Federal Law–Civil Law Harmonization Bill, No. 4

Moved third reading of Bill S-6, A fourth Act to harmonize federal law with the civil law 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.

She said: Honourable senators, I rise today to speak on Bill S-6, the Federal Law-Civil Law Harmonization Act, No. 4.

Just a few weeks ago, Senator Carignan and I delivered our second reading speeches. Last week, we studied the bill in the Legal and Constitutional Affairs Committee, or LCJC.

It was a real treat to have stakeholders at the committee this time. During our study of Bill S-11 in the last Parliament, we heard from the incredibly dedicated officials who have worked on this initiative for years and from the Minister of Justice at the time, David Lametti, but we didn’t have non-government witnesses.

Last week at LCJC, we heard from Minister Fraser, the officials and representatives from La Chambre des notaires du Québec. I want to thank them all for their work and their testimony, especially the officials France Allard, Robert Dufresne and Moïra Létourneau.

I am also grateful for the engagement of my colleagues, whose excellent questions led to a great discussion. I will share with you today the juiciest snippets, but first, a reminder: Bill S-6 harmonizes civil law and common law across 51 federal statutes to ensure that anglophone and francophone lawyers, working in either legal tradition, can effectively interpret and apply the law.

Harmonization is a decades-long process. It involves consultation, relationship building and patience — so much patience. Bill S-6 is particularly focused on acts related to finance, but it also updates framework statutes, such as the Official Languages Act, the Canadian Human Rights Act, the Interpretation Act and the Access to Information Act.

I understand that many feel Bill S-6 may be inconsequential. To my great chagrin, this bill does not generate headlines or dominate social media discussions. It amends terminology, updates concepts and modifies provisions in federal statutes. It does not transform public policy. It does not create new programs.

Much of this work is technical. Much of it is incremental. It often proceeds without public attention. Yet, it still contributes to the stability and effectiveness of our institutions. It performs work that is fundamental to the coherence and integrity of Canada’s legal system.

Whereas some legislation changes the architecture of government, other legislation ensures that the foundations remain sound. Bill S-6 belongs firmly to the second category.

Harmonization is an exercise in translation, yes, but also in legal meaning. Words that appear similar may carry different legal consequences within different legal systems. Concepts that are familiar in one tradition may not exist in precisely the same form in another. A federal statute that functions perfectly well within a common law framework may create uncertainty when applied within a civil law context, unless the legislation is carefully drafted to account for both traditions. This is why harmonization matters. It’s why I’m proud to sponsor this bill.

Canada’s unique constitutional fabric is reflected in the work we’re discussing here — French and English, common law and civil law.

These days, though, the government co-drafts. Rather than preparing legislation in one language and translating it into another, legislative drafters work simultaneously in English and French. More importantly, they draft simultaneously with an awareness of both legal traditions.

Unfortunately, that means that I likely won’t have the chance to sponsor many more of these harmonization bills. I’ll have to make this speech count. So what did we discuss in committee?

I’ll end the suspense. I know you’re all on the edge of your seats.

Let’s start with the Chambre des notaires du Québec, which was adroitly represented by Bruno Larivière and Antoine Fafard. The Chambre des notaires du Québec represents almost 4,000 notaries whose primary mission is to protect the public.

This organization has been working with the federal government on harmonization since 1990. Mr. Larivière gave some examples to illustrate the impact of this work. He mentioned that the term “exécuteur testamentaire” has been replaced by “liquidateur” and that the term “curateur” became obsolete following the 2020 reform of protection regimes.

The Chambre des notaires du Québec told us that Bill S-6 is a step in the right direction, and it committed to being an active partner in continuing this harmonization effort.

At committee, Senator Pate raised the issue of legal pluralism, and I’m glad she did. She said there’s a fundamental difference between Canada’s justice system and Indigenous-led traditions. The latter deals with culture, healing and return to community, rather than the colonial approach of incarceration and reintegration.

Minister Fraser told us that we’re running on parallel tracks: harmonization initiatives on one and recognition of Indigenous legal traditions on the other. I’m eager to see progress on both.

Just last night, at the Indigenous Peoples Committee, Inuit leader and ITK President Natan Obed told us as part of our study on the duty to consult:

This country has a long way to go on accepting that Indigenous Peoples have democracies and governance models that this country was founded on and is not just composed of municipalities, provinces, territories and the federal government but is also a multilateral space that includes First Nations, Inuit and Métis democracies as well.

So we’re having this conversation about legal pluralism more and more often. That’s a good start, and sustained action would be even better.

Senator Oudar raised an interesting question: How will the government communicate the changes to ordinary Canadians once this bill is passed? This is a question that I ask myself all the time: How can I make dense bills, complex policies and Senate procedures accessible so that Canadians feel involved in my work and the work of the Senate?

Minister Fraser told us that the individual on the street likely isn’t thinking about the unique interpretive differences between legal systems. That is too bad.

Our chair, Senator Arnot, asked what enactment in Bill S-6 is considered the most consequential. The minister’s answer is quite telling:

It is an odd thing to say as a minister that you hope your legislation doesn’t have a substantive impact, but it is to prevent future harm from occurring based on differing interpretations. I apologize if that’s an odd response, but my hope is that there will not be significant impacts from the changes other than an alignment of what the words mean.

It is consequential for the legal technicians — for lawyers. It is consequential for the foundation of our legal systems, but it is not necessarily powerful or interesting to people who don’t do this work on a regular basis.

I also want to thank Senators Saint-Germain, Aucoin and Simons for engaging with the subject matter. I encourage you to read the transcript — though, I’m sure you already have, right?

I’ll end my discussion of the committee’s work with Senator Batters’ question: Why did the previous version of this bill, Bill S-11, die on the Order Paper, following the Senate’s efficient and effective study?

Minister Fraser committed to working diligently to ensure the House of Commons moves this bill through the legislative process, and I’m glad to hear that.

Honourable senators, it was an honour to sponsor Bill S-11 during the last Parliament. It is an honour to sponsor Bill S-6 now. It is my hope that the second time will be the charm and that we can see this project through to the finish line, not because I cannot speak any more about this bill, but actually because my staff are running out of jokes about harmonization. While the patience of officials appears unlimited, I am sure they are eager to see many years of work finally completed.

Ms. Allard told us, during our study in committee, that she thinks it would nearly call into question the whole idea of harmonization if we keep waiting and if this bill is not passed. The reason it’s so voluminous is that there have been delays. The work has continued, and new provisions have been added compared to what would have been in a previous bill.

I’m looking at the critic, Senator Carignan, and I am looking forward to his third reading speech.

I want to honour the work of public servants who support everything we do. They are experts in their fields. They have spent years working on this. It’s time.

Let’s move this bill to the House with strong encouragement to thoroughly and efficiently study Bill S-6 so that it can receive Royal Assent. Thank you. Nia:wen.

Senator Batters, do you have a question?

Thank you. Would Senator Clement take a question?

Yes.

Thank you very much for your reference to my questions to Minister Fraser in your speech. I wanted to make it clearer that, yes, certainly the bill did die on the Order Paper, but this was a case where the government decided to introduce the predecessor bill in the Senate, and then the Senate dealt with it quite quickly and efficiently, as you referenced. Then, before it died on the Order Paper, it actually sat without being called once by the government in the House of Commons for two and a half years.

Did you personally find that to be disappointing? I know you were the sponsor of the predecessor bill and probably had a good amount to do with it moving quickly and efficiently through the Senate. As you referenced, you have been quite engaged in this topic. Did you continue to watch that bill proceed, disappointed as the months ticked by for two and half years? Now you’re in the same spot again.

Thank you for that question, Senator Batters. I made jokes here to try to move this speech along, by I’m very engaged with this process. I’m a civil law and common law lawyer, and I have great respect for this work and for the work of the officials in particular.

Yes, I did pay attention to that, and I’m going to pay attention to this one. I’m certainly going to add my voice to the voice of those officials who have been waiting a long time and doing this work. So, yes, I continue to be invested, and I will continue to raise the issue.