Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 1 - Evidence for November 3, 2004
OTTAWA, Wednesday, November 3, 2004
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-10, 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 4:10 p.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the Chair.
[English]
The Chairman: Welcome, senators. Before you is a draft budget for consideration before we meet with the minister who will be here at 4:30 p.m. The draft budget was accepted by the members of the steering committee. Are there any comments, senators?
Senator Joyal: How does this compare to the previous year?
The Chairman: We have $47,820. This amount does not include a special study, if we have time for one.
Senator Joyal: We can see on the second page of the document that we did not spend our total allocated budget. I have been a member of this committee for seven years straight and, to my recollection, we have not spent the entire budget in any one year. The maximum spent was last year, and that was $27,750. Now the budget is at $47,000, which is double what we spent last year. It should cover anything we need.
The Chairman: Yes. We also allocated funds for the attendances of members at various conferences — two at a time and not the entire committee. We can delegate two people, one from each side.
Senator Ringuette: We have to keep in mind that this budget is to last until the end of March 2005.
Senator Joyal: Unfortunately, it is half a year.
The Chairman: Yes, until April 1.
Senator Joyal: My only preoccupation is that we have enough so that we do not have to return to Internal Economy. When we do that, there is always the question: ``Why your committee and not another?''
The Chairman: Yes, I am aware of that.
Senator Joyal: Do you feel comfortable that we will be able to cover the five months of November, December, January, February and March? We will then be into the new fiscal year.
The Chairman: Senator Eyton mentioned a special study, which is not included in the draft budget. We have enough money for consideration of the bills that will come our way.
Senator Mercer: If we did have time to start a special study, although I do not see that happening, we could then go back to Internal Economy for more money.
The Chairman: That is right — for the special study only. We might have enough in the budget to begin a special study, but I doubt that we would be able to complete one before April 1. That is why we mentioned the date of December 2005 for a report on a special study.
Senator Joyal: If a committee has not heard from all the witnesses but feels it has touched on the fundamental points, that money can be saved.
The Chairman: Yes.
Senator Mercer: In consideration of Senator Eyton's mention of a special study, a fair amount of the preliminary work could be done by the Library of Parliament to give us an idea of how extensive the study would be.
The Chairman: A motion was adopted by the Senate today for a special study, but that will be the next one and not the first one.
Senator Mercer: Do you need a motion?
The Chairman: Yes, I need a motion to move the budget.
Senator Mercer: I so move.
The Chairman: Is it agreed, senators?
Hon. Senators: Agreed.
The Chairman: Carried. We will appear before the committee to discuss it with them.
Tomorrow, we will hear from the Dean of the Faculty of Law at McGill University. Honourable senators, do you want to hear from more witnesses after tomorrow?
Senator Joyal: Since we will be harmonizing common law and civil law, we should hear from someone who has a background in both legal traditions. A witness from Quebec could make a presentation on the importance of harmonization for civil law. We could also consider hearing from someone with a background in the field of common law. In that way, we could cover both.
I will check my files and let the committee know tomorrow whether I have suggestions. I would feel better, as sponsor of the bill, if we could hear expert witnesses on both sides.
The Chairman: That is why I asked whether should hear more witnesses on the matter. When we return, we can hear from one or two witnesses and then see to the adoption of the bill.
Senator Joyal: I will look into the evidence of the previous witnesses who appeared. This is the second step of the exercise. The first step was adopted by the Senate three years ago. I have reviewed the debates of that occasion and the evidence of the witnesses that we heard then. We were then dealing with the first bill to harmonize civil law and common law. We wanted to understand the framework of the harmonization process. We are now at the second step. In other words, the process is moving forward. We are continuing the work that the Department of Justice accepted to do on the recommendation of Parliament. We need not debate the harmonization framework to the same extent this time because we have done it, unless some honourable senators would like to go back to it.
I am more concerned about our future steps, what we can expect in the third bill and how the priorities of the departments are defined so that we know where we are headed with this.
[Translation]
The next bill that we're going to study will be Bill S-11, sponsored by Senator Lapointe; as soon as we have finished studying Bill S-10, we will study Bill S-5.
[English]
Senator Joyal: Senator Lapointe's bill has been canvassed here, and I am looking at Senator Pearson who was, I believe, a member of the committee when we heard witnesses on this.
Senator Pearson: That is right.
Senator Joyal: There are reams of minutes on Senator Lapointe's bill, which is not very dated. In fact, I believe it was before us just last year.
Senator Pearson: Was that about one year ago?
Senator Joyal: Yes. It would be helpful to revisit the evidence of the witnesses that we heard from because we went rather far in the study of that bill. I do not think there is a need to rehear the same testimony. Perhaps we could have a summary of that initial testimony for our review. Senator Lapointe could do that when he appears as sponsor of the bill. I would suggest that is where we should begin. Bill S-10 will not require many meetings because we had many meetings on this in the last session.
I do not want to speak for the other side, but I remember well that Senator Nolin participated in those discussions. We might want to ask him if he shares the view that a summary of the testimony could be presented. Our researcher could do that easily. We could benefit from that and save repetition.
[Translation]
Senator Gill: I don't know if it's important, but the harmonization of civil law with common law was recently raised in the Senate. Aboriginal traditions and law were also mentioned. I have here a pamphlet that talks about the coexistence of first nations' laws with those of France. I don't know what other senators and Senator Watt have done, but I for one am now taking a serious look at what's in the report of the Erasmus commission on Aboriginal law.
It may be a bit late in the game, because it looks like things are moving along quite quickly, but I would like to have the opportunity to discuss this with your committee. I don't know what the committee could study that would have any impact because the law is constantly evolving.
The Chair: Do you think that we could invite a witness to discuss this with us?
Senator Gill: Yes, it takes preparation. I myself have been studying the matter ever since Senator Joyal's speech, but it has already been the subject of many discussions among Aboriginal people and of a major report. Studies on this topic go back 15 years. It would be a good idea to go back and get them.
The Chair: Do you want us to do that at the same time as we're studying Bill S-10?
Senator Gill: That would be ideal, if we could have a bit of time, but I get the impression that you want to proceed rather quickly.
The Chair: Those are questions that we can ask our witnesses later to see what they think.
[English]
Senator Joyal: It may be good to raise that matter with the minister. The Minister of Justice and the officers of the department are here. They might be able to enlighten us on the work that they are doing or the work that might have been done in the department on this.
I, for one, feely strongly that, in talking about harmonizing the civil law and common law, we must leave the impression that we have covered the entire legal field in Canada. In fact, as Senator Gill has properly said, before there was common law and the Civil Code in Canada, Aboriginal tradition was binding and was implemented by the Aboriginal people.
It is part of self-government. The Aboriginal peoples were governing themselves, their families, contractual links and obligations and all the subjects that are covered by the Civil Code and common law.
The subject of this bill is not per se on this, but we cannot ignore that. Perhaps from what we might hear from the Department of Justice, we might want to make an observation at the end of our report on this in order to draw the attention of our fellow senators to this issue and how we should tackle it in the future.
Senator Pearson: Senator Joyal, if I am correct, when we dealt with this two years ago, we were told that this was the first of about 10 laws of this sort. It is a process that will go on for sometime. If we do not raise the issue now, we have not lost the opportunity to raise it later.
Senator Joyal: It could come back, as you said, in a third phase with the Department of Justice.
It is important to signal the institution — our chamber and the government — because I think the government carries the ball on this, that we share the preoccupation with Aboriginal traditional ``common law.'' It is, however, difficult to pinpoint because their common law is based on an oral tradition that draws from 100 years of customs. Unless someone codifies it at some time or someone has done some research work on this, it is important to start thinking about how, as a country, we can give way to that tradition that exists in Canada, which we want to value as much as the common law or the Civil Code. It is not an easy to do, but we must voice at least note the concern around this table.
Senator Gill: In proceeding in this way we will have some time to prepare. We can ask our researchers to look at the papers that we just mentioned to see what can be done. That is, if we have some time ahead of us.
Senator Joyal: Were arrangements made with senators for the other side to appear? I want the minister to be heard in order that he need not come back.
The Chairman: He cannot come back just because there was nobody from the opposition. We just phoned Senator Eyton's office, and he cannot attend.
Mr. Adam Thompson, Clerk of the Committee: Senator Andreychuk cannot attend.
Senator Joyal: Senator Buchanan?
The Chairman: He is not a member.
Senator Joyal: He was a member before.
The Chairman: He is not now.
We are pleased to have with us now the Minister of Justice and Attorney General of Canada.
As you know, we are here to study Bill S-10, entitled, ``A second 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.''
[Translation]
With the minister are Marc Cuerrier, senior general counsel, Bijuralism and Drafting Support Services Group, Alain Vauclair, general counsel/manager, Commercial Law and Regulatory Law Team, Luc Gagné and François Roberge.
[English]
They are both senior counsel in the Legislative Service Branch. They are here in the room with us. If we need any answers, they will be available for questions.
I will give you the floor, minister, and then we will ask our questions, if there are any.
[Translation]
The Honourable Irwin Cotler, P.C., M.P., Minister of Justice and Attorney General of Canada: Madam Chair, it's always a pleasure to appear before this committee. Today, you are undertaking the study of Bill S-10.
[English]
This is the second omnibus harmonization bill in a series of harmonization bills. Its purpose is to amend 26 statutes and, for 22 of these, complete the harmonization process. The proposed changes are terminological. They do not purport to alter the legislative intent.
[Translation]
Bill S-10's predecessor, Bill S-4, became federal law — Civil Law Harmonization Act No. 1, which came into force on June 1, 2001. That act was well received by the Senate and the other place as well as the legal community. This bill has symbolic radiance, not only in legal circles but also in both anglophone and francophone society.
[English]
After extensive study by this committee, Bill S-4 was adopted by the full Senate without opposition on its technical proposals. In the other place, after being considered at all stages, it was unanimously adopted. As such, all parties at that time expressed support for the federal law, civil law harmonization act number one, my department's harmonization initiative.
Since 2000, Parliament has also examined and adopted harmonization changes to many tax statutes. I am referring here to the Income Tax Amendments Act 2000, Bill C-22: the bill to amend the Customs Act and to make related amendments to other acts, Bill S-23; and the Excise Act, 2001, Bill C-47.
Today I will talk briefly about, and in relation to, the following themes: First, harmonization and Canadian bijuralism in general terms; second, the historical and legal context of harmonization; third, the interaction of federal legislation with provincial private law; and fourth, the considerations that guide us in our harmonization work. Finally, I will touch upon the international aspects of Canadian bijuralism.
[Translation]
I will turn the floor over to my officials, whom you have introduced. They will talk to you about the main features of Bill S-10, as well as the process that led up to its drafting. We will also mention other accomplishments of their group.
The first topic is harmonization and Canadian bijuralism. Harmonization entails revising all federal statutes and regulations whose application involves provincial private law, and then harmonizing, where necessary, the content so that it integrates notions, concepts and the vocabulary of Quebec civil law.
It is also part of our approach to take into account French common law terminology. This shows great continuity on the part of the federal government, which for over 20 years has been investing in efforts to standardize common law vocabulary through, among other things, the national program for the integration of both official languages in the administration of justice, better known by the acronym POLAJ. You will recall that this work was done in close cooperation with the governments of Manitoba, Ontario, and New Brunswick, as well as universities such as Moncton and McGill. It's a partnership effort with the provinces and universities.
It should be mentioned that the harmonization exercise is not about changing the content or substance of federal law, but rather to provide for better implementation in both the civil law and common law environments.
When we talk about harmonizing federal law with Quebec civil law, we are mainly referring to interaction between provincial private law and federal law in a context where a number of private law regimes have to be taken into account.
After all, there are 13 provinces and territories in Canada which, except for Quebec, of course, all share the fact that they have a private law system based on common law. In Quebec, the civil law system can be considered not only a legal vision but a legal blueprint for society.
Bijuralism, which a neologism, means the coexistence of two legal traditions within a single State. Canada is a bijural country because it has both a common law and civil law system.
[English]
Let me move now into the historical and legal context.
[Translation]
The coexistence of civil law and common law in Canada has its origins over two centuries ago. In New France, up until the British Conquest, the custom of Paris, along with royal edits and government orders, were the main source of law.
[English]
With the Royal Proclamation in 1763, the common law basically then found expression throughout Canada. The Quebec Act of 1774 reverted us in Lower Canada to the private law, the Quebec private law, or the French law, while common law prevailed in the public law of Lower Canada.
Under section 133 of the Constitution Act, 1867, the Parliament of Canada is required to enact its laws in English and in French. This is one of the few constitutional principles in a framework of legislation that was basically dealing with legal federalism. It is important to signal the fact that, when it came to the issue of language rights, the constitutionalization of language rights was one of the few human rights provisions in the whole of the Constitution Act, 1867. This requirement then found expression in section 18 of the Charter of Rights and Freedoms and section 6 of the Official Languages Act.
Furthermore, the statutes clearly state that both language versions of the statutes are ``equally authoritative.'' Thus, what we have here is an explicit constitutional and legislative requirement for bilingualism in federal statutes.
However, no such express requirement exists with respect to legislative bijuralism. The framework for bijuralism is far less defined, yet it is no less a key component of the Canadian federation. In effect, this is the underlying purpose of the bill which is before you today.
Simply put, federal legislation in both official languages has to reflect our unique legal system, which combines the two major legal traditions of common law and civil law for the purposes of this legislation. I do not want to be unmindful of the fact that there is as well an Aboriginal legal tradition. I am speaking within the context of the Bill S- 10, which addresses Canadians in 13 separate provinces and territories.
As you appreciate, private law rights and obligations in the province of Quebec are generally governed by the Quebec Civil Code. As I mentioned, the other nine provinces and territories are governed by the common law.
[Translation]
It was the adoption and then the coming into force of Quebec's new Civil Code, on January 1 ten years ago, that kicked off the systematic efforts by the federal government and my department to harmonize all federal acts and regulations with Quebec civil law where they require it. In June 1993, my department implemented a policy to take into account the Quebec Civil Code at the federal level. The initial objective was to take the necessary transitory steps to adapt to the new code, followed by an ongoing initiative of taking the specificity of Quebec civil law into consideration in federal legislation.
In June 1995, my department adopted the policy on legislative bi-juralism, recognizing that the four Canadian legal constituencies — francophone civilists, francophones using common law, anglophones civilists and anglophones using common law — need to be reflected in federal acts and regulations so that they can, on the one hand, read these texts in the official language of their choice and, on the other, find terminology and wording that is in keeping with the concepts, notions and institutions that are consistent with the legal system that exists in their province or territory.
[English]
There are further developments with respect to harmonization with regard to federal law on matters of immovable property, bankruptcy law and the like.
On the basis of this preliminary work and research done by my department, it was decided in the fall of 1997 that the harmonization initiative be implemented with the purpose of revising and adapting all federal legislation to ensure that it is compatible, where relevant, with the civil law of the Province of Quebec in both French and English.
As already mentioned, it was also decided that particular care be taken to ensure the respect of the common law tradition in French.
This brings me to the third point, that is, the interaction of federal legislation with provincial private law. Thus, the question: How is bijuralism a factor to be considered in federal legislation?
[Translation]
It is generally recognize that the body of legislation passed as a result of the powers accorded to the federal Parliament, regardless of the number of bills or their importance, does not constitute an independent legal system, that is, a set of rules that stands on its own, like common law. Indeed, where federal legislation does not define the meaning of a private law expression used, which is generally the case, the concept must be interpreted on the basis of applicable provincial private law.
This is generally called the principle of complementarity. For example, when federal legislation refers in French to ``hypothèque'' or ``cautionnement'' without defining these terms, the applicable private law will give them their legal meaning. Similarly, private law adopted by provincial legislators can complement federal texts that are silent on some aspect of property or civil law and may be essential for implementing the legislation. It is in that context that we can say that provincial private law plays a suppletive role to federal legislation.
[English]
When federal legislation uses or refers to principles and concepts found in provincial or territorial private law, it is interacting with the two legal traditions that exist in Canada and, as I said, we refer to it in terms of the principle of complementarity. We should remember that this interaction occurs in both the English and French versions of federal legislation. However, in many cases over the years, federal legislation has not, we must acknowledge, always succeeded in giving civil law equal standing with the common law.
I must acknowledge, as the Honourable Anne McLellan did in 2001 when she appeared before this committee to present the first harmonization bill at the time, that, unfortunately, for many years, federal statutes did not adequately reflect the presence of civil law concepts as they touched on private law. Therefore, the first harmonization bill was a means for Parliament to better acknowledge the importance of Quebec civil law as it impacts on the application of federal legislation in that province.
[Translation]
Federal law can take a different approach from private law and establish its own legal rules, something that is referred to as dissociation. A given term may be defined in federal legislation or the legislator may indicate an intention to incorporate a notion or institution from the legal system of a foreign jurisdiction.
For example, the Supreme Court of Canada has clearly established and repeated since ITO v. Miidia Electronics Inc., in 1986, that Canadian maritime law is a uniform set of legal rules that apply nationally and are distinct from provincial rules.
[English]
It is important to clearly set out the complementarity principles as regards the interpretation of federal legislation. That is why, in 2001, the Interpretation Act was amended by the Federal Law-Civil Law Harmonization Act, No. 1 by adding two new provisions, sections 8.1 and 8.2.
Section 8.1 recognizes the reality of Canadian bijuralism in relation to property and civil rights and the fact that provincial law complements federal law.
Section 8.2 sets out rules to facilitate the interpretation of federal statutes and regulations using common law and civil law terminology. These rules also assist in understanding the techniques used to draft federal bijural legislation.
Since their coming into force in 2001, these two sections, sections 8.1 and 8.2 of the Interpretation Act, have been referred to by the courts in a number of cases when bijuralism issues were argued. It is important to note that these provisions apply to all federal legislation, even if the federal legislation has not yet been harmonized.
Furthermore, they provide the interpretive framework for dealing with harmonization issues in general.
As mentioned, the bill that I am presenting to you today follows the Federal Law-Civil Harmonization Act, No. 1 and results from the continuing bijuralism work of the Department of Justice.
This harmonization initiative is unique and innovative. No equivalent exists in any of the other countries where the civil law and common law traditions coexist. It is tangible evidence of the federal government's commitment to our two great legal traditions and to achieving full equality between them and to the appreciation that we are alone globally in this type of initiative.
[Translation]
Canada's bijuralism, combined with the fact that both languages must be used in federal legislation, presents a considerable challenge. That challenge is to draft legislation to meet the needs of four legal constituencies: francophone civilists, francophones using common law, anglophone civilists and anglophones using common law.
It is important to keep in mind not only the differences between civil law and common law, but also the diversity of legislation and case law in the various common law provinces and territories. Only with those differences in mind can we draft legislation that accepts or tolerates them or, if necessary, that overrides or works around them to establish uniform standards.
[English]
Let me now move now to the consideration that guides the Department of Justice in our harmonization work. I would mention three considerations that guide the Department of Justice in the course of harmonizing federal legislation in cooperation with departments responsible for statutes being amended by harmonization bills.
The first consideration is that, in harmonizing federal legislation with the civil law of the Province of Quebec, we must guard against affecting any substantive change to the federal legislation being amended.
Second, we must ensure that amendments that are being made take into account modern terminology specific to the common law in French as developed in Canada.
The third consideration is that thorough consultations involving all interested stakeholders are carried out as part of the preparation of harmonization amendments. We consult our counterparts such as the Minister of Justice in Quebec, the bar association, the Barreau du Québec, and experts from various law schools in Canada. We also inform the judiciary in the context of our consultation.
I am pleased to report, as was the case with the first harmonization bill, that there is strong support for this second harmonization bill and this harmonization initiative amongst the stakeholders as I have identified them.
I am also pleased to report to you on an undertaking that the then minister, the Honourable Anne McLellan, took before the Standing Senate Committee on Legal and Constitutional Affairs in 2001. The undertaking was to publish a lexicon and bijural records following the coming into force of the Federal Law—Civil Law Harmonization Act, No. 1. Bijural terminology records have been available, I am happy to say, on the justice Internet Web site since the fall of 2001. They explain the harmonization provisions brought about by this first harmonization law, and we intend to continue to add new bijural records as and when new harmonization legislation comes into force.
Along with publications, conferences, training sessions and the like, these records effectively communicate to the legal community at large and to the population in general changes that are made to make our legislation more bijural. As we adopt such bijural legislation, these tools better explain the changes being made and raise awareness of the harmonization initiative. They also constitute relevant and useful interpretive tools for the judiciary and the legal community.
[Translation]
It is worth noting with respect to legislative bijuralism that the rulings handed down since my department launched the harmonization initiative are now accepted as authority. In 2001, in Saint-Hilaire, the Federal Court of appeal applied the bijural interpretation principles set out in the provisions that I cited earlier, that is, sections 8.1 and 8.2 of the Interpretation Act and the first act to harmonize federal law with civil law. In 2002, in Schreiber, the Supreme Court of Canada took into account the new bijural legislative drafting techniques used in the first harmonization act.
[English]
I will move to the international aspects of Canadian bijuralism.
When my colleague, the Honourable Anne McLellan appeared before this committee with respect to the first harmonization bill, she emphasized how valuable an asset bijuralism is to Canada. We, as Canadians and those of us in Quebec are fortunate to live in a country where the civil law and the common law, the two principle legal systems that govern three quarters of the nations of the world, coexist. The coexistence in Canada of these two legal traditions represents an asset for Canada not only here domestically, but also in international exchanges, trade and in other areas. It makes our legislation accessible to jurists and citizens of both the common law and the civil law traditions. In establishing a knowledge base and specialized legal tools as regards bijuralism, the harmonization initiative has contributed, and will continue to contribute, to Canada's respected international position.
In conclusion, it is understood by those who work with the two systems that working with the two systems of law in two official languages is not easy. The officials here today can attest to that. They and their colleagues have continued to work hard with outside experts and drafters to draft this second harmonization bill.
I should like to stress again that harmonization is not a one time thing. It is not a one time bill, however these two bills have been. It is an ongoing process and work continues to be done and to be needed to be done. Parliament will be asked to consider future harmonization bills as our work progresses. You can see the results of harmonization and bijuralism work in ordinary bills, which that are now systematically revised prior to tabling as parts of the Department of Justice standard drafting process to ensure their bijuralism in the same way that the Minister of Justice effectively has to certify that legislation comports with the Canadian Charter of Rights and Freedoms. We now find that this bijuralism norm is also built into the drafting and enactment of legislation.
[Translation]
I will close with a quote from Justice Michel Bastarache, of the Supreme Court of Canada, who made the following statement at a conference, ``We must all recognize the unique bijural nature of Canada. This bijuralism is an integral part of our legal heritage and our identity, and it is truly an important part of what makes our country great.''
Thank you for allowing me this opportunity to speak to you about Bill S-10, which I urge you to support. I consider this legislation essential to our vision of Canadian and Quebec society.
Mr. Marc Cuerrier, Senior General Counsel, Bijuralism and Drafting Support Services: I would just add a few words of emphasis to the committee. The minister mentioned in his statement a bit earlier that there had been a number of achievements since the first harmonization act was considered by this House. I would like to mention a few of them. We received support during the public consultations from the Commissioner of Official Languages, Ms. Adam, who reviewed the proposals that led to the bill you have before you. If I might quote Ms. Adam's letter to our legislative counsel, she made the following comment:
I am pleased to note that the Department of Justice is continuing with this unique legal initiative that will give Canadians access to legislation and even regulations that reflect the two main legal traditions in our country. As you know, and rightly so, it is important for harmonization proposals to take into account common law in French.
That is one of the many things that we were told during the public consultation that led to the bill that you have before you today.
Madam Chair, I would also like to emphasize something that was mentioned by the Minister who said that harmonization has become more sophisticated or refined since the first bill was drafted. We now have a systematic approach to undertake a complete review of legislative texts that are introduced.
This applies equally to regulations and bills, which, for the past two years, have been systematically reviewed with a mind to legislative bijuralism. This is an extra step which is added to the series of harmonization bills, so that harmonization will be speedy and more complete, something that is in everyone's interest.
[English]
Mr. Alain Vauclair, General Counsel/Manager, Commercial Law and Regulatory Law Team: The minister mentioned the process that we follow in the process of harmonization bills. We have 26 statutes and all of them are being harmonized. In all, 15 federal departments have been consulted and have worked with us in the preparation of this harmonization bill. I would note in particular Industry Canada because close to 100 clauses of this bill deal with bankruptcy and insolvency.
In the process of public consultations that we held from January to August 2003, we have sent close to 1,200 letters to members of the legal community and the judiciary. We have published our consultation document on the Justice Web site.
In particular, the Barreau du Quebec, the Canadian Bar Association and the Insolvency Institution of Canada have been most helpful in providing comments and in lending support to our initiative.
Perhaps I could also speak to our present work. As the minister has indicated, this is part of an ongoing process that deals with all legislation and regulations. Obviously, we are harmonizing the regulations taken pursuant to the federal statutes that are being harmonized in the Federal Law-Civil Law Harmonization Act, No. 1 and in Bill S-10. However, we are also presently working with a more thematic approach.
[Translation]
This is a more thematic approach through which we will examine groups of statutes, particularly in the case of business corporations. We are currently examining the Canada Business Corporations Act. In the case of copyright, we try to identify the framework legislation that would most closely affect the relationship between private and federal law. We hope that the solutions that we find for these statutes will apply more easily to other acts where the interaction is less frequent, while continuing to work, as my colleague, Mr. Cuerrier said, on the systematic review of new acts and new regulations as well as tax bills.
I would like to tell the committee that just recently, when Bill S-10 was introduced, the Chambre des notaires du Québec sent us a letter with comments on Bill C-37, which had died on the Order Paper. It was introduced last May 13, without the benefit of Bill S-10, with a view to reintroducing the amendments that had been included.
I would like to assure honorable senators that I am prepared to listen to what Mr. Claude Laurent, from the Chambre des notaires, has to say because I believe that he has also written to you, that is, to Madam Chair or to the members of the committee. I would start by saying that we have no reason to make any changes based on his comments. If you like, at the appropriate time, I will be happy to tell you why.
[English]
Senator Andreychuk: I would like to thank the minister and the officials for appearing today. As I was sitting here — and I am sure Senator Joyal felt the same way — I felt that this was a bit of a refresher course as we had quite extensive hearings the first time around to understand the concept of bijuralism and how it would apply, including a discussion of certain terms and how they take on a different life in different languages and how we wanted to harmonize that.
Many of my questions were answered previously. However, I would like to follow up on the whole concept of harmonization. Obviously, before, we were trying to harmonize, but without really paying attention to the concept of harmonization. We wanted the laws to be the same in both languages and we wanted federal legislation, in both the English and in French versions, to respect the system of law that governed people.
My concern was to ensure that we had a systematic way of looking at this. What you are saying now is that any new bill will be studied from the concept of harmonization so that you are reasonably confident that we are eliminating the problems of the past.
This is the second bill. I know you cannot answer this question fully, but to what extent can we anticipate that the majority of new legislation will be scrutinized and looked at from a harmonization point of view? Prior to this second bill, you were just starting the process and were not sure exactly how extensive the project would be. We have now had two bills. Can we anticipate other major bills? We have spent a lot of time on bankruptcy and insolvency.
The point has been raised that this issue deals with the harmonization of the common law and the civil law. As I understand the concept of harmonization, it is not intended to be the only concept of harmonization, should there be other concepts of law within our system. Senator Joyal has raised the Aboriginal issue and will probably ask more questions about it.
I understood that that was not intended to be the definitive omnibus harmonization bill; it was simply between common law and civil law as we understand it and any other issues would remain outstanding. Therefore, Aboriginal issues would not be impaired or precluded from future discussion. I want some assurance on that.
Finally, you have pointed out some of the comments made by the Barreau du Québec on this legislation. There is a lot of support for this project. You pointed to the Schreiber case as one where the new harmonization was used. I would be interested to know what pitfalls or what new problems have arisen since the first bill was passed. You identified the problems and the obstacles and how to overcome them. Is there anything new we should know? What are some other aspects of harmonization that we were not made aware of the last time around? I did not hear anything in that regard in your comments.
Mr. Cotler: As I indicated at the outset, I am delighted that I am accompanied here by two experts in our harmonization initiative who can supplement what I say or, perhaps, say it better to begin with. Let me take your questions and respond briefly seriatim and then turn it over to our experts.
As to whether we anticipate further harmonization initiatives, as I mentioned, this is, in some sense, a work in progress. It is not a one-time bill. This will be the second. As the initiative continues, we will come back again with the next harmonization bill. I will leave it to the experts to expand on its particulars and its scope.
As to your second question, you wanted an assurance that Aboriginal issues would not be in any way impaired or precluded when we are talking about bijuralism in this sense with respect to this bill. The bill is, understandably, limited in its scope to deal with harmonization between civil and common law principles. It is not intended in any way to diminish or marginalize the importance of Aboriginal law and customs within Canada.
To add to that, I regard it not only for me as a personal commitment but that of our department to work with Aboriginal people in order to identify and to better appreciate Aboriginal legal traditions and to consider how those Aboriginal legal traditions can be mainstreamed effectively within our legal system, which goes beyond even the issues of harmonization.
Let me give three examples in that regard. First, we are working closely with the Law Reform Commission of Canada, which has just published a study on indigenous legal traditions. Its legal scholar for this year is a distinguished scholar of Aboriginal law. We will see — because of the work of the Law Reform Commission of Canada — a greater ``rayonnement'' that is given to the entire question of Aboriginal law.
The second is not as well known as it should be. The department is supporting an innovative experiment in legal education at the Akitsiraq Law School in Nunavut. It is the first Aboriginal law school that is intended to provide Inuit students with a legal education that is tailored to northern realities. Inuit traditional law is being incorporated throughout the legal education program using the expertise of Elders and local educators from across Nunavut and other northern regions.
I have a particular remembrance of this second example because, shortly after I became Minister of Justice and Attorney General, I was very moved by an experience that I am happy to share with you. I indicated at the time that I was going to go across Canada and ask Canadians and, in particular, younger Canadians, ``What do you think the justice system should be? If you were the Minister of Justice, what would you identify as our priorities?'' The first young Canadians with whom I met was a group of law students from the Akitsiraq Law School who were in Ottawa at a training session. I recall the encounter because of its significance psychologically as well as juridically, almost existentially.
The comment went as follows: ``Mr. Cotler, we are not just law students, we are Aboriginal law students. We come with a past. We come with a history and a heritage. We come with a language, an identity and a culture. We come with an Aboriginal legal system, and we have been dislocated from our history and our heritage. We have been dispossessed of our language, culture, identity and of our Aboriginal legal system. We would like to ask you: How is it that our Aboriginal legal system is not represented in the Canadian legal system? Why, for example, are there not any Aboriginal judges on the Supreme Court of Canada? We have a Supreme Court that protects the civil law system by having three judges from Quebec. What about the Aboriginal legal system?''
My answer to them at the time was that I would open up the conversation. I would take their question and begin that discourse here in Canada. I am doing it here today because I have taken every opportunity that I can to share that exchange because I felt it is important to give ``rayonnement'' to it where I could. The last thing they said was, ``You know, we do not go to court just because we want to just exercise a grievance. We go to court because we want to reaffirm who we are. We want to connect to our history, heritage, identity, culture, language and legal tradition. We do so with a great deal of pain because of the understanding that people do not understand who we are and what our identity is all about.''
I know I have taken a bit more time on this, but it is particularly important. I said, ``I cannot hope to understand let alone feel your pain. All I can tell you is that, as a government and as a minister, we will try to relate to that pain.'' I then shared with them a parable that comes as out of my tradition, but you can find it in Muslim or Christian tradition as well.
A group of students say to their Rabbi, ``Rabbi, we love you.'' The Rabbi says, ``Do you know what hurts me?'' The students say, ``Rabbi, why do you ask if we know what hurts you if we tell you that we love you.'' The Rabbi says, ``Because if you do not know what hurts me, you cannot tell me you love me.''
We must have a better sense of the pain that the Aboriginal people have endured. The question of the Aboriginal legal tradition is one manifestation of that identity to which we must relate.
Third, what are the new problems since the last bill? I will defer to the two experts because they have the institutional memory that I do not have on these matters. They can better explain that.
Mr. Cuerrier: Many problems have been identified from the very beginning. A number are recurring problems for which we have not had a legislative opportunity to amend the corpus of acts. In other words, it is very much a matter of continuing the work that was undertaken in bill No. 1 and bill No. 2.
There are few problems as such, although as new cases and legislation arise we are mindful that some new technical issues may also come up. They are often, in one way or another, nuances and small differences between the common law and civil law that were not addressed or taken into consideration when the original legislation was put forward.
Therefore, as part of the process of amending federal legislation via this series of harmonization bills, we are relatively confident that we will capture and fix most of these problems as we make our way in the corpus of existing laws. We are also comforted by the fact that our new approach — the systematic revision of new legislation — is helping us to screen and correct several new problems from the start. It is a matter of the volume of the task more so than the novelty of the problems. There are often many variations to problems that were identified.
My colleague may have other examples or other insight to give you in this respect.
Mr. Vauclair: As my colleague Mr. Cuerrier was saying, there are variations. We have, for example, in the work we are doing now, notions or concepts such as beneficial ownership that pose certain problems in the context of civil law, but they are not new in the sense that we had not foreseen that they would come up. This is something we know about. The case law has had difficulty tackling them in the civil law context.
Much of the work has to do with recurring problems. As a matter of fact, if you look at the clause-by-clause books that have been provided to you, you will note situations where a modification is something that we had already done in Harmonization Act, No.1. These terms and concepts arise many times in legislation.
I will attempt to answer your first question about future bills. Hopefully, with time, as more solutions and proposals come to light, we will have identified most of the problems and their variations and will have more voluminous bills or more bills dealing with harmonization.
However, we have adopted a more prudent approach in dealing with client departments to ensure that we do not make any changes to substance. All of this is done with public consultation. We do consult the experts when dealing with particular statutes.
I acknowledge that it is a slow process, but ensuring that we get a buy-in from the legal community and experts in different fields comes at that price. Hopefully more volume will come.
This is not to undermine the other ways that we do our work, that is, the systematic review of new regulations and tax regulations. Perhaps we will have more.
Mr. Cuerrier: I would say that our biggest challenge is the speed at which we can do those changes. The systematic review of new legislation is a great enhancement of the speed at which we can proceed. That is very promising.
It can be estimated that over the next five to ten years we will have found most of the solutions to problems with the corpus of existing legislation, while continuing to process new legislation systematically. We are closing the gap, and that is encouraging.
Senator Joyal: Thank you. We have the answer in the last three words.
I was expecting to get some kind of a time frame. As I understand it, there are 3,000 regulations and 600 statutes. As well, you do the daily job of preparing the draft legislation that we deal with in Parliament. I was preoccupied, as was Senator Andreychuk, with the question of how long that process of catching up with the backlog will last. In the past, this committee has had before it a bill to enact regulations that were published in one language only. Colleagues from your department came here to testify on that bill. I remember that we put a time frame on it, in that it had to be done within a certain period of time.
We feel that, as you said in your opening remarks, harmonizing is to serve justice. It is to make justice available to those who go to court. That is essentially why we are doing this. It is not just a fancy academic exercise. It makes justice more available. It democratizes the system by giving way to the two systems that are targeted in the process. It is important to remind ourselves that there is a target date because the exercise is aimed at making justice better for those who go to court and for those whose job it is to interpret legislation.
The time frame is important. We do not want to restrict you to a definite calendar date, but we have to know how this will proceed down the road so that Canada will complete this exercise at some point.
I am sorry, Madam Chair, that our committee proceedings are not being televised today because the statement the minister made about the recognition of Aboriginal tradition and custom is key and important. As a member of a minority, as long as I feel that there is a framework to give way to my rights, cultural identity and language, I feel that if I move along in the system, I will meet the target.
However, an Aboriginal Canadian must live in a legal system that is foreign to the Aboriginal tradition. That is the way we have to put it. They have lived with their customs and tradition long before the European settlers came here. We established different legal traditions, and, progressively, theirs had to recede.
We adopted Bill C-5 in the previous Parliament. My colleague Senator Watt will remember that bill. That bill was discussed at length in the Senate. There was recognition of the tradition and the oral proof in the establishment of land title. There was a centre established to consolidate the archives and tradition.
Mr. Minister, would you consider taking an opportunity to establish such a centre or such a nucleus of expertise that would help the Aboriginal people to consolidate the traditions and customs that the Elders, of course, maintain. Unfortunately, the Elders are, by the law of nature, nearing the end of their lives and their knowledge will be lost in future generations. It is important to have a mechanism in the Department of Justice, similar to what is done in the land title claims settlement process, to consolidate the information that is already available. If we wait too long, it will be more difficult to achieve the objective that you seem to be so enthusiastic to share with all of us.
Mr. Cotler: I appreciate your remarks. The Akitsiraq Law School is for Inuit law students in the North.
We could be talking about having Aboriginal legal traditions preserved not only for the benefit Aboriginal people, but also for others who could benefit from the best of those legal traditions such as notions of restorative justice, sentencing circles, or approaches to duties to consult rather than litigate. There are all kinds of good approaches in that regard.
As a government, we have to respond to the Law Reform Commission report on indigenous legal traditions. We could look at that for our response to the Law Reform Commission's report. As it happens, I will be meeting with the Law Reform Commission's advisory council this Saturday. I will be delivering an address. I will raise this issue. Perhaps I can explore with them how we can move forward with this idea.
In the Delgamuukw case, Chief Justice Lamer made reference to the importance therein of Aboriginal perspectives with regard to their relationship to determinations of Aboriginal title and the role of oral evidence in these matters as well.
Senator Joyal: I have only one other question. I will be brief.
It is more a question related to the concept of the field of common law versus civil code law. The Civil Code has a definition of subjects that is complemented by statute law. There is a tendency in modern legislatures to legislate other aspects of private relationships outside the Civil Code. Of course, in those statutes, there are concepts that pertain to civil traditions, because they are complementary, and they are legislated by the legislative authority in Quebec.
In your harmonization experience, will there be a point where you might not have to look into statutes that complement aspects other than those covered in a limited way in the Civil Code? It is an important aspect of the legal reality which covers not only what is enshrined in the Civil Code but all the other statutes that regulate complementary aspects of what is covered in the Civil Code. Has that ever occurred to officials in your department?
Mr. Cuerrier: I will respond very briefly, and then my colleague will continue. When we look at a civil law for purposes of harmonization, we do not just look at the Civil Code. We look at the whole of civil law, including such legislation as the Quebec Charter of Rights, for example. Civil law is a concept that is broader than the Civil Code per se. That is my first observation. Perhaps my colleague Mr. Vauclair wishes to add something.
Mr. Vauclair: I would remind committee members of a paragraph in the preamble of the first harmonization act, or the second one, which states that, whereas the civil law tradition in the Province of Quebec which finds its principal expression in the Civil Code of Quebec —
When we do harmonization, we are not limited to wording or concepts in the Civil Code. The principle that guides us relates to matters that deal with property and civil rights. You have this wording in sections 8.1 and 8.2, essentially private provincial law matters. It is true, and I agree with you, that some civil law or common-law issues are not found, for civil law purposes, not only in the code but also in other statutes.
Perhaps one example of this that we have in the first harmonization act, and in Bill S-10 before you, is reference to terminology dealing with legal professionals. It talks about barristers and solicitors, and in the province of Quebec, advocates, and even more so in Quebec where we have the notaries, which is a characteristic known only in civil law. We address those issues as we go along.
We feel that some other issues that would not be considered as property and civil rights matters, although found in provincial legislation, would not be part of our mandate, and we would be very careful and concerned not to broaden, perhaps, at least in our view, the harmonization exercise, if that answers your concern or question.
Senator Joyal: To a point, because as you know, the level of legislative activities in the province is sometimes quite erratic. As I understand, even the Civil Code of 1994 has undergone some important changes in the last 10 years, and they have been complemented by outside statutes that are part of the evolving rights of the civil tradition. It is important that that be considered on par with the traditional perception we have that everything is in the Civil Code and, if it is not in there, you do not have to take it into account. In fact, I think the evolutionary nature of the Civil Code of Quebec is much greater than it has ever been in the old code, be it by the introductory clause that refers to the Charter of Rights and Freedoms. We all know how much Charter interpretation adds to the definition of the legal rapport between the citizens. This is an important element to take into account. It is not a code that is dead in terms of scripture, but in fact it is evolving rapidly with the interpretations of the courts and with the legislative activities that complement the original code.
Maybe, Madam Chair, the witness could respond to the letter from the notaries.
[Translation]
The Chair: I had intended to ask Mr. Vauclair to comment on the letter written by Mr. Claude Laurent.
Senator Gill: I would first like to thank all of the members of the committee for the interest that they have shown in Aboriginal issues, among all of the matters that they must examine. On my own behalf and on behalf of Senator Watt, I would like to extend special thanks to Senator Joyal as well as to Senator Andreychuk who have brought forward very important issues that have affected us since we were very young. I would like to thank those senators and others.
I would now like to speak to the Minister. We were prepared to ask you questions, but we have no questions to ask. I think that Senator Watt would agree if I say that, once again, you have shown a very special knowledge of the issue and of aboriginal rights. When it comes to harmonizing the Civil Code and common law, we can easily see, through your comments, that you are very well versed in aboriginal affairs.
That is not something that we have been able to say very often to a Minister of Justice. You know, we are no longer young. The Department of Justice has been the source of a number of problems. I am not saying that the departments were not justified in what they did, but with the considerations that you have added to the picture and the justice dimension for the entire country, I think we can expect to be given a fairer treatment. That has not always been the case in the past.
You know that, often — and I am sorry to say this — in doing something that is completely legal according to Indian customs, we are in fact doing something that the justice system considers to be illegal. This gives our people a false idea of what justice means. They end up doing something illegal when they are simply following our customs and traditions.
I believe that Senator Watt will be happy to hear that I would like to monitor your examination of this issue of Aboriginal rights. We would like to be informed of your progress as you move forward. You will have our full support in everything that you undertake. Very rarely has a Justice Minister been so determined in wanting to help us, as Aboriginals.
Mr. Cotler: I am prepared to help you and I will be happy to share with this committee or the Standing Committee on Aboriginal Affairs and Northern Development, any progress that we make in promoting Aboriginal rights. One of the first things that I said, after being appointed Minister of Justice, is that I have one guiding principle: the pursuit of justice. Protecting equality and human dignity are part of that principle.
In promoting justice, we must also include justice for Aboriginals. That will be a priority for me as long as I am Minister of Justice.
[English]
Senator Pearson: I remember that, when dealing with the first bill, that a great deal of the bill was extremely technical. The bill is short, but one could spend hours on it, but we will not do that because we trust the work you have done.
In support of what you have said with respect to the Aboriginal legal tradition, my question is slightly off the text. It has more to do with the questions that arise when dealing with other legal traditions that are seemingly to be brought into common practice. As you know, there has been some controversy about the use of certain traditions in conflict resolution and alternative dispute resolution. In the public mind, there has been concern that the rights of women are not being as protected as they should be with the use of certain Islamic traditions, in this case, but it could be other religious traditions.
Harmonization is a way of ensuring that, as other legal traditions enter our common practice, we harmonize them with our Charter of Rights and Freedoms.
Does that make sense to you as a question? Do you know what I mean?
Mr. Cotler: If you are saying that we can enrich our legal tradition through relationships with other legal traditions and that interaction is mutually beneficial and that we, at the same time, maintain what I could say are the threshold commitments to universal human rights that are anchored in all traditions and apply to all traditions, then, yes, I think that would be the general approach that we would take.
That is outside the scope of this particular bill. As a philosophical approach, yes, that is the case.
Senator Pearson: I do not want to place it beside the Aboriginal legal tradition because that is a precedent which is ongoing. It is a concern because it is becoming, in civil practice, increasingly used. It may, however, be enriching.
Senator Joyal: May I be blunt, Madam Chair? I think Senator Pearson has raised a very delicate issue, which is the application of sharia law in the arbitration of matrimonial cases. I believe that is the issue, if I have read your mind. It is a very difficult issue. These days, the experts on this seem to be from McGill, and I have recently read their works.
Does the minister wish to comment on this in a more specific way?
Mr. Cotler: I am still a professor on leave from McGill. Thus, I am not unaware of the thinking at McGill. Let me put it this way — I have been enriched by my colleagues' thinking on this matter.
However, I do not want to speak specifically now as to the applicability of sharia law. First, it is a provincial matter for the most part, and the issue has arisen in Ontario.
Second, it all depends on how it is approached. If there are other traditions that have been making use of arbitration tribunals and the like, and Sharia law is seeking to do that and takes advantage of the Ontario legal framework for that purpose in the resolution of disputes, some women Muslim groups are concerned that the use of sharia law may not lead to the outcome that is necessarily intended, namely, the application of a religious tradition for purposes of securing justice.
As long as we keep in mind that the pursuit of justice is what underscores everything we do, then we can have an approach of legal pluralism, the recognition of different traditions, but all anchored in and inspired by the universal principle of the pursuit of justice which applies to all traditions.
[Translation]
The Chair: Mr. Vauclair, you had a comment to make on Mr. Laurent's letter.
Mr. Vauclair: I will first have to assume that the letter that you received includes the same four elements that Mr. Laurent has underscored. If that is not the case, I would have to know what additional elements were mentioned.
His first comment on Bill C-37 takes up the same provisions with the same numbering as in Bill S-10. He touches upon the third paragraph of clause 22 and the second paragraph of clause 90 of the bill; these clauses deal with securities terminology. He states that the terms ``privilege,'' ``pledge'' or ``pledging'' that were found in the old Lower Canada Civil Code were not included in the new Civil Code because, what applies today, is essentially what is known as ``hypothec and prior claims.''
Moreover, he says that in the context of this provision, it would make no sense to replace the term ``privilege'' by ``priority,'' since a priority is established by the legislator and is not something that an individual can contract or undertake to do. The provision, particularly paragraph 30(1)(g) of the Bankruptcy and Insolvency Act deals with matters related to the powers of the bankruptcy trustee to incur obligations, give security, and so on.
It is therefore reasonable to say that the appropriate term, instead of ``privilege,'' from the point of view of a civil law practionner, would be ``hypothec.'' The term ``hypothec'' exists in the current provision, obviously, we have left it there. However, if he is suggesting that we should set aside the French terms ``nantissement,'' ``nantir'' and the English terms ``lien'' or ``pledge,'' we cannot do that. This is a clear illustration of what we meant when we spoke of the four legal constituencies, because we would be amending the provision for the francophones and the anglophones that are subject to common law. These terms remain useful and relevant in a common law context.
We therefore share his opinion when it comes to civil law. But out of respect for Canada's bijural system, we must refrain, in the name of civil law, from withdrawing common law terms or concepts. That is our position relative to his first question.
The second question deals with an amendment to the first harmonization legislation, which is repeated now and again, according to the context and the provisions. This amendment would add something to the English version when we see the word ``instrument'' as it applies to a legal transaction, a contract or some type of agreement.
[English]
Add the term ``or acts for the purposes of civil law.'' The term ``instruments'' has a particular common law flavour to it and would not convey the appropriate meaning for an English-speaking civil law practitioner. That is why we have said it.
I gather, from the perspective of a notary, ``instruments'' is sufficient because they prepare ``les écrits instrumentaires.'' For them, it is not an issue. However, this is a broader perspective. If you look at the provisions we are dealing with, you will see they deal with broad matters of contract law, case law, et cetera. Therefore, we must be careful in addressing again the legal audiences.
The third comment has to do with a proposal that we made during public consultation which has to do with the terminology dealing with jurisdiction, ``la juridiction ou la compétence d'une cour.'' We did not repeat it because the concerns we were receiving were that, perhaps, we were going beyond our mandate in the sense that this is less private law matters and more simply linguistics or terminology. This does not mean that our drafters and revisers in our department are not concerned with these issues. They try to improve the bill when it comes before them. This is, perhaps, something that went too far, as far as the mandate of harmonization was concerned. We accepted the comment and did not go further with it.
[Translation]
The final point deals with the concept of representation, in the case of a definition of the term ``representative'' in section 111 of the Canada Pension Plan. As Mr. Cuerrier has stated, tax laws and also, for the purposes of our bill, extremely complex pension legislation, are amended whenever new bills are introduced.
From time to time, our colleagues who work in taxation will tell us that if we have a harmonization bill that is ready to go, they would like to add something to it, and so on. In this case, we have only made one amendment to settle the matter of the executor of the estate which is mentioned in this clause. We added the liquidator of a succession for the purpose of the new Civil Code, because the previous code spoke of the estate executor. That has changed. It is now the liquidator of a succession. We took that into account. We agree with the rest of Mr. Laurent's comments. We will have to take them into consideration since this extremely complex act is far from complete and these statutes are reviewed in clusters.
We hope to approach the pension legislation in a coherent and cohesive fashion. It is painstaking worth. We have to be careful. Mr. Laurent's comments are useful. I am not saying that the minister will accept them. They will be examined. At this point in the bill, we could not go that far. I believe that he agrees with the amendment to the executor of the estate. He maintains that there is a dual purpose. For common law, that is the terminology. We cannot take these terms lightly, since we must not forget that we are operating within a bijural context. That is what is written in the letter that he sent me.
The Chair: You will be responding and sending us a copy.
Mr. Vauclair: Yes.
Senator Joyal: In your response to Mr. Laurent, you may refer to the fact that questions were asked and you may include the minutes of today's meeting. As they say in English: He had his day in court. We were made aware of his point of view.
The Chair: We would like to thank you, Minister. Do you have anything to add?
Mr. Cotler: Harmonization is not simply an exercise in translation.
[English]
It is not just a question of terminology. What we are talking about here is bijuralism in the sense of the intersection of two legal traditions.
[Translation]
The Quebec Civil code is much more than its contents; it is also a legal blueprint for society.
[English]
The second thing is, as Senator Joyal put it, we are talking about access to justice.
[Translation]
It is an exercise in democracy. The last thing is what we called ``legal pluralism.''
[English]
When we are also speaking of legal pluralism, while we speak in this harmonization bill of harmonization of the civil law and the common law, that is the more limited scope of this legislation, there is the indigenous legal tradition and we must always bear that in mind.
The Chairman: Thank you very much.
[Translation]
Tomorrow we will have as a witness the dean of McGill University Faculty of Law.
Mr. Cotler: He is the greatest expert on bijuralism. He is the architect of bijuralism at McGill.
The Chair: That is why we have asked him to appear.
The committee adjourned.