Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 3 - Evidence for March 21, 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 this day at 3:55 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Colleagues, we have before us today two witnesses, Professor Michael Behiels and Professor Nemni.

I apologize because I must leave this meeting. Senator Beaudoin will take the chair when I leave. However, he also must leave shortly after 4 o'clock. At that point, I should like agreement from the committee that Senator Moore take the chair. Is it agreed?

Hon. Senators: Agreed.

The Chairman: I give the floor over to the witnesses, to make their points in whichever order they care to begin, and I shall turn the chairmanship over to Senator Beaudoin.

Senator Gérald-A. Beaudoin (Deputy Chairman) in the Chair.

[Translation]

Mr. Max Nemni, Ph.D., Professor, Department of History, Laval University: Mr. Deputy Chairman, I am honoured to have been invited to say a few a few words. I would like to introduce myself briefly. I am neither a lawyer nor a specialist in constitutional law, but a professor of political philosophy and Canadian politics at Laval University. My recent fields of interest are the study of liberalism and the use of nationalism for political purposes.

I have a few comments about this bill, especially the preamble and one of its whereas clauses. First, the concept of harmonization seems excellent to me, and not only on a technical level. I have read the comments of senators Beaudoin, De Bané, Joyal and others. In this regard, they seemed very eloquent to me.

I wish to underline the very positive aspect of the reform in terms of Canadian unity and the unique character, I would say even the remarkable, nature of our country. In this country we have the two most important judicial systems in the world. That is something to be proud of. Both systems work very well despite the separatist wishful thinking of a few groups in Quebec, and, more recently, of a few groups in Alberta; harmony reigns. It seems to me that the recognition of this very unique and very positive Canadian character would reinforce the pride of Canadians and the admiration that citizens of other countries throughout the world have for Canada.

One of the proposed amendments wants to recognize the unique character of Canada from this point of view; that seems very good to me.

I would also like to say a few words about the preamble to this bill, and especially about the second whereas clause.

That second whereas clause reads as follows:

WHEREAS the civil law tradition of the Province of Quebec, which finds its principal expression in the Civil Code of Québec, reflects the unique character of Quebec society;

I have three comments in this regard: first, it sort of forgets the federal nature of Canada and gives excessive weight to the political and ideological dimensions, in my opinion, does not belong in a constitutional text. Once again, please note that I am not a constitutional specialist.

On the one hand, we talk about the Province of Quebec, and then about the unique character of Quebec society. On the other hand, the Province of Quebec refers to a specific entity on the political and constitutional level and we know what we are talking about.

The other, Quebec society, refers to an entity that has no constitutional status. However, it is an expression, among others of the same type, that has been a policy issue used in various ways for various events and in various political situations of various magnitude at various moments in our history.

It seems obvious to me that we can therefore attribute many meanings to this expression. We cannot know what the expression Quebec society means because it has been used in too many ways. It does not seem right to me to write a law in such a manner. We should know what we are talking about. When we are talking about the Province of Quebec, we know what we are talking about. When we are talking about Quebec society, we do not.

Canada is a federation. Federal laws, especially those that refer to the institutional structure of the country, must use the categories appropriate to our constitutional regime. Quebec is a province. We have to call it by its name and define it.

Second, we have talked about the use of nationalism for political purposes. As I have just noted, the whereas clause has two parts. The first refers to the Province of Quebec and the second to what is called Quebec society. Are we saying the same thing when we use the terms "Quebec society" and Province of Quebec? Are we repeating ourselves? I do not think so. I think we are doing two things at the same time. There is no evolution, there is an overlap of two projects, one constitutional and the other political and ideological. The harmonization of the two judicial systems, if we want to do it properly - and I am sure that is what you intend - requires that we refer to existing constitutional entities, and it is therefore imperative that we refer to the Province of Quebec; it is the constitutional entity that we know.

A second project, not constitutional but political andideological, has been snuck in under the table in this whereas. Its objective is to recognize a political project from the point of view of a particular political view that we could identify as that of the Liberal Party of Canada after the No's slim victory in the secessionist referendum in Quebec in October 1995. That political project wanted to recognize something that was called a distinct society. It is a political project, a political expression that reflects a certain type of political reality.

In my opinion, this political project does not belong in this bill for two reasons. First, a law should only have the purpose it seeks to achieve, in this case the harmonization of the two judicial systems. We should avoid sneaking in the preferences of one political actor or another. Otherwise, we do not know what we are talking about anymore. In addition, the legislators, the representa tives of the people are splitting up the responsibility entrusted to them by their constituents. When your terms are vague, people other than you will decide the meaning of the words Quebec society, not our representatives.

This kind of thing cannot be done for a second reason: we must not put a political project into a bill. Recognizing the existence of a community - and that is what this is about - is an empty pursuit for many reasons, certain of which have been very pertinently mentioned by Senator Joyal and others. I would like to add two elements.

The identity of a group, whatever it is, is multiple and variable. Let us take Quebec as an example.

Quebec includes francophones, anglophones, and immigrants of various origins and Aboriginal people. Quebec includes Catholics, Protestants, Muslims and atheists. Quebec includes illiterates and highly educated people, sportsmen and sedentary people, etc.

Identity is also a variable factor. Fifty years ago in Quebec, we would have defined a francophone Quebecer by language, religion and links to the land. Since then things have accelerated, especially since the so-called quiet revolution. The Quebecer "we" has taken all sorts of faces; sovereignty-association, sovereignty-partnership, distinct society, unique society, people, nation. We have tried all kinds of political labels, not constitu tional ones, to recognize an extraordinarily fluid identity. I would like to illustrate the fluidity, the variability of the recognition of identity by reminding you that the texts adopted here, that we were looking at in 1995, referred to Quebec as a distinct society: that is what had to be done politically but not constitutionally.

Today, in the text that you are looking at, it is no longer a distinct society, it has become a unique society. Why? Has Quebec become something else in six years? From 1995 to 2001, we can no longer speak of the same group? No, the political project has changed. Between 1995 and 2001 there has been, among other things, the Calgary declaration that talks about a unique society or the unique character of Quebec.

A political project says we call things by that name. We forget, in fact, that we are playing a political game that is very old. Today, recognizing Quebec as a distinct society or its unique character would not satisfy any Quebec politician, whether from the Parti québécois or the Liberal party. Now they insist on the concept of nation. As you well know, Mr. Landry questionedMr. Charest by asking: if you accept that Quebec is a nation, how can you accept that the Constitution was repatriated without one nation consulting the other? He is quite right of course. It is sort of the game of changing and transforming identities. So even this recognition comes too late. It will satisfy no one. It will simply put us on a slippery slope on which we will have to run to catch up with the new identification to please people. We do not quite know who or what but it is probably a particular political game.

Should I say why not accept this vocabulary? Why not talk about a nation because that is what some people in Quebec want? Of course, I think we should resist. To be honest, I do not believe that identities are in the domain of the politicians and the state. A political system should simply allow its citizens to define themselves as they wish and to exhibit their similarities and their differences as they wish. It is not the state's role to intervene and to define who I am as a Quebecer and if I belong to a unique distinct society, to a people or to a nation.

The state or the government should look after the State's affairs. The harmonization of these two judicial systems seems to me a superb project that should not be tainted by this political and ideological dimension.

[English]

Mr. Michael Behiels, Ph.D., Department of History,University of Ottawa: Thank you for inviting me. I apologize for not having a formal written statement.

When I became aware of this attempt to slide in via the back door what has been an inordinately controversial and divisive experience over the past 20, 30, 40 years - that is, trying to, in effect, appease yet again the Quebecois nationalists and to some extent the Quebecois secessionists by the use of language that, as Professor Nemni points out, keeps changing, and we keep trying to find new formulas to say the same thing - I felt that I had to attend and once again express my concern.

At best, the phrase is mischievous. At worst, it can be dangerous because it sets a precedent. It builds on the use of this language that serves a certain political agenda of certain political parties at a certain period of time. I do not think it is proper expression to go into legislation, and it politicizes a bill that need not be politicized in this way. In that context, I urge you to reread, not all of my Meech Lake primer - you probably will not have time for that.

Senator Cools: Yes, we could.

Mr. Behiels: Ramsay Cook's felicitous little article in here is a seminal discussion of the issue. I have not found yet a better analysis of the debate. We have had a lot of it, though. He called it Alice in Meechland, using the proper spelling for Meech, or the concept of Quebec society as a distinct society. Here he goes into the Alice in Wonderland tale - Through the Looking Glass - showing that words do and must have meanings.

Historians always teach their students that facts are not neutral. There is no such thing as a neutral fact. As human beings, every verbal expression has some meaning. If it does not have any meaning, then it is very misleading. For people to argue that this is very neutral terminology is very misleading. It is very disingenuous. A political game is going on here, as it has been for a long time, on the question of the use of language.

In fact, this is a political project, and a national or federal government does not have the right or the responsibility to pursue the political agenda of those who would like to break up the country. That is not the role of the national government. In fact, it is quite the opposite. The national government must be forever vigilant. In fact, the role of the national government is to pursue projects that enhance our shared rule, not self-rule by the various parts within the federation. That is their job, yes, and they do that quite well, thank you very much. The role of the federal government is not to do anything that would endanger shared rule.

This was made obvious to me in a recent book by someone you all respect, Alan C. Cairns. His book is on the aboriginal issue, which has close, parallel relationships with the Quebec situation.

In that book, Citizens Plus, which I urge all of you to read, he makes it very clear that the obsession of many different political actors in this country in the last 30 or 40 years with enhancing self-rule and self-determination through various ways and means - and this is only one very small but important way - is destructive, is counterproductive. It is like a cancer that gets into the body politic and begins to eat away at our sense of who we are as Canadians. That is not the role of federal politicians, federal legislatures, the federal Supreme Court and the Minister of Justice.

I urge you all to read that book, because Cairns looks at development with respect to the Aboriginal communities, which has been based upon enhancing in every way possible self-rule and the construction of an Aboriginal citizenship quite separate and apart from Canadian citizenship. On that score, one must be conversant.

In speaking with my colleagues in the Faculty of Law at the University of Ottawa and those at the University of Montreal and at McGill, and in speaking with my colleagues in the history department who deal with the evolution of law in Quebec and, in particular, with the historical evolution of the Civil Code especially over the past 50 years, there has been a most remarkable convergence. In fact, civil law has undergone a profound change as the society of Quebec has changed, from a society based on groups and corporations and constituencies and legal social classes to a society that is based upon individual rights. In fact, the Civil Code has undergone change, in order to accommodate this new, modern, open Quebecois societyinvolving all of the citizens of Quebec. That has been much to the good. As a result, it is now possible to conceive of harmonizing federal legislation with regard to the modern Quebec Civil Code and common law in Canada. That is now an easy thing to do. That would not have been conceivable 50 years ago because the two codes were, in many ways, incommensurate. Now theconvergence is remarkable.

I applaud the Senate and the House for proceeding in this way because it shows that we are, in many ways, coming together in a larger sense of shared citizenship, and that is a good thing. However, there is no reason to muddy the bill with this sort of political agenda. There is no reason for that. I understand the politics behind it. I understand the resolution in 1995, and I understand that that there are still those people who are desperately trying to wiggle in by the back door some aspects of Meech and Charlottetown. That is their project, but we do not have to fall prey to that project. We worked long and hard to try to set it aside. The government finally got up enough nerve to proceed with the clarity bill. Although in my opinion it was not enough, it has gone a long way toward stabilizing the political climate and preventing any kind of precipitous action by the Quebec government at the moment.

I have a lot more to say, but I am sure honourable senators have many questions. I can elaborate on my concerns through those questions.

The Deputy Chairman: In the Calgary declaration, we saw the words "unique character." I mention that as an historical fact. In the motion in the House of Commons and in the Senate, they used the expression "distinct society," if I am not mistaken. That was accepted by the cabinet, the parties in both Houses, to a certain extent, and by the Prime Minister. If I understand your correctly, you are saying that it is a political debate. We cannot deny that. On the other hand, there is a decision of the two Houses of our Parliament on the expression "distinct society," and, to a certain extent, we have the use of the words "unique character."

Having said that, we will now start with questions from the senators.

Senator Pearson: I listened with great interest to both presentations. My personal take on this is actually quite different. Having spent some time living in other countries and travelling in Latin America, I feel that a civil law tradition does produce a distinct character. No matter how much the civil law tradition accommodates concepts of common law, there are somedistinctive aspects to it. For me, this was a non-issue. Every Quebec citizen lives under the civil law tradition. Regardless of whether the individual is French, English, disabled, Aboriginal, non-Aboriginal, or whatever, that citizen lives under the civil law. That leads to distinctive approach to all kinds of issues under the civil law, including marriage, issues related to support,descriptions in the Civil Code of Quebec related to the role of grandparents, and so on, that we do not have in the common law tradition.

We are trying to harmonize some concepts that exist in the Civil Code with concepts that exist in the common law. Unless you understand what they reflect, it is difficult to bring them into harmony. That is the reason for my particular comment. I do not have any problem with it; it was just a statement of fact. I do not really have a question.

Mr. Nemni: The issue is not whether or not Quebec has a distinct character. This was resolved a long time ago, in 1867.

The Deputy Chairman: Ever since the Quebec Act.

Mr. Nemni: Since the Quebec Act. We all know that Quebec has a distinct quality. The question is, how do we name Quebec? To me, Quebec is the Province of Quebec. That is the proper constitutional and political term. When you start fooling around with how we name Quebec, whether Quebec is a people, a nation, a distinct society, or a unique society, then I believe it is a political game - and, I would add, a losing game. You cannot win at this game, because if you now call Quebec a unique society, Quebec politicians will laugh at it, as they have, and as Mr. Landry has. They will laugh at it because they do not want to be called a distinct society nor a unique society. They want to be called a nation. Why call Quebec a nation. There is a simple reason why we do not call Quebec a nation. Within Canada's present political institution, we all know what Quebec is. Quebec is a province. It is simple.

Senator Pearson: I understand that, but those are two quite different issues.

Mr. Nemni: They are, but they are being mixed into this. There is a political project and a constitutional project that are intermingling in an unhealthy way.

Senator Pearson: I disagree, but I should like to hear Professor Behiels' comment.

Mr. Behiels: I do not know how one can make a comparison between the evolution of civil law in other societies and the evolution of civil law in Canada. There is no doubt that, from the point of view of social historians and people who have done a considerable amount of research over the last 20 or 30 years, going right back to New France, and who followed this evolution all the way through to the present day, there has been a highly remarkable convergence. In fact, there are many aspects of the Quebec Civil Code that have adopted aspects of the common law.

That is not to be unexpected, given the nature of where Quebec exists in the terms of North America and its economic, sociological and demographic evolution. That was bound to happen and will continue to happen. To then try to identify Quebec's uniqueness with just the Civil Code is also questionable perhaps. Is that inclusive or exclusive? Is that the only thing that is "unique" about Quebec society? I think not.

As Professor Nemni has pointed out, that will not make anyone happy. It may have made a few people happy 30 or 40 years ago, but it is unlikely to make anyone happy today. It is playing around with words for political purposes and that is not the role of legislators. Legislators must be precise in the use of language; otherwise, they are playing mischief, and that serves no purpose. In fact, as I argue, it does not serve the purpose of federal parliamentarians, who are there to try to enhance our shared citizenship and shared rule at every step of the way.

I am happy to recognize the Quebec Civil Code as an important and distinctive feature of Canada. It is quite remarkable that a country has been able to progress so easily, and with a tremendous amount of fluidity, with those two systems. We have a Supreme Court that must deal with both. That is quite remarkable in the historical sense.

There is no need for this. It is gratuitous and it continues a debate that I had hoped we had laid to rest.

The Deputy Chairman: I have a question on that precise point. If that is so, what was the reason for the cabinet to propose, in the House of Commons and in the Senate, the same expression?

Senator Grafstein: No, it was not the same, it was different.

[Translation]

Mr. Nemni: I must say that I am not at all in agreement with the 1995 motion. That political project was implemented because the Prime Minister thought that given the results of the referendum, something had to be done. He decided to do it and I think it was not a good idea. He did not wait for the Quebec people to express the desire to see the distinct society he was forming be recognized. I would say that the people of Quebec have never expressed the desire to be recognized as a distinct society. The people of Quebec have never said anything on this matter. The Quebec referendum did not ask: do you want to be a distinct society? The people have never said yes or no to that question. In 1995 the House recognized that within Canada, Quebec was a distinct society. It was a bad idea but it was a political project.

We now arrive at this one. This other political project says, and I quote:

WHEREAS the civil law tradition of the Province of Quebec, which finds its principal expression in the Civil Code of Québec, reflects the unique character of Quebec society;

We are no longer talking about a distinct society. But why is it that in 1995 we felt the need to talk about a distinct society and that now we talk about a unique character? Because it is a political game that has evolved in the meantime. The Calgary declaration was a sort of compromise. On the one hand, we recognized the unique character of Quebec, but on the other we recognized the absolute equality of all the provinces. Those are all political games that must not influence us when we are writing a marvellous bill on the harmonization of the two judicial systems.

Why bring in a political project through the back door that has no place there and that, in any case, should never have been made? That is the problem. Today you call it a unique character, but you are too late. That will satisfy no one in Quebec. Now you have to call Quebec a nation to satisfy them. Unique character does not please anyone! Why do it? Excuse me, many of you are probably from the Liberal Party of Canada. It is not even a political project of the Liberal Party of Quebec. It is a political project the Liberal Party of Canada wants to impose through the back door.

We should at least, openly and honestly, have a real project that wants to recognize Quebec as a distinct society and debate that idea instead of doing it through the back door.

[English]

Mr. Behiels: We all know from where this came. We know that the Prime Minister, in the last week of the referendum campaign, in New York, simply panicked as he saw the hidden polls and the prospect that the country would fall apart during his watch. He immediately concocted this speech and made this offer, which he could not carry out because he would not and could not get the approval of the provinces.He would not get the approval of the provinces today for this sort of language and this sort of project. It simply would not happen.

Having made the promise, of course, he needed to do something, and he brought in a resolution. It was not even a bill, it was a resolution. He did bring in the other bill, which had to do with saying that Ottawa would guarantee that it would use its veto power over the Constitution to prevent any further amendments to the Constitution, giving Quebec, in a sense, a veto. We know where this comes from, but that does not justify moving forward with it in terms of dropping it into preambles of every bill that comes along to somehow make people feel good. That is not what legislation is all about. The purpose of legislation is not to make people feel good; its purpose is to accomplish certain clear and plain objectives, not to fulfil one political project or another. We know where this comes from. It has a long political history.

Senator De Bané: I have been listening to your point of view and what I see here is that it is a question of political debate. It happens that you do not like those expressions, and I respect your point of view. You do not like it and each of you comes with arguments, one saying people would say this is not enough and others saying that this is a lousy strategy. Essentially, this is a political discourse. One likes an expression, the other does not, fine.

I would like to know - and that will become important - if you have a fundamental objection to the orthodoxy of using those words. That is another level of discussion.

Each of us has his or her own way of expressing ourselves. That is fine. If I do not like someone else's terminology, that is fine. I can have my own, which is also fine. You do not like that and would not have written it that way. I respect that. However, we reach another level of discussion when we discuss the substance of it.

I submit to you that while X or Y might not like such an expression, I do not see anything repugnant in using that. As Mr. Trudeau said in one of his famous articles - you, Professor Nemni, know his writings better than anyone - what is reactionary is not the word "nation" but that every nation must be independent; that because we have 10,000 nations on this planet we will have 10,000 countries. Trudeau said that that is reactionary.

Senator Grafstein: Where is that from?

Senator De Bané: Trudeau wrote that in a book that was published when he was Minister of Justice.

There is nothing wrong with saying that a group forms a sociological nation.

Senator Grafstein: When he was Minister of Justice?

Senator De Bané: Yes, he published that book. And I do not think he was wrong.

When Landry was asked, "Do you agree that there are several nations in Quebec," he said, "Oh, yes." When he was asked, "Do you agree that they should separate?" he said, "Oh, no. They would not be entitled to separation. No one would agree to that."

You do not like the word "society," but the French title ofMr. Trudeau's famous book is Fédéralisme et la société canadienne-française. The English title is Federalism and the French Canadians. I respect your point of view that you do not like something.

[Translation]

The Deputy Chairman: His famous 1965 book?

Senator De Bané: Yes.

The Deputy Chairman: Is it communauté canadienne-française?

Senator De Bané: No, société.

[English]

  I know the book. If I make a mistake, I am sure Professor Nemni will correct me. He knows it better than any of us.

I respect political debate. Each of us can say, "I would not use that word. If I were in the government, perhaps I would use something else." However, I would not go to the extent of saying that this is heresy. Perhaps Professor Nemni is correct that Quebecers would say, "We want something more," but I am not in a position to say that this is something abhorrent or that this is something that will prevent me from sleeping. Those are words that are totally acceptable. While I do respect your point of view, I do not see anything repugnant in using these words. If they had used other words that were loaded with inescapable conclusions, then I would agree that it is more than political discourse and is a fundamental argument. If all the premiers in Calgary said, "Quebec has a unique character," there is nothing wrong with it. In other words, we are at another level when we discuss, "I like this; I do not like this. The strategy is poor, lousy or unsophisticated. We should adopt a better strategy." That, I understand, but to go further than that, I respectfully beg to differ.

[Translation]

Mr. Nemni: I would first like to Senator De Bané regarding his evaluation of this expression that he finds very banal.

In this preamble, Quebec is referred to in two ways: one that seems quite normal and acceptable to me in a federal bill, which is to talk about Quebec as a province. It would have been sufficient to say that civil law is a characteristic specific to the province of Quebec and I would have had no problem with that. You would have had exactly the same result since that is what you want to recognize.

To say that the tradition of civil law is part of the unique character of the province of Quebec creates absolutely no problem. But why use the expression unique character of Quebec society? I am sorry, I know the term society is banal and that we can find it in any dictionary. That only says that society means this or that.

These words are used in a particular context, the Canadian context, and the expression distinct society has been used politically. The expression unique character of Quebec has been used politically, but not in a banal manner. It is not sufficient to go to one or two dictionaries to know what the word distinct means. That will not allow you to know. We understand very well that to know the meaning of distinct society, we have to refer to the Meech Lake Accord. To know what unique character means, we have to refer to the Charlottetown Agreement. These political acts have imparted a political character. You are inserting a political element in a law for no good reason. Why not refer to the Province of Quebec and say everything you want on that subject? There is no problem.

In your reference to Mr. Trudeau, it is not the concept of nation that is retrograde, it is the idea that a nation must be sovereign. And to what was he referring when he talked about nation? Nation can be used two ways: in a sociological sense and in a civic or political one.

In a sociological sense, I have absolutely no problem when we talk about nations but not the Quebec nation. The French-Canadian nation is the sociological element. You recognize an entity that defines itself through a number of sociological traits and there is nothing wrong with that. There is no problem with the expression French-Canadian nation. But when you say the Quebec nation, what does that mean? It includes a lot of other nations: the Anglo-Quebecer nation, the Aboriginal nations, the groups that are not aligned with any of them, etc.

Quebec is not a nation, either sociologically or politically. Quebec could become a nation politically if it separated from the rest of Canada. Being a nation is not a feather in one's cap. It is recognized through facts. There is nothing right or wrong with being a nation, but we must not confuse the two, which is what we are doing here. Therefore Quebec is not a nation.

The Deputy Chairman: Many senators want to speak. We will follow the list.

Mr. Behiels: I also had an answer for Senator De Bané.

The Deputy Chairman: I thought you had already answered.

Mr. Behiels: I had not answered Senator De Bané.

[English]

Mr. Behiels: Trudeau never ever identified the French Canadian society with Quebec. He was very logical on that. Never once in his writings did he identify the French Canadian society of Quebec. He had a very clear conception of what position the French Canadian society occupied in Canada. It was not a position that was exclusive to Quebec. He was very logical. At no point did he ever make the mistake of identifying the French Canadian society even within Quebec with the Quebec state.

What has happened over the last 34 years has been a very insidious redefinition of the two-nations philosophy and two-nations thesis. Initially, it pointed to the French Canadian nationality in Canada and the British Canadian nationality in Canada. It starts early after Confederation and runs right through to the 1950s and early 1960s. The neo-nationalists of Quebec had a very different project. They have gone about redefining the two nations. For them, the two nations were Quebec and Canada. This began with Michel Brunet's famous phrase -

[Translation]

Quebec for Quebecers, Canada for Canadians.

[English]

They were Canadians.

The Deputy Chairman: Lord Durham in his report referred to two nations warring in the bosom of a single state.

[Translation]

Mr. Behiels: Yes, but two nations in another concept of sociological nationality.

The Deputy Chairman: I agree, I agree.

Mr. Behiels: Neo-nationalism in Quebec wants another definition of the two nations, a political and territorial definition, Canada-Quebec. We should set aside all language that would help this project. We must always be conscious of their political project and avoid helping it. So when we use language such as distinct society for Quebec, unique society for Quebec, we help their political project and not Canadian citizenship.

Senator Nolin: It is rare to have political debates around this table. You took a review that had started in a very rigorous and legalistic manner and transformed it into small political debates. I do not know if that is a good thing. In any case, we will hear you out.

Professor Nemni, you raise an issue regarding the second clause of the preamble. You started, in your answer to Senator Pearson, by recognizing a historical fact in Canada since at least 1867. I would be inclined, as did the deputy chairman, to go back to the Quebec Act. Do you not recognize, at least, the interest, in drawing up a bill today, of including a preamble to describe the context in which this preamble and this bill fits?

Mr. Nemni: Of course, I do not see any problem with that.

Senator Nolin: You do not have a problem with that; in other words, it is the words that are used.

Mr. Nemni: Yes.

Senator Nolin: It is not the findings of a long evolutionary history found in very specific acts, going from 1774 to today. You do not have a problem with that?

Mr. Nemni: Exactly, the words in the second part of this whereas clause talk about the unique character of Quebec society. They are not neutral words. They are political words. Call it Quebec, a province, by its name and I have no problem.

Senator Nolin: That the province of Quebec finds its main...

Mr. Nemni: That the civil law tradition in the province... incidentally, there was something here. Someone has already written such a proposal or simply attributed the civil law tradition in the province of Quebec as an affirmation of the unique character of the province of Quebec. There is no problem. I will not discuss the basics of the issue regarding the changes made to the Civil Code, that is not what I am here to talk about.

For example, the civil law tradition in Canada is expressed mainly through the Civil Code of Quebec or the province of Quebec. That is perfect. The problem is talking about a distinct society, a unique society. Those are terms where we do not know what you mean. We wonder if it is Mr. Chrétien's project orMr. Dion's. What is behind that? Are they bringing us this to reach another end, slowly, gradually, by the back door, do they want us to swallow something? Let us put our cards on the table honestly.

Senator Nolin: Last week we heard the minister talk to us about the government's intention. The minister is perhaps in a better position to explain the government's intention.

That is somewhat like what Senator Pearson was saying. It is a statement of fact that is almost unanimously agreed to in the context in which the bill has been developed since 1993.

Mr. Nemni: What is wrong with saying that the civil law tradition in Canada is expressed mainly through the Quebec Civil Code? You are no longer talking about a unique or distinct society. You said what you wanted to say.

The Deputy Chairman: Could you repeat that?

Mr. Nemni: That the civil law tradition in Canada is expressed mainly -

The Deputy Chairman: No, no, it is in Quebec.

Senator Fraser: He is proposing another wording. Reread the sentence.

Mr. Nemni: That the civil law tradition in Canada is expressed mainly through the Quebec Civil Code.

The Deputy Chairman: That is completely false. The Civil Code does not apply outside Quebec.

Mr. Nemni: It does not apply, that is another matter.

The Deputy Chairman: "That the civil law tradition in Canada is expressed mainly through," it is not its main expression, it is all of its expression.

Mr. Nemni: I do not want to defend amendments proposed by other people.

[English]

Senator Grafstein: That is not the evidence, and that is not what he said.

Senator Joyal: That is not what he said.

[Translation]

Senator Nolin: That is not my testimony. As for the burden of proof, I would very respectfully submit that we have two witnesses who say so. We can present 150 witnesses who would say the opposite.

You understand that it is not the government's intention. Its intention is to include what this affirmation testifies to. That is the importance of the second part of the affirmation, that this finding testifies to something in order to explain the context in which this harmonization was made necessary.

Mr. Nemni: Fine. I do not have a amendment proposal to make. I can reread this sentence by repeating the terms. It is not very attractive. We could say that the tradition of civil law in the Province of Quebec, which is expressed mainly in the Quebec Civil Code, testifies to the unique character of the province of Quebec. It is ponderous because we repeat ourselves many times. I am sure you have people who can write better than that. But the idea is there.

Senator Nolin: In other words, "population, province," are correct as long as we do not use the word "society"?

Mr. Nemni: Yes, the words "unique or distinct society" are politically loaded terms.

Senator Nolin: As long as we do not use the word "society."

Mr. Nemni: They are politically loaded words. One refers to the Meech Lake Accord and the other to the Charlottetown Agreement or the Calgary declaration.

Senator Nolin: You have a problem with the government's political intention. Every day, we make political decisions and every day the government calls on us for Parliament to make political decisions. So I do not see the problem. If I told you that that the population of the province of Quebec has a unique character, would you have a problem with that? Is it the "character" or the "society"?

Mr. Nemni: It is the idea of the unique character of Quebec society. I do not want to propose a new amendment or changes to that passage. I simply want to respond to the arguments you made to me. You say you make political acts every day. That is quite true. When you make a political act, you put it on the table honestly to see what political act you are making. Here you are trying to harmonize two judicial systems, fine, do it. That is your role, but in doing it, in the preamble, you use one of the whereas clauses to give a tip of the hat to certain Quebec politicians. That is what you are doing. It should not be done.

Senator Nolin: Professor, you said it yourself - I must admit that you are right - that the Quebec politicians you think the government is trying to please will not be satisfied with that. Let us be a bit realistic, perhaps that is not its intention.

Mr. Nemni: What is it then? Why use a vague term that is meaningless? What does "the unique character of Quebec society mean"?

Senator Nolin: It is not as simple as trying to explain the context in which the bill was drafted. Do we mean that the population of Quebec has a unique character compared to the rest of Canada?

Mr. Nemni: That is completely acceptable to me.

Senator Nolin: Is it possible that it explain why harmonization is necessary?

Mr. Nemni: That would surprise me; I do not see why we use terms that have been used on other political occasions. If the term "distinct society" had been used instead of "unique character of Quebec" I would have said that the political intention was more "meechian." I am not quite sure what that intention is. I know that there is a hidden political intent in there. I cannot say to you: "this is what they want to do." I know there is something vague. You are introducing vague elements in what should be clear.

Senator Nolin: Professor Behiels, you said in your testimony that during your discussions with your colleagues in the law and history faculties you came to the conclusion that there was an evolution in Quebec civil law, an evolution toward theindividualization of the law. That is what you said. I would like some clarification about that. When did we start this evolution?

I have a second question for you, Professor Behiels. Do you recognize that the Civil Code of Quebec has already recognized collective rights?

Mr. Behiels: They were not collective rights per se, they were corporate rights, social class rights in an unequal society.

Senator Nolin: You are questioning me, tell me where.

The Deputy Chairman: It certainly is not the 1994 Code.

Senator Nolin: The 1866 one?

Mr. Behiels: Yes, there was already an evolution since New France, but the spirit was a rather unequal one, especially towards women. I think it is the women's movement in Quebec, which was rather radical in the 70s and the 80s. That movement put a lot of pressure on the government to change the Civil Code in order to give them more equality within the family and in society at large. Their rights under the law were clarified to give them true equality.

There is an evolution in the Civil Code that reflects the evolution of Quebec society since the Second World War. This evolution goes far back in history, and, I agree with you, there were changes in the 19th century. I am not a specialist in this field. I am only taking my colleagues' comments who, in truth, are placing the history of the Quebec Civil Code in the context of social history, family history, women's history, the history of workers, the history of property, how we dispose of property, family estates and so on. Historians have jumped on this. There is a lot of history there and we see that the evolution continues over a long period of time.

I do not know the situation in France or other countries of the world were civil law predominates, but I know a little about the situation in Canada since New France.

[English]

Senator Grafstein: For one that made a minor speech, which was the only speech in the Senate on this resolution - I can repeat it because it was short - I believe you encapsulate what I said, which is that Canada is a distinct society and all the rest is commentary. You have demonstrated the support for that contention, that if we talk about a society it is better for us to talk about Canadian society because it is unique. In effect, the purpose of this bill is to demonstrate to all and sundry, Canadians and others, that by harmonizing two different traditions into one, as Professor Behiels has said, each has played off the other.

There is no sacrosanct common law separate and distinct from the Civil Code, and there is it no Civil Code sacrosanct, separate and exclusive from the common law. Both have polluted each other, or, better put, improved each other. That is what we have here, namely, a further acceleration in an ongoing process, which has been accelerating since 1760, for common law notions to be inculcated and inoculated into the Civil Code, and vice versa, in Canada.

I wish to refer to a comment concerning what we are talking about here. We are not talking about a simple observation. There is no such thing as a simple observation when it comes to legal analysis or legal statements. They all are suffused with meaning. It is one thing to talk in the political dialogue; it is another to put it in a code. We are incorporating this into a unique code - unique because it has both traditions embodying one another.

I start with the lawyer's question. I am mindful of the question posed by Senator De Bané, which was: At what level of orthodoxy can we engage here? The first level of orthodoxy is to engage at the legal level, and what the word means and what the word says. Let us turn on not just the "society" word but the "unique" word, because that tends to more a motive than others.

What does the Oxford dictionary tell us? On page 1338 of the Concise Oxford Dictionary, the new edition for the 1990s, the definition is clear. The word "unique" is defined as "of which there is only one; unequalled; having no like." The word, in effect, means having no equal or having no parallel.

To my mind, that idea should not be inoculated into this legislation the way they have done it in the preamble. Theoretically, it is counter to the essence of what the bill is to be about, which is to not emphasize the uniqueness, except of the whole, but the contrary, to harmonize ideas.

Mr. Nemni: Exactly.

Senator Grafstein: I put this earlier to other members, who said, "No, it is not to bring it together." However, that is what it says; the first reference is, "A First Act to harmonize." "Harmonize" means to bring together. Therefore, at the orthodox, intellectual, legal, jurisprudential level, the notion of uniqueness, even as a simple term, is contrary to the whole objective of the legislation. One might take the position that under parliamentary practice it is contrary to have a preamble that is inconsistent with the essence of the act, if in fact the act is to bring together and to harmonize ideas.

I should like your comments on that statement, because that happens to be my view. I have expressed my view before through Meech Lake. My biases on this are well known to my colleagues.

Senator Lorna Milne (Chair) in the Chair.

The Chairman: Before the witness answers, Senator Beaudoin would like to make an interjection before he leaves.

Senator Beaudoin: There is one thing that I do not understand. The reason we have this before us is that in one province out of 10 there is a system of private law that is different. In all the other provinces we have the common law that we have inherited. If Quebec had no Civil Code - suppose the Quebec Act had not existed and the Civil Code of 1867 had not existed - I doubt that we would need harmonization.

Senator Grafstein: Not so.

Senator Beaudoin: That is what I say. At that time, we will be in the same situation as England and the United States. However, because we have two systems of law, we must harmonize the federal statutes with the genius of the civil law in Quebec and the genius of the common law in all the other provinces. That is what we have to do.

Senator Grafstein: Agreed.

Senator Beaudoin: It is obvious, then, that the second preamble is the intent of the bill. It is not a contradiction. It is to give effect to the fact that we have two systems of law in our country.

Senator De Bané: No.

Senator Beaudoin: It has been that way for 200 years. When Lord North introduced in Westminster a bill to reinstate the civil laws of France in Quebec, it was certainly nothing like the common law. Of course, he was interested in keeping the Quebecers or the Canadians on the side of the Crown. That is what our ancestor did, and he paid the price. He reintroduced the French laws. The Civil Code that we had in 1866 was based on that, as was the Napoleanic Code. In 1994, there was a fantastic update of the Civil Code of Quebec. We have two different private law systems. We have to harmonize that with our federal laws.

That is all I wanted to say.

The Chairman: Colleagues, I wish to point out that we still have another witness to hear from. He has been sitting here patiently.

Let us try to shorten it up a bit, if we can.

Senator Joyal: Senator De Bané is leaving, and I wish to make a point on the point he raised. I am sorry to interject, but I wanted him to hear it.

The Chairman: I would ask everyone to move along smartly.

Senator Beaudoin: I should like to hear your reply.

Mr. Nemni: I should like to answer you.

[Translation]

"Reflects the unique character of Quebec society." That is your point of view. If we had said that the Civil Code is unique to the province of Quebec, there would have been no problems.

Senator Beaudoin: Listen!

Mr. Nemni: No, I am sorry, it makes a big difference! That it is the only one having the Civil Code, there is no problem! But when you put it that way, you are introducing something else, which is a political dimension. That's the problem.

Senator Beaudoin: How do you say that?

Mr. Nemni: That the civil tradition is unique to the province of Quebec, that it reflects the unique character of the province of Quebec, there is no problem.

Senator Beaudoin: You object to only one word, the word "society."

Mr. Nemni: The words "unique society." Assemble those terms.

Senator Beaudoin: But you would accept "unique to Quebec"?

Mr. Nemni: Yes. In the definition that he just read to us, the Civil Code is unique to Quebec, in the case of Canada of course. It is not elsewhere. It is obvious! I agree with you completely.

Senator Beaudoin: No one is challenging the witness. The Civil Code is unique to Quebec.

Mr. Nemni: Absolutely. It is a statement of fact.

Senator Beaudoin: I have presented my argument.

[English]

The Chairman: Have you answered Senator Grafstein's point?

Mr. Nemni: No, I have not addressed it. I fully agree with what Senator Grafstein is saying. He is saying that by emphasizing the unique character of Quebec we are doing something else. We are not saying that the Code Civil is unique in Quebec, but we are saying that Quebec is unique within Canada. When we do that, obviously we are entering into a political game, which is contrary to what this project is meant to do, namely, to harmonize so that the uniqueness will be a Canadian feature rather than a Quebec feature. This is what we want to do, yet we say the opposite.

Mr. Behiels: I concur completely with Professor Nemni. There is an inherent contradiction in all of this. I think it could be resolved quickly. There is no need to muddy the waters in all of this with a piece of legislation that is probably long overdue and, for the most part, having read through it, appropriate. This matter could be resolved with a minor amendment, and we could get on with business.

Senator Cools: Just delete the preamble. It is very easy.

Senator Fraser: I hesitated before raising these points because, like Senator De Bané, I believe strongly that you have the right to have the position that you have and to express your beliefs about whatever Parliament does. However, I am driven to say that I have been profoundly offended by the way in which, in portions of your testimony, both of you have chosen to express those views. I just wrote down some things - "sliding things in the back door," "engaging in mischief and political games."

[Translation]

When we impose something through the back door, when we will be forced to swallow something, when there is a disguised political intention.

[English]

I even heard something I think I have never heard in any forum, which is the suggestion that Jean Chrétien is trying to sneak in something to fit the separatist agenda. I honestly found that an astonishing suggestion. However, I am offended by the previous language that I discussed.

You may not approve of what Parliament did when both Houses adopted that resolution in December, 1995, but it was not surreptitious or hidden or camouflaged. I remind you that, in that resolution, both chambers individually undertook to be guided by that resolution and they both encouraged all components of the legislative and executive branches of government to take note of the recognition of Quebec's distinct society and to be guided in their conduct accordingly.

I repeat: You have the right not to like that, but there was nothing accidental or surreptitious about it. No one pulled a fast one on the Canadian people. Nor is anyone doing anything surreptitious now. What can be more public or more open than a parliamentary act? What can be more democratic, more honest or transparent than a parliamentary act? We are here in a public session of one of the Houses of Parliament debating legislation. There is nothing "imposé par la petite porte" about it.

I repeat: You do not have to like it, but I would ask you both to withdraw your implications that something nefarious is going on here.

Senator Cools: Out of order.

Senator Fraser: My view is that what we are doing is something of a political act in the highest sense.

Senator Cools: This is extremely out of order and improper. The witnesses have the right to come before us and express whatever opinion they wish.

Senator Fraser: I said that several times, senator.

Senator Cools: No one has the right to make the kind of demand that has been uttered, which is to withdraw their statements.

Senator Fraser: No, their language.

Senator Cools: I am speaking to a point of order. If some of the statements that the witnesses have made are somehow or other injurious to Parliament, or to the system of Parliament, then there is a proper procedure that should be followed to raise those issues. The procedure that Senator Fraser should be adopting, rather than a lecture or a set of admonitions to the witnesses, should quite frankly be to raise those as points of order with clarification so that all honourable senators can debate the issues that are being raising.

As far as I am concerned, Senator Fraser is out of order to be castigating and chiding the witnesses. The witnesses are not children. They came before us in good faith and they should be treated in good faith.

The Chairman: Thank you for your opinion, Senator Cools.

Senator Cools: We must debate what Senator Fraser has just said. That is what she has put on the floor. That is on the floor and I will not -

The Chairman: Please, Senator Cools. Senator Nolin.

[Translation]

Senator Nolin: Obviously, I did not intend to raise these comments to the limit of grossness. You have definitely imputed an intention. If you look at everything I have said in the eight years that I have been here, it has often happened that I disagreed with what the government does. When you impute with such malice, to claim that Jean Chrétien is playing the Quebec cancer game, you have definitely missed pages of Parliamentary history.

It may not be the right way to do it, Senator Cools, but one thing is certain, it will be in the transcript of the debates of this committee. It is important that it be said. I do not at all consider everything that Senator Fraser has said as contravening the regulations. Not at all.

[English]

Senator Cools: If the witnesses, Madam Chairman -

The Chairman: Senator Cools, I will put you on the listafter -

Senator Cools: Are we speaking on a point of order?

The Chairman: Yes, we are speaking to the point of order that you raised. I must say that, in my five years on the committee, this is the first time that a point of order has been raised while I have been a member or the chair of this committee.

Senator Cools: Well, that is not a good sign. More should be raised.

Senator Fraser: For purposes of clarification, may I simply repeat that I attempted to say several times that I have every respect for our witnesses' rights to hold a point of view, to come before this committee and to express their points of view. I did object to some of the terms they used in expressing their views, but that is a distinction that I tried to draw and that I draw again for purposes of clarification.

The Chairman: What do the witnesses have to say for themselves?

Senator Cools: They cannot enter into a point of order discussion. They cannot. You stay out of this.

Senator Grafstein: Senator Fraser was quite gracious. I listened to her carefully. She, in effect, disagreed with some of the implications and expressed statements that the witnesses made. I took it that she did not mean to impugn these particular witnesses. In that sense, I do not think we have much of a debate on this particular order from my perspective because, again, this demonstrates support for what the witnesses have said, namely, that this is a very politically explosive statement. We have just seen a demonstration of that. That is not a legal fact but a sociological fact. On the one hand, I read the witnesses as saying that this is politically explosive and, therefore, proceed with the greatest of caution when attaching politically explosive statements to a legal document.

I believe that that is the median between what Senator Fraser said and what our witnesses said. I would hope that we can resolve this matter by saying that there is a vitriolic agreement to disagree on the fundamental definition and impact of highly explosive statements. That is what I gather from this. I take the position that I hope we can get on with the business and carry on.

The Chairman: Senator Cools, have you something to add?

Senator Cools: Yes, I have a couple of comments.

The Chairman: Please be brief, because we do have another witness waiting and we want to have a fair chance with Senator Joyal and yourself to ask questions of these witnesses.

Senator Cools: Most of us have been brief in our statements so far. However, it seems to me that when witnesses come before us they should expect a degree of respect. I accept and understand that.

First, in respect of what Senator Fraser had to say, for the record I wish to note that in point of fact I did miss part of the witness's testimony. I was late so I only heard a part of the testimony. Therefore, I am at a bit of a disadvantage to comment on exactly what they did say. However, I heard with clarity and followed with interest what Senator Fraser said, and it was that to which I was reacting. Asking a witness to withdraw statements or to apologize for them, after those witnesses have proceeded in good faith to make those statements, is somewhat unreasonable and insensitive.

The fact of the matter is that the witnesses were called here. They were not summoned or subpoenaed. They have come voluntarily upon an invitation and are presenting before us. I should like to remind honourable senators that if, in the process of presenting and giving testimony, and in the process of cross- examination - because this is a court, after all - the witnesses are somehow errant or somehow amiss, or otherwise insufficient or defective in how they are presenting, then it would seem to me that the duty of guiding and correcting the witnesses in their manner of presentation falls directly to the chair.

I must say that if the witnesses had said anything that should not have been said, or used a manner or tone that they should not have, to the extent that that was not corrected as it was happening in my mind tends to moot a lot of the discussion that we are having here.

I am reminding the chairman that it is the duty of the chairman to guide the witnesses, in particular, in the proper and appropriate way in which to speak.

The Chairman: Thank you, Senator Cools, for the lecture.

Senator Cools: I have not lectured you, Madam Chairman.

The Chairman: Yes, you are in the process of -

Senator Cools: Well, we can go on, then. Let us keep going then.

The Chairman: May we carry on, please, with the witnesses?

Senator Cools: What I was simply saying, Madam Chairman, is that you may not like points of orders but they are an old-fashioned parliamentary tradition. I was trying to say that if Senator Fraser has some strong disagreements with the professors, and I sense that she has, they can be expressed as disagreement. I found it objectionable that witnesses would come before us and would be so insulted. I will start recording many more objections.

The Chairman: Excuse me, Senator Cools, I have the floor.

Senator Cools: That is right, you sure do.

The Chairman: I believe that Senator Fraser has expressed precisely what she meant to say. She has been upheld by Senator Nolin. I would hope after this discussion, and this thorough lecture around the table, that we may carry on with the witnesses.

Mr. Nemni: Excuse me. May we reply to what we have just been accused of?

Senator Cools: They did not hear all of this. Can they make a response?

Mr. Nemni: What Senator Fraser said was not a point of order.

Senator Cools: Never mind that.

Mr. Nemni: She accused us of certain things and I should like to answer them.

Senator Cools: They were accusations. What I raised was a point of order.

The Chairman: Excuse me, Senator Cools. Professor Nemni has the floor.

Mr. Nemni: I should like to say two things. First, I never said that the 1995 resolution was a surreptitious resolution. It was not. I think this is how this sort of thing should be done. They wanted to recognize the distinct society, and there was an act that did so. I am completely in disagreement with that but I never said that it was done surreptitiously.

On the other hand, I did say that there is a sort of project that is going through surreptitiously in the preamble and more specifical ly in the second "attendu." When one says "témoin du caractère unique de la société québécoise," there is a political project because one could have used, in a neutral way, the words "province de Quebec." There is something superficial. This is precisely the basis of all my testimony, so I will certainly not excuse myself for doing that because I do think that this is the problem.

The Chairman: Thank you, professor.

Mr. Behiels: This is, in fact, a very sensitive and explosive issue. The resolution of 1995 in fact came about in rather unorthodox fashion. It was the result of a near death of the country. It was not thought out very clearly, but it did reflect, I think, at heart, the long-held position of the Prime Minister, who stood on that ground as early as 1987, although he did not make it very clear. He played both sides against the middle. He tried to twist Clyde Wells' arm to support the Meech Lake Accord. When that whole thing fell apart, he came out against the accord. Fundamentally, however, he has always been in favour of the entrenchment of the distinct society clause in the Constitution. The way he has gone about that, of course, has been very different than the way Prime Minister Mulroney went about it, and that is his prerogative. I do not like it, but there you have it. They are two very different politicians, and they have approached essentially the same project in very different ways.

With Professor Nemni, I agree that what was done in 1995 was the prerogative of Parliament. It did not reflect, I think, the wishes of the Canadian people, however. It was, in fact, in large measure imposed upon them by the crisis that was created by the referendum result in 1995. They were willing to swallow it, believing in fact that it was a mere resolution and that it would not have much repercussion on legislation and on the relationship between Canada and the Province of Quebec, but we now see that there is a different agenda underway. I would hope we could bring it to an end at this point and say, "Perhaps we should not go down that road." I disagree fundamentally with you on how we perceive the Prime Minister's role in all of this and that indeed there are people who would like to achieve by different means than was attempted in 1987 and 1992 the entrenchment in our Constitution of this clause. I will stand by my remarks.

Senator Joyal: At the outset, I wish to state that I would have expected and hoped that Senator De Bané would have been here because I want to quote from his remarks, and I think that in all fairness, when we do that, it is fair to give him a chance to rebut. I am sure there will be other opportunities for him to do so. Nevertheless, the discussion arises from a comment that he made about the word "nation" and the concept of the word "nation."

I wish to put on the record that Senator De Bané, in 1972, in the minority report that he signed with Senator Asselin at that time, said:

[Translation]

It is in Quebec that we find a nation, that word being understood in its sociological meaning.

[English]

I wish to quote the page of the report so that he will have a opportunity to answer that later. It is found on page 6 of his minority report in 1972. In other words, Senator De Bané was of the following opinion in 1972:

[Translation]

Quebec was a nation in the sociological sense.

[English]

I wish to put on the record also that the late Mr. Léon Dion, a well-known political scientist, had a definition of "nation" and whether or not Quebec was a nation. I quote from Mr. Leon Dion's book of 1995, at page 350, where he said:

[Translation]

French Canadians form a nation but Quebecers do not form a nation, both are part of the Canadian political community, the foundation of the Canadian political system.

[English]

Our minister Stéphane Dion has a different opinion. The Honourable Stéphane Dion, in a letter that he published in French and English in the newspaper last weekend, says at page 4 of the text:

[Translation]

Now, Quebec is a nation in the French meaning of the term. That is, a community that has its own sense of history and its own cultural reference points.

[English]

A statement has been also attributed to Mr. Trudeau trying to cover the word "nation" as being neutral. I will quote from Mr. Trudeau from 1964.

[Translation]

Le fédéralisme et la société canadienne-française, pages 199 and 200, 1967.

When a closely-knit minority in a State starts to define itself vigorously and continually, it triggers a mechanism that tends to lead it to sovereignty.

[English]

In other words, I do not think it was fair to Mr. Trudeau to attribute to him thinking that the word "nation" could be used at any time without any political consequences.

Is it not true that the word "society" or "distinct society" is as loaded as the word "nation"? One can think that...

[Translation]

In the French meaning of the term, the sociological meaning, it is neutral.

[English]

In fact, is the real illustration that we are dealing with not the political concept that is always used as a stepping stone to ask for something different, something more, something that is not the way it is in the present Constitution?

We know that Mr. Landry said two weeks ago:

[Translation]

Quebec is not a distinct society, Quebec is a nation.

[English]

In other words, it seems that in every decade over the last30 years, a concept has been put together, and people with a political allegiance put that concept ahead to try to push for something more. When a result does not happen, they go a step further to try to get more because they did not get enough with the first concept. It seems that there is a built-in process in the political language whereby we find ourselves trapped, like with that preamble, in a situation. We totally support the harmonization initiative, but we are caught in accepting something which for some of us - perhaps not all, and I recognize that - is not acceptable because we know it will be used somewhere else for some other purposes.

Mr. Nemni: I will make a brief statement. This was the essence of my presentation. One cannot say that words are neutral and mean nothing special. They do carry a political weight. These words, "distinct society," "unique character of Quebec" do carry a political weight. If you want to have a clear law, one should try to use words that are clear for everyone. Words such as "Province of Quebec" are clear to everyone. There would be no ambiguity whatsoever if someone had used these words, and this discussion would have been unnecessary if we had used these word, whichis proper politically, constitutionally, ideologically, andsociologically. We are having this discussion because the words that have been used are not clear words. They are not proper words in a text of law. They are political words, thereby creating all of this ambiguity.

I wish to add to what Senator Joyal has said that - and, again, I will say something that may displease some of you but to me this is the pure reality - politicians do use words for political purposes. In fact, nationalist politicians are the ones who do so more than all others. In Quebec, the name of the legislative assembly is the National Assembly, and this is not a neutral expression; it is political. Politicians in this building are doing exactly the same thing. They are passing law, and so on.

Why, after the laws of the referendum, did Quebec politicians decide to call Quebec City the national capital? It is not the national capital. It is a lie to say that it is. I will not say that these are not lies and that they are not surreptitious motives, because they are. They are pure lies. There is no such thing as a nation in Quebec - not yet. There may be one some day. Let us use clear words. When you use such words as "caractère unique, société distincte," you are not being clear.

Mr. Behiels: In democratic societies, words are the only things we have to carry out our battles. Going from a society that resorts to violence to resolve power struggles into a democratic society, the only weapons we have are words. Words are value-loaded. They have to be; otherwise, we would be talking at odds with one another. Words are used and abused continually by ideologues, by journalists and by politicians, because they are our weapons. We try to achieve our objectives through the use of words. It is a lot better than using guns, but we must understand what is going on. That is why a debate about words is inevitable. Language must be precise. It must represent very specific interests. I am wondering what interests are being represented here.

Senator Cools: I was struggling to remember an old expression. I think it was Lord Durham who said, "two people struggling in the bosom."

Mr. Behiels: No, it was "two nations warring in the bosom of a single state."

Senator Cools: That is right. I was trying to remember that.

First, I wish to thank you for clarifying the definition of "nation," both in its sociological concept and its civic and political concepts with a geographical territory being a country versus a nation. I thank you for bringing that forward because there was much debate on what used to be called in the old days the national question. If one were to read much of the old literature, one would see that a lot was said on the national question. There was a sense that peoples do exist but that all peoples do not necessarily have the prerequisites to be a nation or to be a country in that sense. I wanted to thank you for that clarification because this particular question is bedevilling a lot of debate.

When I was younger, which was quite some time ago, we did not have the term "Québécois" or "Québécoise." The term used to be French Canadian. A French Canadian could be a French Canadian from Quebec or from New Brunswick or from Nova Scotia or from any other part of Canada. That is how I grew up. People never referred to themselves as Québécois. The language has been supplanted for very deliberate reasons.

I should also like to thank you for bringing forward the particular issues of the National Assembly. I belong to that group of people who winces every time we hear the term "National Assembly." I have taken the trouble to read the Debates and to read the legislation that brought the term "National Assembly" into being because at one point I was interested in how the question of Her Majesty's assent within those bills was circumvented.

It may be interesting to have added to our wealth of material in the consideration of this bill some of the substantial issues in respect of the renaming of the legislative assembly of Quebec, how it got renamed the National Assembly and now, as you have said, the "National Capital." Obviously, none of this is coinciden tal and none of it can be accidental. I am pleased, however, that it is forming a part of our consideration. If we could have some references or some material from our researchers, that would be helpful.

To come to my question, the preamble bothers me in every aspect. I would be quite happy to see the entire preamble deleted because it is deficient not only in the area of the so-called "distinct society." but also in many other ways. For example, paragraph four talks about "windows on the world." Paragraphs six and seven, the very last two, talk about the "objective of the Government of Canada." How often do you see terms like "the Government of Canada" in legislation? The entire preamble is extremely unusual and peculiar, and requires close scrutiny.

There has been a lot of discussion in the Senate chamber about "distinct society." I can say with some fairness that at the time of the Meech Lake Accord an overwhelming number of senators were opposed to the concept of a distinct society. I know because I was one of them myself. There is a lot of literature and a lot of testimony regarding that.

The Chairman: Do you have a question, Senator Cools?

Senator Cools: I am coming to it, senator.

The Chairman: I hope so.

Senator Cools: This is not Question Period, though, senator.

The Chairman: All right.

Senator Cools: I am having an exchange with the witnesses. They are responding. I can see them. They are quite within my visibility.

The Chairman: Yes, but not on the record.

Senator Cools: All right. This is showing that there is a lot of work to be done on this bill and that this committee should take a good time to study it. This is showing that this bill is quite complex and it requires our fulltime consideration. I just put that forward for your consideration.

Coming to the "distinct society," there is a lot of material. You are right when you say "the resolution as passed in 1995." Even that in and of itself was another political compromise, so to speak. If you go through the Debates you will see that, for example, I did not speak. But that is neither here nor there. Regarding the question of the distinct society, I differentiate between looking at the preamble within what we call the "Civil Code" and this term the "civil law tradition." I think the term Civil Code is quite measurable, quite tangible, whereas civil law tradition is a hugely different thing. The whole phenomenon of the legal meaning and the constitutional meaning of the term "distinct society" has bedevilled all of us. We are no closer now -

[Translation]

Senator Nolin: If I follow you, you can speak for yourself, but if you decide to speak for me, I would not want that.

[English]

Senator Cools: I was never speaking for you. I would never propose to speak for you.

Senator Nolin: You said "all of us." That means me. If you want to talk for yourself, fine, but do not include me in that information.

Senator Cools: Okay.

[Translation]

Senator Nolin: I am not at all concerned by that statement.

[English]

The Chairman: Senator Cools, if you want to proceed, ask the witnesses a question.

Senator Cools: Unless I am violating some sort of time limit, I believe the time is here for me to use as I see fit. Thank you.

The Chairman: I believe the time limit was set out in the agenda for everyone to come to this committee. Our second witness, Professor Gaudreault-DesBiens, would be speaking at 4:15.

Senator Cools: Well, senator, if you are meaning to tell me you are cutting me off, then say that.

The Chairman: I am not trying to cut you off, I am just trying to get you to ask the question.

Senator Cools: I see.

Coming again to the whole question of the "distinct society," do you know precisely when that term comes into existence, or has its genesis, in both the legal and political language of the community? Do you have any knowledge on that? I have a reference to it in the 1800s. Do you have any knowledge of that?

Mr. Nemni: I know at least one instance when it has become a powerful political instrument. That was when the Parti Québécois was in power and wanted to oppose the patriation of the Constitution. They proposed a resolution that picked the words "le Québec constitue une société distincte" from the PLQ's platform so that they would both vote in favour of the resolution. This is when it became an effective political instrument.

Senator Fraser: On a small point of clarification, if we are talking about the same resolution, it actually said "une société distincte" within the Canadian whole.

Mr. Nemni: No, I do not think it said that.

[Translation]

The Parti Québécois has taken the idea of "distinct society" from the Liberals to propose a resolution that ended up being accepted by all.

[English]

This is when it started, for me, in terms of a political impact in Canada. Perhaps there are prior instances to that of which I am not aware.

Senator Fraser: I quote here from a resolution voted by the National Assembly:

...the two founding peoples of Canada are fundamentally equal and that Québec, by virtue of its language, culture and institutions, forms a distinct society within the Canadian federal system...

Senator Joyal: Please continue.

Senator Cools: Could the whole resolution be put on the record?

Senator Fraser: The whole resolution goes on and on. I will find a copy.

Senator Cools: That is fine. Madam Chairman, for the sake of the record, could Senator Fraser indicate what pages she is reading from and the name of the document?

[Translation]

Senator Fraser: National Assembly, minutes of 19 May to18 June 1981, first session, thirty-second legislature, honourable Claude Vaillancourt, page 143.

[English]

Senator Cools: I have no doubt whatsoever that Senator Joyal is quite accurate in this matter, that the term "distinct society" has a great potential to be built, constructed, amplified, exaggerated to move forward in a profound legal way to form the embryo of a claim for nationhood. That is something with which I have a great amount of difficulty.

Do you have any comment on that?

Mr. Nemni: As I said - and I think I agree with what you say - this is the political reality in Canada. When the Parti Québécois had to face the repatriation of the Constitution and went towards the PLQ so that they would present a single front against Mr. Trudeau, they thought of this sort of gymnastics, which was to pick a notion out of the PLQ so that they would both be united in opposition. From then on, it has been a war of words, of ideology, that has constantly been transformed into a political battle. It was not just a war of words. This is what led to Meech and the process of Meech. This is what led to Charlottetown. This is what led to a number of political instances of which we know. This is what has led to the present situation where all politicians in Quebec now are completely dissatisfied with any such thing as distinct society or unique character and want nothing but the idea of being recognized as a nation or a national community or whatever. They are still playing with that.

This is the situation now in Canada. Within the Quebec context, they are playing with symbols. These symbols are powerful and have a great impact on the Quebec population and on the Canadian population at large.

Senator Cools: Why these particular sets of statements, constructions and formulations of words are finding themselves in a preamble to a bill, which describes itself as an attempt to bring about a particular harmony, is a question with which the committee must grapple. It becomes clear that the preamble is non-harmonious with the texture and the text of the bill as the bill declares its intention to us.

The Chairman: I wish to thank the witnesses for appearing before us. We will now have the next witness, Professor Jean-François Gaudreault-DesBiens, from McGill University.

Professor Gaudreault-DesBiens teaches and publishes in the fields of constitutional law, comparative federalism, legal theory and corporate law. He is particularly interested in the relations between law, culture and the arts.

[Translation]

Mr. Jean-François Gaudreault-DesBiens, Professor, Faculty of Law, McGill University: I will testify in French, but I will be happy to answer questions in both official languages. I understand that certain members of the committee, certain witnesses also, believe it is problematical, even dangerous, to use the words "Unique character of Quebec society" in the English version, or the French equivalent.

In my opinion, it is not especially problematical or particularly dangerous for the following reasons. In order to make my testimony more efficient from the start, I may refer to my text a little more than I normally do.

My first remark is designed to put things in their context and play down the situation a little. We are talking about an ordinary law of Parliament, not a constitutional one. This has certain legal consequences, especially in terms of the application of the normal rules of legislative interpretation.

My second remark is about the whereas clause at issue. The second whereas of the preamble is of course in the preamble and not the operative provisions of the law. So we have to ask what the function of a preamble is in a law.

We also have to know that the preamble of a law has no normative scope and grants no new individual or collective right. In a way, it is a simple statement. One could say that whereas the sky is blue... One can agree or disagree that the sky is blue, but it remains only a simple statement.

At best, in a context of legislative interpretation, the preamble can be used to explain the purpose and the scope of the law. In this regard, the federal Interpretation Act, in clause 13, says: "The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object." And the motives for adopting a law are often political. In my opinion, we should not be surprised to find certain political considerations in a law that, in any case, expresses a public policy.

It is clear from reading all of the preamble that the purport of the law is a desire to harmonize federal law and Quebec civil law in a specific context, that of Quebec society, and is aimed at that and nothing else. In addition, in my opinion, the operative provision of the law, the clauses that have normative scope, do not suffer from any ambiguity that would amplify the scope of the second whereas clause in the preamble.

My third remark is about the preamble in the context of an ordinary law of the federal Parliament that has no constitutional scope and does not claim any. And, contrary to the interpretative clause in the Meech Lake Accord, which, by the way, did not create any special right for Quebec despite certain interpretative exaggerations with no legal foundation that we heard at the time. It should also be noted that it refers to the "unique character of Quebec society" and not to a "distinct society." I do not want to get into that debate.

My fourth remark covers the text of the whereas clause in question that refers specifically to the civil tradition in Quebec and only takes note of the specific legal situation, different in this province, which has been recognized, as Senator Beaudoin mentioned, in Canadian constitutional law since the Quebec Act of 1774. Clause 92 of the Constitution Act of 1867, which gives force to provincial jurisdiction over property and civil rights, implicitly brings property law under civil law in Quebec and under common law in all other provinces. There is a series of clauses related to this: clause 94 of the Constitutional Act of 1867, which contemplates possible uniformity of laws related to property under civil law in provinces under common law, excluding Quebec. Legally, Quebec has a distinct character and, in my opinion, this whereas clause only repeats it.

My fifth remark is about the use of the term "Quebec society"; it does not create a precedent that would sustain in point of law any Quebec claim for special treatment.

The first element used as it is in the preamble to bill S-4, the word "society" has no specific legal meaning. Let us get back to legal interpretation. First, there is an important rule ofinterpretation that requires that the legislator understand words in the same way as the justiciable, which means, according to eminent author Paul-André Côté, giving words a meaning that they can have in everyday language, and not an artificial or esoteric one. This author underlines that we must not give them a meaning that would be given by a scientist or a person who, especially because of his occupation, would understand certain words in common use in their secondary or technical meaning.

What do the courts do in such situations? They look at dictionaries. I understand that it is the word "society" that creates a problem here. Let us look at the definitions in the Petit Robert. I also checked Le Petit Larousse illustré, and got about the same thing. The Petit Robert defines the word society ("société") as:

Relationships between persons; life in a company or a group that have something in common ("Relations entre des personnes; vie en compagnie ou en groupe qui mettent quelque chose, en commun.")

Relationships between persons, life in a company or group. ("Relations entre des personnes, la vie en compagnie, en groupe.")

State particular to certain beings who live in groups that are more or less numerous and organized. ("État particulier à certains êtres, qui vivent en groupes plus ou moins nombreux et organisés.")

Group of individuals among whom there are durable and organized relationships, most often established in institutions and guaranteed by sanctions. ("Ensemble des individus entre lesquels existent des rapports durables et organisés, le plus souvent établis en institutions et garantis par des sanctions;")

[...] social group limited in time and space. (" [...] groupe social limité dans le temps et dans l'espace.")

Any social group, sizeable or not, permanent or not, organized or spontaneous. ("Tout groupe social, important ou no, permanent ou no, organisé ou spontané.")

In addition, there are a number of definitions referring to contractual companies, legal vehicle, legal organization of business corporations and contractual companies.

My understanding of these definitions is that the generic meaning of the word society, is that of a more or less durable group having a certain level of organization. Even if I agree with my colleagues that the language is not neutral, that word is fundamentally descriptive rather than normative and emphasizes firstly the existence of a social link and secondly a relative degree of institutionalization of that social link. In my opinion, it is this generic meaning that is in bill S-4 when it talks about Quebec society and its unique character.

I had also identified a certain number of definitions of the word "society" from thinkers, political philosophers, political scientists and sociologists, but I won't refer to that except to say that these people use the word "society" or define it in a relatively neutral way as an organized group, as opposed to other terms that are more loaded in terms of meaning. For example, the word people, which has a specific meaning under international law. Here we are not talking about a people, we are talking about "Quebec society."

In my opinion, a judge who had to interpret that could not use that preamble and that whereas clause to extend the scope of the expression "Quebec society" to talk about the Quebec people or even the Quebec nation. The unique character of the society, which is not defined, except in terms of civil tradition, stems from a sociological finding that has no normative scope.

I understand from Mr. Nemni's intervention that he believed that the definition given to Quebec society was a bit reductionist given the complexity of identity in Quebec. The complexity of Quebec's identity is a phenomenon that we cannot deny, but on the other hand I would add that we are not defining, other than by a reference to civil tradition, the unique character of the society. Therefore the unique character, the uniqueness of Quebec is an open concept; it is sort of a work in progress.

I asked myself if the legal equality of the provinces could be broken by this whereas clause. My answer is no. From the outset, I would be surprised to see that we could be so afraid of seeing the recognition of certain provincial differences in the federal legislature. In my opinion, the very idea of federalism is based on a certain recognition and appreciation of differences, which the law in question does. That is very far from encouraging separatism or the balkanization of Canada. In fact there are laws of Parliament that recognize sociological realities other than the unique character of Quebec society and that different contexts can be validly taken into account under certain circumstances by the laws of the federal Parliament, laws whose constitutionality has often been upheld by the courts. I am thinking especially about the clauses of the Criminal Code that allow different treatment for certain delinquent Aboriginals. The Supreme Court said there was no problem. I am thinking of other provisions, especially the Young Offenders Act that allows distinctions based on provincial residence. There again the Supreme Court has held that there was no a priori problem and that, in certain cases, federalism even required taking provincial differences into account in the implementation of federal laws.

In the end, I ask myself questions about the understanding of equality, which in a federal context would end up promoting uniformity rather than equivalence.

I would like to slip in a few words of a non-legal nature. I will not use the aura of the law to present this position as being of a legal nature.

I simply want to point out that in many federations, multiple nationalities are recognized. Even multiple citizenships are recognized. For example, in Switzerland the Constitutionrecognizes a federal citizenship, a canton citizenship and even a municipal citizenship, and no one loses any sleep over it.

I do not really see why we should be troubled by such a point of view, but it is absolutely not an issue in the second whereas clause in the preamble. In my opinion Jacobinism and federalist behaviours are completely antithetical.

The Canadian Charter itself is applied by taking specific contexts into account. The Supreme Court of Canada has already recognized the unique character of Quebec society, especially in the Ford judgement. It has recognized that by referring to the historical situation, the type of intercommunity relationships that existed given the relationship between linguistic majorities and minorities.

As for the law, my conclusion is as follows: a judge who had to interpret this could never extend the scope of the second whereas clause to come to the conclusion that a Quebec nation or a Quebec people are recognized in one way or another and in a roundabout fashion.

In addition, because it is in the preamble of an ordinary law, at best this preamble can be used to explain the ambiguities of the clause that are the provisions of the law. Even then that brings to light political motives and in that sense I do not see how we can interpret the preamble as opening a Pandora's box. We are not talking about a constitutional document here. It is not a draft constitutional agreement like Meech or Charlottetown, it is only an ordinary law of the federal Parliament.

Does Quebec society have a unique character? There can be differing opinions about the meaning of the word "unique," but I believe that within Canada - and this is not antithetic to federalism - Quebec society is very certainly, to use Charles Taylor's expression, a place of profound diversity because in fact the social make-up of this province, its intercommunityrelationships, are very different from those that exist elsewhere in Canada.

That does not mean that we necessarily have to draw legal or constitutional consequences, but this finding about a sociological reality does not make me lose any sleep, either as a citizen or as a jurist.

I find it a little troubling that in a federal system, in a country that praises diversity, we see in this profound diversity, expressed at the legal, cultural and linguistic levels, a sort of threat instead of a source of pride.

In my opinion, Quebec's "profound" diversity, the unique character of its society, benefits all Canadians and Canada, as Canada benefits Quebec. I have the advantage, as the last witness, of being able to respond in part to what my colleagues have contended. You will have guessed that I am in complete disagreement with them.

I get the impression that we have witnessed a hermeneutic shift, a shift in interpretation. The preamble being a flake, wee started from there and created a snowstorm. Given the fact that it is an ordinary law of Parliament and that it is the preamble, I respectfully submit, as we say before the courts, that there is no reason to create a storm.

As a second remark, I note that my colleagues took issue with the political nature regarding the reference to the unique character of Quebec society. That does not trouble me because preambles often present political motives. What does the law do, if not crystallize a public policy? That does not disturb me a priori and besides, as Senator De Bané noted, in the end the intervention of my colleagues was as political as the preamble and that my statement is political as well as being legal.

My colleagues seemed to establish a radical differentiation between legal normativeness, constitutional normativeness and politics. In my humble opinion, they are linked and that is not quite the same thing. We are not talking about sub-sets that are completely separate from one another.

As for Professor Behiels' comments regarding the evolution of the law, I must admit that they made me a little ill at ease. In fact, I get the impression that professor Behiels was starting from a premise that Quebec civil law, in a way, was catching up with the common law.

As a civil lawyer and a jurist in comparative law, that made me feel as though we were rehashing certain stereotypes about Quebec society as a backward and obscurantist society that oppressed this or that group in order to justify a superiority postulate, in the end, of common law over civil law.

That is my interpretation. It is worth what it is worth; I believe we are not in agreement on this side of the table, but that make me a little ill at ease. In my opinion, civil law and common law are complex realities and in many ways, in 1867 and in 1900, the rules of common law and civil law converged in many ways. There have always been differences but they were fundamentally methodological.

I will make a last remark about the National Assembly and the National Capital Commission. There again, I cannot help reacting to what I heard. As a Canadian, I am not at all disturbed by the fact that in some way, because I live in Montreal, I have two national capitals. That is of little importance to me and I can understand that it might disturb some, but socio-historical realities and an identity that was built differently explain it. We may regret it but there it is nevertheless.

In my opinion, I do not really see how to be an ostrich and hide from this reality. I do not really see how this makes Canada progress. That being said - and I conclude - for me, the preamble as formulated is only the preamble to an ordinary law of Parliament and has no normative purpose. To designate an organized group, it is probably the most neutral term that could be found.

[English]

Senator Pearson: Thank you for a fascinating presentation. I was struck by what you had to say about "society" and its definition. I should like to return to the comment that I made with the other witnesses.

For me, the importance of this particular phrase concerns the role that civil law has played in Quebec. What you are talking about as a society is made up of connections among people. The law of property, family law and so on are the kinds of things that, in many ways, sanction or define the relationships among people. That was why I felt that this was a good description. Since we were trying not to unify but to bring into harmony two different voices, I felt that it was useful to remind people that, historically and over the evolution of society - and society is not a static concept, it is a dynamic concept - we people who have been living in the province of Quebec might have slightly different ways of conceiving things. This would be helpful as we look at what we have had to do in the rest of the law.

Mr. Gaudreault-DesBiens: They might have had different ways of conceiving things, but not necessarily. The last time I testified before that kind of committee was before the "National Assembly," when the Calgary declaration was being examined. At that time, I made a lot of enemies when I said that I thought that Quebec nationalism - even the nationalism of some federa lists - focused too much on the narcissism of small differences. I maintain what I said then. However, it is one thing to say that and it is another to say that Quebecers, as a society forming a society with all its diversity, always behave in a way that is different from Canadians. Our common values are much more important than our differences. This is a strong belief that I have. Having said that, I do not think that the reference to the unique character of Quebec society undermines this in any way. It only qualifies or characterizes a specific group that is organized and that has some institutions.

As to the harmonization and the objective of this bill, which I fully support, one thing that is quite important to see - and I stress this - is that we are not talking about the hybridization of the law in Canada here; we are simply talking about adapting federal laws so as to see concepts that are used in the civil law tradition reflected in a better way than they were before. Practically speaking, for quite a long time many legislative drafters were common lawyers and they paid lip service to the civil law tradition. That is what harmonization is all about. I do not think that this Parliament will be creating a kind of legal or juridical mutant out of the civil law and the common law. That is something that I want to mention.

Earlier this afternoon, I had a sense that some people were saying that the common law and the civil law will become something else. Obviously, they are cross-pollinating. This is something that we see at the international level as well at international conventions, and so on. To some extent, they do it within our boundaries. Having said that, you are not creating a legal mutant.

Senator Grafstein: First, I find your testimony both interesting and informative. However, there is something that I find a bit ambiguous. On the one hand, you say that it is a simple phrase, yet it might be ambiguous. On the other hand, you say that it has no effect, that it is a simple statement, but you agree that under the Interpretation Act any word of any statute is loaded with meaning, whether it is the ordinary meaning or the other meaning.

Mr. Gaudreault-DesBiens: Absolutely.

Senator Grafstein: We have seen a demonstration of this by lawyers here today and others, who have come to look at saying phrases in different ways, in particular, when they are coloured by extended political debate.

Are you saying that the recital has no meaning or are you saying that the recital under the Interpretation Act may be open to different interpretations but that in your view it seems pretty clear?

Mr. Gaudreault-DesBiens: The second option is the best one. Obviously, every word has a meaning. I would never say that it does not have a meaning.

Having said that, if we follow the usual rules of construction of statutes, in that case I would say that the meaning could not be extended so as to encompass notions such as nations or people. I do not think any jurist could come to the conclusion that the Parliament of Canada, by adopting or enacting this law, was recognizing the Quebec nation or the Quebec people. That is my point.

Senator Grafstein: I do not quarrel with the fact that you say your reading of it is pretty clear. My reading is that it is not. My point is that whether you are correct or I am correct is beside the point. The real question is: Does it have no effect, as you said? The answer to that is that it does have an effect. It does have an effect, not no effect.

Mr. Gaudreault-DesBiens: I honestly believe that, in the context of this legislation, the effect of that statement is minimal as the effect of the third, the fourth and the fifth "whereas" of the preamble is minimal. It is part of the preamble; that is it. It is not normative. It does not create any right or obligation whatsoever.

Senator Grafstein: But, professor, if there is an ambiguity in the mind of some, would it not be preferable to remove that ambiguity because it does not add anything to the text, if that is your conclusion? You are saying it adds nothing to the text because it has minimalist effect. If others think that it has some impact that might be material, would it not be better, for the purposes of legal clarity, not to have an ambiguous statement? We have had great debates in this committee about what a word means and we concluded that when it is ambiguous it is better not to proceed if it does not improve the text.

Mr. Gaudreault-DesBiens: I will give you a simple answer. Obviously, it is up to you to decide.

Having said that, once again, I stress the fact that it is in the preamble. Being in the preamble, it does not have the same normative weight as if it were in clauses 2, 3, 4 and so on. It might be used to interpret the normative provisions that you find in the law.

Senator Grafstein: Exactly.

Mr. Gaudreault-DesBiens: Yes, but, practically speaking, we are talking about adapting the federal legislation to the Civil Code.

Senator Grafstein: No. That is not what the recital says.

Mr. Gaudreault-DesBiens: The main purpose of the law is to adapt federal legislation to Civil Code provisions in Quebec when it applies. We are trying to adapt federal legislation to the Quebec Civil Code, in order to harmonize. You are right.

Senator Grafstein: The first recital says "A First Act to harmonize federal law with the civil law of Quebec," you are correct about that. However, you then must go on to say "and to amend certain acts in order to ensure that each language version takes into account the common law and the civil law."

I will not pursue it, but I think the professor understands where we have a difference of opinion.

Mr. Gaudreault-DesBiens: I surely understand, senator. You are absolutely true. It is a bit more complex than adapting federal legislation law to the civil law; I fully agree.

That being said, even if we are talking about harmonizing both, harmonizing the language, English common law, French common law and so on, still, I honestly do not think that if there is an ambiguity in the normative provisions of that law a judge would use the second "whereas" of the preamble to infuse a radically different meaning to a normative provision of the act, simply given the reference to the unique character of Quebec society. I am not saying that it has absolutely no effect, but the effect will be minimal.

Senator Grafstein: I just say, do not bet on it when it comes to judges.

Mr. Gaudreault-DesBiens: It is not a constitutional provision.

Senator Joyal: Professor, the legislature of Quebec has been labelled in the Constitution Act, 1867, as the National Assembly, and in Quebec we have a National Capital Commission. As you said -

[Translation]

That will not prevent us from sleeping.

[English]

If that word is acceptable among common language and perception in Quebec, and taking into account your comment that the preamble is not that important because it is not constitutional legislation, would you agree that we could substitute the word "nation" for the word "society"? We would read, "Whereas the civil law tradition of the Province of Quebec, which finds principle expression in the Civil Code of Québec, reflects the unique character of Quebec's nation ..." The word "nation," in your opinion, is neutral. You say that the Quebec legislature could be called the National Assembly and the Quebec capital the National Capital.

Mr. Gaudreault-DesBiens: No, senator.

Senator Joyal: Are you of the opinion that in one instance we can use it and in another we cannot?

[Translation]

Mr. Gaudreault-DesBiens: First, the preamble does not talk about nation.

[English]

Senator Joyal: No, that is not what I asked you. I said would that be as neutral as "Quebec society"?

[Translation]

Mr. Gaudreault-DesBiens: I did not say that the concept of nation was neutral. I said exactly the opposite. I said that the word "society" was much more neutral than the word "nation" or the word "people"

That being said, the question of the National Assembly or the National Capital Commission is one that I touched on in reaction to certain comments from the honourable senators and the witnesses. In fact, I said it would not prevent me from sleeping. That being said, I will say that in my opinion yes, the word "nation" is much less neutral and much more loaded with meaning than the word "society." The word "nation" refers to a desire to live together, to the idea of a much more strongly affirmed identity, at least, and in that sense the word "nation" is not neutral.

In Quebec when I see the words National Capital Commission or National Assembly, that does not disturb me very much. That being said, if you put the word "nation" instead of "society" in the bill, there would be a difference.

Senator Joyal: So if I understand correctly, you are saying that the word "nation" is more loaded than the word "society."

Mr. Gaudreault-DesBiens: Absolutely.

Senator Joyal: You know very well, for having listened to the debates around this table this afternoon, that we are not discussing the word "society" in the abstract, but as a political concept transmitted in constitutional texts, especially the Meech Lake Accord and the Charlottetown Agreement. These texts had constitutional aims. The Calgary declaration is a political declaration whose aim was to be eventually translated in a constitutional text. Therefore the concept of a distinct society is not a neutral concept and has no political resonance. When it is used in a legal text, even a preamble, it is used - and the ordinary citizen would say this - with the historical baggage that has surrounded the debates related to the concept of distinct society.

Mr. Gaudreault-DesBiens: Absolutely, I think it is Senator Beaudoin who indicated that earlier. That essentially repeats what was in the Calgary declaration. As soon as we talk about legal or constitutional apprehension and the relative difference of Quebec, we are on relatively loaded ground

That being said, let us reread the preamble:

WHEREAS the civil law tradition of the Province of Quebec, which finds its principal expression in the Civil Code of Québec, reflects the unique character of Quebec society;

I think we have to differentiate here between the fact of finding this phrase in the preamble of an ordinary law of Parliament and finding it as an interpretation principle in a constitutional law. In my opinion there is a fundamental difference and the identity factor is much greater in a constitutional law. Especially since here we are talking about the unique character of Quebec society in a fairly generic manner, without specifying the meaning. It is sort of a work in progress. In my humble opinion, of course each law is read and applied in context, but even admitting that, I do not think that the meaning could be extended to say: "See, the Parliament of Canada recognizes the Quebec nation or people."

We may not agree, but I do not think we can extend the meaning of the preamble and say that Parliament has formally recognized the existence of a Quebec nation or people, which could lead to the recognition of that people as meant by international law. I believe that is going much too far.

Senator Joyal: That is not what I argued. I argued that the words have a meaning and are interpreted in a given era with the political baggage they transmit. As much as the word "nation" is not neutral, in my humble opinion even when we use it as national capital, we want to affirm something, it is not neutral. That may leave you or other people indifferent. Just like the word "people" when it is used in a legislative text, whether in a preamble or in the body of a law, it is a political concept. As you said, in international law, that has serious consequences.

We have found, or fabricated, in the political debate in Quebec, the concept of distinct or unique society; when the term distinct seemed to raise too many people's hackles, we moved on to another. I will not be the one to tell you how that was done. When we use a political concept like that one in a preamble, it may mean less than the term "people" or "nation." Nevertheless, it refers to a given political concept at a time when there were a series of debates we cannot forget or that a court would not forget when it would have to interpret the substance of the law in terms of the legislator's intent described in the preamble of the text.

That does not mean that I deny the fact that in Quebec the civil law system is a codified one and that we should recognize that fact in the preamble. From that to introducing a politically loaded term because of the constitutional debate that we have had about one of the essential elements the term implies, that is where I say that we should think twice before we do it.

Mr. Gaudreault-DesBiens: Of course you can, you have to think about it just as you have to examine every provision of this bill.

However, you talked about the attitude a judge would take one the law was in force. The purpose of this law is basically harmonization. We can agree or disagree about the à-propos or the timing of adding a reference to the unique character of Quebec; that is a decision you will take.

That being said, by applying normal rules of interpretation, a judge could not extend the meaning ot the second whereas clause of the preamble to the point of seeing a recognition of any nation or people. In addition, this whereas clause must be placed in the context of the entire preamble. If we look at the global context of the preamble, we haven't really debated it, except when one senator made reference to some objection he had without defining it. Essentially, we are talking about the harmonization of two legal traditions in the framework of the development of federal laws. This also reduces the scope of the second paragraph. It adds to the fact that, precisely, it is in a preamble. This preamble has no normative scope and it is only when there is an ambiguity in a specific provision of the law that the courts could, if they deem it appropriate in looking at all of the preamble, try to identify the legislator's objective.

One can obviously disagree with that. My thesis is that in the end, after having gone through all these steps, the impact will be extremely minimal and could never go to the point of being interpreted as a recognition under Canadian law of the existence of a Quebec people, a Quebec nation.

Senator Joyal: You say that the risk of legal interpretation is minimal. Do you see a political risk of such recognition, for the first time in a text of Canadian law, being used in a political debate?

Mr. Gaudreault-DesBiens: Obviously I am not a politician but I see politicians act. Politicians can use the silences in the acts as affirmations ant turn them from their meaning. It is a risk. That being said, can they really twist the meaning of that? In my opinion, no. Take for example Mr. Landry, a sovereignist politician. I find it hard to see how he could say that the federal government has recognized that Quebecers form a people or a nation. I do not know what the politicians will do. They can also stretch the sauce - and it is their right to do so - but it is up to the electorate, the citizens, to separate the wheat from the chaff. If Mr. Landry or any other sovereignist politician uses that to get some mileage and advance his cause, he has a really extremely desperate cause. In my opinion, that simply does not give him enough ammunition.

[English]

The Chairman: I wish to thank you for waiting so long and for appearing before us this evening. I wish to thank all the witnesses for appearing here today.

At this point, I should like to point out that we have another meeting in this place at 10:45 a.m., at which time we will have officials from the department back before us.

The committee adjourned.