Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 1 - Evidence for November 4, 2004
OTTAWA, Thursday, November 4, 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 10:55 a.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the Chair.
[English]
The Chairman: This morning's witness is Mr. Nicholas Kasirer, Dean of the Faculty of Law at McGill University, who has appeared before the committee many times. Welcome, Mr. Kasirer, to our consideration of Bill S-10; we are pleased to hear from you again.
[Translation]
Mr. Nicholas Kasirer, Dean, Faculty of Law, McGill University: Thank you for the invitation, Madam Chair. I am here to support Bill S-10 very firmly, as well as all those efforts deployed by the Department of Justice of Canada in order to ensure harmonization between federal legislation and the Province of Quebec's civil law and Canadian common law in both official languages.
If you don't mind, I will identify myself. You did it quite elegantly; I am a Quebec jurist trained in civil law but also in common law. I teach property interest and family law at McGill University but I also teach civil law and common law in French and in English. I am the dean of that faculty which offers a double training, — somewhat akin to the federal legislation, to all those students in a bijural if not ``transystemic'' program of legal training.
As my introduction, I would like to raise three points concerning the basis of the legislation which, to my mind, confirm the relevance of the legislators' overall work. In conclusion, I will raise three challenges concerning the future of this legislative harmonization process.
First of all, the relevance of the legislation. The legislation successfully tries to increase accessibility of federal legislation in conformity with Canada's common law and civil law judicial traditions. The federal legislation, with this act, becomes visibly and conceptually bilingual and bijural at the same time. This will improve the efficacity of legislation and its effectiveness for the justiciable — and beyond that instrumental value — and thus facilitate the administration of justice in Quebec and outside of Quebec for its two main language communities. I think that besides this question of accessibility, there will also be a strong symbolic value to this undertaking. That is my second point.
Federal legislation recognizes that Canadian legislation overall is a type of meeting place, a legal space, if you will, within which one of the great values of Canadian federalism is affirmed: linguistic diversity and legal diversity, in other words the coexistence of common law, and civil law and this is vigorously affirmed symbolically. So beyond functionality, even if one is Fransaskois or a francophone from New Brunswick and the English version of the law is understood, it is important, symbolically speaking, that the law express itself not only in both languages, but also in both traditions, and so in common law in French for those two provinces. Just as in Quebec, it is important that civil law express itself both in French and in English. This symbolic value is very strongly confirmed by the legislation.
This symbolic value — and this was announced in the preamble of the first law on harmonization — allows Canada to play a role internationally. In my university work, I am a comparatist and I often work in Europe. The Canadian example, especially this legislative harmonization program, serves, in a manner of speaking, as Canada's ambassador beyond its borders. Not because of the uniformity of laws, under the umbrella of a single value — a Republican one, for example, as in some European countries — but because of the harmonization, the unity found in a difference, in a manner of speaking, which is at the heart of Canadian thought. ``A window on the world'' as was affirmed in the preamble of the first act.
As for the relevance of the legislation, my third point, I see it as confirming the principle of the suppletive character of the provincial law of general application — and eventually territorial — as concerns the implementation of federal law. In other words, as is set out in the first act, federal legislation proceeds with a view to being compatible with both legal traditions. The federal legislation is superimposed upon a basis of common law, as it were, whether it is civil law for the Province of Quebec or the common law for the other Canadian provinces.
Does that mean that the federal legislation is in a position of total dependence as concerns those common rights of provincial origin?
The answer must be no. I emphasize this for those who are less certain of the value of this suppletive relationship. The federal legislator always has the power to stipulate, in a piece of legislation, that a national value, for example, will overrule any provincial specificity subject to the legal tradition in question. That is always affirmed in the act. I refer you to clauses 8(1) and 8(2) of the first act passed, which states:
[English]
Mr. Kasirer: Unless otherwise provided by law.
[Translation]
Unless some rule of law contradicts this, it leaves the door wide open for the legislator, for example, in a fiscal context where uniform treatment across Canada is a national value and it becomes possible. We are not actually at the mercy of diversity. Legal diversity is trumped by federal legislation. As you can see, I am firmly in favour of the legislation.
[English]
It is tempting to look at this proposed legislation in particular, the second harmonization act, as a technical bill, almost esoteric in its presentation because there are so many narrow amendments brought to the Bankruptcy Act or to other seemingly less important matters of federal law. I would urge you to take another look at the proposed statute. This is not a technical bill, nor is it a matter of legal esoterics. Instead, it is an extremely high-minded project whereby the four voices of federal law, the common law and the civil law in English and French, are all recognized as forming part of Canadian law. For example, when proposed subsection 16(5) explicitly acknowledges the existence of les bien reéls, les immeubles, that is, immovables and real property, we hear the four voices of federal law in what is a provision of the Bankruptcy Act that perhaps at first blush has little importance to the everyday lives of Canadians, but here the symbolic value is confirmed. We have a confirmation of this importance in the significant emergence in Canadian legal culture of this ideal of the four voices of federal legislation, the Supreme Court of Canada recently recognizing it as part of the culture of Canadian law.
Note, too, that bankruptcy law is part of the everyday life of Canadians. In the interaction in business life, and financial life more generally, and the interaction between the general law of secure transactions, as evidenced by the Civil Code of Quebec or the personal property security acts of common law provinces, and federal legislation, is a matter of significant importance. Here we have in this project an example of the dynamic character of federalism predicated on this principle of legal diversity built into the formal structures of law. When we see l'acte constitutif d'hypothèque dans la province de Québec explicitly recognized in the proposed legislation, gross or intentional fault, la faute lourde ou intentionelle, recognized in the body of the statute, here we are going well beyond legal niceties. We are dealing with a matter of significant importance in Canadian law.
Allow me to note in the development of these four voices of Canadian law the significant contributions of jurists working at the Department of Justice — how fine that work is. Some of the publications coming out of the Department of Justice, including les fiches bijuridiques, which are now available to all Canadians on the Internet, have made a significant contribution to the advancement of Canadian law.
[Translation]
I take a lot of pleasure in seeing what our academics have brought to this project not only at the stage of preliminary work, but also in developing a common law lexicon in French and a civil law lexicon in both languages. I would give you the example of the University of Moncton's Terminological and Legal Translation Centre which is the origin of many innovations in common law in French, the Centre de droit privé et comparé du Québec which, through its dictionary on private law publishes a source of first importance for the federal legislator.
[English]
We have in the proposed legislation the affirmation of the four voice of federal law, an updated vocabulary in keeping with the innovations in the Civil Code of Quebec. We see, for example, in clause 61 of the bill, the word ``solidarily'' being added next to ``joint and severally,'' which always rang oddly in the ears of Quebecers, whether in English or in French. In l'hypothèque légale, the legal hypothec recognized at clause 40, and a bolder recognition of the civil law's ordinary language in this bill in clause 37, one hears of revisiting a lease, rather than merely disclaiming it, as would a common law lawyer.
[Translation]
Damage is invoked in clause 32(3) rather than harm, damage being the word which is preferred in Quebec's Civil Code. We have here the example of an elegancia juris which is appropriate for federal legislation.
[English]
This is not only necessary but also of symbolic value, to see the word ``succession'' on the English side of the page of the bill and not just the word ``estate.'' The word ``succession'' evoking a reality for the civilian, just as it allows us the occasional bit of amusement about western grain being subject to le droit civil du Québec at clause 108.
[Translation]
You have three major challenges in advancing your work. Madam Chair, allow me to point this out in a friendly fashion, as I support this law which, I believe, honours the Senate of Canada.
[English]
The first challenge, of some of the fundamental aspects of bijuralism that cannot be reduced to a matter of vocabulary alone, is next on the horizon for jurists working on the project. I will give you an example that arises in the bankruptcy context that is preoccupying jurists working in matters of taxation at the Department of Justice. What is ``beneficial ownership?'' It is a key concept in the law of trusts in the common law. How does one say that in the civil law of Quebec? How does one say that, when the trust does not necessarily play the same role in the law of Quebec from a conceptual point of view as it does in the common law? It is certainly true that the Civil Code of Quebec has a new law of trusts, but to what extent can we rely on the vocabulary of that law to provide us with a notional equivalent to ``beneficial ownership'' of the common law? Do we want that as the overarching concept? The first challenge is to encourage scholars and jurists working at the Department of Justice to move beyond words toward concepts of the law.
The second challenge is to move beyond bi-juralism to consider other legal traditions in Canada and, at minimum, Aboriginal law, and bring it into the project of rendering compatible federal legislation with legal diversity in Canada at large.
We know that Aboriginal law is a vibrant and multi-faceted legal culture in Canada. Section 35(1) of the Charter makes bold recognition of it. One of the most important challenges for the federal government is the recognition of Nunavut as a self-governing, multilingual and multi-jural entity within Canada.
It is interesting and important to note that the project of harmonization as presently cast does not exclude the presence of Aboriginal legal cultures. In other words, bi-juralism is not a closed shop.
[Translation]
Bijuralism does not pretend to be a sort of watertight look on the relationship between the federal law or federal legislation and the other legal cultures.
[English]
I note, interestingly, that colleagues working on matters of Aboriginal law — and I am thinking of Professor John Borrows and others in Canada — are interested in not only the specificity of legal culture but also its interactive character, whether it be with federal legislation or the provincial Civil Code in Quebec or the common law applicable elsewhere.
The third challenge is to recognize what I would describe as an interactive character between the common law and the civil law within the space created by federal legislation. The project of harmonization to date has been predicated on this droit supplétif model that we have spoken of and that I see as one of its strong suits. The droit supplétif encourages a view of separate but equal status of common law and civil law within Canada. Yet, within the areas of common law and civil law in Canada, scholars are increasingly observing an interactive relationship between the two, rather like the way the two languages in Canada interact with one another within the shared space of Canada and federal legislation.
This sometimes finds expression in techniques for interpretation of federal legislation, the shared-meaning approach, for example — and this is not a definitive way to determine the meaning of federal legislation — when a judge or an ordinary person trying to understand the meaning of federal legislation reads both the English and French text together to try to discern legislative intention. This has proceeded linguistically but not from the point of view of legal cultures, on the theory it is either the common law or civil law that applies but not both together. In my view, there is perhaps another perspective that we could bring to the table; that is to stay, a dialogic relationship between the common law and civil law where, notwithstanding the principles of the suppletive character of the provincial law of general application to federal legislation, we see both the common law and the civil law as relevant to the project of understanding meaning, whether it be for a judge in Quebec, a judge in New Brunswick or an ordinary person reading a federal statute elsewhere in Canada.
I think we are beginning to understand in Canada that the common law and civil law live in a kind of dialogue and that this dialogue shapes meaning. Canadians should increasingly consider both legal traditions as they embark on the quest for meaning. This dialogic jurisprudence allows Canadians to recognize multiple legal identities at the same time. I see it in the scholarship of a number of Canadian university professors looking at legal bilingualism, for example, Rod Macdonald and Ruth Sullivan, and including a colleague working at the federal Department of Justice. This dialogic jurisprudence encourages the Parliament of Canada to think about meaning, not just within a narrowly civilian or a narrowly common law perspective — bilingual in both cases, depending on where a person may be in Canada — but, as is often the case for Canadian lawyers, particularly those open to the comparative vocation of Canadian law, to read Quebec law mindful of meaning generated by the common law and bring that understanding to bear in determining what a civil law idea is without doing a disservice to the specificity of the civil law.
To my mind, this is an added challenge, along with dialogic jurisprudence, to the bringing of Aboriginal law into this project and, lastly, adds to the challenge of transcending the technical and the lexical — that is, the vocabulary — and moving into the conceptual challenge of comparing the common law and civil law within the space of federal legislation.
[Translation]
Senator Nolin: I would like to have another look at your third challenge. Is it really a challenge or is it a reaction to the novelty created by bijuralism? It is certainly a challenge for the editors, but how is this a challenge for a Canadian citizen consulting the legislation? I can hear your words, but I have problems understanding how this should serve as a heads-up in our work except to make us aware of the beauty of bijuralism, its novelty and its unique character.
Mr. Kasirer: That comes both from the finding you have made and an ambient reality; a pre-existing reality in Canadian law. The challenges to be found are at two levels: first, for the editors, in making the legislation itself, you have to not only take into account the suppletive nature of the legislation, the fact that a federal act addresses a civilist and common law audience at the same time so that both of them, irrespective of their official language, may be comfortable with the legislation. The impact concerning the making of the legislation is certain. We are already witnessing that with the legal people working on preparing legislative wording. You do not think, in an abstract manner, about what trust means in Quebec or what trust means in Ontario. You try to think about both at the same time while trying to think of all the consequences and impacts of the legislation before it comes into law, a sort of preventative effort in preparing the legislation. It is a drafting challenge.
Interpreting the act is also a challenge. Legislation is intended not only for judges and professors, but citizens who see themselves to a larger degree in Canadian legislation, because in ``bilingual'' and ``bijural,'' they hear their language in the very text of the legislation. I think it is accurate to say that in the interpretation of federal legislation — and this is certainly the case for Quebec legal scholars — we have always understood that we must ponder words, not only strictly in civil law language, but with an eye out for what this might mean for a common law practitioner. We have always worked with this dialogism that I mentioned, with the fact that civil law is always confronted with the other. This is evident in the very drafting of the Quebec Civil Code. The new securities legislation is drafted in civil law traditional language but it is based on ideas that come for the most part from the Personnal Properties Securities Act. I think that it goes both ways.
The Chairman: Mr. Kasirer, you spoke about the interactive nature of the relationship between common law and civil law. You mentioned the two legal traditions in Canada. Can you elaborate on how the two legal traditions mutually influence each other?
Mr. Kasirer: The question is very good, especially for a Quebec legal scholar who tends to see this influence as something we are subjected to, and are often defensive about. We want to protect civil law from this influence, civil law which is almost unique in North America. Protecting it from the influence of common law which is perceived as negative.
But reality is very different. Civil law in Quebec, namely in the newly constructed Civil Code, is enhanced by its contact with common law. Earlier on, I gave the example of securities legislation, especially security on moveable property, which has always posed a problem for Quebeckers. The Civil Code Revision Office has begun opening up to common law rather than remaining defensive. In doing so, we have successfully integrated a legal mortgage regime into the Civil Code, while respecting civil property laws, and we did the same thing in terms of trusts. It is a two-way street. Sometimes, common law experts do not see that, but they should. Federal legislation should promote that, and I think they will do that by giving more visibility to civil language. I will give you an example. I work in the area of family law, and we know that in Quebec, there have been major innovations in family law, such as the partnership of acquests in 1969 and subsequently, family patrimony in Quebec. They are new in Quebec law.
In the 1970s, Ontario law was at a kind of standstill, because of a lack of innovation. Judges were forced to put together what we call constructive trusts, following the Murdoch case, Supreme Court dissent. Judges did not have the legislative machinery to move forward. What did the Ontario Parliament do? This is a little know but true fact. Queen's Park used the partnership of acquests model from Quebec law to draft the first Family Law Reform Act, which protected spouses who were economically disadvantaged — especially women working at home — to give them a kind of community of property like the one in Quebec. This exchange helped advance Ontario law while fully respecting common law tradition.
In the past, the imperviousness of bijuralism — in Quebec it is civil law and outside Quebec it is common law, and never the twain shall meet — was an obstacle that was not really necessary. One of the advantages of the act you are studying today is that the visibility, for someone from Ontario, of civil law language in both languages and common law language in French, gives rise to this dialogue. As it does for the Quebecer who considers the presence of the other as a necessary part of life in Canada. It will advance the law. I hope that the people who are drafting the federal legislation and who are working on this project recognize first and foremost that they are the driving force behind that. As Senator Nolin said, it is for the most part bi-juralism, but it is also something else. They must take that into account when they work on acts 3 and 4.
[English]
Senator Sibbeston: Professor Kasirer, you talked about legal diversity and mentioned Aboriginal law. When Senator Joyal was talking about this bill, he raised the notion of Aboriginal law being recognized on the same basis as common law and civil law, and that is something that I am sure jurists and other people in our country will work toward.
You also mentioned Nunavut. You said that Nunavut is a territory where 85 per cent of the people are Inuit, and that from there might come forth a body of law that will be Aboriginal in nature — Inuit in nature. Is this what you are talking about?
Mr. Kasirer: Exactly.
Senator Sibbeston: You are not just talking about section 35, referring to Aboriginal rights and the laws that come from that?
Mr. Kasirer: No. You are right to underline the different legal bases for an eventual recognition, on the same plane as the common law and the civil law, of Aboriginal law within the structure of the work you are doing now. One would make the case, of course, that Inuit legal culture, to take just that example, is something that does not date from 1999. It is quite the reverse. However, in the late 1990s there was a formal recognition of not only the existence of the territory but, linguistically and juridically, of another legal culture that is to be brought into the mainstream of the formal structures of Canadian law.
To my mind, that poses a huge challenge culturally and linguistically. What is nice about the bi-juralism project is that it is not incompatible with that. Some people see the ``twoness'' of bijuralism as exclusionary. I would point out, and encourage everyone to take the view, that bi-juralism is by no means exclusionary. In fact, it is an open model that will lead to a poly-jural model, a multiple model, as time goes on.
However, to equip ourselves to do that when a legal tradition is not codified in a civil code, as in the case of Quebec, or accessible through the body of published judgments, as in the case of the precedents of the common law, but is part of an oral tradition where there is no formal legal culture of lawyers and judges to prop it up, the challenge to the Minister of Justice and, indeed, to Parliament to bring that into the fold is immense and will require the Department of Justice to work in a different way, although in the same spirit.
Senator Sibbeston: It is an exciting notion that our legal system would eventually recognize Aboriginal legal customs and traditions. It is interesting that in the Tlicho Agreement, which will be coming before senators soon, there is a provision whereby the courts will have to recognize Tlicho customs and traditions.
I practised law in the Northwest Territories and spent time defending people under the Criminal Code, and I always found it a challenge because the Criminal Code is written with the people in the South in mind, with its concepts of break and enter and other criminal offences. It is always a challenge to adapt those concepts and also the penalties that are provided for in the Criminal Code.
There is currently a bill before the House of Commons dealing with cruelty to animals, to which the Senate is interested in adding a provision to deal with Aboriginal hunting practices. People kill animals for their livelihood and as a way of life in the North. There is an attempt to put a provision in our Criminal Code that recognizes the Aboriginal reality in the North, yet the federal government, through the Department of Justice, has resisted this. For the first time, we have attempted to do something especially for the North and for Aboriginal people, and the whole system — the government, the status quo — resists it completely, wanting no special provisions like that. They just want a law that applies to every Canadian, not recognizing the special situation of Aboriginal people. I find it ironic that there is that resistance, but that would fit in with what you say, that native practices and customs should be recognized in our law. We are trying, and are having a difficult time.
Would you comment on that?
Mr. Kasirer: It is a good opportunity, from the perspective of the law that you have under study today, to ask yourselves whether there is anything in this law that would preclude the sort of welcome recognition of which you speak.
My view is that there is nothing in the statute that does it. As a methodological technique predicated on the recognition of difference under the aegis of the federal scheme — just as Quebec's difference juridically is recognized without necessarily hiding it in the federal legislation, as was the case in the past I think it is fair to say, just as the common law in French is now rendered visible here — I think the aspiration is completely compatible with this kind of project, to say that Aboriginal law, too, should be welcomed and recognized in this federal structure.
I am optimistic but I take your point, because I think the fundamentals of it have been made on a number of occasions by Canadian courts, including the Supreme Court of Canada. It requires a change in mentality as to what law is. As Canadians typically go looking for laws in the statute books or in published judgments, they have to be encouraged — as one of the judges of the Supreme Court of Canada remarked — to go looking for law in customary practices, in stories, in that legal anthropologists and native peoples who understand their customs as the cement of their communities understand that to be law, too.
Part of what is going on in this proposed legislation is what is law? That is exactly the perspective from which the Aboriginal question should be entered into, not just the recognition in section 35 of the Charter, not just Nunavut — these are important moments — but more broadly speaking a recognition that law does not always look the way it does in the south.
The Chairman: May I suggest you read the presentation that we had from the minister yesterday? Senators Watts, Adams and Gill were here so there was a good exchange with the minister. Perhaps you could read that too. It was most encouraging.
Senator Cools: I would like to welcome the witness. I have great difficulty understanding precisely what you mean by the dialogic interaction between the common law and the civil law. I think law is more than an interaction of cultures — diversity, intercultural and cross-cultural interaction. I think the law is a different sort of thing.
I have great concerns, professor, because we are in a community today quite often where the law is what the minister says it is; or the law is what some other person says it is. I am quite a reader of the law, and I tell you in many vast areas of the law — the most recent example is marriage — the thread of the law is being severed, as decisions are being made based on individual people's opinions. Blacks do not have a lot to say about that sort of thing. For example, the point Senator Sibbeston was just making, I would articulate in an opposite way. I would say that the problem that Aboriginal peoples are having in respect of hunting rights, et cetera, is coming out of the fact that the Department of Justice is foisting a new concept of law upon them, whereas, for example, if one were to follow the old threads of the common law one would find the Aboriginal right to hunt and enjoy the bounty of fishing and hunting was an integral part of that law. I just raise some of these concerns. I have not listened to you before but now I will make it my business to read more about your ideas.
I will give another example where I have a difficulty with this. I am sure it is no secret here, honourable senators, that for years, ministers of justice were supposed to pay attention to the balance of the two legal systems, and within the Department of Justice. The language has disappeared, but in the old days they used to call them the Roman lawyers. This is an old term. In later years they were called civilists and then the common lawyers. Those were the two terms that were used. It used to be said years ago that the Department of Justice and assistant ministers — the ministers do what they say — should pay great attention because the cast of mind of the civil law is different from the cast of mind of the common law. This is a vast subject and I will make sure I read your testimony carefully because you are raising large and, I think, profound issues.
For example, a little while ago, I had a conversation with some individuals who had done much work at these international criminal tribunals. Some of these people were lawyers and they have a great concern that the entire system is moving toward pushing away the common law notions of rules of evidence and so on and moving in another direction, which seems to be supported by the civilist tradition, and importing other systems. I am not an authority on any of this but I just have a little uneasiness because the mind of Parliament is a common law mind. It simply is. The traditions are common law — I say that with all due respect — and what has been happening in recent years is that we are having legislation coming to us, bills, where a civilist approach is being taken, for example, Bill C-20, which we have fought, the clarity bill. It is alien to the common law, for example, for a minister of justice to propose in a bill that the realm, the kingdom, or the territory can be divided. This is unheard of. Some would call that treasonous. Common law would call that treasonous. Yet such bills are coming forward.
I am not really prepared for you today but I wonder if you could give some comment, because the pressure of the common law to yield in the international criminal court circuits, to yield to the civil law, is great. I could go on forever because I do not believe those international criminal courts have proper jurisdiction anyway, and the sovereignty of the courts is another question.
Could you comment on that rather convoluted set of questions? The aim in a society is towards diversity of people, acceptance of people, proper laws and equal laws for all. I have great concerns at what I see sometimes as the bending of the law. For example, another thing that has happened recently is that the Minister of Justice, as Attorney General — he has two roles — argued on one side of an issue before the courts and then one day changed his mind and argued on the other side. It was a new minister. My understanding is that Her Majesty's mind is not easily changed and that an attorney general is not properly authorized to go into a court to argue against Her Majesty in Parliament, but that is what has happened.
Could you comment on this?
Mr. Kasirer: Senator Cools, you raise a lot of points. I am not sure I will be able to do your questions justice.
Let me just say that my perspective is not one of alarm when I think of the relationship between the common law and the civil law in Canada, and it is certainly not one of the hegemony of the civil law over common law.
That is not my perspective.
I note a couple of things. This idea of an ongoing dialogue between the civil law and the common law is ancient. You mentioned Blackstone in your remarks and he was influenced by Roman law. Indeed, some of the great common law lawyers learned the common law of contract developed by Joseph Robert Pothier. In the great common law tradition, there is a presence of the civil law.
Certainly the Quebec experience speaks to a sense that the originality and the historical legacy of the civil law, essential to understanding Quebec's place in Canada, can be recognized and celebrated while learning, through this dialogic process, from the common law. Thus we have some of the examples that I gave from secured transactions, trust and family law, whereby this process of dialogue is mutually nourishing, as opposed to one that keeps people on the defensive.
I strongly believe that the proposed legislation before us is good for Canada. Certainly I do not see any undue pressure of the civil law on the common law through this bill. Indeed, one of the lovely things about this bill is the bold and visible recognition of the common law in French. You speak of the Department of Justice as having, in the olden days, a mindset that was not open to difference. This is new, wonderful and a good thing for common lawyers.
Similarly, there is the idea of separate but equal models for the way in which Canadian law proceeds. My point about there being a dialogical character of jurisprudence under the broad hat of the Canadian federal state, and, in particular, in respect of federal legislation, also holds huge potential for adding to the richness of federal legislation without necessarily giving in to what some people legitimately fear. I hear what you say about the common law. Civilians are more apt to worry about the influence of the common law as something that might trip up or dilute some of the fine historical character of the civil law.
Indeed, one of the reasons that Canada is a model for Europeans in respect of the interaction of legal systems is that we have not adopted the discourse of separation. We are into the discourse of comparison; and that is promoted in this bill.
Senator Cools: I have no problems with any of that. You are talking about the openness of the law and the ability of the law to respond. I have absolutely no quarrel with any of that.
Perhaps I will raise my concern at a later date, chairman, when we consider another bill that requires examination of these international, so-called ``legal'' arrangements, in particular around the international criminal courts. When such a bill is before us, we never have enough time to study it and to hear witness testimony. Many Canadians were involved in these cases before the international criminal courts. They have a wealth of knowledge in respect of the subject matter. Former U.S. Attorney General Ramsay Clark appeared before some of these courts. We could be well-served to hear some of their testimony. When we do these bills they fly by in five minutes. I keep hearing great concern that there is great pressure to jettison the rules of evidence and many other sets of notions as we know them. I would be happy to be proven wrong on that point. That is my concern.
I do not think it is a dialogic problem but rather a political problem that the committee should examine. When you attend these international tribunals, you learn that the first rule is to have a formal process and system. You need evidence that is tangible and provable and that can be tested and stand up under cross-examination. In many instances before the international criminal courts, evidence cannot be gathered because it is in another country. Rwanda presented such a problem. It is my understanding that once the process begins it is truly one that has to fulfil the formal standards that accompany it. I would not mind dialoguing with you later on this.
It is a huge issue and the professor knows that it is quite a different situation from the courts at Nuremberg, but we can discuss that another time.
[Translation]
Senator Joyal: I apologize for having missed the first part of the meeting. I had another commitment earlier with my colleague Senator Andreychuk, who would have liked to participate in this meeting.
I would like to pick up where you left off earlier on the philosophical compatibility of common law and civil law. My perception as a legal scholar is that the new Quebec Civil Code and Canadian common law as we know it 25 years after the Charter now has more concordance of values than we have ever seen before in the former code and in traditional common law. The Quebec legislator recognized it in the preliminary provision of the Civil Code, which reads as follows:
The Civil Code of Quebec, in harmony with the Charter of Human Rights and Freedoms and the general principles of law, governs persons, relations between persons, and property.
When our values are based on a system that must express the provisions of charters, in my opinion, we are in an entirely different world from the one portrayed by the two watertight systems that we attempted to maintain in the past. There is osmosis between the two charters. I do not dare say that that was the teaching in our classrooms, I would not want to insult certain professors. The Quebec government's catalogue on the history of the Civil Code of Quebec appears to recognize that the Civil Code of Quebec is not a purely French civil law code. We relied on that portrayal of the code. The code is a partial codification of common law. The entire part on the effects of commerce came from common law. The Evidence Act comes from common law. There are provisions that come from traditional French civil law. Several other provisions linked to commerce are a kind of codification of common law.
In other words, Quebec civil law is not a pure law as people tend to say it is or to perceive it traditionally. It is characteristic of Quebec's society. Quebec is the only province that has codified, that has used the approach of codifying laws that govern relationships between individuals and people.
When you look at the Civil Code of Quebec philosophically in the context of the Charter and you consider that the provisions and the law correspond to common law, there is greater symbiosis between the two systems. I think we need a more in-depth look at the nature of the two systems now. That is why, in my opinion, the current harmonization approach is possible and honest, in that it makes the common values of the two legal systems law.
I have not read many articles, research or papers that have attempted to do this new analysis of the Civil Code of Quebec as it compares to common law. I read the article by Professor Pineau from the University of Montreal, who gave a very interesting conference as part of the bicentennial last month. He addressed the question to some extent, but it was far from a comparative analysis of the two systems. And since at McGill, you have used an approach to compare the two systems, can you confirm or deny what I see to be the concordance or the ability to harmonize the two systems, or am I exaggerating?
Mr. Kasirer: I do not think so, your reading is very accurate. There are many things I did not want to omit. First comment: this unitive value that you refer to, which is precisely more and more visible in the daily lives of Canadians, does not necessarily lead legal traditions towards uniformity in law or in drafting of the law. That is an important point. In the past, we were afraid of the bland nature of federal legislation that sought to impose a kind of cookie- cutter approach in Canada that did not have the flexibility to recognize differences. The unity that you refer to with regard to this bill is a unity that takes differences into account.
With respect to your concept of watertight systems, the concept of purity, I might say that the purity of civil law is part of your experience as a legal expert, as it is part of mine and that of all Quebecers, when we look at our civil law history. Let us be frank, we are a small civil law country, a small civil law jurisdiction, an island of civil law in a sea of common law. Everything we hear about the difficulty of living in French in North America has put Quebec law somewhat on the defensive.
At the end of the 1960s and in the early 1970s, the dominant theme in Quebec law was defensive. The influence of common law, the symbiotic relationship you evoke so eloquently, was something we had reservations about. The influence of common law might have the result of changing the very nature of civil law.
The cultural shift we saw in the 1970s was the result not only of instituting the Civil Code 10 years ago, but also of the process leading to the new code, when the Civil Code Revision Office approached Quebec civil law as a mature body of law, able to engage common law without necessarily becoming lost in the existing relationship of power.
What do we see in today's Quebec Civil Code? We see a concordance of values in many areas. There are some areas where we are not like anyone else. But we do see a concordance of values expressed in the conceptual language of civil law.
Let us take the Fiducie du Québec as an example. Article 12.60 of the Quebec Civil Code and those that follow provide for an ambitious institution that could be exported outside Canada, as a model for countries that have a civil law tradition but who have never been able to institute the excellent idea of a trust of this nature, which is rooted in common law. Why has that happened? Because the Roman concept of property was an obstacle to an arrangement of this kind, and the Roman approach to protecting the purity of the property concept made it impossible for people to recognize that there could be two kinds of property, property ``at law'' and property ``at equity,'' as we find in common law.
One interesting aspect of our bill is that the Parliament of Canada — I consider support for the current parliamentary approach very important — accepts this difference in the culture of law within the framework of a federal body of law that applies to all of Canada. The federal government accepts this difference in the language of law, in compliance with both concordant and discordant values. It is the Parliament of Canada that decides on laws that apply generally but are of provincial origin, or govern matters of taxation and bankruptcy, or other areas. Parliament in effect says that it understands how a common law trust would make it possible for someone in a given fiscal framework to hide revenue and thus undermine the federal taxation objective, and does not wish this to occur. Thus, I will define the concept of a taxpayer, or of anything else, taking into account any distinctiveness so that it can be included in or excluded from the whole, depending on the situation. This is something I very much support. What I would like to do — and that is in line with your remark — is to liberate us from the concept of being sealed off, the concept of purity. Our friends from the Department of Justice are opening the door to us, and your work confirms that. This is something we should do, when federal statutes in connection with this matter are enacted — and I do not mean this bill here, but those that will follow with the process of harmonization — and when those statutes are interpreted. I think this model has a great deal to commend it.
Senator Joyal: The last part of your answer takes me to another comment. To my mind — and I know that my colleague, Senator Nolin, may wish to add something — the principle of federalism is not an approach that sets aside differences, but rather one that tries to use those differences as best it can to express a reality that takes diversity into account. And, as I was saying earlier, my rather traditionalist student's perception would lead me to believe that the Civil Code was completely separate from common law, and that the bible of our distinct society was our civil law. And insofar as I believe that, I cannot but conclude that the harmonization approach is in fact the expression of the principle of federalism, in that it provides for two systems to exist side by side, two systems that are fundamentally different but can nonetheless live together and enhance each other, where each system can learn from the other and express the desires and aspirations of the other. I consider that to be the principle of federalism in its clearest form. We have gone to another stage in this separation of our two systems.
What I find most positive in this approach is this comment we always find in the exhibition catalogue, to the effect that since 1994 the Parliament of Canada has been harmonizing its statutes with the Quebec Civil Code.
That recognition to my mind illustrates an interaction among the two systems that produces something else. We are not just talking about managing differences here, we are generating the capacity to express new concepts. That, I think, is an exemplary approach. Obviously, there are all kinds of debates on social systems, ways of managing social security in Canada, and so on. But in my opinion it is this aspect, this cohabitation structure, that we must properly understand in managing our differences, differences that in my view are essential to maintaining our Canadian richness of diversity, as we see it in our two legal systems. I was not here when Senator Sibbeston referred to Aboriginal law. That is one area — as we said yesterday when Minister Cotler appeared — which is part of that diversity, which has not been properly incorporated but which is still part of the principle of federalism. In our system, we have to find the means of expressing this reality, of giving a voice to Aboriginal law.
In your thinking, could you propose some measures to help us conceptualize our approach, some measures that respect differences but make it possible for us to go beyond just recognizing distinctiveness?
Mr. Kasirer: A major part of what you are saying seems to bear on the work leading up to this legislation. Here is my first observation: a bill such as this could be envisaged only in a federal system. I think that all parties can come to an agreement, whether they favour symmetric or asymmetric federalism or a distinct society. It does not matter. What we have here is the fruit of the federalist system. There is no way, for example, that a bill like this could be established in France. That government cannot work in this way. That is my first point.
Now, that tension between difference and unity is at the root of the Canadian federalist drama, is it not? If we have legislation to underscore the value of unity in difference, the statute nonetheless does not solve the problem of tension. How much for unity, and how much for difference? That is the fundamental problem of Canadian constitutional law, and it would be somewhat surprising to find the answer to that existentialist question in the harmonization bill. But I do agree with you — and I think this is very important — that the promise of this legislation harbours something that goes beyond affirming the differences between us and invites us to think — I do like your expression cohabitation structure — about the space that federal statutes represent. As I was saying before you arrived, that space is symbolic, metaphorical, open — we talked about this a long time before you arrived — a space that provides room not only for two legal systems but also for other legal traditions, particularly Aboriginal law. For Quebec, it provides for the civil law tradition, for the rest of Canada it provides for the common law tradition and for Aboriginal traditions, which can exist in the same space, the space that federal law represents. I think we are exactly on the same wavelength.
Now the issue I raised just before you arrived was the dialogues, the dialogical relationships, that exist within that space. I said that the Parliament of Canada would have three challenges. The first is due to the huge conceptual gaps between civil law and common law. The second is Aboriginal traditional law. The third rests in the dialogue, the symbiotic relationships you spoke of earlier, relationships that are compatible with the approach we see here. To my mind, Parliament will have to focus on these three avenues of reflection.
Senator Nolin: To use your expression, when you qualified Quebec law, and not only the Civil Code, as mature law, in the same manner, is federal law not in the process of becoming mature, albeit in an incomplete way? As to the issue of Aboriginal law, Aboriginal traditions, when we think about it around the table here, we are only at the beginning. I enthusiastically commend the minister's openness. Is federal law not maturing, also?
Mr. Kasirer: That is well said. I believe so.
Senator Nolin: That may perhaps ease the concerns of my colleague Senator Cools. In other words, there is no winner. We are creating new Canadian law.
Mr. Kasirer: Certainly, and this has been confirmed by unbiased internationalists and comparative analysts looking at us from the outside, studying this bill on harmonization, who have actually noted the maturity of this measure. I think that, since 1993, when the federal government launched this harmonization project, it did not reach an outcome, that is another step, but rather it embarked upon a process of encouraging the maturity of federal law. You mentioned maturity, meaning that the law is evolving. That is exactly right.
I wonder — and this is a complicated question — to what extent this maturity will allow us to settle everything. Why? Because federal law is not an entirely autonomous system. This, as well, is one of the underlying principles of the harmonization project. Federal law, the principle of its suppletive character, is in interaction with both systems of civil law, common law, and without a doubt Aboriginal traditions. This process of arriving at a mature common law — when we think about it — in Quebec refers to a mature Civil Code in harmony, just as the preliminary clause states, with the Quebec Charter and general principles of the law. What is also important is that common law is constantly growing: the idea that common law is ever-changing, and never static.
When it comes to federal law, there are limits. It is legislative law by design, first and foremost. Important debates surround the existence of a federal common law. And if I understand correctly, I think that what we are trying to do here is answer no, and take as a given that basic law originates in a province and that the structure of federal law is what we are working on.
Indeed, we are heading towards maturity, but we do not expect federal law to reach a point of absolute maturity and become something of an autonomous system. The reason is that federal law does not seek to do this.
Senator Nolin: Does that mean you are abdicating your third challenge?
Mr. Kasirer: I would not say so — I see where you are coming from — to the extent that listening to others is a sign of maturity.
Senator Nolin: This concept of interaction, because of federalism, of the duty of openness, understanding, coexistence, in a way means that the maturity of federal law will forcibly eliminate non-interaction between the systems, all the while respecting and recognizing the distinct characteristics of each one of these systems, making choices and bringing them closer together, and lastly recognize their differences.
Mr. Kasirer: Only where there is a need to do so.
Senator Nolin: Or at least recognize that the differences exist and make choices.
Mr. Kasirer: Absolutely.
Senator Nolin: One must not take for granted that it is either one or the other. That would be a fallacy. We create new law that belongs to us, that results from our maturity or our historic evolution and that is satisfactory. It is a hybrid, but that suits us.
Mr. Kasirer: That is nice. I like that.
The Chairman: It is very Canadian.
Senator Joyal: Is that what you teach in the classroom?
Mr. Kasirer: Definitely. If I may, I am going to put in a little plug for our university. In the past, the law program at McGill was a national legal training program. Both the common law and the civil law were taught, but it was somewhat a case of: ``Law and equity — two streams that never crossed.'' Now, since the introduction of this federal bill — actually, it is a coincidence, we have been teaching law in a transystemic way. That means that when students enter first year, they are not labeled as common law students or civil law students. They come from all parts of Canada. Many of them are from Quebec. We give courses in French or English in both civil law and common law, so that students' legal identity is not locked in one system or the other. This approach produces jurists with multiple identities who can argue the civil law with the great minds of this world, but who also have the flexibility to look at things from a common law point of view. Out of vanity, I see some of the same value in the bill; the federal legislature has multiple identities, and can be two things at the same time.
In my opinion, that is what is innovative here. It is not the value of ``two separate but equal'' systems. Nor is it a question of unifying things so that everyone is the same. There is an aspiration for a unique identity. But this is being done at McGill. I am not saying it is a recipe for everyone.
Senator Joyal: I think this is an extremely important reality, and I will tell you why I think it is becoming increasingly important. As a result of the opening up of borders — to use a cliché — jurists today in various fields must be flexible enough to adapt to other systems and they must be able to develop the ability to understand different systems. This applies to our American neighbour, with its common law traditions, and to our European friends, whose tradition is meanly in the civil law. In my opinion the Canadian experience, as you describe it and understand it, and as we are trying to understand it, is an extremely useful tool for lawyers and jurists because it enables them to work with contemporary tools for the adaptation and expression of complementary values within different structures.
I think it is extremely important that educational programs today acknowledge this aspect and that we get a little away from our earlier training, as I was saying earlier, whereby we chose one system or the other, and we could not move to the other system. It was as though the other system had a completely hermetic language using a different alphabet. There was no ability to understand the other system.
I think there is an extremely important aspect of the contemporary dynamic in the legal community: it is the dynamic of the future. We must be able to offer this ability to move between the different legal systems within the other major Canadian universities and faculties, both in Quebec and in the other provinces — because in my opinion Canadian law is not one that is limited to Quebec — for example Moncton, which was a pioneer in teaching common law in French. I am not involved in law faculties at the moment, but I think this is a very promising feature if we are to have Canadian jurists who can adapt to the context in which they must practice today, and who can understand the varied legal context.
Mr. Kasirer: You are absolutely right. Senator Nolin mentioned the University of Ottawa, to name a university other than my own. The University of Ottawa has an approach that is completely in keeping with your point. You mentioned the Université de Moncton, where the intellectual projects of Canadians, including the bill you have before you, are given as examples outside of Canada. Strangely, they are better known in many ways outside of Canada. I was invited to attend a conference in Trento, Italy, this summer, where jurists were reflecting on the development of what they called ``a common core of European private law.'' Imagine that — we have trouble with our two or three systems. Things get really complicated when there are 10, 15 or 25 systems. They look at what we are doing and they invite Canadians to discuss how we achieve this unity within difference.
Refer to a window on the world in the preamble to your first law on harmonization. It is one image among others, but it is somehow accurate, because people do look at us through our laws. That is a good thing.
Senator Nolin: One point we have not yet discussed is this: in your review of our bill, the idea was not to create new rights. Did you see anything that should concern us? Is it true that no new law is created, that we are merely harmonizing things?
Mr. Kasirer: It is difficult for a judge to rule on that, and definitely even more difficult for a law professor. However, I read the bill with the idea that your objective and that of the drafters was not to reform the law, but to make it harmonious. I saw nothing in it that went beyond this mandate.
Allow me to congratulate the current government and preceding governments which understood that in order to do this, a bill of this type was required. This is not a technical activity. Consequently, we have to be able to think about what this means.
Let me give you an example: What does ``property law'' mean when we add the words ``en équité'' to the French version? Does that meet the requirement not to change the meaning of the bill, or am I introducing an idea without really realizing it?
We must congratulate the government, and of course officials at the Department of Justice for all the time and work that went into this bill, particularly in light of budget constraints. This is a good investment, one that is preventive in nature. Action is being taken before things start to go badly.
My appreciation of the situation is confirmed because I know that there was an entire research process behind this legislation. Much of this research has been made public, because the officials who were involved in this published their work on the department's website and in legal journals. This was most advantageous to the Canadian legal and academic communities, and to people practising law. This fact makes me optimistic about your question.
Senator Nolin: We have talked a great deal about the principle of the bill, but we must nonetheless satisfy —
The Chairman: The minister's testimony yesterday was very positive. And the testimony we heard this morning leads us to think that it might be time to move to the next stages. This is only the second stage. Let us hope that there will be a third and a fourth. The work is very positive.
We would like to thank you very much for your presentation, Mr. Kasirer. We appreciated it very much. We wish you a good trip home.
Yesterday, we talked about the possibility of hearing from two other witnesses after the break week. We will hear from these two witnesses and then move to the clause-by-clause study of the bill.
Senator Joyal: As I said yesterday, I regret that our meeting was not broadcast.
The Chairman: We did request that it be televised, but our efforts were in vain.
Senator Joyal: I think it would have been advisable to broadcast the testimony we heard yesterday and this morning.
The committee adjourned.