Federal Law–Civil Law Harmonization Bill, No. 4

Moved second 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 to speak in support of Bill S-6, the federal law—civil law harmonization act, no. 4. I’m proud to sponsor this bill again, after having the honour of doing so in a previous session of Parliament.

Last time we studied this bill, you were all incredibly patient and, if I remember correctly, very enthralled by the mini course we took together on common law and civil law. Knowing we have many new senators amongst us since the Forty-fourth Parliament, I’ll take this opportunity to again teach the course you didn’t know you were signing up for today, Harmonization 101.

Officially, Canada is bilingual and bijural. We have codified French and English, common law and civil law, as the languages and legal systems of the country. We know, of course, there are many other languages and legal systems in place here: Indigenous ways of knowing and communicating. This bill doesn’t deal with Indigenous laws, but it’s important to me that they exist in this speech, in this space and in this conversation.

I was so lucky to meet with Professor John Borrows last December during a recent trip to Toronto. He is one of the world’s leading scholars in Indigenous law. He’s also kind and generous with his time. Professor Borrows teaches a course at the University of Toronto that addresses the intersection of Indigenous Peoples’ laws with Canada’s laws. He told me about the work happening across the country to ensure law students learn about Indigenous legal systems throughout their program. I’d love to be in those classrooms. I’d love for my next law degree to be in Indigenous law.

Although this bill does not directly address Indigenous law, pluralism is a priority. Government officials are working to implement the United Nations Declaration on the Rights of Indigenous Peoples. Pluralism is more complex than bijuralism, but, as I will explain later, complexity is always an asset.

I have reviewed the progress report on the implementation of this United Nations declaration. I was pleased to read that a dialogue session on legal pluralism had been organized. The goal was to explore innovative approaches for applying Indigenous rights to specific agencies. The work must therefore continue.

The goal of harmonization is to ensure that our laws are consistent with the two legal traditions that shape the daily lives of Canadians.

As the title suggests, this is the fourth bill introduced as part of the Department of Justice’s harmonization initiative.

The harmonization initiative aims to ensure that, in the area of private law, federal laws adequately address four key audiences: French-speaking and English-speaking civil law practitioners, as well as English-speaking and French-speaking common law practitioners.

These audiences live in different legal traditions and use different legal vocabularies. Harmonization is about ensuring that civil law and common law concepts are properly reflected in both English and French and that federal statutes and regulations fit coherently with the provincial or territorial private law that applies to Canadians on matters like property, security, contracts and civil liability. Harmonization is a technical, non-controversial exercise that results in updated legal terminology while preserving the underlying legislative policy.

Folks, I am a total nerd about this stuff. I told you in my speech about Bill S-11, all the way back in December 2022, that I have a common law degree and a civil law degree from the University of Ottawa, and I take a lot of pride in that. We have incredible interns in our office every semester through the University of Ottawa’s legislative development program, and these are incredibly bright law students who support me and my team. To be honest, I’m a little jealous of them. They’re in the midst of their studies right now, and if I were getting my law degrees today, my experience would be so different. Law schools are getting more progressive and more inclusive, and, just as you’ll hear later, our drafting is also becoming more inclusive.

Honourable colleagues, there is a quiz, so I hope you’re taking notes. Here are a few key dates you may want to remember. In 1774, the Quebec Act established and formalized the coexistence of civil law and common law traditions in Canada. That coexistence was later confirmed by the Constitution Act, 1867, which gave the provinces substantial residuary power in the areas of property and civil rights.

In 1994, the updated Civil Code of Quebec came into force, and the Department of Justice undertook the harmonization initiative.

What does that actually mean? What exactly is harmonization?

Federal authorities are reviewing hundreds of laws that deal with private law.

Harmonization acts were passed in 2001, 2004 and 2011. So far, 88 statutes have been harmonized. Bill S-6 is the next step in this long-term initiative.

So we won’t be harmonizing statutes forever, colleagues. For several decades, federal laws have been co-drafted, which means they are drafted in English and French simultaneously — as I said, inclusive — but in the meantime, we need to harmonize.

Bill S-6 makes statutes clearer and easier to apply across the country. It amends 51 statutes in nine different departments. There are 640 harmonization proposals, the majority of which relate to legislation about financial institutions.

All of that adds up. Other than the officials, no one knows that more than me: Carrying around that brick of a bill has been no joke. Bill S-6 amends several other acts, including the Official Languages Act, the Canadian Human Rights Act, the Interpretation Act and the Access to Information Act.

Bill S-6 is substantively the same as the former Bill S-11, which was introduced in October 2022. The Senate passed that bill without amendment after brief but rigorous study at the Legal and Constitutional Affairs Committee. I’m enthusiastic — really — to nerd out about harmonization again at that committee. What’s even nerdier than a nerd? A quantum nerd. I’m ready.

The committee’s study will also be an opportunity to pay tribute to the outstanding officials who worked on this bill. They are true superstars, the most brilliant experts in the entire public service. Their work often goes unnoticed, but it is the product of many years spent drafting this bill. Harmonization is a highly technical process that demands tremendous precision on the part of Department of Justice professionals. Thank you, Mr. Allard. Their work is, quite simply, impressive.

In preparing the bill, officials consulted more than 400 stakeholders — including, among others, financial institutions, Canadian law societies, bar associations, law faculties, law professors and provincial and territorial ministers of justice — to seek their input on the proposals. Members of the public were also invited to comment on the proposed amendments.

I want to acknowledge that the consultations were done in 2017, so when the Senate passed this bill in 2022, it wasn’t so long ago. Unfortunately, the bill died on the Order Paper. Since 2022, however, only minor changes have been made to this harmonization bill. Those changes reflect an evolution in Quebec’s regime for the protection of vulnerable persons, specifically the elimination of the notion of curatorship and advisers in that province.

As a result of this change in Quebec, minor technical adjustments were made to 13 provisions in seven of the 51 statutes covered by Bill S-6. These technical amendments were made in consultation with the relevant federal departments. Honourable senators, please check your inboxes. The Office of the Government Representative in the Senate has released, in both official languages, a table comparing the previous Bill S-11 and the current Bill S-6.

I have had the opportunity to review the table, and I believe it will be useful to you as you study the bill. You will see many references to curators, and you will notice that certain sections have been removed because they are no longer relevant. I truly hope this bill passes this time, as it is the result of decades of work.

But I will be here again if you want me to do it again; however, that’s not what we want.

Harmonization may seem like kind of a dry topic, but it has very practical consequences. For some of us — for me, anyway — it is a pretty cool topic. For example, some federal statutes used common law terminology in English and civil law terminology in French, which caused confusion for anglophone jurists who specialize in civil law. Here are some specific examples.

Harmonization includes replacing terms we don’t use anymore or that are incompatible with a new private law concept. For example, English texts use the words “letting” and “hiring” when referring to leases. Those terms are not applicable in civil law anymore. We’re replacing them with the term “lease,” which is the appropriate word in both civil law and common law.

Are you following me?

I will give you another example: Some federal statutes respecting contract law are missing the civil law term “mandatary.” The solution is to twin the words “agent” and “mandatary” in the English texts to provide fuller harmonization, translation and interpretation of the concept. This is the precision needed to make our bijural system work.

These are small textual changes with large practical consequences. They ensure that Canadians, businesses, legal professionals and judges can understand federal statutes in the language and legal concepts that are applicable. Harmonization is, first and foremost, an act of respect for our bijural systems.

Bill S-6 amends statutes that deal with matters of crucial importance to Canadians’ everyday lives. By clarifying federal statutes and making them more consistent with provincial private law, Bill S-6 contributes to linguistic equality and accessibility. It enables Canadians to read and understand federal statutes in the official language of their choice by using terminology that is consistent with the concepts, rules and principles of their own provincial or territorial legal system.

By passing Bill S-6, Parliament will strengthen harmonization efforts in Canada and contribute to developing a body of legislation that respects legal traditions.

Now I’m going to talk about Cornwall.

I always have to talk about Cornwall. You know that.

I love talking about Cornwall, and I never miss an opportunity to talk about my community. You may wonder what Bill S-6 has to do with this resilient city on the banks of the St. Lawrence. What the two have in common is complexity.

Cornwall is a strong, resilient community because it’s complicated. It balances francophones, anglophones and new Canadians; east end and west end; and urban and rural. Managing these differences is good exercise, and all that exercise makes us well muscled.

Bill S-6 is the same. Bijuralism is complicated. It is balancing two languages and legal systems across a massive country. Doing so is not perfect or simple, but our commitment to honouring both makes us a better country.

Going beyond bijuralism and bilingualism, including highlighting, promoting and valuing Indigenous laws and languages, makes us a better country, too. It’s complicated work, and it makes us stronger and more resilient.

If we’re going to sum all this up, let’s do it in six points in honour of Bill S-6. First, this bill consolidates decades of harmonization work. Second, it respects and reflects both civil law and common law traditions in both official languages. Third, the bill improves our justice system by making federal statutes clearer, more coherent and accessible. Fourth, it is technical but necessary. Fifth, the bill modernizes key statutes. Sixth, it sets the stage for further work on regulations and future harmonization efforts.

In 2011, while speaking to Bill S-3, former senator David Angus told his colleagues that:

. . . all Canadians benefit from harmonization. Not only does harmonization enable Quebecers to identify more with federal legislation, but it also clarifies federal statutes, which become more respectful of institutions proper to the civil law or the common law. In addition, it makes the application of federal legislation more efficient, which should improve the overall effectiveness of the administration of justice in Canada.

It is now up to us to pass this harmonization bill and pursue a tradition following previous iterations that were passed in both chambers unanimously.

Thank you for your attention, honourable senators. There will not be a quiz as we wrap up “harmonization 101,” just this: my request to you that we proceed with this bill out of respect for all the great work done by talented officials over many years so that nerdy lawyers like me across the country can continue to operate in the official language and legal tradition of their choosing.

Thank you.