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Federal Law–Civil Law Harmonization Bill, No. 4

Bill to Amend--Second Reading

December 8, 2022

Honourable colleagues, I rise today to speak in support of Bill S-11 at second reading. Its short title is Federal Law–Civil Law Harmonization Act, No. 4.

First of all, as Senator Clement noted in her speech, Bill S-11 is “a technical piece of legislation and a long read” that amends 639 clauses under the responsibility of various federal departments.

The summary of the bill clearly describes the context and purpose of this omnibus legislation. It reads as follows:

This enactment is the fourth in a series of enactments drafted in the course of the harmonization of federal statutes by the Department of Justice of Canada as a result of the coming into force of the Civil Code of Québec in 1994, which substantially changed the concepts, institutions and terminology of civil law. It amends 52 statutes, including the Acts governing financial institutions . . . in order to ensure that each language version takes into account the common law and the civil law.

I support the bill’s objective.

I also recognize that this bill is the result of a great deal of hard work by public servants, following consultations.

In 2017, the government consulted with over 400 key stakeholders and members of the legal community, as indicated in the briefing presentation provided to senators.

Prior to these public consultations, there were targeted consultations with financial institutions concerning the laws that govern them and that the bill proposes to amend.

If this bill passes second reading, I believe it is important that it be studied by a Senate committee — even if the study is expected to be brief — so that we may hear from representatives of Justice Canada, in particular.

I am wondering why Bill S-11 was introduced more than five years after the end of the public consultation period in 2017. In those five years, were there any pertinent new rulings handed down by the courts that officials had to consider when drafting the bill?

It would have been useful for senators to receive more information in that regard and to receive it sooner, especially given that future stages in the consideration of Bill S-11 will be very short and move much more quickly. Bill S-11 remains an omnibus bill with more than 600 clauses.

Having said that, the Senate committee’s study will give us the opportunity to go over the suggested amendments to the bill that stakeholders recommended to officials but that were not retained. In that regard, I certainly hope that the stakeholders who provided specific and detailed feedback to officials during the 2017 consultations will be invited to appear before the committee. I am thinking, for example, of the Chambre des notaires du Québec and the Chaire de rédaction juridique Louis‑Philippe-Pigeon at Université Laval.

I know, for example, that in 2017 the Chambre des notaires du Québec raised questions with public officials about the decision stipulating that certain federal laws would not be amended by this harmonization bill. The organization then recommended several technical amendments to the officials. Were all of them included in the bill?

As I explained, I expect that study of this bill will be completed very quickly by both chambers, given that there will likely be a consensus on the measures proposed in Bill S-11, which are technical. This is because of the guiding principle in developing the bill. This principle is explained in the briefing that public officials sent to senators, and it reads as follows:

The amendments made to harmonize legislation are technical in nature, non-controversial, and are not intended to alter the legislative policy underlying the provisions in question.

Although this principle seems to have been followed, the Senate committee still needs to confirm it by hearing from witnesses, especially representatives from Justice Canada.

Also, I want to point out that there is no legislation that requires or provides for this principle that I just mentioned, namely that a harmonization bill must not make substantive changes to laws.

That said, although this principle is not set out in legislation, it was respected in the last three harmonization bills passed in 2001, 2004 and 2011.

It is this tradition that made it possible for senators to pass the previous harmonization bills by consensus, since those bills only clarified the terminology in sections of the legislation without changing their effect, that is, the rule of law at the core of those sections.

I would add that I support Bill S-11 at second reading because it seeks to enhance the vitality of Canada’s bijuralism. As the Honourable Michel Bastarache explained, drafting bilingual federal law that takes into account the context of bijuralism poses significant challenges.

I would like to quote from a speech he made on February 4, 2000, when he was a Supreme Court justice, because I believe it is a ruling with a legal and linguistic challenge that our study of Bill S-11 helps to address:

 . . . federal legislation must be drafted in the English and French languages and in a manner which is compatible with two legal systems. Canada is blessed with four different legal languages and federal legislation must not only be bilingual but bijural. Indeed, federal legislation must simultaneously address four different groups of persons:

1. anglophone common law lawyers;

2. francophone common law lawyers;

3. anglophone Quebec civilian lawyers; and

4. francophone Quebec civilian lawyers.

It is crucial that these four legal audiences in Canada be able to both read federal statutes and regulations in the official language of their choice and also be able to find in them terminology and wording that are respectful of the concepts, notions and institutions proper to the legal tradition of their particular province or territory. This task is easier said than done . . . .

I want to end my speech by thanking the public officials from the Department of Justice who, earlier this week, quickly provided me with a series of documents that I requested from them during a briefing. One of those documents is 1,196 pages long and explains the bill clause by clause.

I will leave you with the words of former minister Peter MacKay. Even though he made this statement in the House of Commons on May 7, 2001, when that chamber was examining the Federal Law—Civil Law Harmonization Act, No. 1, it is still as relevant 21 years later in the context of Bill S-11. He said the following, and I quote:

 . . . a bill of such a cumbersome and technical nature did require a great deal of work within the Department of Justice and by others who put a Herculean effort forward to bring the bill to this point.

It is a pleasure for me to collaborate on initiatives to harmonize legislation across the country, as did that member and members from other parties.

The last three harmonization acts were passed in both places by consensus. To illustrate, all three pieces of legislation passed third reading in a non-partisan fashion, without a single MP or senator voting against them. Could this be what awaits this fourth harmonization law? I hope so. I think I have achieved my goal and kept my commitment to my leader to read my speech on Bill S-11 in 11 minutes. Thank you.

Hon. Bernadette Clement [ + ]

Would the senator take a question?

That’ll put us over the 11-minute mark, but yes.

Senator Clement [ + ]

Thank you for your speech in support of the bill. You talked about bijuralism, and I was glad to hear what you had to say. I noted your comments about the Chambre des notaires. You’re planning to study this question in committee. I will ask you the same question I asked your civil law colleagues in this chamber. Are they happy about this harmonization act in general and about bijuralism in general?

Yes, we are in favour of the act, although we wish it could be done a lot faster. We realize that this is a complex situation and that it takes a very long time to review the entirety of federal legislation. We are in favour of any harmonization act, but we would like it to be done a lot faster so that people do not have to spend their entire career without the benefit of bijuralism and bilingualism rules.

The Hon. the Speaker pro tempore [ + ]

Are senators ready for the question?

The Hon. the Speaker pro tempore [ + ]

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to and bill read second time.)

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