the two systems. Before harmonizing them, we must try to define the
strengths of each of the systems we want to harmonize.
In reading Bill S-4, I find myself in sympathy with those of my colleagues
who have not had the pleasure of studying law. It is impossible to understand. A
bill like this should have a preamble that clearly expresses the fundamental
components of Quebec society. That does not mean the Quebec Civil Code does not
exist in its own right.
The only thing you put before us is this very thick and physical document.
Inside that document, you have the vacuum which is represented by common law,
and in practice, you have a highly significant convergence of social dimensions.
We are left wanting more when we read the sole objective, which is a highly
significant statement of recognition. As much as we wanted to highlight the
separate nature of the two systems in the 19th century, those two systems are in
practice the result of constant interaction and a sharing of fundamental values,
as soon as we recognize that values relating to the person underpin the entire
structure. Mr. Fabien might like to comment on this, since he raised the
Mr. Fabien: Your comment should be noted and remembered. We do indeed have a
tendency to forget that people outside the province might be unfamiliar with the
Quebec Civil Code, and that the code may therefore be a source of
misunderstanding. We might have to engage in some gentle education to help our
common law practitioners understand to what extent the Quebec Civil Code is a
modern legal document, and to what extent its solutions converge with common
law, and draw on fundamental values of the Charter of Rights and Freedoms, such
as protecting the weak, moral values like the concept of good faith in contract
execution, a case law concept that we have incorporated. We have to say this
explicitly, because the law in its current form is highly technical and has
little educational value. It should be accompanied by a simpler commentary so
that people could understand it better.
The Chairman: It may be of value sometime. When we are writing laws, they
might be more easily understood before they reached this stage if we turned a
professional editor loose on them.
Senator Joyal: You pointed out that approximately one million francophones
experienced common law in French. This is an extremely important consideration,
particularly for European countries. In Europe, trade does not only take place
within EU borders, but with countries outside those borders as well. In fact,
that is one of the objectives of the European Union. In the bill's preamble, I
do not see a statement of recognition as clear as the one you made in your
presentation on the fact that common law in Canada is a French instrument, and
develops in French. This is a pivotal dimension of the international trade you
Mr. Perret: In fact, the preamble does say that the full development of our
two major legal traditions gives Canada a window on the world, but it does not
say enough about the issue of having two legal systems and of combining the two
languages. It is not because we speak French that we have the same legal system.
One of the important differences, aside from the differences and principles, is
the difference in approach -- the case approach and the approach that considers
major principles in a code.
The Chairman: This has been a fascinating and educating morning. I am sorry I
missed the beginning of it.
Senator Nolin: On several occasions, we have asked the Justice Department's
legal drafters about the methods used in drafting bills. For some time now there
have been two teams of drafters, whereas in the past, there was one team of
drafters which would generate the original, and a translation team which would
produce the version in the other language. Occasionally, we can clearly see upon
examining the English and French versions of a given bill that the way in which
the substantive aspects are expressed is different, depending on the language.
We can clearly see that neither version is a translation.
Do you consider this an important step forward in relation to the old way of
producing a version in a single language and then translating it, or should we
take yet another approach?
Mr. Fabien: I see three models, and the first is one of linguistic
Senator Nolin: It depends on which language is the original.
Mr. Fabien: Yes, there probably was a time when bills were drafted in English
and were then sent to a French translator who did his best to produce the most
faithful possible French version. That was the subservience model.
The other model we could consider is that of two solitudes. The two solitudes
each draft their own bill, without communicating. The third model, which seems
the best to me, is one of co-operation. And that is exactly what you describe.
It seems to me that we have made extraordinary progress in Canada, by
establishing a separate anglophone team and a francophone team which each
prepare their own version of the bill, but then meet to discuss the work.
This compromise can be effected on both sides, in other words you can have
solutions that will influence the other writers and vice versa, to come up with
a result that will not necessarily be a copy of either the one or the other but
that will ensure the greatest degree of convergence.
Senator Nolin: You mainly get that in criminal law.
Mr. Fabien: While attaining the objective of legibility.
The Chairman:I would suggest that our present system of drafting laws is
still in the two solitudes area. We are beginning to move to where the teams are
speaking to each other, but for the most part parallel drafting systems are
mainly being used now.
Senator Fraser: Clause 3 states, in part:
The provisions of the Civil Code of Lower Canada... are repealed in so far as
they relate to subjects that fall within the legislative competence of
Parliament and have not been expressly repealed.
Is it too vague? Should we make a list of these provisions or is everyone so
much agreed on the matter that we do not need that even as an appendix?
Mr. Bisson: Going ahead with a listing is an adventure you should not
undertake because in 98 per cent of all cases everyone will agree on what does
actually come under federal jurisdiction. As for the remaining 2 per cent, it
will be better to have a small legal section some years down the road try to
make up the list. That will result in a memorable discussion that we will
unfortunately never get out of.
Senator Beaudoin: It is just a clarification, because the principle is
fundamental. You said, Mr. Fabien, that basically there is no harmonization, and
that it is exactly the opposite. It is showing respect for both legal regimes.
On the contrary, we are emphasizing respect for the genius of the common law
tradition and the genius of the civil law tradition and we are harmonizing our
federal legislation to respond to those two different factors, is that it?
Mr. Fabien: That is it, that is the challenge of marriage.
Senator Grafstein: I always agree with Senator Beaudoin. However, the first
page of this bill says that Bill S-4 is "A First Act to harmonize federal
law with the civil law of the Province of Quebec," et cetera. I think we
need to spend a little time trying to understand what harmonization means. Is it
uniformity? Is it convergence? Is it consistency? We need to look to that
definition, but that is for another day.
Madam Chairman, these witnesses raised an important question for me. You have
alluded to it as well. Perhaps we should ask the department, if it is true that
this very important piece of legislation was drafted within the Department of
Justice alone, why this bill was not referred to a separate commission, such as
the Law Reform Commission as they did in Quebec. I understand that there was an
independent commission that was established purposely to free it from the
problems that one would have with the context of a bill within the arms of
government. I understand that that was done in Quebec by an independent
commission and then subsequently adopted. I wonder what the process was here. If
the process here was not similar to what was done in Quebec, why not?
The Chairman: Thank you, Senator Grafstein. I shall alert the department that
they must be able to answer those questions when they come before us.
Mr. Fabien: I would like to say something about an entirely different matter
and draw your attention to an ambiguity concerning the matter of emphasizing
different words. I would like to insist on this point and I would like to feel I
have been properly understood. I would invite you to try this experience on page
7 of the bill. It is in Part 3, subparagraph (2):
Federal real property and federal immovables within Canada may, at the
On the other side:
Les immeubles fédéraux et les biens réels fédéraux situés au Canada
peuvent à l'appréciation
What helps us understand that we have concepts from civil law in English here
and common law in French, respectively, is that the words are underlined in the
text you have in front of you. We have to overlook the underlining because that
is for the practicality of parliamentary work. Getting rid of the underlining
poses a problem of legibility and even interpretation. That is not a negligible
factor. The Quebecer reading that will understand that we are dealing with
something new here called les biens réels fédéraux. The federal legislator
has the power to create a new category of goods for his own ends. The first
interpretational reflex is thus to say that the legislator is not talking only
for the pleasure of doing so and that from this day forward we will have federal
immovables and something distinct in Quebec called les biens réels fédéraux.
The intent of the act is absolutely not to do that but rather to say that
insofar as this act is read in Quebec, you have to read only les immeubles
fédéraux. If it is read in New Brunswick, you have to read les biens réels
fédéraux because that is the functional equivalent in common law in French.
The reverse is also true for "immovable" which is the functional
equivalent of "federal real property." I think that there is not only
a functional problem with legibility but also a legal problem. However, we could
get around it if the underlining were maintained or if the underlining were to
become terms in italics with a general interpretation rule appearing at the top
of the act. This rule could say that the French terms in italics are common law
terms written in French and that terms in English in italics are civil law terms
written in English. I think that could solve not only the legibility problem but
also the interpretation problem.
Senator Nolin: Add the idea of a lexicon to that.
Mr. Fabien: You would need a lexicon besides.
Senator Beaudoin: On that count you have convinced me.
The Chairman: Honourable senators, at this point, I will stop the discussion.
I wish to thank the witnesses for appearing before us today.
Before we adjourn, honourable senators, I wish to remind you that our next
meeting will be on Wednesday, when the Senate rises, of the first week that we
are back. The departmental officials with be here at that time, and we are doing
our best to make sure that the minister attends as well.