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 technical amendments.

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 representatives.

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 civil law.

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 international level.

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 be;

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 situation.

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 law.

Moreover, Bill S-4, in its preamble, addresses the international impact of the bill through its inspiration and also its harmonization methodology where it says:

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 countries;

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 tradition.

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 property law.

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 real meaning.

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 thought.

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 meant.

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 clarity.

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 French.

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 as such.

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 following reasons.

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 government.

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 clarity.

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 utilisés.

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 indirectly.

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 contemporary context.

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 practical results.

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 trade.


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 liable

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 effect.

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 as follows:

(a) 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 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 same.

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 I read:


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 this bill.


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 opinion.

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 same time.

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 Charter prevails?

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 constitutional Charter.

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 subject.

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 referred to.

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 subservience.

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 discretion...


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.

The committee adjourned.