Moved third reading of Bill S-11, 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, today I rise to speak to Bill S-11, which I am proud to sponsor.

Bill S-11 is the 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.

To recap, our work on this harmonization has been going on since 1993. Bill S-11 makes technical amendments to 51 acts, particularly acts governing financial institutions.

I know that this bill doesn’t excite everyone, but our study at committee pulled me back to law school. It was fun to be back in a room of fellow geeks — and I say that affectionately — equally interested in the subject matter: Senator Harder inquiring about the harmonization process; Senator Pate pushing for clarity around whether harmonization is the right construct for inclusion of Indigenous traditions; and Senator Batters speaking to legislative drafting as a very particular expertise. I may not be able to do the committee meeting justice here — bad pun coming, I’m warning you. While I know that Santa Claus will not keep your Christmas free of any clause-by-clause, I hope that over the holidays, you check out this committee meeting of eager geeks studying Bill S-11.

Since it was introduced in the Senate in October, we have heard from Senators Dupuis, Dalphond and Carignan, all of whom have pointed to the importance of this work. They have my thanks for their contributions to this discussion.

Senator Carignan told us that all previous harmonization acts received multi-party support both here in the Senate and in the other place. He also told us that he supported this bill at second reading because it will strengthen the vitality of bijuralism.

Senator Dalphond said the following, and I quote:

Not enough people realize what Canada contributes. As a bijural federation, it is something of a rarity internationally. Our contribution, not only to common law in French and civil law in English, but to bijuralism at the same time, is entirely unique, in my opinion. In that sense, in Quebec and elsewhere in Canada, I think we can be proud. We are participating in two of the world’s great legal traditions, which is also fantastic.

My colleague Senator Dupuis very clearly explained that this harmonization initiative is based on a legal framework that is deeply connected to the history of Quebec and Canada and to this reality. The coexistence of common law and civil law dates back over two centuries. As we all know, these are just two of Canada’s legal traditions. It is important to add that Indigenous law deserves more of our attention.

The Honourable Serge Joyal sponsored a harmonization bill in 2004. In his third reading speech, he spoke of their conversations around Indigenous law as “totally new in parliamentary debate.” Honourable senators, it is no longer new to us, and it certainly isn’t new to the communities across Canada working on the revitalization of their traditions and cultures. I’m hopeful to see more progress, action and inclusion.

The Legal and Constitutional Affairs Committee considered Bill S-11 for two short but intense meetings. We heard from Justice Minister and Attorney General of Canada David Lametti and Department of Justice officials France Allard and Riri Shen. Minister Lametti told us that his department is working hard to support the reassertion of what he described as “Indigenous normative systems.” I was glad to hear that legal pluralism is in the minister’s DNA and that the flourishing of Indigenous legal systems is a priority. The minister spoke of integrating Indigenous law into our university programs:

I think the role of the Minister of Justice and the ministry is to facilitate and support that kind of work, and I think at some point there will be another stage of evolution in Canadian law.

The committee also heard testimony on the consultations, during which over 400 stakeholders were invited to provide comments and criticisms. We paid special attention to the proposals of the Chambre des notaires du Québec, and I quite enjoyed hearing the explanations the witnesses gave of the drafting process for this bill.

We know that harmonization does not mean that one system disappears at the expense of the other; instead, it is about the coexistence of common law and civil law in the same federal legislation.

To that end, a specific approach called co-drafting is used. It was highlighted during our discussion in committee. Instead of writing a code, constitution or bill in English, following the common law tradition, and then translating it to French, co‑drafting means that the text is written in both English and French, considering common law and le droit civil at the same time.

In the geeky fashion mentioned earlier, Senator Cotter and Justice Minister Lametti both proudly spoke to their experience of co-drafting.

When we draft legislation, we capture the terminology, concepts and principles of both legal traditions. It is worth pausing here to reinforce that co-drafting means we will not always have to retroactively harmonize; new bills are drafted according to the policy on legislative bijuralism. Ms. Allard told us that the co-drafting exercise forces the establishment of a dialogue between two languages, and I like picturing that. Instead of working in silos, the work is integrated and happens simultaneously, leading to a more thorough understanding of each other.

Now, here we are at third reading, and it is my responsibility to remind you of all the reasons why this bill is important and why it should be passed.

I have already used my “box of chocolates” analogy. That got me a gift of chocolates from Senator Bovey, by the way. Thank you. I have called out to individual senators to let them know that the acts that they care about are being amended by Bill S-11, and I have one more communication tactic left in my toolbox, and that is an appeal to the heart.

Nation-building is complicated and messy, and constantly changing. Lines are drawn on a map with various justifications and are often fought over, disputed and renegotiated. It is comparing and contrasting how one nation does things versus another. It is defining culture, rules, language, regions and so much more. Nation-building is a ceaseless process of choices, consequences, actions and reactions.

This bill is about nation-building, even though it doesn’t include all our legal traditions, even though it is not making the papers, causing an uproar on social media or inspiring hearts and minds across the country. Sometimes nation-building is technical and particular, and just a little niche.

However, this is fundamental work. We’re ensuring the coexistence and vitality of two legal systems, two languages and two cultures. I look forward to a time when we can move beyond the so-called duality into a reality that encompasses traditions other than English and French, common law and civil law, but I know this work will take time. I’m happy to be part of it.

As we conclude our study of Bill S-11, let me briefly remind you what it does. First, it makes our legislation more understandable to all Canadians by using concepts and terminology that are appropriate and familiar to them, regardless of their province of origin or whether their daily lives are governed by common law or civil law.

Second, Bill S-11 minimizes uncertainty in the implementation and interpretation of legislative intent, which helps facilitate access to justice. Third, this bill advances the equality of status of English and French within the Canadian legal system.

Finally, Bill S-11 is a collaborative effort. This bill is a painstaking dance to incorporate provincial private law terminology into federal legislation. The constitution of provincial and territorial institutions, in addition to the 400 other stakeholders who took part in the consultations, reflects a respect for the constitutionally mandated role and jurisdiction of the provinces and territories.

In 2004, the committee studied a previous harmonization bill, Bill S-10. In their report on the bill, the committee referred to the testimony of the Honourable Irwin Cotler, then Minister of Justice. The report stated that the minister:

. . . encourages everyone to take the view that bijuralism is by no means exclusionary. Rather, he emphasized that it is an open model that he hoped would lead to a plural model, as time goes on.

I want to thank all of the officials, analysts and geeks for their diligent work and remarkable contributions to Bill S-11. Honourable senators, I hope you will join me in this opportunity to further the project of nation-building and support the passing of Bill S-11. Thank you, nia:wen.

I’d like to congratulate the sponsor of the bill on her speech, because she brought to life a very technical bill. That is talent.

I rise today to support Bill S-11 at third reading. Its short title is Federal Law–Civil Law Harmonization Act, No. 4. Bill S-11 was studied at a fast pace because the government wanted it passed before the holidays.

Although imposing because of the sheer number of pages, this bill is different than other government bills. It has garnered a consensus. It simply wants to clarify the terminology of legislative provisions without changing the rules of law at the heart of the 52 acts amended by Bill S-11.

To borrow the words that the officials used during the Senate committee’s study, the principle of a harmonization bill is not to alter the policy underlying the legislation’s provisions. The testimony of the officials at committee have convinced me that the content of Bill S-11 respects this principle.

That said, while recognizing the exceptional work of the officials who produced this technical bill that has garnered consensus, the parameters for the Senate committee’s study were not optimal given the government’s very tight deadline for passage of Bill S-11 this week.

Here are some examples of things that should be improved. I’m mentioning them in hopes the government will keep them in mind if it asks the Senate to study other harmonization bills in the future.

First, the Department of Justice Canada was very slow to send Senate committee members the list of groups and individuals consulted in 2017 when the bill was being drafted. Even though consultations wrapped up over five years ago, the government didn’t send us the list until yesterday. By then, the Senate committee had already completed its study.

For future bills, I’d suggest that the government promptly provide a list of the stakeholders it has consulted, so that there is no need for us to ask officials for it.

I also suggest that we be provided not only with the list of names of the stakeholders consulted, but also with a summary of what they said during the consultations, including their criticisms and suggestions for amendments to the bill.

If we were to receive these documents up front, it would increase the transparency of the government’s consultation process. These documents would also help us quickly identify key stakeholders who were not consulted, so we could invite them to the Senate committee.

Take, for example, the case of Bill S-11. Officials told senators in the technical briefing that Justice Canada had sought input from over 400 key stakeholders and members of the legal community. I believe that this consultation was certainly comprehensive, as the list of stakeholders contacted by the government includes a very impressive number of academic experts or organizations that could be impacted by the measures in the bill.

However, the only witnesses the Senate committee heard during its study of Bill S-11 were representatives from Justice Canada, including Minister Lametti. In other words, there were no non-governmental witnesses. The committee study lasted just one day and was held only five days after the committee received the order of reference to examine the bill.

I advise against using the same approach the next time we study a harmonization bill. I would remind senators that, unlike Bill S-11, the last three harmonization bills were studied over the course of several committee meetings. For example, in 2010, there was Bill S-12, which I sponsored.

As with Bill S-11, the government was trying to get its bill passed before the holidays, but its deadline left slightly more time for the committee to conduct its study. The committee was able to hold four meetings in 2010 to study Bill S-12, from December 1 to 9, which allowed it to be passed by the Senate on December 14, before Parliament rose for the holidays. Unfortunately, Bill S-12 died on the Order Paper, but its provisions were carried over in an identical bill, Bill S-3, which came into force in 2011.

That being said, although the Senate committee studied Bill S-11 for only one day, we were able to glean a lot of useful and necessary information that helped us properly analyze the bill’s content.

For example, the committee was able to examine the Chambre des notaires du Québec’s comments on Bill S-11, which were sent via letter on December 9.

Furthermore, departmental officials provided the committee with relevant explanations as to why they did not incorporate certain suggestions they had received from stakeholders, including some of those made by the Chambre des notaires du Québec, during the 2017 consultations.

The officials told us that they had dismissed those suggestions for one of four reasons. The first was that the suggestion would have had an impact on the legislative direction of the provisions to be harmonized. The second was that the suggestion was not required to clarify the legislative provisions to be harmonized. The third was that the suggestion proposed drafting choices that were not in keeping with federal legislative drafting conventions.

The fourth reason some of the comments received during the consultations were not incorporated was that they had to do with laws that were not on the list of acts that the government chose to harmonize in this bill.

It is important to understand that Bill S-11 amends 52 acts that were selected based on their sector and the departments responsible for them, so even though Bill S-11 is the fourth harmonization act, there are still other acts to harmonize in the future.

To summarize, even though the Senate committee’s study of Bill S-11 had some shortcomings because of the government’s tight timeline, I believe, based on the wording of the bill, the documentation we received from government officials, and their testimony in committee, that the bill deserves to pass.

In closing, I would like to come back to a question from Senator Clement and a comment from Senator Dalphond. Senator Clement asked me if, given Bill S-11’s contribution to advancing bijuralism in Canada, it was well received by my civil law colleagues, who are mostly francophones in Canada. I believe that Bill S-11 is a step forward. However, I would point out that federal legislation is supposed to be not only bijural, but also bilingual. I believe we have a long way to go in that regard and that Justice Canada still has a lot of work to do to uphold the principle of legislative bilingualism in Canada.

I am therefore in full agreement with Senator Dalphond’s demand, which he put forward in a question to Minister Lametti during his testimony in committee. This is what he asked him:

 . . . you spoke about access to justice and access to federal laws. The country’s most important law, the Constitution Act, 1867, contains only seven sections, or perhaps eight since last week, that have been enacted in both languages and have a bilingual version. There are still many sections, more than 100, that are official in English only.

What is the department doing to put an end to this unacceptable situation, which is contrary to section 55 of the Constitution Act, 1982?

If Bill S-11 can amend 52 acts to improve the harmonization of federal law with civil law, I am sure Minister Lametti has the power to do something to get the French version of Canadian constitutional texts enacted.

For instance, what is stopping the federal government from amending Bill C-13 on official languages to implement the recommendation set out in the Senate motion adopted on March 29? That motion simply calls on the government to consider, in its reform of the Official Languages Act, adding a requirement that the government submit an annual report detailing its efforts to enact the French version of the Canadian Constitution.

If the government truly believes that the principle of bilingualism in federal legislation is important, when will it finally do something to enact the French version of constitutional texts, which are the most important laws in the country?

This obligation has existed for 40 years, since the entry into force of section 55 of the Constitution Act, 1982. I have been a lawyer since 1988, and I wouldn’t want another generation of francophone lawyers to spend their entire professional careers working with Canada’s most important laws without having a French version or a version properly drafted according to the principles of bijuralism and bilingualism.

Esteemed colleagues, thank you for your attention. I would like to take this opportunity to wish you happy holidays. I hope the Leader of the Government has a good rest.

Senator McCallum?

Senator Moncion?

I’m sorry, Your Honour. Senator McCallum is not on debate. I am calling on rule 5-13(2). She cannot move the adjournment of the debate.

Normally, you would be correct, Senator Moncion; however, once debate has started on a topic, and I call upon a senator, I’m calling upon them on debate.

Rule 5-13(2) would apply. She would be on debate and, as a consequence, can move the amendment.

Do we have a seconder for the amendment?

She said “adjournment.”

My apologies. She can move the adjournment. She is on debate once I call upon her.

But I heard “adjournment of the Senate.” That’s what she said.

Just to clarify, colleagues, rule 5-13(2) says you must be on debate to move the adjournment of the Senate. Debate has started on Bill S-11. When I called upon Senator McCallum, I was calling upon her on debate on Bill S-11. It is, therefore, quite permissible for her to move the adjournment of the Senate.

I am now asking if there is a seconder for Senator McCallum’s adjournment motion? If there isn’t, then it cannot be entertained.

Senator Housakos, are you seconding this?

She does not need a seconder to adjourn the Senate.

Every motion needs a seconder, Senator Housakos.

On a vote, but not on an adjournment.

On adjournment as well.

Are senators ready for the question on the main motion?

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

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to and bill read third time and passed, on division.)